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Hiibel v. Nevada
By Allan Bormel
What confluence of events in rural Winnemucca, Nevada could peak the interest of powerhouse liberal and libertarian groups alike? On March 22, 2004 the US Supreme Court heard oral arguments in the case of Hiibel v. Sixth Judicial Court of Nevada. A disparate array of odd bedfellows have filed amicus curiae briefs in support of Larry Hiibel, who claims he was wrongly arrested on May 21, 2000 for refusing to tell Humboldt County Sheriff's Deputy Lee Dove his name. The groups supporting Hiibel include the American Civil Liberties Union, the Cato Institute, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the National Law Center on Homelessness & Poverty.
All parties agree on the facts of the case, largely due to the existence of a videotape of the arrest captured by Deputy Lee Dove's dashboard camera. The deputy received a call that a man was hitting a woman in a truck. After finding and speaking to the eyewitness, the deputy found the red and silver GMC pickup parked on the side of the road. Skid marks on the gravel indicated the truck might have been brought to an abrupt halt. The woman was on the passenger side inside the cab and the man was outside the truck. Deputy Dove asked the man his name, as is his authority under Nevada Revised Statute 171.123. The man refused, thrusting his arms towards the deputy and proclaiming, "Take me to jail, take me to jail." The deputy asked Hiibel his name eleven times. Hiibel appeared agitated, was uncooperative, and the deputy suspected he was intoxicated.
Under authority granted by Nevada Revised Statute 199.280, Deputy Dove placed Hiibel under arrest for obstructing an officer in discharging his duty. Later, Hiibel was found guilty of that charge and fined $250. The woman in the truck turned out to be Hiibel's 17-year-old daughter Mimi, and although blows were exchanged, both she and the state of Nevada declined to file battery or domestic battery charges.
These are excerpts of the exchange between Hiibel and Deputy Lee Dove:
Later, after Deputy Dove had asked him numerous times for his name:
It was only after more requests by Deputy Dove for identification, and further refusals by Hiibel that the deputy placed Hiibel under arrest. After being cuffed, Hiibel was searched and a knife was found on him, which the officer confiscated and said, "This will be returned to you later."
Hiibel appealed his conviction to the Nevada Sixth Judicial District Court and lost. He then appealed to the Nevada Supreme Court, which refused to hear the case, thus affirming the District Court's decision. Later, the ACLU and other groups concerned with civil liberties became involved and petitioned the US Supreme Court to review the case. The US Supreme Court receives more than 7 000 petitions a year and only agrees to hear about 100. On October 20, 2003 the Court agreed to hear this case (writ of certiorari).
The issue is: Is Nevada Revised Statute 171.123 unconstitutional; specifically, were Larry Hiibel's Fourth Amendment rights against unreasonable searches and seizures and his Fifth Amendment rights against self-incrimination violated?
Nevada 171.123 in pertinent part states: "Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer."
The courts have been conflicted on this issue. The Ninth Circuit Court of Appeals has ruled on three separate occasions that a person being detained because of an articulable suspicion of criminal activity may refuse to identify himself. The most recent case was Carey v. Nevada Gaming Control Bd. (9th Cir. 2002). The Tenth Circuit Court of Appeals has been on the opposite side of the issue. The most recent case was Albright v. Rodriguez (10th Cir. 1995). The US Supreme Court has heard this issue twice before, in Brown v. Texas (1979) and Kolender v. Lawson (1983), but decided both cases on other grounds. The Court did address this issue in Terry v. Ohio (1968), but not conclusively. Terry gives law enforcement the right to stop and question suspects meeting the standard of "reasonable suspicion," but also states that the suspects are not required to answer. All parties concur the time has come to clarify this issue.
There is genuine concern in the country that in our fervor to fight terrorism we are allowing law enforcement to encroach upon our civil liberties. This concern – while worthy of continued vigilance – is misplaced here. This case is not the Custer's last stand of civil liberties.
If anything, this case reinforces the importance of identification as a necessary, minimally invasive law enforcement tool. When Deputy Dove arrived upon the scene, it was his duty to determine whether a crime had been, was, or was about to be committed. He did not happen upon this scene randomly; he was called to investigate a crime in progress. It is well-established, prudent law enforcement procedure to get the suspect's name and check to see if he is wanted on any outstanding warrants, or if he meets the description of suspects wanted for any other recently reported crimes. That is what we pay him for. He is our representative in the field. It's his duty to determine if this individual represents a risk to the public, and that's exactly what he attempted to do.
It is also incumbent upon Deputy Dove to be alert and take steps to insure his personal safety. This type of stop can be highly dangerous to police. In the year 2000, fifty-one officers were murdered in the line of duty. Many of these murders took place during traffic stops, arrest situations, response to disturbance calls, and investigations of suspicious persons. Of the suspects who committed these killings, nine had previously assaulted a police officer and twelve were on probation or parole. A total of 15,915 officers were assaulted that year. It's been recognized by the courts that an officer has wide latitude to control this type of situation if he feels threatened, up to and including drawing his weapon. You can clearly see from the videotape that Larry Hiibel was agitated and uncooperative as would be consistent with someone intoxicated and involved in a physical confrontation, as had been reported by the witness. Hiibel seems unable or unwilling to comprehend that the deputy is attempting to establish if a battery had occurred; he seems to think the issue is whether his truck is pulled far enough off the road.
It's interesting to note that no one involved with this case treated it as a traffic stop. Deputy Dove correctly did not ask Hiibel specifically for his license and registration, because he didn't see Hiibel driving the pickup. The Nevada courts have looked at this case as an investigative interrogation, which could happen anywhere. And the ACLU, in their challenge, have conveniently ignored the eyewitness report that a beating was taking place inside a truck, instead inferring that Hiibel being questioned on the side of the road is the same as him being questioned in his home without a warrant.
But is this case really so different from an ordinary traffic stop? How did the truck come to be pulled over beside Grass Valley Road? It wasn't parked near Hiibel's house or a relative's house. The only other person present was his daughter, who was in the passenger seat. Was the truck placed there by space aliens? The word "reasonable" is used countless times in the law. Wouldn't it be reasonable to assume that the truck got there by Hiibel driving it? That would make his apparent intoxication a bigger issue. It would also make his legal requirement to show ID clear-cut.
That aside, it wasn't a traffic stop; it was an investigative stop, also know as an investigative interrogation. It's called a Terry stop, based on the previously mentioned Terry v. Ohio (1968) where the US Supreme Court ruled that a police officer may, consistent with the Fourth Amendment, stop and briefly detain an individual reasonably suspected of criminal activity. Such a stop does not have to meet the higher standard of "probable cause" but a lower standard of "reasonable suspicion."
The ACLU brief is riddled with errors and exaggerations. One example is: "It is exceedingly unlikely that the immediate disclosure of an individual's identity will substantially, or even minimally, forestall any threat to the officer executing the search." This is an unsupportable supposition that completely ignores the thousands of times a year that officers run ID checks, find suspects with violent records, and call for backup, thus making the subsequent questioning or arrest safer. And the Cato Institute, a usually reliable libertarian watchdog organization, lost the ball in the lights on this one. In its brief, Cato repeatedly compares Hiibel to cases where homes were invaded without search warrants and people on the street were stopped and questioned without reasonable suspicion. They lose focus altogether when they state: ". . . case raises vital questions about the power of government to stop individuals who do not wish to be stopped and to demand answers from individuals who do not wish to speak. . ." Since when is the test for criminality whether the criminal wishes to be stopped or questioned? Criminals do not walk around wearing tee shirts emblazoned with "I am the criminal." Law enforcement, generally lacking psychic ability, needs investigative tools to cull the law-breaker from the law-abider.
Nevada 171.123 is extremely well circumscribed. It could be the model for the rest of the country. Law enforcement can only detain someone if there is reasonable suspicion that a crime has been, is, or is about to be committed. The detention must be brief (60 minutes or less). The detainee is not required to answer any questions except one: Who are you?
In our complex world, where irrational people commit irrational acts all the time, the Nevada statute seems a rather benign law enforcement tool. We wouldn't think of letting someone board a plane, get a driver's license, or receive a bank loan without proper identification. In State v. Flynn (Wis. 1979) the court stated: "That unless an officer is entitled to at least ascertain the identity of the suspect the right to stop serves no useful purpose at all." In Brown v. Texas (1979) the Court ruled: "Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop."
The sky isn't falling. Storm troopers aren't demanding "your papers please!" Your Fourth Amendment protection against unreasonable searches in your home is intact, as is your Fifth Amendment right against self-incrimination. Nevada Justice C. J. Young had it right when he said, "An ordinary person would conclude it was Hiibel who was unreasonable, not the law." Nevada 171.123 is a necessary, measured, rational law enforcement tool. US Supreme Court Justice William O. Douglas once wrote: "Common sense often makes good law." Let's hope common sense prevails.
Allan Bormel, a retired small businessman, is embarking on a new career
as a freelance opinion columnist.
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