A New Hiibel Case?

Via Boing Boing: Michael Amor Righi was arrested for refusing to let a merchant check the content of his shopping, and for refusing to present an ID to the policeman that he called himself to the scene.

About refusing to let a security guard check the content: as every (traumatized) bar candidate can attest, the "shopkeeper's privilege" allows a merchant to detain a person, for a reasonable amount of time, if he has reason to believe that the person is a shoplifter. Once Mr. Amor Righi refused to let them check the content, one can argue that he became a suspect. It is probably easier to challenge the systematic checking of every shopping bags, as many merchants do nowadays. Indeed, the policeman admitted to him, after his arrest, that he was surprised that he had not, in fact, stolen anything.

These facts are similar to the Hiibel case, In Hiibel v. Sixth Judicial District Court, 542 U.S. , 177 (2004), the Supreme Court held that an officer can ask a person to identify himself during a Terry stop, and failure to do so can lead to an arrest and a conviction, and that the mere fact to identify himself could not self-incriminate Mr. Hiibel.

Mr. Hiibel was arrested during a Terry stop, named after Terry v. Ohio, 392 U.S. 1 (1968). A police office can stop a person and conduct a quick investigation if he can reasonably believe that this person has committed a crime or is about to commit one. In a case very similar to Hiibel, the Supreme Court held that a Texas statute requiring a person to identify himself violated the Fourth Amendment, since “none of the circumstances preceding the officer’s detention of appellant justified a reasonable suspicion that he was involved in criminal conduct, ” Brown v. Texas, 443 U.S. 47, 52 (1979).

One can argue that the officer in the Hiibel case could reasonably believe that Mr. Hiibel may have committed a crime or was about to commit one. The officer was answering a dispatch call, informing him that someone had reported a that a man driving a truck had struck his female passenger. Mr. Hiibel fitted the description. Even though the officer was not very clear when justifying to Mr. Hiibel why he was asking for an identification (“I am investigating an investigation”), he was trying to determine whether there had been a fight. The officer also observed that Mr. Hiibel looked intoxicated. He could reasonably suspect him of battery and driving under the influence.

The officer said to Mr. Hiibel: “…I wanna find out who you are and I wanna find out what I've got going on here”. During a Terry stop, an officer has the right to find out “what’s going on,” but does he also have the right to find out who we are?

NRS 171.123 (3) , the Nevada Statute at stake in Hiibel, states that “the officer may detain the person pursuant to this section only to ascertain his identity”. Does that mean that the person must speak his name and, possibly, surname? Is an address part of one’s identity? Must NRS 171.123 (3) be interpreted as a request for producing identification papers? The officer asked Mr. Hiibel… “you've got any identification on you?” and “I need to see some identification.” The Supreme Court understood the officer’s request as meaning “a request to produce a driver’s license or some other form of written identification,” Hiibel, 542 U.S. 178, but the statute does not mention that the person must show a written identification.