"You Have the Right to Remain Anonymous!"

by Robert J. Romano

June 22nd, 2004

Actually, no, you don't.  But, if the recently decided case, HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, had been decided in favor of the petitioner, you would have.  In fact, this decision was so close, 5-4, that a swing-vote could have crippled police investigations across the country.  "Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada’s 'stop and identify' statute requires a person detained by an officer under suspicious circumstances to identify himself. The state intermediate appellate court affirmed, rejecting Hiibel’s argument that the state law’s application to his case violated the Fourth and Fifth Amendments. The Nevada Supreme Court affirmed... Held: Petitioner’s conviction does not violate his Fourth Amendment rights or the Fifth Amendment’s prohibition on self-incrimination." 

        So, is there a "right" to remain anonymous? That's what the dissenters would have us believe, though, they don't look at it that way.  To them, this has to do with the prohibition on self-incrimination.  Apparently, revealing one's identity can be self-incriminating.  And there may yet be such a right, if the majority opinion is to be believed: "Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow." Of course there will be such a case! This must happen every single day, where folks are pulled over that have a warrant out for their arrest.  The whole point of "stop and identify" statutes requiring a detained suspect to disclose one's identity, for practical purposes, is to identify that person, and if they are wanted in connection with a separate offense, then the police can execute that warrant as well.  But even in such a case, it is not the person's identity that "incriminates" the suspect, it is the body of evidence that brought about the warrant in the first place.  It does appear that the court will be revisiting this issue as soon as anybody who had a warrant out for their arrest is stopped, and the person refuses to identify themselves.  The complaint really appears to be that the police have really nifty computers to figure out if the person is wanted in connection with a crime.

        Am I to also believe that in the case of citizens and non-citizens alike returning to or visiting the United States from abroad, that customs agents are not supposed to check their identities against terrorist and other fugitive watch lists? This is outrageous and ridiculous.  Our country was one swing-vote away from losing one its fundamental and legal abilities to identify and detain suspects.      

       What about appearance? Does that "incriminate" folks as well? Should suspects attempting to flee the country be allowed to wear a mask when they're about to hop a flight so that police officers will not be able to identify them? I suppose "Wanted" posters are "incriminating," too, and the suspect would be perfectly justified in refusing to remove the mask if asked.  Appearance, like identity, is also a unique and yet universal characteristic that we all share. Should defendants be allowed to walk into court with a mask on so that when the prosecutor asks the witness if (s)he can identify the culprit, it'd be impossible? What if there's a surveillance video that has that person committing the crime? The defendant should be allowed to wear the mask, then, because otherwise (s)he'd be "incriminating" him or herself merely with one's appearance, right? If we're to believe that people have a right to remain anonymous, even when a crime is being committed, has been committed, or will be committed, then defendants should be allowed to walk into court with a mask on, right? 

        Assuming that the dissenters had had their way, just how long may a person be detained until their identity can be ascertained? If the suspect does not have to disclose their identity, and the police cannot ascertain that person's identity, can the suspect then go through the whole system without a name? Would the suspect's lawyer also be protected from disclosing their client's identity? Would we have cases like, "The people vs. citizen X"?

        As Justice Kennedy writes in the majority opinion, "Obtaining a suspect’s name in the course of a Terry stop 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." Again, investigating a suspect's prior history by obtaining that person's identity does not incriminate that person, rather, it is evidence that the government already has in hand that would do so.  The only interests that would have been served by a contrary decision would have been those of criminals.  Being obligated by law to identify oneself in the course of a stop does not in and of itself incriminate the person.  Therefore, disclosing one's identity, even if there is a warrant out for one's arrest, does not tend towards self-incrimination.  

        Asking a suspected criminal or arrestee his/her identity is reasonable, not unreasonable. The fourth amendment only protects against unreasonable searches and the like.  And identifying oneself does not incriminate oneself, which the fifth amendment protects against, even if that person has a warrant out for their arrest. The evidence that brought about the warrant incriminates the person, not that person's identity.  If and when the judiciary revisits this issue, they would be well-advised that disallowing identity-checks at stops, like at airports, on the basis that it might give the police "a link in the chain of evidence needed to convict the individual of a separate offense..." would be ill-advised, would severely limit the ability of the government to protect this country from threats both foreign and domestic, and would not even be in the spirit of constitutional law.  

        Is there a "right" to remain anonymous? From whence does it come from? Is it a natural right? Is there any precedence for it? There is no such thing as a right to anonymity, and that's what's really being argued for here. This has nothing to do with testifying against oneself. This has to do with hiding one's identity. Just like one cannot find the word "privacy" in the Bill of Rights, one cannot  find the word "anonymity," either.  It indeed takes some penumbras to find this so-called "right."