Academic journal article
By Nederhood, Robert
Journal of Criminal Law and Criminology , Vol. 95, No. 3
Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 124 S. Ct. 2451 (2004)
In Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, the United States Supreme Court affirmed the constitutionality of Nevada Revised Statute (NRS) Section 171.123. (1) This statute required an individual to identify himself in response to a police officer's inquiry, or face arrest. (2) Petitioner argued that his arrest pursuant to Section 171.123 violated his Fourth Amendment right to be free from unreasonable searches and seizures and deprived him of the Fifth Amendment's protections against self-incrimination. (3) The Court, after balancing the intrusion on petitioner's rights against the legitimate government interests served by the search, reiterated that questions concerning a suspect's identity are permitted during an investigative stop allowed by Terry v. Ohio; it then held that petitioner could be compelled to answer the inquiry. (4) The Court also held that the requirement of the Nevada statute did not violate petitioner's Fifth Amendment right to be free from self-incrimination because "disclosure of his name presented no reasonable danger of incrimination." (5)
This Note first argues that the Hiibel Court wrongly decided petitioner's Fourth Amendment claim. In Hiibel, the Court determined the reasonableness of the search by balancing the individual's right to be free from intrusion against the legitimate government interests promoted by the search. Accepting the Court's own test, however, petitioner's arrest for refusal to identify himself under Section 117.123 was unconstitutional. The minimal government interest served by the requirement for identification was outweighed by the breach of Hiibel's right to be secure in his person "against unreasonable searches and seizures." (6)
Secondly, this Note argues that a person's identity may indeed be incriminating evidence; thus, the Court wrongly held that petitioner's arrest pursuant to Section 117.123 did not violate his Fifth Amendment right to be free from self-incrimination. While seeking to justify the constitutionality of the statute with regard to both the Fourth and Fifth Amendments, the Court made two mutually exclusive arguments, which call into question the soundness of its reasoning and thus the constitutionality of the Nevada Statute.
A. FOURTH AMENDMENT
Hiibel is the latest in a line of cases interpreting the scope of the law enforcement stops permitted by the Court in Terry v. Ohio. (7) In the nearly forty years since Terry, the Court has set forth a test for determining whether a particular action by law enforcement in connection with a Terry stop violates the Fourth Amendment: whether the intrusion upon the individual's rights is justified by the countervailing government interest implicated by the intrusion. (8)
1. Terry v. Ohio
The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (9) In Terry v. Ohio, the Court addressed whether a police officer had violated the suspects' Fourth Amendment rights when he, lacking probable cause, patted down suspects in a search for weapons.
In that case, a police officer noticed three suspicious individuals milling about the front of a store. (10) Concerned that they were planning a robbery, and fearing that they were armed, the officer stopped them and patted them down.(11) During the search, he discovered that two of the men had pistols, and he placed each under arrest. (12) At trial, the defendants made a motion to suppress the guns as evidence, which the trial court denied. (13) The county court of appeals affirmed, and the Ohio Supreme Court dismissed the appeal. (14) The U.S. Supreme Court granted certiorari and affirmed the conviction. (15)
The Court held that a law enforcement official lacking probable cause can, for the protection of himself and others, conduct a limited search of a suspect's outer clothing in order to discover weapons, when he has observed conduct that leads him to believe that the person stopped may be armed and dangerous. …