Hiibel Loses 5-4 On Narrowest Grounds

Hiibel lost today, 5-4, but on narrower grounds than you'd guess from reading the case summary which says baldly that he lost on both 4th and 5th Amendment grounds. It's pretty much a disaster on the 4th, but the 5th is only a part disaster. Most importantly, the Court punted on the issue of whether the 5th Amendment would apply if the suspect really had something to hide. Justice Kennedy's majority opinion says that since Hiibel had not only nothing to hide but no reason to think he did, he can't take the 5th.

Of course there's a catch-22 there: if you can only assert the 5th when you are guilty, or near guilty, or reasonably fearful you are guilty, that suggests the cops ought to be investigating you, which pretty much undermines the privilege.

But at least the issue survives, however mangled, for another day.

The dissents are here and here.

One down, six to go….

Update: I forgot to mention that although the media will say the case states that “police can require IDs” what it actually states is that legislatures can require suspects to tell police their names (not 'show ID'—the majority states that the statute at issue is satisfied by an oral statement) when the police have a reasonable suspicion that a crime has been committed, the person is relevant, and are investigating it. The distinction will undoubtedly be lost on the ground, and erased by subsequent cases, but it's there for now.

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2 Responses to Hiibel Loses 5-4 On Narrowest Grounds

  1. JD says:

    “One down, six to go …”

    Is that a reference to our remaining constitutional rights (i.e., those numbering more than 6 having been eliminated in previous terms, one more down today, and the remaining five being on the chopping block in the current term)?

  2. Joe says:

    Another narrowly decided decision, at least as to the second ground. All the same, the Fourth Amendment part of the decision notes that one reason why a police officer might ask for names is that “Knowledge of identity may inform an officer that a suspect is wanted for another offense.”

    If so, I’d think that the Fifth Amendment would clearly kick in. In fact, the number of people who would not want the authorities to have their name because of any number of things in their record that might “incriminate them” (e.g. parking tickets) makes the whole thing more form than reality.

    The opinion also seems to open up the possibility that to prevent against self-incrimination, in part a privacy right, you might have to show that you have something incriminating that might be found once the police had your name and was on notice you might be trouble. This seems ridiculous to me.

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