 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - September 17, 2004 Opinions ~ The U.S. Supreme Court Revokes a Constitutional Right By: Mark Larson Editor's Note: Reprinted with permission from the Union Leader of 6/28/04. LAST WEEK THE Supreme Court, under Chief Justice William Rehnquist, further eroded the constitutional rights of Americans. It was another sad day for the US Constitution and the court that should protect it. In May 2000, Larry Hiibel, a 59-year-old rancher from Humboldt, Nevada, fought for the right to be left alone when he refused to identify himself to a deputy sheriff. The deputy was investigating an anonymous report about a possible assault. Nevada never charged Hiibel with assault. Instead, he was arrested and convicted solely because he would not give the deputy his name. Nevada law criminalizes what many of us thought the US Constitution protects: our right to remain silent, our right to privacy, our right to be free from warrantless arrest, and our right to be left alone. At the heart of the Hiibel decision are two essential constitutional rights: the right to remain silent and the right to be free from unreasonable searches and seizures. Although this decision refers to the rights of the police, the Constitution sets forth no such rights. The police may have the authority to stop and detain citizens, but they have no right to do so and it is un-American to speak of police "rights" when speaking of constitutional rights. The 1968 case of Terry v. Ohio affirmed the authority of police officers to stop people if they had a reasonable basis for believing that the person had committed, was committing or was about to commit a crime. Terry stops, as they were named after that case, do not violate the Constitution, but they require the police to have a specific, articulable reason for the stop. There must be a rational basis for believing there is criminal activity occurring. It is not enough that the police believe something is "suspicious." In Hiibel, the officer had no idea if a crime was committed, and the state never charged Hiibel with anything other than refusing to give the deputy his name. In reaching its decision, the Rehnquist court ignored decades of cases that came to the opposite conclusion. In 1983, the Supreme Court, in Florida v. Royer, wrote that while police can stop someone and ask questions, "the person approached, need not answer any questions put to him: he may decline to listen to the questions at all, and may go on his way." Similar language appears in many other decisions of state and federal courts. Sadly, for the Rehnquist court, precedents of the last century are of little value. The other issue Hiibel raised was whether requiring him to answer violated his right against self-incrimination. In a feat of mental gymnastics, Justice Kennedy wrote that disclosing a name presented no reasonable danger of incrimination, while also determining there was an important governmental interest in obtaining a suspect's name. "Knowledge of identity may inform an officer that a suspect is wanted for another offense or has a record of violence or mental disorder." Sounds incriminating to me, but then I am just a lawyer, not a judge. Being a lawyer, I could also argue that there is a governmental interest in entering homes without warrants, detaining suspects on less than probable cause and dispensing with jury trials and defense attorneys. Those are exactly the types of abuses that led a prior generation to take up arms in the American Revolution. This is why our state and federal constitutions each has a Bill of Rights. There is good news. Justice Kennedy was wrong to include New Hampshire in his decision. Hiibel is not the law in our state. Former NH Supreme Court Justice Charles Douglas, writing for a unanimous court in 1979, found such a statute unconstitutional. In State v. White, the court analyzed a law similar to Nevada's. Our NH Supreme Court, while recognizing that the police have the authority to stop citizens and ask questions, held that any law which permits detention for interrogation, including asking your name, on less than probable cause to arrest, is not valid under the New Hampshire Constitution. In the "Live Free or Die" state, if the police stop you to ask questions, they need probable cause to detain you, not just a reasonable suspicion that criminal activity might be afoot. Unless arrested, you are not required to answer any questions, including, "What is your name?" When you are arrested, you have the right to remain silent. For this, you can thank John Adams, father of the NH Constitution, and our truly conservative NH Supreme Court. Mark Larsen, a criminal defense attorney, is the manager of the Manchester office of New Hampshire Public Defender.
|
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
