Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County – Oral Argument – March 22, 2004

Media for Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County

Audio Transcription for Opinion Announcement – June 21, 2004 in Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County

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William H. Rehnquist:

We’ll hear argument next in No. 03-5554, Larry D. Hiibel v. the Sixth Judicial District Court of Nevada.

Mr. Dolan.

Robert E. Dolan:

Your Honor, it’s Hiibel.

William H. Rehnquist:

Hiibel.

Very well.

Robert E. Dolan:

Thank you, Mr. Chief Justice.

May it please the Court:

I’m here today to respectfully ask this honorable Court to find that the search and seizure of my client was illegal and unreasonable and, in the process, to reverse my client’s conviction.

Petitioner Hiibel was arrested and convicted of a crime simply because he did not identify himself or provide identity.

William H. Rehnquist:

Am I pronouncing your client’s name correctly?

Sandra Day O’Connor:

Could the officer have just said, show me your driver’s license?

Robert E. Dolan:

We don’t believe so, Your Honor.

Sandra Day O’Connor:

Why?

Robert E. Dolan:

This was not a traffic stop.

This was a… an interaction between a pedestrian and a law enforcement officer, wherein the officer–

Sandra Day O’Connor:

But there was evidence… was it not clear that he had been driving and he got out of his vehicle?

At the time the officer saw him, he was out.

Robert E. Dolan:

–No, Your Honor.

There was never a finding of fact on that issue.

In fact, the issue before the trier of fact in the justice of the peace court there in Winnemucca was whether or not the… the charge of resisting and delaying the officer occurred.

William H. Rehnquist:

What was the factual situation?

He… he was certainly right next to a truck, wasn’t he?

Robert E. Dolan:

Yes.

When Deputy Dove arrived at the scene, Mr. Hiibel was standing at the passenger side of the car.

His daughter was in the cab of the truck by the… the steering wheel.

And when Deputy Dove arrived on the scene, he began the police-citizen encounter with Mr. Hiibel.

They approached each other.

Deputy Dove said, I heard that there was some kind of a fight.

Mr. Hiibel said, I don’t know anything about that.

Deputy Dove then proceeded to ask approximately 11 times for Mr. Hiibel to provide identification.

Robert E. Dolan:

Let me see ID.

Sandra Day O’Connor:

But you don’t think he could have asked for his driver’s license?

Robert E. Dolan:

No, Your Honor.

I don’t believe that there was any reasonable basis for that question at that time.

Sandra Day O’Connor:

Well, because the officer had been told that in a truck… in that truck somebody was hitting somebody.

Robert E. Dolan:

Well, we believe that the deputy certainly had the right to ask for identity and… and we think equally so Mr. Hiibel was free not to respond.

Antonin Scalia:

I see.

What… what do you think the purpose of our… of our Terry… of our Terry decision is?

I mean, it says that when an officer sees somebody in suspicious circumstances, he can stop that person and inquire to satisfy himself that nothing… nothing underhanded is going on.

Now, what… what kind of questions can he ask that… that must be answered?

Any at all?

Robert E. Dolan:

The–

Antonin Scalia:

He… he can’t even ask the name you say.

Robert E. Dolan:

–Well, Your Honor–

Antonin Scalia:

Can he ask what… what are you doing here if he sees somebody hanging around a jewelry store at 2:00 a.m. and… and so he… he conducts a Terry stop?

What… what can he ask the fellow?

What are you doing here?

I mean, if he can’t give his name, surely he doesn’t have to tell the officer what he’s doing here.

Robert E. Dolan:

–Well, we… we certainly believe that under the Fifth Amendment a person has no obligation to respond to… to that officer.

The… the citizen never knows whether or not the encounter is a consensual encounter where he certainly has no obligation to speak or do anything.

He… in fact, he can freely terminate the encounter at any time.

Now, there is, under Your Honor’s question, a Terry stop.

Certainly the citizen doesn’t know that.

The officer does presumably, and if that Terry stop was to evolve into a probable cause circumstance–

Antonin Scalia:

No, it hasn’t.

It hasn’t evolved.

It was just a Terry stop.

Robert E. Dolan:

–Just a Terry stop.

And you say–

Robert E. Dolan:

The officer is allowed to make–

Antonin Scalia:

–He’s allowed to ask questions, but he shouldn’t expect answers.

Robert E. Dolan:

–We certainly don’t believe that the government can criminalize the non-response which the statute in this case does, Your Honor.

William H. Rehnquist:

Well, in a Terry stop, when the officer is attempting to make a patdown, can the person resist it?

Robert E. Dolan:

Not lawfully.

I believe that the Court certainly allows, if there is independent bases to conclude that the officer… that the subject is armed, the officer is lawful in using force to apply a patdown search.

And if a person resisted that, then that would be a basis for a criminal prosecution.

Anthony M. Kennedy:

You take the position, as I understand your brief, that the purposes of criminal investigation simply do not extend to asking for the names of witnesses, as… as I understand you.

Suppose there’s a… a bank robbery and… and there’s a fatal shooting and the robbers run out of the bank.

The police come a few minutes later.

Can they ask… can they require the witnesses to give their names?

Can there… could there be a State statute, properly drawn in that circumstance, which would require the witnesses to give their names?

Robert E. Dolan:

We don’t believe so, Your Honor.

We believe that the relation to the State that free citizens have prevent the State from imposing obligations, affirmative obligations, to terminate the citizen-police encounter.

Anthony M. Kennedy:

Is your… is your… your negative answer to my question premised on the Fifth Amendment or some privacy concept?

Robert E. Dolan:

The… yes, Your Honor.

The… the privacy concept that the Fourth Amendment addresses certainly allows a person to be free from an illegal search.

We believe that when the Government is attempting to extract data from a person without probable cause, it is improper.

Sandra Day O’Connor:

But identity is somehow different.

It’s kind of a neutral fact.

Under your view, it wouldn’t be possible to have some national identification card requirement then.

Robert E. Dolan:

Your Honor, the… the name is not neutral, certainly in this domestic battery Terry stop, because the name itself–

Sandra Day O’Connor:

Well, I think one’s… one’s name probably is just a neutral fact.

It’s not incriminating one way or the other.

Robert E. Dolan:

–Your Honor, there are numerous instances where one’s name is not a neutral fact.

In the facts of this case, the underlying purpose of the criminal investigation was to determine if a domestic battery had occurred.

Ruth Bader Ginsburg:

But there would be no problem in… in checking the license on the vehicle and then seeing… and then the officer could ask are you whoever is the owner of the car.

Robert E. Dolan:

Yes, Your Honor.

Certainly there are numerous investigative tools available to the police, including running the license plate.

In fact, Deputy Dove–

William H. Rehnquist:

Well, he does that.

William H. Rehnquist:

You… you–

–He does that and the person is–

–You can ask… you can ask if he’s the owner of the car, the registered owner of the car, but you can’t ask him his name?

Robert E. Dolan:

–Well, we certainly believe that had that been the facts in the case and Mr. Hiibel chose not to respond, there would not be a basis that’s proper under the law for a criminal prosecution in that regard, Your Honor.

David H. Souter:

Yes, but I thought… no.

You were going to say something.

That’s all right.

Go ahead.

I… I thought your position was that if it had been sufficiently apparent that Mr. Hiibel was associated with the truck, that he owned it, had been driving it or something like that, that under those circumstances, the… the police could have… could have exercised the State’s regulatory power over motor vehicles and said, show me your driver’s license or show me your registration.

Is that correct?

Robert E. Dolan:

We believe that… that that is the law, Your Honor.

David H. Souter:

All right.

Robert E. Dolan:

But this was not the case.

David H. Souter:

And you’re saying the reason they couldn’t do any of those things here, in the sense of demanding compliance, is that there wasn’t a sufficient connection shown between the… the… Mr. Hiibel and the truck.

Is that what it boils down to?

Robert E. Dolan:

Nor was it relevant at trial, Your Honor.

David H. Souter:

Oh, okay.

But I mean, we’re talking about the scene.

And at the scene, you’re saying there just wasn’t a predicate for forcing him to answer those questions.

Now–

Robert E. Dolan:

That is correct, Your Honor.

And it was… it was not a fact that was deemed relevant by the State at the time or the defense.

David H. Souter:

–Since… and since there was not, I take it your general position is that they can ask him anything.

He does not have to say anything in response to any question they ask.

Period.

Robert E. Dolan:

That is–

David H. Souter:

Isn’t that it?

Robert E. Dolan:

–Yes, Your Honor.

Antonin Scalia:

Could they have… could they–

–And that sort of assumes that there’s no responsibility on the part of citizens.

Antonin Scalia:

I mean, but we impose all sorts of responsibilities on citizens in connection with the… the determination of criminal activity.

I mean, harboring a felon is… is a crime.

It’s… it’s unlawful to give a false response to a… to inquiry by a Federal investigative officer.

Why isn’t it a perfectly reasonable responsibility of a citizen, when he’s a witness to the… to a crime, to have to give his name so that he may call… be called upon to testify?

Why isn’t that a minimal… a minimal citizen’s responsibility and likewise in these circumstances?

I cannot imagine that any responsible citizen would have… would have objected to giving the name.

And if… if I… if one feels that way about it, why is it a violation of the Constitution to… to have citizens do what every responsible citizen, it seems to me, would do?

Robert E. Dolan:

Your Honor, the imposition of an affirmative duty to avoid criminal sanction when you are otherwise innocent of any crime is an improper tipping of balance in favor of the State at the expense of some very–

Antonin Scalia:

It’s not in favor of the State.

It’s–

–What’s your best case for that proposition?

Robert E. Dolan:

–Your Honor, the numerous anonymous activities that this Court finds to be important to the maintenance of a free society engaging–

Stephen G. Breyer:

NAACP v. Alabama, but that was a suspect class, membership lists.

What… what else do you have?

Robert E. Dolan:

–Your Honor, also the Watchtower line of cases, religious solicitation, religious door-to-door activity.

Stephen G. Breyer:

That was a burden on speech.

Robert E. Dolan:

That is correct, Your Honor.

I’m addressing circumstances where a citizen also is left at the mercy of the discretion of an officer.

No citizen can safely have a voluntary interaction with an officer without risking arrest because there was no obligation in the law for the officer to say, as a result of you telling me that you have a red car, I now determine that reasonable suspicion exists.

Ruth Bader Ginsburg:

What about giving this man, who appeared to be under the influence of alcohol, a breathalizer test?

Nothing different.

It’s just as a basis for a Terry stop.

He’s now out of the car.

The officer thinks Mr. Hiibel could be a menace on the road and so says, I’m giving you a breathalizer test.

Could he say… could he resist that?

Robert E. Dolan:

We… we don’t believe that there was reasonable suspicion at all that he was the operator of the car and there would have been no lawful basis for the–

Ruth Bader Ginsburg:

Well, the… there’s a passenger sitting on the passenger seat, and he’s gotten out and he’s on the driver’s side.

Right?

Robert E. Dolan:

–No, Your Honor.

In fact, Mr. Hiibel was standing at the passenger side door and the–

Ruth Bader Ginsburg:

And the… there was somebody in that seat.

Robert E. Dolan:

–No, Your Honor.

There–

Ruth Bader Ginsburg:

Where… where was the daughter?

Robert E. Dolan:

–The daughter was… when the officer arrived behind the wheel.

She eventually slid over to the passenger side when she was… towards the end of the encounter, she exited and then was thrown to the ground and arrested.

But–

Ruth Bader Ginsburg:

Could… could she have been asked the name?

Could she have been asked her father’s name?

Robert E. Dolan:

–Certainly.

I believe available to Deputy Dove at the time was to do what he was there to do, and that was to investigate to see if a domestic battery had occurred.

I don’t believe the issue before the Court is whether or not Deputy Dove engaged in the best or worst police activity.

I believe the issue before this Court… and with respect to Justice Kennedy’s question, homeless people do not have the appropriate residences, permanent residences, and accordingly would be unable to provide their identification.

Sandra Day O’Connor:

Yes, but have… have our Terry cases suggested that the whole point of a stop and a search, based on reasonable suspicion, is to make identification?

Robert E. Dolan:

No, Your Honor.

Sandra Day O’Connor:

No?

Robert E. Dolan:

In… no, Your Honor.

I believe that certainly the concurring opinion of Justice White in Terry itself clearly stated that he was of the opinion that a person is not obliged to respond to–

Sandra Day O’Connor:

Well, that was a concurring opinion.

Do you think that a person stopped on reasonable suspicion can be compelled to give a fingerprint?

Robert E. Dolan:

–That is a qualitatively different invasion of one’s privacy.

But unless–

Sandra Day O’Connor:

Well, yes or no.

Robert E. Dolan:

–Well, as a–

Sandra Day O’Connor:

No?

Robert E. Dolan:

–general rule, no.

There may be some exceptions.

This Court has addressed the possible exceptions like being… the officer knows that a murder/rape has occurred, fingerprints, bloody fingerprints, were found at the scene, there was independent facts to tie the person to that scene.

And the purpose of… of a fingerprint would be to confirm or dispel that officer’s specific concern about the possible criminality of that one person, and the Court has indicated that that may be appropriate.

But that’s a very… that’s… was limited to those facts.

Robert E. Dolan:

This was a misdemeanor.

Antonin Scalia:

So the… the officer who approaches somebody in a perfectly valid Terry stop, a really suspicious looking character, he puts several questions to him and the guy says, I’m… I’m… you know, I ain’t talking, the officer just has to turn on his heel and leave the suspicious character to go about his suspicious business.

Robert E. Dolan:

Your Honor–

Antonin Scalia:

He can’t… he can’t say, come along with me.

You know, we’ll find out who you are and why you’re here.

He can’t do that.

Robert E. Dolan:

–We believe the law under Wardlow, Your Honor, requires that unless the police officer is able to escalate his basis of knowledge to probable cause after a reasonable period of time of inquiry–

Antonin Scalia:

Why isn’t the… maybe you and I differ on… on what the… what the course of a responsible citizen is.

I would think the course of a responsible citizen would be to answer the question what you’re doing here and what your name is.

And if he doesn’t answer that, I would… I would say that that make… may cause the situation to rise to the level of probable cause.

Robert E. Dolan:

–We… we–

Antonin Scalia:

He’s hanging around a jewelry store.

It’s late at night.

He won’t say who he is.

He wouldn’t… won’t say what he’s doing there.

I would… I would drag him in.

Robert E. Dolan:

–Well, the… the person could be purchasing jewelry for his paramour and… and he does not want his wife to know.

Antonin Scalia:

It’s possible but unlikely.

[Laughter]

But isn’t there another answer?

Suppose–

–Isn’t there another answer?

–suppose there is probable cause to arrest and an arrest is made.

Could the State then require that the person answer as to his identity just so that the officer can confirm that he’s got the right person?

Robert E. Dolan:

Again, I believe even in a post-probable cause booking procedure, a person has the right to remain silent if they view from their perspective… and I believe this is what the test is.

Rhode Island v. Innis would… would suggest that.

Stephen G. Breyer:

Now, is that a Fifth Amendment privilege that you’re–

Robert E. Dolan:

Yes.

Stephen G. Breyer:

–indicating here?

Robert E. Dolan:

Yes, Your Honor, because one’s name–

Anthony M. Kennedy:

Well, it… it seems to me that that is such a… a minor detail, in light of what the police can get in any event with fingerprints and so forth, that the Fifth Amendment should just say that that’s not testimonial.

Robert E. Dolan:

–Well, the… the Fifth–

Anthony M. Kennedy:

I mean, you’re not probing the perception, the memory, the cognition of the witness.

You’re just determining an extrinsic fact.

Robert E. Dolan:

–Your Honor, the… the name is in fact testimonial because it is an assertion of fact, and one can lie about one’s name, and accordingly, I think… believe the test of what’s testimonial or not is met.

It’s also incriminating because if an officer determines that probable cause exists that a domestic battery has occurred, that officer must arrest that person.

John Paul Stevens:

May I ask you this question that really follows up on Justice Scalia’s question?

Would you also argue that the refusal to give the name could not be counted as an additional fact to establish probable cause?

Robert E. Dolan:

Yes, Justice Stevens.

We believe that a certain… any–

John Paul Stevens:

So you’re not just relying on the fact that the refusal is itself a crime in this case.

Robert E. Dolan:

–That… that… I’m–

John Paul Stevens:

You could again then say you could not even take it into account for determining whether there’s enough evidence to… to take him to the station.

Robert E. Dolan:

–The… the exercise of a constitutional right can never increase one’s level of–

William H. Rehnquist:

Yes, but suppose he–

–What… what about… what about, say, the murder scene exception we talked about in that Arizona case where an officer hears a shot fired, comes into the house, there are eight or nine people in the house.

Obviously, there’s a dead body in the middle of the floor.

Can he ask everybody else for their names?

Robert E. Dolan:

–Well, we certainly believe the officer can ask.

William H. Rehnquist:

And are they obligated to respond?

Robert E. Dolan:

I don’t believe so, Your Honor, and I believe that the imposition of a criminal sanction for silence is–

William H. Rehnquist:

Well, how are we ever… how are we going to resolve a murder case if that’s the law?

Robert E. Dolan:

–Well, after… post probable cause, the law is a person is warned.

They are informed of their right to remain silent.

They are also informed of other constitutional rights.

Anthony M. Kennedy:

No, no, no.

The Chief Justice’s hypothetical is like my bank hypothetical.

It said… we’re just talking about witnesses now.

Robert E. Dolan:

Well, I don’t… I certainly think that the State’s case about the lawfulness of an arrest and a conviction is… is weaker for seizing a witness who exercises their right to remain silent.

Ruth Bader Ginsburg:

But there are situations where the State can… that we… well, Byers is one where we’ve already said the name can be requested.

Ruth Bader Ginsburg:

People are required, when there’s a registration for the draft, to give their names which… and that can’t be made into a consensual situation in exchange for some benefit.

So we’ve treated names… the question of name differently, and there are many situations in which you are required to give the name.

Robert E. Dolan:

Well, Your Honor, as regards the Byers case, that statute spoke of a regulatory scheme in which the… the identity, which was required to be given, was not to a member of law enforcement.

It was to the owner of a vehicle.

The Nevada statute in question specifically contemplates that the dialogue occurs within a criminal investigation in a Terry stop, which was different from Byers certainly, and also the intent of the statute in Byers was just to ensure that civil liabilities would be satisfied.

Ruth Bader Ginsburg:

Well, in terms of the State’s need to know this information, how do you distinguish it from requiring people to register, give their name for the draft?

Robert E. Dolan:

In this case, Your Honor, the… the name is testimonial and incriminating because of the dynamic of the Nevada statute in question.

Antonin Scalia:

Well, you should just plead the Fifth Amendment, say, I… I refuse to answer on the ground that it might incriminate me.

That… was that… was that what was done here?

I didn’t realize you’re… you’re making a… a Fifth Amendment incrimination claim.

Is that–

Robert E. Dolan:

We are, Your Honor.

Antonin Scalia:

–is that part of your–

–I… I can go back for a second–

Robert E. Dolan:

Yes, Your Honor, we are.

Antonin Scalia:

–So that… that assumes that he was guilty and… and had he not been… had he not been guilty of the beating, then he… then… then you would acknowledge that he would have had to answer.

It’s only the person who’s guilty of the beating who would have a right not to answer.

Robert E. Dolan:

One of the interests that the Fifth Amendment is designed to protect is to protect people who place… find themselves in ambiguous circumstances where–

Antonin Scalia:

No.

I think–

Robert E. Dolan:

–their silence or their admission could–

Antonin Scalia:

–Please answer the… the question yes or no.

Are you saying that only the… the person who had been beating the woman in the truck and therefore disclosure of his name would incriminate him, only that person has the right not to answer?

Or are you saying anybody who was asked had the right not to answer?

Robert E. Dolan:

–Indeed… indeed, everyone who was asked.

Antonin Scalia:

Under the Fifth Amendment–

–So you’re not pleading the Fifth Amendment then.

I… that’s… that’s what I thought you were arguing and that has nothing to do with the Fifth Amendment.

Robert E. Dolan:

Well, the… the… from the perspective of petitioner Hiibel, when Deputy Dove said to him, I… I hear that there was a fight here, and then Deputy Dove started making inquiry of him, I think it was reasonable for petitioner Hiibel to realize that at this time he was facing the cruel trilemma, which this Court speaks of, and in fact had–

David H. Souter:

Okay, but if… if at that point I had walked down the street and the cop had turned to me and said who are you, I wouldn’t have had a Fifth Amendment right to refuse, would I?

Robert E. Dolan:

–If there was an imposition of criminal sanction for the failure to respond–

David H. Souter:

No, no, no, no.

I mean, you’re putting the cart before the horse.

So far as the Fifth Amendment is concerned, whether the cop asked me, whether there’s a statute that says you… you ought to give your name to the police, would I have had a Fifth Amendment right to refuse?

Robert E. Dolan:

–If it’s not the Fifth Amendment right to refuse, it’s your right to be let alone which is–

David H. Souter:

All right.

There might be a Fourth Amendment–

–based upon other constitutional principles.

The only thing Justice Scalia and I are trying to get at is we thought you were saying at one point that everyone has a Fifth Amendment to refuse to identify himself under all circumstances, and that… that… is that your position?

Robert E. Dolan:

–Your Honor, I… the question is only affirmative as regards the Fifth Amendment if the State was to criminalize your silence in respect to that question.

William H. Rehnquist:

Did the Supreme Court of Nevada pass… did you raise a Fifth Amendment question in the… in the Supreme Court of Nevada?

Robert E. Dolan:

We… we did, Your Honor.

William H. Rehnquist:

And did the court pass on it?

Robert E. Dolan:

The court rejected the motion for rehearing on that issue, Your Honor.

William H. Rehnquist:

Had you… had you raised it before the motion for rehearing?

Robert E. Dolan:

Yes.

Your Honor, it was raised at the trial level through the citation at the trial… I was the trial attorney… to Berkemer v. McCarty.

We… I appealed to the justice… excuse me.

I appealed to the Sixth Judicial District Court where both the State and the defendant specifically briefed the Fifth Amendment issues and argued the Fifth Amendment issues.

Anthony M. Kennedy:

But… but your answer that if… if the law requires that you give your name, then… then that makes everybody have a Fifth Amendment privilege is just… is just not right.

That’s just circular.

I… I would agree that there may… there likely is no Fifth Amendment privilege for witnesses or I would… I would state that.

You might not agree.

As to people that are suspect of a crime, even if they’re innocent, if you’re… if you’re right that the name is protected, then I think the privilege… that the privilege applies because even if they’re innocent, it might be a link in the chain of evidence necessary to convict.

That’s the… that’s the test.

But the question, it… it seems to me, is whether a name itself… a name itself is… is… has such intrinsic testimonial consequences as opposed to neutral regulatory consequences that it should be within the Fifth Amendment.

That, it seems to me, the issue.

Robert E. Dolan:

Yes, Your Honor.

I believe that’s where the Court will… will turn on that question.

But also with respect to the Fourth Amendment inquiry, a name is such that a person has a legitimate expectation in the privacy in that name, otherwise the government certainly then could require name tags and perhaps color codes.

Anthony M. Kennedy:

But the question of whether or not is that privacy is diminished when they’re witnesses to a crime when they’re present at a crime scene, and that’s certainly much different from saying that all citizens have to give their name anytime a police officer asks them for any reason.

That’s a completely different case.

Robert E. Dolan:

Yes, Your Honor.

Antonin Scalia:

I’m not… I’m not even sure that the driver of the truck would have a Fifth Amendment right.

I don’t know how your name incriminates you.

Your name may help to… to catch you, but I don’t know that that incriminates you.

By giving you… by giving him your name, you are what?

Proving that you did something wrong?

I… I don’t see how it incriminates you.

Robert E. Dolan:

If… if at a traffic stop a request for a name is made by an officer to the person that the officer knows was driving the vehicle, I believe the implied consent rule would… would allow for the properly imposed government sanction in that… in that–

William H. Rehnquist:

The Supreme Court of Nevada in its concluding sentence of the majority says it follows that N.R.S. such and such is good law consistent with the Fourth Amendment.

And I don’t see in the majority opinion any reference to the Fifth Amendment.

Now, you say you raised it on rehearing?

Robert E. Dolan:

–Yes, Your Honor.

William H. Rehnquist:

And the… the order of the Supreme Court of Nevada is simply the petition for rehearing is denied.

Robert E. Dolan:

The–

William H. Rehnquist:

So I’m… I’m not sure at all you raised it sufficiently before the supreme court.

Robert E. Dolan:

–Your Honor, the issue was also briefed in the opening brief before the Nevada Supreme Court.

The… the Nevada Supreme Court just chose not to address it in their opinion.

William H. Rehnquist:

You… you did raise it then in your briefs.

Robert E. Dolan:

Yes, Your Honor, it did.

Your Honor, I’d like to reserve the remainder of my time.

William H. Rehnquist:

Very well, Mr. Dolan.

Mr. Hafen, we’ll hear from you.

Conrad Hafen:

Mr. Chief Justice, and may it please the Court:

There are three reasons why compelling a lawfully detained person to identify himself is reasonable under the Fourth Amendment.

It is a minimal intrusion.

It advances officer safety, and it promotes effective law enforcement in the prevention and detection of crime.

Furthermore, it does not violate the Fifth Amendment privilege against self-incrimination because identifying yourself is a neutral act.

Stephen G. Breyer:

Now, that… that goes beyond Byers.

Stephen G. Breyer:

My… my… the hard part of this case for me is that Byers which, it seems to me, a much easier case, was so difficult for the Court.

You had a fragmented Court.

You didn’t have an opinion for the majority of the Court.

And this, it does seem to me, goes one step beyond Byers with reference to the Fifth Amendment.

Conrad Hafen:

Well, in regard–

Stephen G. Breyer:

And… and Byers didn’t take the position that you just take, that it’s… that it’s not testimonial.

It seems to me that’s a plausible enough argument, but I… I can’t get that out of Byers.

Conrad Hafen:

–Well, Your Honor, in regard to Byers, it was a plurality opinion, but there was also a strong concurrence by Justice Harlan.

And in that particular case, they talk about stating a name and address as being a neutral act, and in the same context, they talked about it in regard to a testimonial situation.

They talk about it’s a testimonial situation or a non-testimonial situation when a person is stopped, the mere stopping of the car, but in the same context, they also say stating your name and your address is a neutral act.

Stephen G. Breyer:

Well, I’ll… I’ll look at it again, but it seems to me even the Harlan opinion was in the context of what we might call the regulatory zone of… of automobile… automobile regulation and control.

Conrad Hafen:

They did talk about that, Your Honor, but in the same context, they also describe or they… they address it in the criminal context.

The plurality opinion addresses it in the criminal context, and Justice Harlan also addresses it in the plurality… or–

Antonin Scalia:

The plurality opinion said that noting a name… notes that a name, quote, identifies but does not by itself implicate anyone in criminal conduct–

Conrad Hafen:

–That’s correct.

Antonin Scalia:

–which is the same point.

Conrad Hafen:

That’s correct, Your Honor.

That… that goes to the incriminating part of it, but when they talk about the neutral act, we’re interpreting that to go to the testimonial part of it.

And this Court traditionally treats names differently.

Ruth Bader Ginsburg:

You said name and address.

What else would be under your neutral category?

Could a telephone number, e-mail address?

How much fits in that neutral category that citizens can be required to answer?

Conrad Hafen:

Your Honor, the statute in Nevada doesn’t go that far.

It simply says compelling… the… the identification or to identify one’s self.

So under the Nevada statute, those type of identifiers–

Ruth Bader Ginsburg:

But I’m asking you what fits… what fits within this neutral… you… you say that there are certain things you can ask a person that they can be required to respond to because they’re not incriminating and they’re not a violation of privacy.

They’re just neutral.

So I’m just trying to get a handle on if we say name is neutral, what else are we implicating.

Conrad Hafen:

–You could certainly make the argument that those other things that you suggested, Your Honor, are neutral.

Conrad Hafen:

However, going back to the Fourth Amendment, they really don’t serve the purpose of officer safety.

It’s the name that you need so that you can discover who this person is, what their background is–

Ruth Bader Ginsburg:

I… I don’t follow that really because I can understand the Terry stop.

You have to pat down immediately because the officer is at risk that the person will be armed.

But by the time they do the computer check, the harm… I mean, that doesn’t arrest the situation.

It doesn’t protect.

How is the officer protected in that interval between when the person says I won’t give you my name… I mean, it had to… it has to take some time to do a check, doesn’t it?

Conrad Hafen:

–Well, Your Honor, going outside the record, based on my experience as a prosecutor, that information can be received in just a… a matter of minutes.

And so while the officer is waiting for that information, he can certainly take the posture of protecting himself.

However, after receiving that information and obtaining the criminal history on this person… perhaps he has a… a history of battery on police officers… he can then escalate protection.

He either calls for backup or perhaps unholsters his… his revolver.

He has a number of things that he can do after he gets that information.

And so it is critical.

John Paul Stevens:

Does that… does not information convert reasonable suspicion into probable cause?

Conrad Hafen:

Well–

John Paul Stevens:

Suppose he finds he’s a real bad guy.

Does it now become probable cause?

Conrad Hafen:

–That certainly adds into the equation, Your Honor, but that in and of itself wouldn’t convert into probable cause.

The officer would have to look at the totality of the circumstances and on review of–

John Paul Stevens:

Well, the totality of the circumstances are in… in the beginning he has reasonable suspicion but not probable cause.

The one thing he learns, in addition to that, is this is a bad guy.

Is it now probable cause?

Conrad Hafen:

–Well, again, I… I don’t believe so because there would be other factors that would… would have to be taken into consideration.

John Paul Stevens:

But I’ve already given you all the factors.

What other factors are there?

The total of the factors that exist are there’s only reasonable suspicion.

We add one more fact: he’s a bad guy.

Does that make it probable cause?

Conrad Hafen:

No.

John Paul Stevens:

Why not?

John Paul Stevens:

He has a record.

Well, it might if he’s a bad guy with a particular… with a particular pattern.

It was a jewelry store and he said he’s a bad guy because he robbed a lot of jewelry stores under these same circumstances.

I mean, you could play with hypotheticals, it seems to me.

He has robbed this same jewelry store 10 previous times.

[Laughter]

Don’t you think that would elevate it to probable cause?

Conrad Hafen:

Under your hypothetical, yes.

John Paul Stevens:

Yes, but the likelihood of… the likelihood of getting that precise information is quite remote, I think, in most of these cases.

Conrad Hafen:

That’s… that’s correct.

David H. Souter:

What about Berkemer?

Conrad Hafen:

Excuse me?

Stephen G. Breyer:

I… I’ve read the… the brief here.

It’s a case called Berkemer v. McCarty referred to on page 13.

There must be some obvious answer I’m missing.

They’re talking about a Terry stop and they say… the… the Court says this.

You can ask him questions, but the detainee is not obliged to respond and then a bunch of others.

So if he’s not obliged to respond, he’s not obliged to respond.

Now, what do we do about that case?

Conrad Hafen:

Well, Your Honor, two responses.

First of all, I believe that reference in Berkemer is… is dicta by the Court.

The real holding in Berkemer was a Miranda issue.

Second, this Court has never specifically addressed this question.

Stephen G. Breyer:

All right.

So what you’re saying is that there’s a lot.

You know, they have like two pages here of different judges, Harlan, White, Berkemer, Davis, and each time the Court said, but they’re not obliged to respond.

Now… now, I… what I thought… I guess I’m approaching this case quite differently, but I thought we’re not talking about national ID cards.

What we’re talking about are Terry stops.

And a Terry stop is a derogation from the ordinary situation where you can walk along and do what you want.

So if we’re derogating from the person’s ordinary freedom, what the Court did in carving out exception was to create a condition.

Stephen G. Breyer:

You can ask, but he doesn’t have to answer.

Now, the virtue of that is simple.

Anyone can understand it and it doesn’t get us into all these problems that were raised previously whether those problems are right, wrong, or indifferent.

So if I read three Supreme Court cases and it all says that, I think maybe there’s some burden in saying on your part why we shouldn’t just follow what it says.

Conrad Hafen:

Well, in subsequent opinions that were cited by the petitioner, they discuss the… either a dissent or a concurring, and in those particular references, the Justice does say unsolved crimes, questions to unsolved crimes, or as Justice White said–

Stephen G. Breyer:

Then why complicate the matter?

That is, you’ve already said a name doesn’t normally incriminate you, but it could.

Suppose his name is Killer Magee.

I don’t know.

[Laughter]

I mean, it’s possible.

And then I guess you could have other questions, you know, that don’t normally incriminate you.

Are you hungry?

Would you like to sit down?

But… so… so why get into this complicated thing of saying whether a question normally isn’t or normally is or sometimes or sometimes?

Why don’t we just follow what the Court said?

Conrad Hafen:

–Because again, Your Honor, I don’t believe in this particular issue where it’s a stop and identify statute, that the Court has specifically addressed that.

Stephen G. Breyer:

I thought your answer–

–And there’s another answer that–

–is because the Court said it in dictum.

Right?

Conrad Hafen:

That… that’s correct.

William H. Rehnquist:

What case are you referring to when we said it in dictum?

Conrad Hafen:

In Berkemer v. McCarty.

Stephen G. Breyer:

But even there, we did not say it was a Fifth Amendment violation.

Right.

A Fifth Amendment privilege, and that’s what you’re… you’re here to argue.

You’re here to say that this is just not covered by the Fifth Amendment and it is not testimonial.

It’s a neutral fact.

I… I agree with you about that.

Stephen G. Breyer:

I’m talking about a Terry stop and I’m simply–

–Which is a Fourth Amendment issue.

That’s right.

We have both issues here, do we not?

Right, right, right.

Fourth Amendment and Fifth Amendment?

Even if it doesn’t violate the Fifth Amendment, we’re still going to have to answer the Fourth Amendment question I guess.

Conrad Hafen:

That’s correct, Your Honor, and that’s when the Court would engage in a balancing test.

And the Court traditionally has balanced–

Sandra Day O’Connor:

But we have not expressly said that Nevada can require identification, or any other State.

We haven’t said that in a holding.

Conrad Hafen:

–That’s correct.

William H. Rehnquist:

And the language is–

–Nor… nor have we said otherwise.

Conrad Hafen:

That’s correct.

Stephen G. Breyer:

It is correct?

I’m sorry.

Not in a holding, but I mean, there are about four cases where they say, of course… and of course, it’s that.

Now, I grant you that dicta, which of course this is, is… varies in its strength and so forth, but if we have a repeated series of cases that say it, doesn’t there have to be a pretty good reason for departing from it?

And that’s what I’m listening for: a pretty good reason.

Well, do all those cases that you’re referring to hypothesize the existence of reasonable suspicion or are some of them just confrontation without reasonable suspicion?

Conrad Hafen:

Well, are you… in regard to Berkemer?

Stephen G. Breyer:

Yes.

Conrad Hafen:

In regard to Berkemer, again that went back to a Miranda issue, whether an individual… whether an officer would have to read Miranda to a… during a traffic stop.

And–

Stephen G. Breyer:

But he says this while discussing Terry stops.

That they said this while discussing Terry stops.

Is that so in respect to Berkemer?

I’m just reading the brief.

The… the language I quoted was while discussing Terry stops.

Conrad Hafen:

–That… that’s correct.

The Court ultimately decided that a traffic stop was akin to a Terry stop.

But the Court also addressed it in the situation of a Fifth Amendment issue under a… a Miranda concept.

John Paul Stevens:

Well, I–

–Could you… could you explain to us why you think the Nevada Supreme Court didn’t mention the Fifth Amendment in its opinion?

Conrad Hafen:

Your Honor, I… I don’t know.

I am of the opinion that the… the opinion simply addresses the Fourth Amendment issue.

Why they didn’t address the… the Fifth Amendment I don’t know.

Those… those issues were certainly presented to that court.

John Paul Stevens:

Because they’re quite different, and certainly the Fifth Amendment issue is important and perhaps even harder than the other issue.

Conrad Hafen:

To… to some extent, Your Honor.

But again, our position is that it is not testimonial and it’s not incriminating.

It’s simply–

John Paul Stevens:

But it… but it is the… the odd thing about this case is that the inquiry is made and it’s significant only in the context of a criminal investigation.

That’s the only time the statute applies, when you’ve got a Terry stop.

Conrad Hafen:

–That… that’s correct.

And in regard to the Fourth Amendment, again it gets back to this balancing issue.

This Court is going to have to balance the… any apparent personal security interests of Mr. Hiibel against the important legitimate interests that the government has in this case.

And again, it gets back to officer safety.

It gets back to the prevention and detection of crime.

And again–

John Paul Stevens:

Well, I understand all the arguments on the Fourth Amendment, but for me the more difficult issue, frankly, is the Fifth Amendment.

And it’s really strange that they didn’t… they didn’t discuss it at all and it is strange that… we’re all concerned about identification cards and national and all this sort of stuff.

But this case is very, very narrow.

It’s just a case where somebody gets stopped.

He doesn’t realize there’s a statute on the books that said, if you don’t answer, you can go to jail or get… get arrested.

The funny thing about it is there are no warnings required here.

Conrad Hafen:

–Well, in this particular case, the deputy did warn him.

In fact, the evidence is clear in the joint appendix on page 4 that the finding of fact by the justice court was that Deputy Dove did tell Mr. Hiibel if you don’t give me identification, I’m going to have to arrest you.

John Paul Stevens:

Yes.

Conrad Hafen:

And so in this particular case, he was placed on notice–

John Paul Stevens:

Of course, the statute… but the statute didn’t require that.

Conrad Hafen:

–That… that’s correct.

The statute does say, shall identify yourself.

William H. Rehnquist:

Well, ignorance of the law is generally no excuse, is it?

Conrad Hafen:

That’s correct.

Anthony M. Kennedy:

Well, I agree that the Fifth Amendment is… is the hard… harder question in this case, especially given the convoluted opinions in Byers.

It does seem to me that because the statute really focuses on what we might call Terry stops, that you have a class of persons who are within the zone of the commission of a crime, and so the Fifth Amendment becomes… it becomes slightly more of a suspect class.

I don’t know how that could take care of the witness hypothetical.

But this person was certainly under suspicion of… of criminal activity.

Conrad Hafen:

Well, to some extent, but going back to the videotape that… that the Court has, after Deputy Dove asked the… or informed Mr. Hiibel, I’m here because of a fight between the two of you, he indicates, I know nothing about that.

So that may very well take him somewhat out of the class of a suspect now to a potential witness.

At that time, Deputy Dove, based on that response, doesn’t know now, well, is this the man that was reported hitting the woman in the truck or did that person leave and this is simply another passenger in the truck.

So viewed objectively, he has every right or… to… to ask the question and because it wouldn’t constitute a Fifth Amendment violation in that context if Mr. Hiibel truly was a witness, then he would be obligated to answer the question.

Anthony M. Kennedy:

What… what’s the closest case you have for us?

The Nevada court doesn’t address this issue.

What’s the closest case you have for us to show that this is not a Fifth Amendment violation?

Conrad Hafen:

It would be Byers, and we rely upon Byers.

And again, granted, it’s a plurality decision but with a strong concurrence by Justice Harlan.

David H. Souter:

I… I thought your… you were saying earlier that your strongest reason would be that he had already, in effect, taken himself out of Fifth Amendment protection by saying I know nothing about that.

Conrad Hafen:

In… in that context, yes, because now he, according to Deputy Dove, viewed objectively, is potentially a… a witness.

John Paul Stevens:

Yes, but then your rationale for the arrest should be that you’re a potential witness, and for that reason, we have a right to… we have a right to apprehend the witness to make him testify to the crime.

You don’t need the… the Terry stop rationale for that.

If you think he’s a witness to a crime, the Terry stop is really irrelevant.

Conrad Hafen:

Well, but the reasonable suspicion was formed prior to meeting with… with Mr. Hiibel.

So he had every… at least he had the reasonable suspicion for initially detaining.

Anthony M. Kennedy:

From the standpoint of the Fifth Amendment, what rule do you want us to adopt?

When can the police require persons to give their identity in your view under the Fifth Amendment constitutionally?

Conrad Hafen:

During… first of all, you have to make sure that there’s reasonable suspicion to detain the person and at that point then when the officer asks the person for identification or what his name is, then if the person doesn’t respond, then the person can be arrested.

Anthony M. Kennedy:

What about our witness hypothetical where… the Chief Justice’s hypothetical of… of the murder with five people standing there and my hypothetical… you don’t… you don’t think the police can demand identification at that point from witnesses?

Conrad Hafen:

Oh, they… they certainly could demand at that point.

Anthony M. Kennedy:

What… could they be criminalized if they fail to give the answer?

Conrad Hafen:

Well, it depends if at that time there’s reasonable suspicion to believe that one of those individuals may have committed a crime.

Anthony M. Kennedy:

Oh, so then you’re abandoning the witness rationale.

Well, but the statute doesn’t apply to pure witness.

That’s the point.

This… this statute does not apply to the… to the witness of the bank robbery who’s not suspected of doing the robbery.

Conrad Hafen:

Well, again, it’s… it’s going to depend on the… the search… the situation.

John Paul Stevens:

No.

The… the hypothetical situation is purely a witness.

They’ve been standing in line at the counter.

He saw somebody rob the bank.

But he’s not suspected at all.

All… our hypothetical… you could make him give his name because you want his testimony at the trial.

But that’s not a… that’s not this statute.

Conrad Hafen:

Right.

The statute is specifically tied into reasonable suspicion and whether that person may have committed a crime.

I agree, yes.

Anthony M. Kennedy:

Well, it would be rather odd that you could ask innocent people to give their name and not… and not a person under criminal suspicion.

Conrad Hafen:

Well, again, let… let me back up.

Antonin Scalia:

Do you think that maybe when he’s invoking the Fifth Amendment, he has to invoke the Fifth Amendment?

Conrad Hafen:

Yes.

Antonin Scalia:

Do you think maybe… if he just can’t say I won’t answer… he can be arrested if he just says I won’t answer, but if he says I won’t answer on the ground that it might tend to incriminate me, then the policeman would probably have probable cause.

Wouldn’t he?

[Laughter]

But it seems to me sort of… you know, sort of sneaky to invoke the Fifth Amendment without invoking the Fifth Amendment.

He… he didn’t… that wasn’t the reason he gave for not answering.

I thought people usually invoke the Fifth Amendment.

They say, I refuse to answer that question… you know, they have their lawyer next to them… on the ground that it might tend to incriminate me.

Conrad Hafen:

Well, they do–

Antonin Scalia:

Can they… can they just say I don’t want to answer that question?

Conrad Hafen:

–I don’t believe so.

I think that’s a very vague response, and I think they’d have to specifically invoke the Fifth Amendment.

And as… Justice Scalia, as you pointed out, typically when they do that, they do that in the context of maybe a grand jury hearing or… or a criminal trial.

And so, again, the State’s position in… in regard to this particular case is that as it relates to the Fifth Amendment, is the name itself is a neutral act.

It simply doesn’t implicate an individual in any criminal conduct.

It doesn’t say in this particular case in regard to Mr. Hiibel, that he struck the woman.

It doesn’t even imply that he may have been driving the car.

It doesn’t go to any–

Stephen G. Breyer:

May… may I interrupt?

How do you distinguish this so-called neutral fact from a billion other neutral facts which have evidentiary significance in a criminal trial?

It’s a neutral fact that I’m wearing a pinstripe suit, but if the evidence was that the bank robber was wearing a pinstripe suit, this… this would be relevant evidence and it might tip the scale in… in proof.

It’s neutral.

Conrad Hafen:

–Well, that would certainly go to the Wade and the Gilbert cases that talk about voice analysis, lineup–

William H. Rehnquist:

But this is… this is–

–Thank you.

Thank you, Mr. Hafen.

Conrad Hafen:

–Thank you.

William H. Rehnquist:

Mr. Srinivasan, we’ll hear from you.

Sri Srinivasan:

Thank you, Mr. Chief Justice, and may it please the Court:

A person detained, based on reasonable suspicion of crime, may be required to provide his name to officers because that requirement contributes significantly to the ability of law enforcement officers to ensure their own safety and that of the public while imposing only a minimal burden on an individual’s protected interests in privacy.

The question under the Fourth Amendment would be whether an otherwise–

John Paul Stevens:

Would you… may I just interrupt there?

How does it help the officer’s safety if… he’s made the patdown.

He finds he is or not armed.

If he’s armed, of course, he arrests him.

He’s not armed.

And he… now, how does it help the officer’s safety at this point to find out whether he should just let him go away or he should call a station and ask… do something when he knows his name?

Sri Srinivasan:

–Justice Stevens, it’s true that a patdown authority provides a measure of protection for an officers, and it’s… it’s an important one, but the authority to determine a person’s name and thereby run a background check is a highly significant, complementary measure.

Antonin Scalia:

Do officers always pat down before they ask questions?

Antonin Scalia:

I’ve had officers ask me questions often without telling me to spread my legs, put my arms up against the wall, and they… they frisk me.

Sri Srinivasan:

No.

And… and–

Antonin Scalia:

We certainly want to encourage that kind of activity, would we?

[Laughter]

Sri Srinivasan:

–No, and a patdown authority is conditioned–

Antonin Scalia:

I think the Terry case does encourage that kind of activity.

If you have reasonable suspicion, that’s the first thing you do is… is pat them down.

Sri Srinivasan:

–Well, the authority to conduct a patdown search, first of all, is conditioned on there being reason… a reasonable basis for believing that the person is armed and dangerous.

And so obtaining a person’s name–

John Paul Stevens:

And my question is once he finds he’s not armed, why is his officer… why is his safety implicated by not deciding to let him go instead of calling the station and detaining him further?

Sri Srinivasan:

–Because a patdown isn’t foolproof.

The… the officer might be assaulted in a physical assault rather than through the use of arms–

John Paul Stevens:

Well, and a patdown would not–

Sri Srinivasan:

–and in addition–

Antonin Scalia:

–A patdown would not occur unless he had reason to believe the person was armed, which in most cases he will not have.

And he… if he finds out that the guy he’s confronting with is, you know, Machine Gun Harry, he’s going to have a… a different approach to that individual.

I don’t see how there’s any question that it… it can help the… the officer’s safety unless you expect the officer always to pat down people, which they… they can’t do unless they have reason to believe that the person is armed–

Sri Srinivasan:

–That’s–

Antonin Scalia:

–which usually they don’t I assume.

Sri Srinivasan:

–That’s right, Justice Scalia.

The first response to Justice Stevens’ question is that the patdown authority is conditioned on there being a reasonable basis for believing that the person is armed and dangerous.

John Paul Stevens:

There has to be a reasonable suspicion, but there doesn’t have to be reasonable suspicion that he’s armed.

Sri Srinivasan:

There has–

John Paul Stevens:

That’s not part of the inquiry.

Sri Srinivasan:

–There has to be a reasonable basis for believing that the person is armed and dangerous before the authority to conduct a patdown frisk kicks in.

And what the… what the authority to determine a person’s name and thereby determine their criminal history does is to afford the officer with information that may lead him to believe that he’s dealing with a dangerous individual.

John Paul Stevens:

Well, is it your position they should get the answer to the identity question before they pat him down?

Sri Srinivasan:

No.

I don’t think it’s a… it’s a question of sequence.

John Paul Stevens:

Which comes first in your view in the normal police procedure where there is reasonable suspicion under Terry?

Sri Srinivasan:

Well, it would… first of all, it would depend on whether there’s a reasonable basis for believing that the person is armed and dangerous because if there is not that reasonable basis, the authority doesn’t have the authority to conduct a patdown at all.

David H. Souter:

All right, but on your reasoning that he can ask for the… for the name for reasons of safety… and that’s why it should be allowed without anything more… why doesn’t exactly that same reason support an authority to… to patdown even in the absence of any reason to believe that the person may be armed and dangerous?

It would contribute to officer safety.

Sri Srinivasan:

No, it would, but the… the reason why the Fourth Amendment requires a showing a reasonable basis to believe that they’re armed and dangerous before conducting a patdown is because, as the Court described the patdown in Terry, it represents a severe intrusion on the person’s personal security.

And that’s not the case for the question, what is your name.

That doesn’t represent any sort of physical intrusion on the person whatsoever.

David H. Souter:

So… so your argument really boils down to the… I mean, the… the crucial part of your argument is… is the… is the relatively… relative insignificance of the intrusion.

Sri Srinivasan:

That’s–

David H. Souter:

But for that, we’d be in the same boat with name and patdown.

Sri Srinivasan:

–Well, that’s critical to explaining why in all cases the officer should have an authority to compel the person to disclose his name.

David H. Souter:

The insignificance of the intrusion.

Sri Srinivasan:

That’s correct.

Sandra Day O’Connor:

Now, I thought… I thought under Terry we’ve held that a police officer may detain someone briefly without probable cause on a reasonable suspicion the person has committed or is about to commit a crime and during that process may ask all kinds of questions of the person, although, as far as I can find out, this Court has said the person does not have to respond to the questions.

Sri Srinivasan:

What you’re pointing to, Justice O’Connor, I believe is the dictum that was discussed early in Berkemer v…. in Berkemer v. McCarty.

And that, first of all, is dictum, but not only is it dictum, it’s ambiguous dictum because the language that the Court used was that the officer is entitled to ask a moderate number of questions, first, to determine the person’s identity and, second, to obtain information with which to confirm or dispel the officer’s suspicions.

And then the Court goes on to say that, of course, the detainee is not required to respond.

It’s unclear whether that statement concerning that the detainee is not required to respond relates to the initial basis for asking questions which is determinative of his identity.

Sandra Day O’Connor:

But we’ve just never said that the officer may require the identification.

That’s what this case asks us to determine.

Sri Srinivasan:

That’s right, Justice O’Connor, but the Court specifically left the… the question open, at least on two occasions, both in Brown v. Texas and in Kolender v. Lawson.

So I don’t think the Court is in any way inhibited by its precedents.

Sandra Day O’Connor:

And the right to do a patdown is something you do after the officer has made the initial decision to detain and ask some questions presumably.

Sri Srinivasan:

That’s right.

It comes after the officer has made a determination to detain.

That’s correct.

The issue under the Fifth Amendment I think is… is–

Anthony M. Kennedy:

Can we go back to… would you go back to the Fourth because I… I suppose the… the officer can ask, you know, and he doesn’t get an answer, so he pats him down.

What’s wrong with that?

Sri Srinivasan:

–Well, if he has a reason to believe–

Anthony M. Kennedy:

I mean, it’s very, very unlikely I would think, unless you have some evidence to the contrary, that the officer who’s in a Terry stop situation.

Are there… a lot of instances where they look… he said what’s your name and then the person… and by the way, you have to answer or you’re going to be in more trouble so therefore the person gives him his real name, which happens to turn out to be one of the worst criminals in the country, and then he pats him down.

I grant you that could happen.

But contrast that with a situation where you take Berkemer literally, and now you say if he doesn’t answer, sure you can pat him down.

What’s wrong… I… I don’t see it.

I’m back to my point which you heard me ask, and I… I’d really like an answer in terms of… I mean, Berkemer cites Davis and Davis refers to the settled principle… settled… that you can’t… you can ask what you want, but they don’t have to answer.

Okay?

So there are a lot of circumstances where it may be national ID cards or whatever, which are not Terry stop situations.

But why should we retreat from that dictum?

Now, I hear your answer about the… about the danger and I think that’s an important point.

But I… I sort of canceled that by thinking not answering would also give the policeman a justification for the patdown.

And… and now, if that’s right, what other reason is there for retreating from the rather strong dictum?

Sri Srinivasan:

–No, but Justice Breyer, I don’t think the patdown eliminates the danger.

The patdown is important in addressing the possibility that the person might use arms that are on their person against the officer, but it does… it in no way eliminates the danger to the officer.

And that’s why–

Antonin Scalia:

And… and you don’t believe that the failure to give a name gives the officer reason to believe that the person is armed, do you?

I mean, simply because he refuses to give you a name, do you have justification to do a patdown?

Sri Srinivasan:

–No.

We’re not… we’re not taking that position and the courts–

Antonin Scalia:

No, I wouldn’t think so.

I… I know a lot of people that might not want to give their names–

–Well, it would be pretty odd to say that you can force a person to give his name in order to protect the policeman, but the far lesser restriction of just taking it into account as evidence you can’t do.

That would be an unusual position.

I mean, taking it into account is a factor suggesting danger, you can’t do, but of course you can require him to answer under penalty of a crime.

Sri Srinivasan:

–Well, I think–

Stephen G. Breyer:

So, I mean, everybody is in a false position here because you’re… you’re being put in a slightly false position.

Sri Srinivasan:

–I don’t know that it’s a false position.

Stephen G. Breyer:

All right.

Yes, all right.

I’ll… I’ll take your answer.

Stephen G. Breyer:

Danger.

Is there anything else?

Sri Srinivasan:

Well, it’s not only danger to the officer’s safety, but it also could provide crucial information for the officer to… to assess the individual’s conduct because if the officer learns that the person has previously been convicted of a crime that fits that pattern that he observed in deciding to detain the person, then that could go a long ways towards officer’s determination that there’s probable cause for an arrest.

And of course, that would be crucial in… in terms of public safety because it could prevent commission of an imminent offense or the ongoing commission of a continuing offense.

Stephen G. Breyer:

Then why… why do you stop at the name?

Answers to any questions would have that effect.

Sri Srinivasan:

No, that’s true.

And… and as… from the perspective of the Fourth Amendment, I’m not sure that there’s a limitation related to answers to questions.

I think the limitation would arise under the Fifth Amendment, and what the Fifth–

David H. Souter:

So… so far as the… so far as Terry and the Fourth Amendment are concerned, I’m… I’m not sure I understand you.

Are you saying that there is an obligation to answer all questions, not just names?

Sri Srinivasan:

–No.

I… no.

The Court hasn’t specifically spoken to that question, but we don’t challenge the dictum–

David H. Souter:

No, but I… I thought… is that… is that the position that you’re taking?

Sri Srinivasan:

–No.

We don’t take the… we don’t take that position because we don’t challenge the dictum in Berkemer and other cases insofar as–

David H. Souter:

Okay.

Then why do you stop… why do you stop at the name?

Is it again the… the minimal intrusion, that that is a more minimal intrusion than other information?

Sri Srinivasan:

–That’s correct.

William H. Rehnquist:

Thank you, Mr. Srinivasan.

Mr. Dolan, you have 4 minutes remaining.

Robert E. Dolan:

Thank you, Mr. Chief Justice.

Within the… within the Fourth Amendment balancing construct, we believe that the government’s argument that officer safety is served by requiring a person to utter their name is a false assumption.

Truly if the officer is stopping Machine Gun Harry and he says, oh, I’m John Smith, and… and if you follow the government’s position, then the officer at that time can relax his guard, thereby increasing the… the possibility of danger.

So we think that as the Court engages in the analysis of what is appropriate under the balancing–

John Paul Stevens:

Well, you’re… you’re saying people can disobey the law to make it ineffective.

That’s not usually an argument we accept.

Robert E. Dolan:

–I’m saying that the… what… the government’s argument is based upon the assumption that everyone will tell the truth during a Terry stop, and I don’t believe that corresponds with common sense, especially if Machine Gun Harry is there.

Robert E. Dolan:

He doesn’t want to be identified and it’s in his interest to say my name is Tom Smith.

And if you follow the government’s conclusion… rather, it’s position, then the officer then relaxes his guard, doesn’t take appropriate steps.

We believe that officers must protect themselves but do so in a way that is consistent with the Constitution.

When the Court established the Terry rule, it created an exception to the previous rule was that seizures could only occur on probable cause, which was a greater evidentiary standard.

And the Court was very careful to suggest that there was a limited right, not a general exploratory search, that now we will be involved when… excuse me… because a name, the government suggests, will be the key to unlock data that is endless, given the modern age of technology, that the government can learn about that person.

It is a general exploratory search which the government ultimately is asking this Court to approve of.

And then privacy is a… a nice principle to talk about as a part of history.

Going forward, it will not be part of American citizens’ natural relationship by right that they can count on.

There are related freedoms that this Court also looks to in the balancing.

Sandra Day O’Connor:

Well, but if there’s reasonable suspicion to believe the person is committing a crime, it doesn’t shock me that they’d use the identification mechanisms to check it out.

I mean, we’re… we’re on the assumption that the person has been stopped on the basis of reasonable suspicion–

Robert E. Dolan:

And… and–

Sandra Day O’Connor:

–of committing a crime.

Robert E. Dolan:

–I would agree, Your Honor.

Sandra Day O’Connor:

So why not let them check in the computer records to see if this is the worst prior offender they’ve ever had?

Robert E. Dolan:

Well… well, with respect to the Terry stop itself, it is for investigation related to whether or not a crime may occur or is about to occur.

And the officer has available to them tools to inquire.

They can temporarily detain the person to see if there are witnesses around who could identify the person as having engaged in criminal conduct and the like.

But the… the notion that a person has to affirmatively provided a ticket to terminate that Terry encounter really tips the balance too much in favor of the State and risks a lot of benefits to our society that accrue through freely being able to move, to be let alone, to engage in protected activity without being subjected to the accosting that one is subjected to during a Terry stop.

Suspicious behavior is not easily or usefully quantified, so this Court has found.

And because what is suspicious to an officer–

William H. Rehnquist:

Thank you, Mr. Dolan.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.