Internetworkers: http://www.ibiblio.org/internetworkers/

[Phillip Rhodes <mindcrime AT cpphacker.co.uk>]

For the people who missed my earlier rant:

www.papersplease.org/hiibel

Having said that, here is the dissenting opinion from
the Nevada State Court ruling (it was a 4-3 ruling, btw).
I think the dissenting justices are clearly the ones here
who understand what Liberty in America is all about:

AGOSTI, J., with whom Shearing and ROSE, JJ., agree, dissenting:

As the majority aptly states, the right to wander freely and 
anonymously, if we so choose, is a fundamental right of privacy in a 
democratic society. However, the majority promptly abandons this 
fundamental right by requiring "suspicious" citizens to identify 
themselves to law enforcement officers upon request, or face the 
prospect of arrest. I dissent from the majority's holding that the 
identification portion of NRS 171.123 is constitutional.

It is well-established that police officers may stop a person when 
reasonable suspicion exists that that person is engaged in illegal 
activity.[1] However, it is equally well-established that detaining a 
person and requiring him to identify himself constitutes "a seizure of 
his person subject to the requirements of the Fourth Amendment."[2] In 
light of these constitutional requirements, the United States Supreme 
Court has stated that although the officers may question the person, the 
detainee need not answer any questions.[3] Furthermore, unless the 
detainee volunteers answers and those answers supply the officer with 
probable cause to arrest, the detainee must be released.[4]

The Fourth Amendment requires that governmental searches and seizures be 
reasonable. Reasonableness is determined by "a weighing of the gravity 
of the public concerns served by the seizure, the degree to which the 
seizure advances the public interest, and the severity of the 
interference with individual liberty."[5] A court's primary concern in 
weighing these interests is to assure "that an individual's reasonable 
expectation of privacy is not subject to arbitrary invasions solely at 
the unfettered discretion of officers."[6]

Anonymity is encompassed within the expectation of privacy, a civil 
liberty that is protected during a Terry stop. The majority now carves 
away at that individual liberty by saying that a detainee must surrender 
his or her identity to the police.

I agree with the Ninth Circuit Court of Appeals' reasoning on the issue 
of whether a person may be arrested for refusing to identify himself 
during a Terry stop.[7] In Martinelli v. City of Beaumont,[8] a woman 
was arrested for delaying a lawful police investigation by refusing to 
identify herself during a Terry investigation.[9] The court held that 
allowing the police officers to arrest the woman for failing to identify 
herself in effect allowed the officers to "'bootstrap the authority to 
arrest on less than probable cause.'"[10] The court determined that the 
woman's interest in her personal security outweighed the "'mere 
possibility that identification may provide a link leading to arrest.'"[11]

More directly on point, the Ninth Circuit in Carey v. Nevada Gaming 
Control Board[12] addressed the constitutionality of NRS 171.123(3), the 
very statute at issue here. In Carey, a casino patron brought a claim 
under 42 U.S.C. 1983 against a Nevada Gaming Control Board agent for 
violating his Fourth, Fifth and Fourteenth Amendment rights.[13] The 
agent was called to a hotel to investigate Carey and another man, who 
were both suspected by hotel employees of cheating.[14] The agent caused 
the men to be detained, identified himself, indicated he was 
investigating gaming law violations, read them their Miranda rights and 
conducted a pat-down search of both detainees.[15] During the Terry 
investigation, the agent determined there was no probable cause to 
arrest the men for gaming violations.[16] However, when the agent asked 
the men to identify themselves, Carey refused, and he was arrested 
pursuant to NRS 171.123(3) and NRS 197.190.[17] On appeal, the Ninth 
Circuit noted that the agent had reasonable suspicion to conduct a Terry 
stop, and also probable cause to arrest Carey under NRS 171.123(3) and 
NRS 197.190 once Carey refused to identify himself. However, the court 
concluded that NRS 171.123(3) and NRS 197.190, as applied to Carey, 
violated the Fourth Amendment because the United States Supreme Court 
"has consistently recognized that a person detained pursuant to Terry 
'"is not obliged to answer"'" questions posed by law enforcement 
officers.[18] The court determined that Carey's interest in his personal 
security outweighed any potential link leading to arrest that could be 
gleaned from his identity, particularly because Carey's name "was not 
relevant to determining whether Carey had cheated."[19]

Despite the above authority, the majority erroneously affirms Hiibel's 
conviction by reflexively reasoning that the public interest in police 
and public safety outweighs Hiibel's interest in refusing to identify 
himself. I am not persuaded. And I am uneasy about the reasons given by 
the majority in justifying its holding.

The majority concludes that the governmental interest in police safety 
outweighs an individual's interest in his right to keep private his 
identity. The majority relies upon FBI statistics about police 
fatalities and assaults to support its argument. However, it does not 
provide any evidence that an officer, by knowing a person's identity, is 
better protected from potential violence. In Terry, the United States 
Supreme Court addressed the issue of officer safety by carving out an 
exception to the Fourth Amendment to allow a police officer to make 
certain that the person being detained "is not armed with a weapon that 
could unexpectedly and fatally be used against him"[20] when the officer 
reasonably believes "he is dealing with an armed and dangerous 
individual."[21] The purpose of such a search is to ensure the detainee 
is not armed with a weapon that could be immediately used against a 
police officer, not to ensure against a detainee's propensity for 
violence based upon a prior record of criminal behavior.

It is well known that within the context of a Terry stop an officer's 
authority to search is limited to a pat-down to detect weapons. The 
officer may investigate a hard object because it might be a gun. An 
officer may not investigate a soft object he detects, even though it 
might be drugs. Similarly, an officer may not detect a wallet and remove 
it for search. With today's majority decision, the officer can now, 
figuratively, reach in, grab the wallet and pull out the detainee's 
identification. So much for our right to be left alone or as the 
majority says--to wander freely and anonymously if we choose.

The majority avoids the fact that knowing a suspect's identity does not 
alleviate any threat of immediate danger by arguing that a reasonable 
person cannot expect to withhold his identity from police officers, as 
we reveal our names to different people everyday. What the majority 
fails to recognize, however, is that when we give our names to new 
acquaintances, business associates and shop owners, we do so 
voluntarily, out of friendship or to complete a transaction. With the 
heightened security at airports, for example, passengers are required to 
provide picture identification. But non-passengers are free to wander 
that portion of the airport that is unsecured without showing an ID. 
Purchasing an airline ticket is a business transaction, and the airlines 
may condition the sale on knowing who is the purchaser. In contrast, 
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. Furthermore, it is 
not necessary to have one's name on a credit card or checkbook in order 
to effect a purchase. A dedicated libertarian, for example, might 
deliberately eschew financial institutions, credit cards and checkbooks, 
engaging solely in cash transactions, in order to jealously protect his 
individual rights, especially his right to be anonymous, to be left 
alone, to wander freely.

Finally, the majority also makes an emotional appeal based upon fear and 
speculation by arguing that the police would be powerless to protect 
innocent children from sex offenders, to enforce restraining orders, and 
to enforce curfews for minors. What the majority fails to recognize is 
that it is the observable conduct, not the identity, of a person, upon 
which an officer must legally rely when investigating crimes and 
enforcing the law.

The majority further appeals to the public's fear during this time of 
war "against an enemy who operates with a concealed identity." Now is 
precisely the time when our duty to vigilantly guard the rights 
enumerated in the Constitution becomes most important. To ease our guard 
now, in the wake of fear of unknown perpetrators who may still seek to 
harm the United States and its people, would sound the call of retreat 
and begin the erosion of civil liberties. The court must not be blinded 
by fear. I am reminded of a statement by Justice Felix Frankfurter, so 
aptly quoted by Chief Justice Young, the majority's author, in another 
search and seizure case involving individual liberties protected by the 
Fourth Amendment:

"[W]e are in danger of forgetting that the Bill of Rights reflects 
experience with police excesses. It is not only under Nazi rule that 
police excesses are inimical to freedom. It is easy to make light of 
insistence on scrupulous regard for the safeguards of civil liberties 
when invoked on behalf of the unworthy. It is too easy. History bears 
testimony that by such disregard are the rights of liberty extinguished, 
heedlessly at first, then stealthily, and brazenly in the end."[22]

The majority, by its decision today, has allowed the first layer of our 
civil liberties to be whittled away. The holding weakens the democratic 
principles upon which this great nation was founded. The undermining of 
that foundation is a harm more devastating to our country and to this 
State than any physical harm a terrorist could possibly inflict. "It 
would indeed be ironic if, in the name of national defense, we would 
sanction the subversion of . . . liberties . . . which make[ ] the 
defense of the Nation worthwhile."[23] Our nation is besieged. The 
terrorist threat has shaken our complacency. Our way of life is 
threatened as never before. At this time, this extraordinary time, the 
true test of our national courage is not our necessary and steadfast 
resolve to defend ourselves against terrorist activity. The true test is 
our necessary and steadfast resolve to protect and safeguard the rights 
and principles upon which our nation was founded, our constitution and 
our personal liberties. I dissent from the majority's retreat from this 
challenge.


TTYL,

Phil

--
When the 1st Amendment no longer protects your voice.
And when the 4th Amendment no longer protects your privacy or your stuff.
Thank God we have the 2nd Amendment to tell our elected representatives 
that enough is enough.
It's time to put "... from my cold, dead hands" back where it belongs.

FREE AMERICA
Vote Libertarian
www.lp.org