What confluence of
events in rural Winnemucca, Nevada could pique the interest of powerhouse
liberal and libertarian groups alike? On March 22, 2004 the US Supreme Court
heard oral arguments in the case of Hiibel v. Sixth Judicial Court of Nevada. A disparate array of odd bedfellows have filed amicus curiae
briefs in support of Larry Hiibel, who claims he was wrongly arrested on
May 21, 2000 for refusing to tell Humboldt County Sheriff’s Deputy Lee Dove
his name. The groups supporting Hiibel include the American Civil Liberties
Union, the Cato Institute, the Electronic Privacy Information Center, the
Electronic Frontier Foundation, and the National Law Center on Homelessness
All parties agree on the facts of the case, largely due to the existence
of a videotape of the arrest captured by Deputy Lee Dove’s dashboard camera.
The deputy received a call that a man was hitting a woman in a truck. After
finding and speaking to the eyewitness, the deputy found the red and silver
GMC pickup parked on the side of the road. Skid marks on the gravel indicated
the truck might have been brought to an abrupt halt. The woman was on the
passenger side inside the cab and the man was outside the truck. Deputy Dove
asked the man his name, as is his authority under Nevada Revised Statute
171.123. The man refused, thrusting his arms towards the deputy and proclaiming,
“Take me to jail, take me to jail.” The deputy asked Hiibel his name eleven
times. Hiibel appeared agitated, was uncooperative, and the deputy suspected
he was intoxicated.
Under authority granted by Nevada Revised Statute 199.280, Deputy Dove placed
Hiibel under arrest for obstructing an officer in discharging his duty. Later,
Hiibel was found guilty of that charge and fined $250. The woman in the truck
turned out to be Hiibel’s 17-year-old daughter Mimi, and although blows were
exchanged, both she and the state of Nevada declined to file battery or domestic
These are excerpts of the exchange between Hiibel and Deputy Lee Dove:
Deputy Dove: “You’ve got any identification on you?”
Larry Hiibel: “No, I . . .why should I have an ID?”
Deputy: “The thing of it is; we’re conducting an investigation OK, so I need to see some identification.”
Hiibel: “Naw, just take me to jail.”
Later, after Deputy Dove had asked him numerous times for his name:
Hiibel: “I don’t know what I’m charged with.”
“I’m . . .you’re not charged with anything. I’m conducting an investigation
. . .and I want to know what I got going on here.”
Hiibel: “OK, take me to jail.”
only after more requests by Deputy Dove for identification, and further refusals
by Hiibel that the deputy placed Hiibel under arrest. After being cuffed,
Hiibel was searched and a knife was found on him, which the officer confiscated
and said, “This will be returned to you later.”
Hiibel appealed his conviction to the Nevada Sixth Judicial District Court
and lost. He then appealed to the Nevada Supreme Court, which refused to
hear the case, thus affirming the District Court’s decision. Later, the ACLU
and other groups concerned with civil liberties became involved and petitioned
the US Supreme Court to review the case. The US Supreme Court receives more
than 7000 petitions a year and only agrees to hear about 100. On October
20, 2003 the Court agreed to hear this case (writ of certiorari).
The issue is: Is Nevada Revised Statute 171.123 unconstitutional; specifically,
were Larry Hiibel’s Fourth Amendment rights against unreasonable searches
and seizures and his Fifth Amendment rights against self-incrimination violated?
Nevada 171.123 in pertinent part states: “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.
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.”
The courts have been conflicted on this issue. The Ninth Circuit Court of
Appeals has ruled on three separate occasions that a person being detained
because of an articulable suspicion of criminal activity may refuse to identify
himself. The most recent case was Carey v. Nevada Gaming Control Bd. (9th Cir. 2002). The Tenth Circuit Court of Appeals has been on the opposite side of the issue. The most recent case was Albright v. Rodriguez (10th Cir. 1995). The US Supreme Court has heard this issue twice before, in Brown v. Texas (1979) and Kolender v. Lawson (1983), but decided both cases on other grounds. The Court did address this issue in Terry v. Ohio (1968), but not conclusively. Terry
gives law enforcement the right to stop and question suspects meeting the
standard of “reasonable suspicion,” but also states that the suspects are
not required to answer. All parties concur the time has come to clarify this
There is genuine concern in the country that in our fervor to fight terrorism
we are allowing law enforcement to encroach upon our civil liberties. This
concern – while worthy of continued vigilance – is misplaced here. This case
is not the Custer’s last stand of civil liberties.
If anything, this case reinforces the importance of identification as a necessary,
minimally invasive law enforcement tool. When Deputy Dove arrived upon the
scene, it was his duty to determine whether a crime had been, was, or was
about to be committed. He did not happen upon this scene randomly; he was
called to investigate a crime in progress. It is well-established, prudent
law enforcement procedure to get the suspect’s name and check to see if he
is wanted on any outstanding warrants, or if he meets the description of
suspects wanted for any other recently reported crimes. That is what we pay
him for. He is our representative in the field. It’s his duty to determine
if this individual represents a risk to the public, and that’s exactly what
he attempted to do.
It is also incumbent upon Deputy Dove to be alert and take steps to insure
his personal safety. This type of stop can be highly dangerous to police.
In the year 2000, fifty-one officers were murdered in the line of duty. Many
of these murders took place during traffic stops, arrest situations, response
to disturbance calls, and investigations of suspicious persons. Of the suspects
who committed these killings, nine had previously assaulted a police officer
and twelve were on probation or parole. A total of 15,915 officers were assaulted
that year. It’s been recognized by the courts that an officer has wide latitude
to control this type of situation if he feels threatened, up to and including
drawing his weapon. You can clearly see from the videotape that Larry Hiibel
was agitated and uncooperative as would be consistent with someone intoxicated
and involved in a physical confrontation, as had been reported by the witness.
Hiibel seems unable or unwilling to comprehend that the deputy is attempting
to establish if a battery had occurred; he seems to think the issue is whether
his truck is pulled far enough off the road.
It’s interesting to note that no one involved with this case treated it as
a traffic stop. Deputy Dove correctly did not ask Hiibel specifically for
his license and registration, because he didn’t see Hiibel driving the pickup.
The Nevada courts have looked at this case as an investigative interrogation,
which could happen anywhere. And the ACLU, in their challenge, have conveniently
ignored the eyewitness report that a beating was taking place inside a truck,
instead inferring that Hiibel being questioned on the side of the road is
the same as him being questioned in his home without a warrant.
But is this case really so different from an ordinary traffic stop? How did
the truck come to be pulled over beside Grass Valley Road? It wasn’t parked
near Hiibel’s house or a relative’s house. The only other person present
was his daughter, who was in the passenger seat. Was the truck placed there
by space aliens? The word “reasonable” is used countless times in the law.
Wouldn’t it be reasonable to assume that the truck got there by Hiibel driving
it? That would make his apparent intoxication a bigger issue. It would also
make his legal requirement to show ID clear-cut.
That aside, it wasn’t a traffic stop; it was an investigative stop, also
know as an investigative interrogation. It’s called a Terry stop, based on
the previously mentioned Terry v. Ohio (1968), where the US Supreme
Court ruled that a police officer may, consistent with the Fourth Amendment,
stop and briefly detain an individual reasonably suspected of criminal activity.
Such a stop does not have to meet the higher standard of “probable cause”
but a lower standard of “reasonable suspicion.”
The ACLU brief is riddled with errors and exaggerations. One example is:
“It is exceedingly unlikely that the immediate disclosure of an individual’s
identity will substantially, or even minimally, forestall any threat to the
officer executing the search.” This is an unsupportable supposition that
completely ignores the thousands of times a year that officers run ID checks,
find suspects with violent records, and call for backup, thus making the
subsequent questioning or arrest safer. And the Cato Institute, a usually
reliable libertarian watchdog organization, lost the ball in the lights on
this one. In its brief, Cato repeatedly compares Hiibel to cases where
homes were invaded without search warrants and people on the street were
stopped and questioned without reasonable suspicion. They lose focus altogether
when they state: “. . . case raises vital questions about the power of government
to stop individuals who do not wish to be stopped and to demand answers from
individuals who do not wish to speak. . .” Since when is the test for criminality
whether the criminal wishes to be stopped or questioned? Criminals do not
walk around wearing tee shirts emblazoned with “I am the criminal.” Law enforcement,
generally lacking psychic ability, needs investigative tools to cull the
law-breaker from the law-abider.
Nevada 171.123 is extremely well circumscribed. It could be the model for
the rest of the country. Law enforcement can only detain someone if there
is reasonable suspicion that a crime has been, is, or is about to be committed.
The detention must be brief (60 minutes or less). The detainee is not required
to answer any questions except one: Who are you?
In our complex world, where irrational people commit irrational acts all
the time, the Nevada statute seems a rather benign law enforcement tool.
We wouldn’t think of letting someone board a plane, get a driver’s license,
or receive a bank loan without proper identification. In State v. Flynn
(Wis. 1979) the court stated: “That unless an officer is entitled to at least
ascertain the identity of the suspect the right to stop serves no useful
purpose at all.” In Brown v. Texas (1979) the Court ruled: “Knowing
the identity of a suspect allows officers to more accurately evaluate and
predict potential dangers that may arise during an investigative stop.”
The sky isn’t falling. Storm troopers aren’t demanding “your papers please!”
Your Fourth Amendment protection against unreasonable searches in your home
is intact, as is your Fifth Amendment right against self-incrimination. Nevada
Justice C. J. Young had it right when he said, “An ordinary person would
conclude it was Hiibel who was unreasonable, not the law.” Nevada
171.123 is a necessary, measured, rational law enforcement tool. US Supreme
Court Justice William O. Douglas once wrote: “Common sense often makes good
law.” Let’s hope common sense prevails.
Bormel is a retired businessman and a freelance writer. He has been published
by The Washington Dispatch, MichNews.com, TheRealityCheck.org, and Enter
Email Allan Bormel
this Article to a Friend