Hiibel v. Nevada

By Allan Bormel
web posted March 29, 2004

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:

Deputy Dove: "You've got any identification on you?"
Larry Hiibel: "No, I . . .why should I have an ID?"
Deputy: "The thing of it is; we're conducting an investigation OK,
so I need to see some identification."
Hiibel: "Naw, just take me to jail."

Later, after Deputy Dove had asked him numerous times for his
name:

Hiibel: "I don't know what I'm charged with."
Deputy: "I'm . . .you're not charged with anything. I'm conducting
an investigation . . .and I want to know what I got going on
here."
Hiibel: "OK, take me to jail."
Deputy: "No."

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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