Amicus Curiae Brief — Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.

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No. 03-5554 cL 13 2003

In The

Supreme Court of the Anited States

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LARRY D. HIIBEL,

Petitioner,

V.

SIXTH JUDICIAL DISTRICT COURT OF NEVADA,

HUMBOLDT COUNTY, et al.,

Respondents.

7

On Writ Of Certiorari

To The Supreme Court Of Nevada

+

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

¢

TIMOTHY LYNCH*

CATO INSTITUTE

1000 Massachusetts Ave., NW

Washington, DC 20001

(202) 842-0200

M. CHRISTINE KLEIN

HUNTON & WILLIAMS LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8755

*Counsel of Record

SEE ees

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITITEG.............::ceeeseesereeeeeessenersneees ii

INTEREST OF AMICUS CURIAE ........::c:esseseeeeeeenseees 1

STATEMENT OF THE CASE ..........-ccccceeeeeeseeeeeeenenneeees 1

SUMMARY OF ARGUMENT ..........:ccccsseseeeeeeereneenenneees 3

ARGUMENT. ........0:cccccsssssssssssseseeessessserenseeseessennnesssssnnsees 4

I. IF GOVERNMENT AGENTS HAVE THE

POWER TO ACTIVELY SEEK CONSENSUAL

STOPS AND SEARCHES, THEN CITIZENS

CANNOT BE ARRESTED FOR DECLINING

SUCH INVITATIONS OR OTHERWISE EN-

GAGING IN PEACEFUL NONCOOPERA-

Il. IF GOVERNMENT AGENTS HAVE THE

POWER TO ACTIVELY SEEK CONSENSUAL

CONVERSATIONS WITH CITIZENS IN OR-

DER TO SECURE ADMISSIONS AND CON-

FESSIONS, THEN CITIZENS CANNOT BE

ARRESTED FOR DECLINING SUCH INVI-

TATIONS OR OTHERWISE ENGAGING IN

PEACEFUL NONCOOPERATION ........:.:+++++++ 7

Ill. IT IS PERVERSE TO REASON THAT THE

CONSTITUTIONAL RIGHTS OF THE CITI-

ZENRY DISSIPATE ALONG WITH THE QUAN-

TUM OF INCRIMINATING EVIDENCE IN THE

POSSESSION OF THE GOVERNMENT..........-.. 11

IV. THE RIGHT TO REMAIN SILENT IS A SIM-

PLE, JUST, CONSTITUTIONAL RULE. ANY

OTHER RULE WILL COMPLICATE THE LAW

AND SPAWN MORE LITIGATION .........-+--++++00++ 13

CONCLUSION. ........::ccccccsesescsceesereesseeseserenesssenensenesssnnes 18

ii

TABLE OF AUTHORITIES

Page

CASES

Berkemer v. McCarty, 468 U.S. 420 (1984)...........0000+8 11, 16

Bivens v. Six Unknown Federal Narcotics Agents,

408 UB. BBB (1071) .ccoccecececcescesserscennmmmnmaas 10

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)........... 7

Brogan v. United States, 522 U.S. 398 (1998) ..........s2e++0+ 11

Chavez v. Martinez, 123 S. Ct. 1994 (20038)...........:ceeeeeeees 10

Coolidge v. New Hampshire, 403 U.S. 443 (1971)..........+-. 17

County of Riverside v. McLaughlin, 500 U.S. 44

(( )) a 7

Dickerson v. United States, 530 U.S. 428 (2000)............++. 11

District of Columbia v. Little, 178 F.2d 13 (D.C. Cir.

BDO) .ccccoveccelocceccessesecorssnsssceenmeennmmne 4,12

East Brunswick v. Malfitano, 260 A.2d 862 (NJ.

Super. Ct. App. Div. 1970)........sscseceeseeerseserenseeneeenenns 14

Enright v. Groves, 560 P.2d 851 (Colo. App. 1977).........++: 9

Florida v. Bostick, 501 U.S. 429 (1991) .......cccccccceseeeeeeeeeees 13

Grant v. State, 461 A.2d 524 (Md. Ct. Spec. App.

| | | a EE 8

Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th

+ 2) | ee 15

Henes v. Morrissey, 533 N.W.2d 802 (Wis. 1995)............... 15

Hiibel v. Sixth Judicial District Court, 59 P.3d 1201

1 |) | ee 2

Illinois v. Perkins, 496 U.S. 292 (1990) .......ccccccececeerrereeenees 9

In re Stumbo, 582 S.E.2d 255 (N.C. 20038)............ceeeceeeeeeees 6

lili

TABLE OF AUTHORITIES - Continued

Page

King v. State, 149 So.2d 482 (Miss. 1963) ........-.-+----+0100+ 5, 6

Kolender v. Lawson, 461 U.S. 352 (1983)......--.-:ssseeeeeeeee 14

Malloy v. Hogan, 378 U.S. 1 (1964) ........-ssessesseseseserereneneess 8

Michigan v. DeFillippo, 443 U.S. 31 (1979).........- weve, 17

Miller v. United States, 230 F.2d 486 (5th Cir. 1956)......... 5

Miranda v. Arizona, 384 U.S. 436 (1966)........-.-++ 10, 11

Mitchell v. United States, 526 U.S. 314 5 12

Ohio v. Robinette, 519 U.S. 33 (1996) .......csseeereerreereeeeerens 8

People v. Tinston, 163 N.Y.S.2d 554 (N.Y. Mag. Ct.

1957) ..ccecceccocseccocceccsecesssescsesssersncsorsessccsssencsasensessscnsesensenees 5

Scott v. Maryland, 782 A.2d 862 (Md. 2001) .......---+-:+:+++0++ 7

See v. City of Seattle, 387 U.S. 541 (| 5

State v. Barnes, 572 S.E.2d 165 (N.C. Ct. App.

D002) ....cceccocceccsccsccercsrcsrsscccsesencserssssesserscssnssnssnrsosenssnsensess 10

State v. Bradshaw, 541 P.2d 800 (Utah 1975)... 14

State v. Espinoza, 641 N.W.2d 484 (Wis. Ct. App.

QOOZ)...cceccccceoceccecseccscsercscrecssresersrenssscscssecenssesesecsnsssensenees 9

State v. Hamilton, 356 N.W.2d 169 (Wis. es g

State v. Hauan, 361 N.W.2d 336 (Iowa Ct. App.

19B4).....cceccecceccoscsecscssssserseccseceeressseresrcnssersnseanessscscerenseseass 9

State v. Hobson, 577 N.W.2d 825 (Wis. 1998)...........+++++++: 14

State v. Srnsky, 582 S.E.2d 859 (W. Va. 2003)........-+-+--++++ 13

Strange v. City of Tuscaloosa, 652 So.2d 775 (Ala.

Crim. App. 1994) ......s:.sessessssersesssseeensnsssenensnrensnsnesnensnnsness 6

Terry v. Ohio, 392 U.S. 1 (1968)........... 7, 8, 9, 10, 13, 15, 16

United States v. Di Re, 332 U.S. 581 (1948)......-...seeereeee 9

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Drayton, 536 U.S. 194 (2002)................ 7,9

United States v. McGauley, 786 F.2d 888 (8th Cir.

Se cesesitiicinianieinaciitiiiiaiaiae hin ai aa 10

Watts v. Indiana, 338 U.S. 49 (1949)... ce eeeeeeeeee 16

STATUTES

es I i leas 10

ns I 16

Md. Code Ann., Crim. Law § 9-503 .00.............cccccseseeeeeeeeeees 10

gS ERENT REI EnRU IM eOUN Daou EN NOTH TT 2

ran TTT cclniitiuiciideiitieanlaeasdiaa cela cia ceeaieteetdictmeaaaciatn ia iat 2

re es A, BE, BR Se Bi vicicttcnssicceienentatineeeniniccicciaiiitaneaiaiiein 16

LS TTR 10

SCHOLARSHIP AND OTHER SOURCES

Joel Berger, “The Police Misconduct We Never See,”

New York Times, February 9, 1999 ............:cccccccccsceeeeeeee 10

Timothy Lynch, “We Own the Night:” Amadou

Diallo’s Deadly Encounter with New York City’s

Street Crimes Unit,” Cato Institute Briefing Pa-

per, No. 56 (March 31, 2000)..............cc.cccccocccccccsccccccccees 14

“NYPD Hit on Stop and Frisk Report,” Daily News

(New York), December 1, 1999 ...........cccccccccccccecccceeeeeeeees 15

1

INTEREST OF AMICUS CURIAE'

The Cato Institute was established in 1977 as a non-

partisan public policy research foundation dedicated to

advancing the principles of individual liberty, free mar-

kets, and limited government. Cato’s Center for Constitu-

tional Studies was established in 1989 to help restore

limited constitutional government and secure those

constitutional rights, both enumerated and unenumer-

ated, that are the foundation of individual liberty. Toward

those ends, the Center publishes books and studies,

conducts conferences and forums, publishes the annual

Cato Supreme Court Review, and files amicus curiae briefs

with the courts. Because the instant case raises vital

questions about the power of government to stop individu-

als who do not wish to be stopped and to demand answers

from individuals who do not wish to speak, the case is of

central concern to Cato and the Center.

¢

STATEMENT OF THE CASE’

On the evening of May 21, 2000, a bystander called

the Humboldt County Sheriff’s Office in Winnemucca,

Nevada to report that the driver of a pick-up trucx vas

* The parties’ consent to the filing of this amicus brief has been

lodged with the Clerk of this Court. In accordance with rule 37.6,

amicus states that no counsel for either party has authored this brief in

whole or in part, and no person or entity, other than the amicus, has

made a monetary contribution to the preparation of this brief.

* This statement of facts is based upon Patrol Deputy Lee Dove's

trial testimony given February 13, 2001, in the Justices’ Court of Union

Township, Nevada.

2

hitting his female passenger. When Patrol Deputy Lee Dove

responded, the reporting party directed him to a truck parked

on the side of Grass Valley Road. Larry Hiibel was standing

outside the truck. Deputy Dove asked Mr. Hiibel several times

to identify himself, but Mr. Hiibel chose to remain silent.

Because Mr. Hiibel refused to “cooperate” by identifying

himself, Deputy Dove placed him in handcuffs and trans-

ported him to jail. Deputy Dove testified that because Mr.

Hiibel had “potentially” committed a crime, he was legally

required to identify himself pursuant to NRS § 171.123(3).

Because Mr. Hiibel remained silent instead, he was charged

with, and ultimately convicted of, delaying an officer under

NRS § 199.280. Specifically, the trial court held that “Deputy

Dove acted properly and lawfully when he asked [Mr. Hiibel]

for identification and subsequently arrested him for refus-

ing. ...” Mr. Hiibel was never tried on any other charge.’

The Supreme Court of Nevada, in a 4-3 opinion, held

that it is constitutional to arrest a person for exercising

his right to remain silent by refusing to identify himself.

Hiibel v. Sixth Judicial District Court, 59 P.3d 1201 (Nev.

2002). The three dissenting justices observed that “being

forced to identify oneself to a police officer or else face arrest is

government coercion — precisely the type of governmental

intrusion that the Fourth Amendment was designed to

prevent.” Id. at 1209 (Agosti, J., with whom Shearing and

Rose, JJ., join, dissenting).

* Nevada dismissed a domestic battery charge against Mr. Hiibel.

See Hiibel v. Sixth Judicial District Court, 59 P.2d 1201, 1203, n.1 (Nev.

2002). No other charges were ever brought.

3

SUMMARY OF ARGUMENT

On first blush, the arrest of Larry Hiibel appears to be

a petty matter, but this case actually raises profound

questions regarding the power of government and the

constitutional rights of the citizenry.

If citizens have the right to voluntarily engage in

conversations with police officers (and they assuredly do),

they must also retain the option of declining to engage in

such conversations — especially when law enforcement

agents are employing interrogation tactics that are pur-

posely designed to have the citizen waive his right to reject

a consensual stop or search or his right to silence.

If the government can criminalize citizen silence, citizens

will no longer be able to rely upon their own wits when they

find themselves confronted with law enforcement agents.

There would simply be too much legal jeopardy: if self-

incrimination, false statements, and simple silence can be

jailable offenses, citizens will become totally dependent upon

members of the legal profession to defend and vindicate their

legal rights. And since attorneys are typically not on the scene

as the events are unfolding, the rights of the citizenry will be

trampled month to month, year to year — as only a few will

seek out an attorney after-the-fact and file a lawsuit. This

Court must recognize that such after-the-fact avenues of legal

relief, at least in the context of citizen-cop street encounters,

are woefully inadequate. This case provides the Court with an

opportunity to declare a clear, simple and just rule of law: an

American citizen cannot lose his liberty for simply declining to

speak with a police officer. Any other rule will dilute the

constitutional rights of all citizens, complicate the law, and

spawn still more litigation.

4

ARGUMENT

I. IF GOVERNMENT AGENTS HAVE THE

POWER TO ACTIVELY SEEK CONSENSUAL

STOPS AND SEARCHES, THEN CITIZENS

CANNOT BE ARRESTED FOR DECLINING

SUCH INVITATIONS OR OTHERWISE EN-

GAGING IN PEACEFUL NONCOOPERATION.

History shows that from time to time government

officials become so zealous in their desire to carry out their

responsibilities that they not only come to want the full

cooperation of citizen-suspects and citizen-witnesses, but

they go so far as to demand it. And when such demands

are resisted, there is a tendency for those in authority to

overreact and to misperceive the entire affair as an in-

stance of “obstruction of justice” or “interfering with a

police officer” or “disorderly conduct.” It is the duty of the

judiciary to scrutinize such claims of “criminality” to

determine whether the underlying conduct of the citizen

truly interfered with a government agent in the perform-

ance of his duty — or whether the conduct merely dis-

pleased the agent.

When Geraldine Little stood on her Fourth Amend-

ment rights and refused to allow a City Health official into

her home without a warrant, she was arrested for “hinder-

ing” and “interfering” with an inspector in the performance

of his duty. District of Columbia v. Little, 178 F.2d 13 (D.C.

Cir. 1949), aff’d 339 U.S. 1 (1950). In reversing her convic-

tion, the court noted that constitutional guarantees can be

invoked not only against “malevolent and arrogant

agents,” but “wise and benign officials” as well. Id. at 17.

The court also observed that it was immaterial whether

the demand for entrance was “motivated by the highest

public purpose or by the lowest personal spite.” Jd.

5

When Evelyn Miller stood on her Fourth Amendment

rights and refused to allow a U.S. Marshal into her home

without a search warrant, federal prosecutors charged her

with “obstruction of justice.” Miller v. United States, 230

F.2d 486 (5th Cir. 1956). In reversing her conviction, the

court noted that Miller “asserted a right which was hers,

and which none could take away. That it . . . subjected the

officers to the inconvenience of getting a lawful writ,

neither detracts from this right nor subjects her to a crime

for having asserted it.” Id. at 489-490.

When Albert Tinston refused to identify himself to

plainclothes officers who accosted him on the street, he

was arrested for “disorderly conduct.” People v. Tinston,

163 N.Y.S.2d 554 (N.Y. Mag. Ct. 1957). In reversing his

conviction, the court noted that Mr. Tinston “could hardly

have employed a milder form of resistance to ‘prevent an

offense against his person.’” Jd. at 559.

When Samuel King stood on his Fourth Amendment

rights and told two deputy sheriffs to leave his property,

he was arrested for “obstructing justice.” King v. State, 149

So.2d 482 (Miss. 1963). In reversing his conviction, the

court noted that since there was nothing in the record to

justify the invasion of King’s property, he was within his

rights in treating the police officers as “trespassers.” Id. at

483.

When Norman See stood on his Fourth Amendment

rights and refused to allow city officials to search his

warehouse without a warrant, he was prosecuted and

fined. See v. City of Seattle, 387 U.S. 541 (1967). In revers-

ing his conviction, this Court wrote that Mr. See could not

“be prosecuted for exercising his constitutional right.” Jd.

at 546.

6

When Delores Strange stood on her Fourth Amend-

ment rights and refused to allow police officers to search

the bedrooms of her home, she was arrested for “interfer-

ing” with the police. Strange v. City of Tuscaloosa, 652

So.2d 773 (Ala. Crim. App. 1994). In reversing her convic-

tion, the court noted that the warrantless entry into the

home violated her constitutional rights. Thus, “her actions

to prohibit the entry and search cannot subject her to a

criminal conviction for interfering with police officers.” Id.

at 776.

When Mary Ann and James Stumbo stood upon their

Fourth Amendment rights and refused to allow a social

worker into their home to interrogate their children, a

court order (carrying criminal penalties) was issued. Jn re

Stumbo, 582 S.E.2d 255 (N.C. 2003). That order instructed

the Stumbos to not “obstruct” or “interfere” with the

investigation. On appeal, the Supreme Court of North

Carolina determined that it was the social worker’s

demands, not the conduct of the Stumbos, that were

unlawful. Id.

Geraldine Little, Evelyn Miller, Albert Tinston,

Samuel King, Norman See, Delores Strange, and Mary-

Ann and James Stumbo could have acquiesced to the

authorities with whom they were confronted, but instead

they resisted by standing upon their constitutional rights.

Initially, the government perceived the invocation of their

rights as criminal behavior — it was only later that those

rights were vindicated by the courts. In this case, Deputy

Dove did his best to elicit a “voluntary” statement from

Mr. Hiibel. For better or worse, that plan failed when Mr. |

7

Hiibel exercised his right to remain silent and his “right

not to cooperate.” United States v. Drayton, 536 U.S. 194,

197 (2002).' By criminalizing citizen silence in these

circumstances, Nevada has unconstitutionally burdened

the right of citizens to withhold consent from agents who

are aggressively seeking to secure citizen consent in order

to justify stops and searches.*

Il. IF GOVERNMENT AGENTS HAVE THE POWER

TO ACTIVELY SEEK CONSENSUAL CONVER-

SATIONS WITH CITIZENS IN ORDER TO SE-

CURE ADMISSIONS AND CONFESSIONS, THEN

CITIZENS CANNOT BE ARRESTED FOR DE-

CLINING SUCH INVITATIONS OR OTHERWISE

ENGAGING IN PEACEFUL NONCOOPERATION.

In Terry v. Ohio, 392 U.S. 1 (1968), Justice White was

undoubtedly correct when he observed that

‘ In recent years police agencies have been employing a new tactic

that has come to be called “Knock and Talk.” See, e.g., Scott v. Mary-

land, 782 A.2d 862 (Md. 2001). The basic idea is to knock on the door of

people’s homes, engage them in conversation, and to try mightily to

obtain consent for searches of those homes. This tactic is consistent

with the constitutional rights of the citizenry — 50 long as this Court

makes it plain that homeowners cannot face “obstruction of justice”

charges for remaining silent or for peacefully closing their doors to

uninvited government agents.

® Note that the claim that there is no “constitutional right to

anonymity” only serves to obfuscate the issues at stake in this case.

This claim is akin to arguing thet the Constitution does not mention a

“right to decline association with unwanted persons” (but see Boy Scouts

of America v. Dale, 530 U.S. 640, 648-649 (2000) (“Government actions

that may unconstitutionally burden [the freedom of association] may

take many forms”)) or a judicial hearing within forty-eight hours of an

arrest (but see County of Riverside v. McLaughlin, 500 U.S. 44 (1991)).

|

-

8

“There is nothing in the Constitution which pre-

vents a policeman from addressing questions to

anyone on the streets. Absent special circum-

stances, the person approached may not be de-

tained or frisked but may refuse to cooperate and

go on his way.”

Id. at 34 (White, J., concurring). It is also undoubtedly

true that the police can exploit any inculpatory utterance

elicited from a citizen as a legal justification to augment

his authority, such as by (a) detaining the citizen against

his will; (b) frisking the citizen’s clothes; or (c) conducting

a full blown custodial arrest. See, e.g., Grant v. State, 461

A.2d 524 (Md. Ct. Spec. App. 1983). After all, if a police

officer is walking the beat and asks a passerby if he has

any “guns or drugs on his person,” and the citizen replies

“Well, I do have some cocaine right here in my coat,” such

an admission would furnish the police with a sufficient

legal basis to search that coat and, if the cocaine is indeed

found, to arrest that person. In other situations, the police

may be able to secure admissions, such as a citizen’s

whereabouts at a critical time, and so forth. Under the

law, then, the police can ask questions and citizens can

certainly elect to answer those questions. This case raises

the question as to whether a citizen can elect to resist

entreaties by the police by remaining silent or otherwise

engaging in peaceful noncooperation. See Malloy v. Hogan,

378 U.S. 1, 8 (1964) (“The Fourteenth Amendment secures

against state invasion ... the right of a person to remain

silent unless he chooses to speak in the unfettered exercise

* Cf Ohio v. Robinette, 519 U.S. 33 (1996) (police officer poses

similar question to citizen).

9

of his own will, and to suffer no penalty ... for such

silence.”)

History has shown that the government has at-

tempted to establish precedents that will unconstitution-

ally burden the right of the citizen to choose silence in the

face of questions posed by agents. For example, in United

States v. Di Re, 332 U.S. 581, 594-95 (1948), prosecutors

maintained that the police could infer probable cause of

criminality from the fact that a citizen did not angrily

protest his arrest and “did not at once assert his inno-

cence.” In State v. Espinoza, 641 N.W.2d 484 (Wis. Ct. App.

2002), prosecutors maintained that the police could prose-

cute a citizen for “obstruction of justice” because the

citizen asserted his innocence and affirmatively denied his

involvement in criminal activity. Overzealous prosecutors

may believe that confessions are the only appropriate

response to police questioning, but that is not the only

prerogative under the American Constitution.’

Before this Court analyzes the constitutional issue in

this case, it would be useful to begin with a restatement of

certain propositions that are not in dispute. First, this

Court has cetermined that the police can actively question

citizens during “voluntary encounters” and “Terry stops.”

(See Drayton; Terry v. Ohio, 392 U.S. 1 (1968)). Second, the

law also allows police officers to use various forms of

trickery and deception to elicit statements from citizens

who fall under suspicion. (See, e.g., Illinois v. Perkins, 496

’ See generally State v. Hamilton, 356 N.W.2d 169 (Wis. 1984);

State v. Hauan, 361 N.W.2d 336, 340-41 (Iowa Ct. App. 1984); Enright v.

Groves, 560 P.2d 851 (Colo. Ct. App. 1977).

10

U.S. 292, 297-98 (1990); State v. Barnes, 572 S.E.2d 165

(N.C. Ct. App. 2002)). Third, an inculpatory statement or

admission can be used against the person who makes it,

and a false statement can lead to legal jeopardy, as well.

(See, e.g., 18 U.S.C.A. § 1001; Ga. Code Ann. § 16-10-20;

Md. Code Ann., Crim. Law § 9-503). Fourth, Miranda

warnings are not required during Terry stops. (See, e.g.,

United States v. McGauley, 786 F.2d 888, 890 (8th Cir.

1986)). Fifth, citizens have no constitutional right to know

the identity of the government agents with whom they are

confronted. (Cf. Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971)).* Be that as it may, but now

the State of Nevada has created legal jeopardy for citizens

who simply elect to maintain silence. The constitutional

problem here is very similar to the one that this Court

noted in Chavez v. Martinez, 123 S.Ct. 1994, 2003-04

(2003), namely, “that if the privilege cannot be asserted in

these situations, any statements [will] be deemed ‘volun-

tary.” Thus, the criminalization of the right to silence in

these circumstances constitutes an unconstitutional

burden upon the right against self-incrimination.”

* When unidentified government agents act lawlessly, such as

when a plainclothes officer conducts an illegal Terry stop, the citizen is

obviously at a distinct disadvantage in obtaining any legal remedy. It is

even worse when government agents misrepresent their identity. See,

e.g., Joel Berger, “The Police Misconduct We Never See,” New York

Times, February 9, 1999.

* Note also how the Nevada statute works in combination with the

legal doctrine of search incident to arrest. The Nevada statute presents

citizens with the Hobson’s choice of “choos[ing] between forgoing their

right to remain silent and forgoing their right not to be searched if they

choose to remain silent.” Michigan v. DeFillippo, 443 U.S. 31, 46 (1979)

(Brennan, J., with whom Marshall and Stevens, JJ., join dissenting).

11

It should be noted that when a petitioner advanced an

argument in this Court just a few years ago that persons

who are under investigation might be unaware of their

right to remain silent, this Court declared such a notion to

be “implausible.” Brogan v. United States, 522 U.S. 398,

405 (1998). In the circumstances of this case, the citizen

was aware of his right to remain silent, but when he

invoked it, the police placed him under arrest and took

him to jail. Quite obviously, “the right to remain silent” is

under a cloud, to say the least, in some jurisdictions.

Ill. IT IS PERVERSE TO REASON THAT THE

CONSTITUTIONAL RIGHTS OF THE CITI-

ZENRY MUST DISSIPATE ALONG WITH THE

QUANTUM OF INCRIMINATING EVIDENCE

IN THE POSSESSION OF THE GOVERNMENT.

The Nevada law under which Mr. Hiibel was prose-

cuted imposes a duty upon persons who are “stopped

under reasonable suspicion by a police officer.” When that

legal duty is examined in the broader context of this

Court’s case law, it becomes apparent that its enforcement

will only produce absurd results.

Consider that even if police detectives are able to

convince a judicial officer to issue an arrest warrant

because the police have done excellent investigative work

and have probable cause to believe that a certain citizen

has committed an offense, that citizen, upon his arrest, not

only has the right to ignore questions posed by the arrest-

ing detectives and to remain silent, the police have an

affirmative obligation to warn the arrestee of his right to

remain silent. See Miranda v. Arizona, 384 U.S. 436

(1966); Berkemer v. McCarty, 468 U.S. 420 (1984);

Dickerson v. United States, 530 U.S. 428 (2900).

12

Consider that even after the police and prosecutors

are able to convince an impartial jury to convict a citizen

of a criminal offense by presenting overwhelming evidence

of guilt, that citizen-defendant still retains the right to

remain silent during the sentencing phase of the criminal

case. See Mitchell v. United States, 526 U.S. 314 (1999).

But now consider that in Nevada citizens are stripped

of the right to remain silent when the government has a

much lower quantum of incriminating evidence in its

possession, that is, reasonable suspicion alone. Because of

the limited coverage of the Nevada statute, citizens who do

not fall under the reasonable suspicion of a police officer

can still decline to identify themselves to police detectives

without any threat of arrest and jail time. Are Nevada

officials prepared to argue that that circumstance is

simply a matter of legislative forbearance? Are Nevada

officials prepared to argue that the legislature can revise

the law so that the police can demand answers from any

person who is not under arrest?” To paraphrase Judge

Prettyman, To say that a citizen who is suspected of a

crime has a right to remain silent, but that a citizen who is

not suspected of a crime has no such right is a fantastic

absurdity. See District of Columbia v. Little, 178 F.2d 13,

17 (D.C. Cir. 1949) (opinion of Prettyman).

The Supreme Court of West Virginia recently identi-

fied a related fallacy with respect to the First Amendment

* Nevada seems to suggest this in its brief to the Sixth Judicial

Court below, contending that Mr. Hiibel’s Fifth Amendment right “only

applies once an individual is placed into custody.” Respondent’s

Answering Brief in the Sixth Judicial District Court of the State of

Nevada in and for the County of Humboldt, May 9, 2001, at 2.

13

issues that are lurking in the background of these

criminalization-of-silence cases. When Brian Srnsky

declined to identify himself to a police officer, he was

arrested and prosecuted for “obstructing a law

enforcement officer.” In reversing his conviction, the court

noted that if citizens have the right to peacefully

remonstrate with an officer while he is performing his

duty, “it stands to reason that silence alone cannot

establish the [obstruction] offense.” State v. Srnsky, 582

S.E.2d 859, 868 (W. Va. 2003) (emphasis in original).

IV. THE RIGHT TO REMAIN SILENT IS A SIM-

PLE, JUST, CONSTITUTIONAL RULE. ANY

OTHER RULE WILL COMPLICATE THE LAW

AND SPAWN MORE LITIGATION.

There are at least three additional problems with the

legal claim that is being advanced by Nevada’s prosecuting

authorities. First, there is no indication in the record that

Deputy Dove warned Mr. Hiibel that he was no longer

requesting identification, but that he was demanding

identification. This is a critical point because, under this

Court’s case law, Mr. Hiibel could have reasonably believed

that he was involved in a “voluntary encounter” with a

police officer and could therefore decline to answer ques-

tions or even walk away. See Florida v. Bostick, 501 U.S.

429, 437 (1991) (“[NJo seizure occurs when police ask

questions of an individual, ask to examine the individual's

identification, and request consent to search . . . so long as

the officers do not convey a message that compliance with

their requests is required.”) Absent a formal warning, how

was Mr. Hiibel to know precisely when his exchange with

Deputy Dove ripened into a “Terry stop,” thus triggering

his legal duty under the Nevada statute to identify himself

14

to the police? In Kolender v. Lawson, 461 U.S. 352 (1983),

this Court reaffirmed the proposition that penal statutes

must define the criminal offense with sufficient definite-

ness that “ordinary people can understand what conduct is

prohibited.” Id. at 357. The Nevada statute does not meet

that standard.

Second, if police officers can arrest people for standing

on their right to silence, the line between a lawful, “black

letter” Terry stop and an illegal detention will mean

virtually nothing to one class of people: innocent people

who have done absolutely nothing wrong.” If innocent

persons can no longer avoid arrest by remaining peacefully

silent, the only remaining options are to actively resist

and risk both physical retaliation by police officers and

“obstruction of justice” charges (see, e.g., Hast Brunswick v.

Malfitano, 260 A.2d 862 (N.J. Super. Ct. App. Div. 1970))

or acquiesce on the scene and then seek out an attorney,

after-the-fact, to pursue legal redress.” How many inno-

cent people who find themselves illegally frisked and

illegally detained for an hour or two will want to file a

lawsuit?” Even if legal consultation is sought, how many

" Note that wrongdoers will typically be prosecuted and the

judiciary will still invalidate illegal arrests, suppress statements, and

so forth.

2 See State v. Hobson, 577 N.W. 2d 825, 841 (Wis. 1998) (Abraham-

son, C.J., concurring) (noting the inadequate nature of after-the-fact

relief); State v. Bradshaw, 541 P.2d 800, 803-04 (Utah 1975) (Henriod,

C.J., concurring) (damages are “no substitute for loss of freedom”).

In the late 1990s, New York City’s Street Crimes Unit conducted

scores of petty, but nonetheless illegal, arrests. See Lynch, “We Own the

Night: Amadou Diallo’s Deadly Encounter with New York City’s Street

Crimes Unit,” Cato Institute Briefing Paper, No. 56 (March 31, 2000).

(Continued on following page)

_~— eee eee ee oe

—= ee ee

15

attorneys would advise a client to proceed, given the case

law? See, e.g., Graves v. City of Coeur D'Alene, 339 F.3d

828 (9th Cir. 2003) (detention and search were illegal, but

agents held immune from suit); Henes v. Morrissey, 533

N.W.2d 802 (Wis. 1995) (arrest was illegal, but agents held

immune from suit).

To keep the line between a lawful Terry stop and an

illegal detention from evaporating for innocent and peace-

ful people who simply wish to stand on their rights under

the law, this Court should not deprive the citizenry of a

simple and traditional maneuver that they might invoke

then and there, on-the-spot, as the critical events are

unfolding - namely, maintaining their silence. Of course,

there is no guarantee that every government agent will

honor the limits of his authority in every situation, but if

this Court makes it clear that citizen silence is something

that the law honors, the number of abuses can certainly be

minimized.

Third, sustaining the constitutionality of the Nevada

statute at issue in this case will complicate the law and

spawn still more litigation. Nevada requires citizens to

identify themselves to police officers and other states have

similar statutory provisions. Vermont, for example, pro-

vides that a person who “refuses to identify himself ...

satisfactorily to a police officer ... shall forthwith be

brought before a district court judge ... ” Vt. Stat. Ann.

Tit. 24 § 1983. It is important to note, however, that

numerous states have authorized their police agents to

See also “NYPD Hit on Stop and Frisk Report,” Daily News (New York),

December 1, 1999.

16

demand not just a person’s name, but his address, destina-

tion, and/or an explanation of his actions as well. See

Appendix (collecting representative statutes impacting the

right to remain silent). Massachusetts, for example,

provides that persons “who do not give a satisfactory

account of themselves” may be arrested on the spot. Mass.

Gen. Laws, ch. 41, § 98. Since it seems arbitrary to draw a

constitutional distinction between a statute that compels a

person to surrender his identity and a statute that com-

pels a person to surrender both his name and address,

destination, or explanation of his conduct, the lower courts

are likely to split on questions concerning the constitu-

tionally permissible amount of information police officers

can properly compel from citizens during Terry stops.

Finally, this Court should note the cumulative effect

that the patchwork of state, county, and local ordinances

will have upon the right to remain silent. Justice Robert

Jackson once remarked that “Any lawyer worth his salt

will tell suspects in no uncertain terms to make no state-

ment to police under any circumstances.” Watts v. Indiana,

338 U.S. 49, 59 (1949) (Jackson, J., concurring in result in

part and dissenting in part). If the Nevada statute (and

others like it) are sustained, such advice will no longer be

sound.

Indeed, this Court has been properly sympathetic to

the predicament of police agents who are sometimes

expected to apply uncertain legal rules in fast-moving

street situations (See Berkemer v. McCarty, 468 U.S. 420,

431, n.13 (1984) (“Officers in the field frequently have

neither the time nor the competence to determine the

severity of the offense for which they are considering

arresting a person.”) (internal quotation marks and

citations omitted), but this Court also has an obligation to

17

be sensitive to the plight of citizens who wish to stand

upon their rights under the law in unexpected and some-

times heated circumstances. Coolidge v. New Hampshire,

403 U.S. 443, 445 (1971) (“It is the duty of the courts to be

watchful for the constitutional rights of the citizen, and

against any stealthy encroachments thereon.”) (quotation

and citation omitted). A layperson can comprehend a

ruling that secures a simple right to remain silent. But if

that right is riddled with loopholes (e.g. you have the right

to remain silent in this jurisdiction, but must give your

name to the police in that one, and your name and address

in yet another), citizens will become both docile and

dependent upon members of the legal profession to protect

their rights after-the-fact. And after-the-fact remedies will

undermine the safeguards in the Fourth and Fifth

Amendments, compromise individual liberty, complicate

the law, and spawn still more litigation.

+

“ Cf Michigan v. DeFillippo, 443 U.S. 31, 43, n.1 (1979) (Brennan,

J., with whom Marshall and Stevens, JJ., join, dissenting) (“For if it is

unfair to penalize a police officer for actions undertaken pursuant to a

good-faith, though mistaken, interpretation of the Constitution, then

surely it is unfair to penalize respondent for actions ‘undertaken

pursuant to a good-faith and correct interpretation of the Constitu-

tion.”).

18

CONCLUSION

For the foregoing reasons, the judgment of the Su-

preme Court of Nevada should be reversed.

Respectfully submitted,

TIMOTHY LYNCH*

CATO INSTITUTE

1000 Massachusetts Ave., NW

Washington, DC 20001

(202) 842-0200 |

M. CHRISTINE KLEIN

HUNTON & WILLIAMS LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8755

*Counsel of Record

la

APPENDIX

REPRESENTATIVE STATE, TERRITORIAL,

AND LOCAL STATUTES IMPLICATING

THE RIGHT TO REMAIN SILENT

Alabama

Ala. Code § 15-5-30 (providing that a police officer

“may demand” a Terry suspect’s “name, address and an

explanation of his actions.”)’

Arkansas

Ark. Code Ann. § 5-71-213 (providing that element of

loitering is “refus[al] to identify fone]self and give a

reasonably credible account of [one’s] presence and pur-

pose.”)

Californi

Gal. Penal Code § 647(e) (providing that element of

disorderly conduct is “refus[al] to identify [one]self .. . and

to account for [one’s] . .. presence when requested by any

peace officer so to do. . .. ”)”

‘ ‘The use of the word “demand” in this and similar statutes should

not be taken lightly. As the police officers argued in Henes v. Morrissey,

533 N.W.2d 802, 807-08 (Wis. 1995), “the word ‘demand’... . presumes a

consequence for refusing to produce identification upon their ‘demand’

for it during a lawful investigatory stop. The consequence ... is arrest

for obstruction under [the obstruction statute].” Although the Wisconsin

court rejected this reasoning, Nevada and other states have not.

? Although this Court held the California statute unconstitution-

ally vague in Kolender v. Lawson, 461 U.S. 351 (1983), it has never

been amended or repealed, and was recently cited in People v. Ashton,

2003 WL 22708680 (Cal. Ct. App. Nov 18, 2003).

2a

Delaware

Del. Code Ann., tit. 11, § 1321(6) (providing that

where loitering is suspected, police officer may “request ]

identification and an explanation of the person’s presence

and conduct.”)

Del. Code Ann., tit. 11, § 1902 (providing that a police

officer “may demand” a Terry suspect’s “name, address,

business abroad and destination,” and adding that “[aJny

person so questioned who fails to give identification or

explain [his] actions to the satisfaction of the officer may

be detained and further questioned and investigated” for

up to two hours).

Florida

Fla. Stat. Ann. § 856.021 (providing that where

loitering is suspected, police officer may request the

person “to identify himself... and explain his . . . presence

and conduct,” and may take into consideration the person’s

“refus[al] to identify himself” in determining whether

loitering has occurred.)

Fla. Stat. Ann. § 901.151(2) (providing that a police

officer is entitled to ascertain a Terry suspect’s “identity

. and the circumstances surrounding [his] presence

abroad... . ”)

Georgia

Ga. Code Ann. § 16-11-36 (providing that where

loitering is suspected, police officer may “request{] the

person to identify himself and explain his presence and

conduct,” and may take into consideration the person's

3a

“refus[al] to identify himself” in determining whether

loitering has occurred).

Guam

8 Guam Code Ann. §§ 30.10, 30.20 (providing that a

peace officer may detain a person “under circumstances

which reasonably indicate that such person has commit-

ted, is committing or is about to commit a criminal of-

fense” for the purpose of “ascertaining the identity of the

persor detained and the circumstances surrounding his

presence abroad. ... ,” but adding that “such person shall

not be compelled to answer any inquiry of the peace

officer.”)

9 Guam Code Ann. § 61.30 (providing that where

loitering is suspected, police officer may request the

person to “identify himself and explain his presence and

conduct,” and may take into consideration the person’s

“refus(al] to identify himself” in determining whether

loitering has occurred).

Ilinoi

725 Ill. Comp. Stat. 5/107-14 (providing that a police

officer “may demand” a Terry suspect’s “name and address

_.. and an explanation of his actions.”)

Illinois: Chi

Chicago, IL, Mun. Code § 2-84-310 (providing that a

police officer “may stop any person in a public place whom

the officer reasonably suspects is committing, has commit-

ted or is about to commit a criminal offense under the law

of the State of Illinois or a violation of Chapter 8-20 of this

~

4a

Code [re: weapons], and may demand the name and

address of such person and an explanation of his actions.”)

Kansas

Kan. Stat. Ann. § 22-2402(1) (providing that a police

officer “may demand” a Terry suspect’s “name, address .. .

and an explanation of such suspect’s actions.”)

satel

La. Code Crim. Proc. Ann. art. 215.1(A) (providing

that a police officer “may demand” a Terry suspect's “name,

address, and an explanation of his actions.”)

Massachusetts

Mass. Gen. Laws, ch. 41, § 98 (providing that police

officers “may examine all persons abroad whom they have

reason to suspect of unlawful design, and may demand of

them their business abroad and whither they are going,”

and adding that “[pJersons so suspected who do not give a

satisfactory account of themselves ... may be arrested by

the police. ...”)

Minnesota: St. Paul

St. Paul, MN, Legis. Code § 225.11 (providing that a

“peace officer may stop any person abroad in a public

space whom he has reasonable grounds to believe is

committing, has committed or is about to commit a felony

or any crime or offense involving the use of a weapon of

any kind, and may demand of him his name, address, and

an explanation of his actions.”)

5a

Mi -K. Ci

Mo. Ann. Stat. § 84.710 (Vernon’s) (in a statute setting

forth the powers to arrest of police officers in Kansas City,

providing that those officers have the “power to ... de-

mand” a Terry suspect’s “name, address, business abroad

and whither he is going.”)

Montana

Mont. Code Ann. § 46-5-401(2)(a) (providing that a

police officer is entitled to “request” a Terry suspect's

“name and present address and an explanation of the

person’s actions. . . . ”)

Nebraska

Neb. Rev. Stat. § 29-829 (providing that a police officer

“may demand” a Terry suspect’s “name, address and an

explanation of his actions.”)

New Hampshire

NH. Rev. Stat. Ann. § 594:2 (providing that a police

officer “may demand” a Terry suspect's “name, address,

business abroad and where he is going.”)

NH. Rev. Stat. Ann. § 644:6 (providing that where

loitering is suspected, police officer may request the

person to “identify himself and give an account for his

presence and conduct,” but adding that “[flailure to iden-

tify or account for oneself, absent other circumstances,

however, shall not be grounds for arrest.”)

6a

New Mexico

N.M. Stat. Ann. § 30-22-3 (providing that it is a misde-

meanor to “conceal[ ] one’s true name or identity, or disguis[e]

oneself with intent to obstruct the due execution of the law or

with intent to intimidate, hinder, or interrupt any public

officer .. . in a legal performance of his duty. . . . ”)”

)

New York

N.Y. Crim. Proc. Law § 140.50(1) (McKinney’s) (pro-

viding that a police officer “may demand” a Terry suspect's

“name, address and an explanation of his conduct.”)

North Dakota

N.D. Cent. Code § 29-29-21 (providing that a police

officer “may demand” a Terry suspect’s “name, address and

an explanation of his actions.”)

Rhode island

R.I. Gen. Laws § 12-7-1 (providing that a police officer

“may demand” a Terry suspect’s “name, address, business

abroad, and destination” and adding that “any person who

fails to identify himself ... and explain his ... actions

to the satisfaction of the peace officer may be further

* New Mexico has approved the use of this statute to convict a

person who delays in providing his name to an investigating officer.

State v. Dawson, 983 P.2d 421, 423 (N.M. Ct. App. 1999). The Dawson

court held that Section 30-22-3 “requires a person to furnish identifying

information immediately upon request ... ,” and rejected the defen-

dant’s Fourth Amendment arguments. Id. at 424.

_- o_o ~~ --

7a

detained and further questioned and investigated” for up

to two hours.)

Utah

Utah Code Ann. § 77-7-15 (providing that a police

officer “may demand” a Terry suspect’s “name, address and

an explanation of his actions.”)

Vermont

Vt. Stat. Ann. tit. 24, § 1983 (providing that a law

enforcement may detain a person if “(1) the officer has

reasonable grounds to believe the person has violated a

municipal ordinance; and (2) the person refuses to identify

himself ... satisfactorily to the officer when requested by

the officer,” and adding that: “If the officer is unable to

obtain the identification information, the person shall

forthwith be brought before a district court judge for that

purpose. A person who refuses to identify himself ... to

the court on request shall immediately and without service

of an order on the person be subject to civil contempt

proceedings. .. . ”)

Virgin Islands

14 VI. Code Ann. § 1191(1) (providing for up to a

$5,000 fine and 90 days: imprisonment for one who “loiters,

remains or wanders in or about a public place without

apparent reason and under circumstances which reasona-

bly justify suspicion that he may be engaged in or about to

engage in crime, and, upon inquiring by a police officer,

refuses to identify himself or fails to give a reasonably

credible account of his conduct and purposes.”)

8a

Virginia: Arli

Arlington County (Va.) Code § 17-13 (providing that it

“shall be unlawful for any person at a public place or place

open to the public to refuse to identify himself by name

and address at the request of a . . . police officer .. ., if the

surrounding circumstances are such as to indicate to a

reasonable man that the public safety requires such

identification.”)

Wisconsin

Wis. Stat. Ann. § 968.24 (providing that a police officer

“may demand” a Terry suspect’s “name, address and an

explanation of [his] conduct.”)