A long train of abuses pursuing invariably the same object has reduced us to the point where a police officer may stop you for something absolutely trivial—something like riding your bike against traffic on the sidewalk instead of with traffic in the street—and demand your identification, and if you don’t produce it, they can arrest you and throw you in jail. The three cases I have in mind are a United States Supreme Court case called Atwater, which upheld the custodial arrest of a woman who was driving without a seatbelt; McKay, a California Supreme Court case which upheld the arrest and search of a man who was riding his bike against traffic and didn’t have a driver’s license (you don’t need to have a driver’s license to ride a bike); and today’s Hiibel, a United States Supreme Court case that upheld the arrest of a man for violating a Nevada law requiring you to produce identification to a police officer.
The 5-4 Court held that “there is no question that the initial stop [of Hiibel] was based on reasonable suspicion, satisfying the Fourth Amendment,” and that the Nevada law was not too vague, because it “require[s] only that a suspect disclose his name.” Thus Hiibel’s arrest was legit. So long as the cop has grounds under Terry v. Ohio, before he asks for ID, the suspect may be arrested for failing to identify himself:
[Hiibel] argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit…. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.
But of course the Terry standard is limp, and justifies pulling people over for practically anything. As Justice Brown put it in her McKay dissent,
In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum “crimes”—many too trivial even to be honestly labeled infractions. They are nevertheless public offenses for which a violator may be arrested. Since this indiscriminate power to arrest brings with it a virtually limitless power to search, the result is the inevitable recrudescence of the general warrant.
People v. McKay, 27 Cal.4th 601, 632 (2002) (Brown, J., dissenting). I think we’re fortunate that Justice Kennedy wrote the opinion as narrowly as he did, but it is very unfortunate that you can really be arrested and thrown in jail for effectively no reason.
Justice Stevens dissented, saying that Hiibel’s conviction violated the Fifth Amendment’s privilege against self-incrimination.
Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment’s Confrontation Clause, “[w]hatever else the term [‘testimonial’] covers, it applies at a minimum…to police interrogations.” Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.
Justice Kennedy’s opinion held that the Fifth Amendment does not apply because identification required under the law is not “incriminating.” But it certainly is! A person is required to answer the question—and I suspect, is required to answer it truthfully—or can be arrested for failing to provide a response. If that’s not self-incrimination, what is?
Here’s Justice Breyer’s dissent, joined by Justices Ginsburg and Souter, who argued not that the Fifth Amendment, but that the Fourth Amendment, barred this arrest.
And the ratchet turns again.
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