Monday, March 22, 2004

The Supreme Court yesterday heard oral arguments in a constitutional challenge to a Nevada law that requires people to identify themselves to police officers.

Brought before the court by Nevada rancher Larry Hiibel, the case is rooted in whether the state law violates Fourth Amendment protections against unreasonable search and seizure and a Fifth Amendment right against self-incrimination.

In the case, previously upheld by the Nevada Supreme Court, Mr. Hiibel was convicted of a misdemeanor for refusing to show identification to a Humboldt County sheriff’s deputy who was responding to a possible assault call in May 2000.

Some of Mr. Hiibel’s supporters — such national groups as the CATO Institute and American Civil Liberties Union have filed briefs on his behalf — maintain that, if not overturned by the high court, the case might set a precedent leading to a requirement that all Americans must carry identification at all times.

The justices appeared divided on the case, questioning with equal aggression Nevada State Public Defender Robert E. Dolan, who is representing Mr. Hiibel, and Conrad Hafen, Nevada senior deputy attorney general, and Sri Srinivasan, assistant to the U.S. solicitor general, who are fighting the challenge.

At issue before the justices is whether a person’s refusal to show identification to a police officer gives the officer probable cause to arrest the person. Although the officer must have probable cause to make an arrest, a legal caveat referred to in law-enforcement circles as “Terry stops” allows him to temporarily detain an individual on less than probable cause.

During one exchange, Justice Antonin Scalia asked Mr. Dolan about what sort of questions a police officer can ask an individual that must be answered.

“None at all?” he asked.

Mr. Dolan answered by saying under the Fifth Amendment, an individual has no legal obligation to respond to the officer.

The exchange ended when Justice Scalia asked whether a police officer is allowed to ask questions, but shouldn’t expect answers.

Based the 1968 high court case of Terry v. Ohio, an officer can detain and pat down an individual for weapons should the individual be encountered under sufficiently suspicious circumstances — for example, wandering in an alley behind a jewelry story during early hours of the morning.

In the Hiibel case, the question is whether such circumstances were involved in May 2000 when a Humboldt County sheriff’s deputy demanded to see identification from Mr. Hiibel, who was smoking a cigarette beside his truck on the side of the road and speaking through the vehicle’s window with his daughter.

According to a videotape transcript of the incident from the deputy’s squad car, the deputy approached Mr. Hiibel, saying there had been a report of a fight and then repeatedly asked to see the man’s identification.

When Mr. Hiibel declined, telling the deputy he would cooperate but he had done nothing wrong, he was arrested and later convicted of a misdemeanor under a state law that requires any person lawfully detained by police to identify themselves.

The conviction was upheld by state courts and eventually reached the Nevada Supreme Court, which ruled by a 4-3 decision that requiring identification during a police investigation “strikes a balance between constitutional protections of privacy and the need to protect police officers and the public.”

The U.S. Supreme Court is expected to rule on the case in the next few months.

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