59 P.3d 1201 | Nev. | 2002
Lead Opinion
By the Court,
The pertinent issue before us is whether NRS 171.123(3), which requires a person stopped under reasonable suspicion by a police officer to identify himself or herself, violates the Fourth Amendment of the United States Constitution. We conclude NRS 171.123(3) does not violate the Fourth Amendment because it strikes a balance between constitutional protections of privacy and the need to protect police officers and the public. Therefore, Hiibel’s petition for a writ of certiorari is denied.
In pertinent part, NRS 171.123 provides:
1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.
4. A person may not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes.
In response to a call from police dispatch, Humboldt County Sheriff’s Deputy Lee Dove drove to the scene where a concerned citizen had observed someone striking a female passenger inside a truck. There, Dove spoke to the concerned citizen and was directed to a parked truck. When Dove approached the truck, he noticed skid marks in the gravel, suggesting the truck had been parked in a sudden and aggressive manner. Dove saw Larry D. Hiibel standing outside the truck and thought he was intoxicated based on his eyes, mannerisms, speech, and odor. Hiibel’s minor daughter was in the passenger side of the truck. When Dove asked Hiibel to identify himself, Hiibel refused. Instead, Hiibel placed his hands behind his back and challenged the officer to take him to jail.
Hiibel said he would cooperate but was unwilling to provide identification, because he did not believe he had done anything wrong. After eleven requests for identification, to no avail, Dove arrested Hiibel. Dove described the situation as follows:
[D]uring my conversation with Mr. Hiibel, there was a point where he became somewhat agressive [sic].
*871 I felt based on me not being able to find out who he was, to identify him, I didn’t know if he was wanted or what is [sic] situation was, I [w]asn’t able to determine what was going on crimewise in the vehicle, based on that I felt he was intoxicated, and how he was becoming aggressive and moody, I went ahead and put him in handcuffs so I could secure him for my safety, and put him in my patrol vehicle.
Hiibel was charged with and found guilty of resisting a public officer, in violation of NRS 199.280.
On appeal, the district court held it was “reasonable and necessary” for Dove to request identification from Hiibel and affirmed Hiibel’s conviction. Evidence “over and above simply failing to identify himself” was found to support Hiibel’s arrest and conviction, which included Dove’s suspicion that Hiibel engaged in driving under the influence. The district court balanced the public’s interest in requiring Hiibel to identify himself against Hiibel’s Fifth Amendment right to remain silent. The district court determined it was crucial for the safety of an officer and possible victims to know the identity of a person suspected of battery, domestic violence, and driving under the influence.
We conclude this case is properly before this court pursuant to NRS 34.020(3), because the constitutionality of NRS 171.123(3) presents an issue of first impression. Accordingly, we will address the merits of Hiibel’s constitutional challenge to NRS 171.123(3).
Fundamental to a democratic society is the ability to wander freely
Yet, this right to privacy is not absolute.
The United States Supreme Court has twice expressly refused to address whether a person reasonably suspected of engaging in criminal behavior may be required to identify himself or herself.
There is a split of authority among the federal circuit courts of appeals on this issue.
Traditionally, in resolving issues implicating the Fourth Amendment right to privacy, the following touchstone question has been asked: Is the invasion of privacy reasonable?
[Headnote 8]
Balancing these interests, we conclude that any intrusion on privacy caused by NRS 171.123(3) is outweighed by the benefits to officers and community safety. The public interest in requiring individuals to identify themselves to officers when a reasonable suspicion exists is overwhelming. The United States Supreme Court has recognized that “American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.”
Judicial notice is taken that in the year 2000, fifty-one officers were murdered in the line of duty.
Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop. It follows that an officer “making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect.”
Additionally, if suspects are not legally required to identify themselves, what could an officer do if a suspicious person were loitering outside a daycare center or school? Perhaps that person is a sex offender. How are officers to enforce restraining orders? Or, how are officers to enforce curfew laws for minors without a requirement to produce identification? In these situations, it is the observable conduct that creates a reasonable suspicion, but it is the requirement to produce identification that enables an officer to determine whether the suspect is breaking the law.
Most importantly, we are at war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled. Terrorism is “changing the way we live and the way we act and the way we think.’ ’
Contrary to the dissent’s opinion, requiring a suspect to reveal his name is not an abrogation of the Bill of Rights. “Bills of rights give assurance to the individual of the preservation of his liberty. They do not define the liberty they promise.”
The requirements of NRS 171.123(3) are also reasonable and involve a minimal invasion of personal privacy.
To hold that a name, which is neutral and non-incriminating information, is somehow an invasion of privacy is untenable. Such an invasion is minimal at best. The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists. The Supreme Court held it reasonable for officers to pat down and frisk a person during an investigative stop.
Here, Hiibel was suspected of domestic violence against his minor daughter and driving under the influence of alcohol. Based on skid marks in the gravel, it appeared that Hiibel parked his truck in a quick and aggressive manner. Hiibel refused eleven requests by officers to identify himself. Instead, Hiibel placed his hands behind his back and challenged the deputy to take him to jail. An ordinary person would conclude it was Hiibel who was unreasonable, not the law.
Finally, NRS 171.123(3) is narrowly written. It applies only in situations where an officer has an articulable suspicion that a person is engaged in criminal behavior. “[C]ommon sense often makes good law,” once wrote United States Supreme Court Justice William O. Douglas.
NRS 199.280 states:
A person who, in any case or under any circumstances not otherwise specially provided for, willfully resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his office shall be punished:
1. Where a dangerous weapon is used in the course of such resistance, obstruction or delay, for a category D felony as provided in NRS 193.130.
2. Where no dangerous weapon is used in the course of such resistance, obstruction or delay, for a misdemeanor.
Hiibel was also arrested for the misdemeanor charge of domestic battery. This charge was dismissed at the State’s request, prior to trial.
See Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972).
Brown v. Texas, 443 U.S. 47, 52-53 (1979).
Public Utilities Comm’n v. Pollak, 343 U.S. 451, 468 (1952) (Douglas, J., dissenting).
Terry v. Ohio, 392 U.S. 1, 9 (1968) (citing Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891)).
Id.
Id. (citing Elkins v. United States, 364 U.S. 206, 222 (1960)).
Brown, 443 U.S. at 53 n.3 (“We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.”); Kolender v. Lawson, 461 U.S. 352, 361-62 n.10 (1983) (holding that a California statute requiring an individual who loitered or wandered the streets to produce “credible and reliable” identification to an officer upon request of a police officer was unconstitutional on vagueness grounds, but refusing to consider whether the statute violated the Fourth Amendment).
Albright v. Rodriguez, 51 F.3d 1531, 1537-38 (10th Cir. 1995); Gainor v. Rogers, 973 F.2d 1379, 1386 n.10, 1389 (8th Cir. 1992) (noting that Supreme Court has not determined whether an officer may arrest an individual for refusing to identify himself or herself during an investigative stop); Tom v. Voida, 963 F.2d 952, 959 n.8 (7th Cir. 1992) (observing that whether individuals may refuse to answer questions asked by an officer during an investigative stop is a question unanswered by the Supreme Court).
Compare Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 881 (9th Cir. 2002), and Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987), with Oliver v. Woods, 209 F.3d 1179, 1190 (10th Cir. 2000), and Albright, 51 F.3d at 1537.
Id. at 880 (quoting Lawson v. Kolender, 658 F.2d 1362, 1366-67 (9th Cir. 1981), aff’d, 461 U.S. 352 (1983)).
Terry, 392 U.S. at 9.
Brown, 443 U.S. at 50 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)).
Id. at 50-51 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
Id. at 51 (citing Delaware v. Prouse, 440 U.S. 648, 654-55 (1979)).
Terry, 392 U.S. at 23.
Federal Bureau of Investigation, U.S. Dep’t of Justice, Crime in the United States 2000, at 291 (2001).
Federal Bureau of Investigation, U.S. Dep’t of Justice, Law Enforcement Officers Killed and Assaulted, 2000, at 28 (2001), at http://www.fbi.gov/ucr/killed/001eoka.pdf (last visited Nov. 12, 2002) (this document was discontinued in print after 1999 and is now only available on the Internet as referenced above).
Id. at 4.
Id. at 75.
Adams v. Williams, 407 U.S. 143, 146 (1972).
Interview by Tony Snow with Senator Tom Daschle, United States Senate, Washington, D.C. (Oct. 21, 2002), http://www.foxnews.com/ story/0,2933,66236,00.html.
President George W. Bush, Address During a News Conference (Oct. 11, 2001), http://www.cnn.com/2001/US/10/ll/gen.bush.transcript/index.html.
Benjamin N. Cardozo, The Paradoxes of Legal Science 97 (1928).
Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908).
Adams, 407 U.S. at 146 (“A brief stop of a suspicious individual, in order to determine his identity . . . may be most reasonable in light of the facts known to the officer at the time.” (citing Terry, 392 U.S. at 21-22)).
Terry, 392 U.S. at 24.
Id. at 23.
Peak v. United States, 353 U.S. 43, 46 (1957).
The dissent, as dramatically worded as it is, does not refute this position.
Dissenting Opinion
dissenting:
As the majority aptly states, the right to wander freely and anonymously, if we so choose, is a fundamental right of privacy in a democratic society. However, the majority promptly abandons this fundamental right by requiring “suspicious” citizens to identify themselves to law enforcement officers upon request, or face the prospect of arrest. I dissent from the majority’s holding that the identification portion of NRS 171.123 is constitutional.
It is well-established that police officers may stop a person when reasonable suspicion exists that that person is engaged in illegal activity.
The Fourth Amendment requires that governmental searches and seizures be reasonable. Reasonableness is determined by “a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”
Anonymity is encompassed within the expectation of privacy, a civil liberty that is protected during a Terry stop. The majority now carves away at that individual liberty by saying that a detainee must surrender his or her identity to the police.
I agree with the Ninth Circuit Court of Appeals’ reasoning on the issue of whether a person may be arrested for refusing to identify himself during a Terry stop.
More directly on point, the Ninth Circuit in Carey v. Nevada Gaming Control Board
Despite the above authority, the majority erroneously affirms Hiibel’s conviction by reflexively reasoning that the public interest in police and public safety outweighs Hiibel’s interest in refusing to identify himself. I am not persuaded. And I am uneasy about the reasons given by the majority in justifying its holding.
The majority concludes that the governmental interest in police safety outweighs an individual’s interest in his right to keep private his identity. The majority relies upon FBI statistics about police fatalities and assaults to support its argument. However, it does not provide any evidence that an officer, by knowing a person’s identity, is better protected from potential violence. In Terry, the United States Supreme Court addressed the issue of officer safety by carving out an exception to the Fourth Amendment to allow a police officer to make certain that the person being detained “is not armed with a weapon that could unexpectedly and fatally be used against him”
It is well known that within the context of a Terry stop an officer’s authority to search is limited to a pat-down to detect weapons. The officer may investigate a hard object because it might be a gun. An officer may not investigate a soft object he detects, even though it might be drugs. Similarly, an officer may not detect a wallet and remove it for search. With today’s majority decision, the officer can now, figuratively, reach in, grab the wallet and pull out the detainee’s identification. So much for our right to be left alone or as the majority says — to wander freely and anonymously if we choose.
The majority avoids the fact that knowing a suspect’s identity does not alleviate any threat of immediate danger by arguing that a reasonable person cannot expect to withhold his identity from police officers, as we reveal our names to different people every day. What the majority fails to recognize, however, is that when we give our names to new acquaintances, business associates and shop owners, we do so voluntarily, out of friendship or to complete a transaction. With the heightened security at airports, for example, passengers are required to provide picture identification. But non-passengers are free to wander that portion of the airport
Finally, the majority also makes an emotional appeal based upon fear and speculation by arguing that the police would be powerless to protect innocent children from sex offenders, to enforce restraining .orders, and to enforce curfews for minors. What the majority fails to recognize is that it is the observable conduct, not the identity, of a person, upon which an officer must legally rely when investigating crimes and enforcing the law.
The majority further appeals to the public’s fear during this time of war “against an enemy who operates with a concealed identity.” Now is precisely the time when our duty to vigilantly guard the rights enumerated in the Constitution becomes most important. To ease our guard now, in the wake of fear of unknown perpetrators who may still seek to harm the United States and its people, would sound the call of retreat and begin the erosion of civil liberties. The court must not be blinded by fear. I am reminded of a statement by Justice Felix Frankfurter, so aptly quoted by Chief Justice Young, the majority’s author, in another search and seizure case involving individual liberties protected by the Fourth Amendment:
“[W]e are in danger of forgetting that the Bill of Rights reflects experience with police excesses. It is not only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.”22
The majority, by its decision today, has allowed the first layer of our civil liberties to be whittled away. The holding weakens the democratic principles upon which this great nation was founded.
Terry v. Ohio, 392 U.S. 1, 21-22 (1968); see also State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d 947, 949 (2000).
Brown v. Texas, 443 U.S. 47, 50 (1979).
Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
Id. at 439-40; see Kolender v. Lawson, 461 U.S. 352, 360 n.9 (1983).
Brown, 443 U.S. at 50-51.
Id. at 51.
Although the United States Supreme Court has not yet addressed this issue and there is a split of federal authority, I find the Ninth Circuit’s approach to be the more lucid one.
820 F.2d 1491 (9th Cir. 1987).
Id. at 1492.
Id. at 1494 (quoting Lawson v. Kolender, 658 F.2d 1362, 1366 (9th Cir. 1981), aff’d, 461 U.S. 352 (1983)).
Id. (quoting Lawson, 658 F.2d at 1366-67).
279 F.3d 873 (9th Cir. 2002).
Id. at 876.
Id.
Id.
Id.
Id. at 876, 879-80.
Id. at 881-82 (quoting Dunaway v. New York, 442 U.S. 200, 211 n.12 (1979) (quoting Terry v. Ohio, 392 U.S. 1, 34 (1968))).
Id. at 880.
Terry, 392 U.S. at 23.
Id. at 27.
United States v. Robel, 389 U.S. 258, 264 (1967).
Barrios-Lomeli v. State, 114 Nev. 779, 782, 961 P.2d 750, 752 (1998) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).
Concurrence Opinion
concurring:
I join in the result reached by the majority, stressing again that NRS 171.123 is narrowly written, and that its requirement that persons reasonably suspected of criminal misconduct be required to identify themselves to police during brief investigatory stops is a commonsense requirement for the protection of the public and law enforcement officers.
I write separately to note that the majority has not somehow overreacted to the dangers presented by the war against domestic and international terrorism. Our decision today is truly related to the ability of police to properly and safely deal with persons reasonably suspected of criminal misconduct, here, domestic violence and driving under the influence of alcohol.
Notwithstanding the sentiments voiced by my dissenting colleagues, NRS 171.123, as stated by Young, C. J., in the majority opinion, “is good law consistent with the Fourth Amendment.”