(another in my series of posts today on the Court’s Hiibel decision).
The Court held that forcing someone to reveal his name doesn’t make the stop an unreasonable seizure. The proper test, the Court said (correctly, given the Court’s precedents), is that “The reasonableness of a seizure under the Fourth Amendment is determined ‘by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.'” The government interests, the Court said, are strong:
Obtaining a suspect’s name in the course of a Terry stop [i.e., a brief stop based on reasonable suspicion] serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
Curiously, the Court didn’t go into detail about the “Fourth Amendment interests” side of the balance; but presumably it concluded that requiring to give one’s name isn’t a very serious intrusion into privacy.
Justice Stevens didn’t reach the Fourth Amendment question. Justices Breyer, Souter, and Ginsburg rested almost entirely on past cases:
Justice White, in a separate concurring opinion [in Terry v. Ohio], set forth further conditions [beyond the majority’s requirement that a brief stop be based on reasonable suspicion]. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.”
About 10 years later, the Court, in Brown v. Texas, 443 U.S. 47 (1979), held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. . . . The Court referred to Justice White’s Terry concurrence . . . [, a]nd it said that it “need not decide” [whether an identification requirement was constitutional].
Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U.S. 352, 365 (1983) (Brennan, J., concurring) (Terry suspect “must be free to . . . decline to answer the questions put to him”); Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (stating that allowing officers to stop and question a fleeing person “is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning”).
This lengthy history — of concurring opinions, of references, and of clear explicit statements — means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.
There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. [Citing the Stevens dissent; more on the Fifth Amendment issue later. -EV] Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances. [Again, more on the Fifth Amendment question later. -EV] . . .
The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.
Interestingly, even the dissent doesn’t squarely argue against the majority’s reasoning about the importance of the government interests, or the majority’s implied judgment that the intrusion on Fourth Amendment interests isn’t very severe. It relies chiefly on concurrences, on one tangential majority dictum (from Wardlow) and one square statement in a majority opinion (from Berkemer) that is nonetheless still dictum — which is to say, a statement that wasn’t necessary to the decision of the past case, and thus isn’t binding precedent.
It seems to me that the majority’s Fourth Amendment holding is probably sound, though reasonable minds can certainly differ on this. But in any event, even if there are very strong arguments against it, the dissent doesn’t really provide them.
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