Jun 202016

In light of today’s Fourth Amendment-eroding Supreme Court decision in Utah v. Streif, and Justice Sotomayor’s scathing indictment of it:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting
you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

I thought I would repost something I wrote in law school about an earlier Supreme Court decision, Hiibel v. Sixth Judicial District Court, that ran roughshod over the idea that people might have a constitutional right — and need — to refuse to identify themselves to the police. Given, as Justice Sotomayor notes, that such an identification can lead to other incursions on one’s liberty I think it’s worth remembering some of the earlier jurisprudence that has brought us to where we are with this case today.

(Originally posted 3/23/04. I’ve edited the writing slightly now to make sure the point I was trying to make back then are more clearly conveyed now, but I have not otherwise edited it for substance. While today I would tend to frame my legal analysis slightly differently, I think the rough take of a 1L still captures valid concerns that today’s ruling exemplifies and exacerbates.)

There’s a concept in the law about the “reasonable man.” It’s used as a benchmark to compare the behavior in question at trial with the behavior a reasonable person would be reasonably expected to exhibit. It’s often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time. To say nothing for the fact that reasonable behavior derives its inherent reasonableness from context. Lighting a match in a dark cave may be reasonable. Not so in a dynamite factory.

But still, the notion can be helpful when courts are trying to decide if a person acted in a way unique to himself, or in a manner similar to how many people might reasonably behave. In torts this test is extremely important, particularly in cases of negligence. For example, if a reasonable person who knew there were vicious, hungry dogs in the yard would have double-checked to make sure the gate was locked, a person who didn’t double-check is more likely to be found liable for a resulting dog attack.

The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In the case the State conceded that the police didn’t have probable cause, a high level of suspicion, to justify arresting the man when they first came upon him and asked him his name. The standard here was “reasonable suspicion” that might have entitled the police to frisk him. The Supreme Court is considering whether the police could also ask him his name, and if he could be compelled to answer under penalty of law, even though they lacked that suspicion.

What caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, “I would think any reasonable citizen would answer.”

I disagree. I don’t think the State has any right to know who I am, where I am, or what I’m doing without a very good reason, a reason that would qualify as probable cause to believe I was guilty of a crime. Period. Scalia’s comment on that subject tracks the frequent unenlightened argument that doesn’t understand why people refuse to testify “if they’ve got nothing to hide.”

First of all, I can’t see from reading the Constitution where the State gets the authority to be able to identify and locate its citizens at any time it demands. Even the most innocent person should have the right to refuse to identify himself if he wishes, no matter how capriciously he decides to refuse the request, and it’s a right that should clearly outweigh any interest the state might have in its own capricious inquiries.

Secondly, it’s a fallacy to believe that criminal justice metes itself out perfectly. Innocent people can easily be railroaded into unjust convictions. The Fifth Amendment right against self-incrimination give citizens a starting measure of protection to keep the criminal justice system from running roughshod over them erroneously. Nothing is too innocuous that, when uttered at the behest of the State, couldn’t precipitate a jurisprudential train wreck — including one’s name. With the name the State gets a toehold in surveillance and scrutiny, which it may now feasibly pursue even without justification. Whereas without knowing a name the State is much more easily relegated to keeping its proverbial nose out of the private business of its citizens.

Third, even guilty people have the Constitutional right against self-incrimination. In a judicial economy where confessions have become bargaining chips against extreme punishments, the accused need to be able to retain their testimonial currency as long as they can so as to preserve their right to due process, especially because an utterance that might seem to be an admission to a crime might not constitute an actual confession to the presumptive crime. For instance, the statement, “I crossed the street against the light,” might seem to be an admission of jaywalking, but if the unstated fact was that it was “because a vicious dog was chasing me,” it would preclude criminal liability. Although exoneration at trial might happen, without having said anything in the first place the accused might never have had to go through the ordeal of defending himself against the state’s unfounded charges.

While the preceding example deals with testimony, self-identification should be treated with the same testimonial analysis as any other statement because [Edit 6/20/14: as we can definitely see in today’s ruling] divulging one’s identity can easily compromise the same sort of self-interest as other testimonial comments that are constitutionally not required to be uttered.

So Scalia is mistaken. There are plenty of reasons why a reasonable person would not want to answer a question on their identity. Prudent, pragmatic reasons. And also: because the Fifth Amendment says he doesn’t have to.

Unfortunately, the Supreme Court majority ultimately didn’t see it this way, although the dissent did. At oral argument it seems that Justice Kennedy was the one most confused. He seemed to think it’s no big deal to give up your name to the police. Which is untrue. But it also raises another issue: what if you are better known by an alias? What if you are just starting to use an alias? If the police ask you your name, WHICH name are you required to give?

Last paragraph edited slightly 2/11/17.

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