Supreme Court hears privacy case

updated 9:07 p.m. ET March 22, 2004

WASHINGTON - Do you have to tell the police your name? Depending on how the Supreme Court rules, the answer could be the difference between arrest and freedom.

The justices heard arguments Monday in a first-of-its-kind case that asks whether people can be punished for refusing to identify themselves.

The court took up the appeal of a Nevada cattle rancher who was arrested after he told a sheriff’s deputy that he had done nothing wrong and did not have to reveal his name or show identification during an encounter on a rural road four years ago.

Larry “Dudley” Hiibel, 59, was prosecuted for his silence and finds himself at the center of a significant privacy rights battle.

“I would do it all over again,” Hiibel, dressed in cowboy hat, boots and a bolo tie, said outside the court Monday. “That’s one of our fundamental rights as American citizens, to remain silent.”

The case will clarify police powers in the post-Sept. 11 era, determining whether officials can demand to see identification whenever they deem it necessary.

Nevada’s senior deputy attorney general, Conrad Hafen, told the justices that “identifying yourself is a neutral act” that helps police in their investigations and does not by itself  incriminate anyone.

But if that is allowed, several justices asked, what will be next? A fingerprint? Telephone number? E-mail address? What about a national identification card?

“The government could require name tags, color codes,” Hiibel’s attorney, Robert Dolan, told the court.

Competing constitutional claims
At the heart of the case is an intersection of the Fourth Amendment, which protects people from unreasonable searches, and the Fifth Amendment right to remain silent. Hiibel claims that both of those rights were violated.

Justice Antonin Scalia, however, expressed doubts. He said officers faced with suspicious people needed authority to get the facts.

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“I cannot imagine any responsible citizen would have objected to giving the name,” Scalia said.

Justices are revisiting a 1968 decision that said police may briefly detain someone on reasonable suspicion of wrongdoing, without the stronger standard of probable cause, to get more information. Nevada argues that during such brief detentions, known as Terry stops after the 1968 ruling, people should be required to answer questions about their identities.

Justice Sandra Day O’Connor pointed out the court has never given police the authority to demand someone’s identification without probable cause that they have done something wrong. But she also acknowledged that police might want to run someone’s name through computers to check for a criminal history.

Argument with daughter
The encounter in this case, which was videotaped, shows Hiibel by a pickup truck parked off a road near Winnemucca, Nev., on May 21, 2000.

A deputy, who was called to the scene because of a complaint about arguing between Hiibel and his daughter in the truck, asked Hiibel 11 times for his identification or his name.

Hiibel refused, at one point saying, “If you’ve got something, take me to jail” and “I don’t want to talk. I’ve done nothing. I’ve broken no laws.”

Hiibel never acted in a threatening manner and cooperated when handcuffed. His daughter, a teenager at the time, was thrown to the ground and arrested when she protested his arrest, the videotape shows. She was not convicted of any crime.

Hiibel was convicted of a misdemeanor charge of resisting arrest. He was fined $250.

Nevada is supported by the Bush administration and two criminal justice groups. Organizations backing Hiibel include the American Civil Liberties Union, the Cato Institute, privacy groups and advocates for the homeless.

Marc Rotenberg, president of the Electronic Privacy Information Center, said that if Hiibel loses, the government will be free to use its extensive databases to keep tabs on people.

“A name is now no longer a simple identifier; it is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual’s life,” Rotenberg told the court in a filing.

The case is Hiibel v. Sixth Judicial District Court of the State of Nevada, 03-5554.

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