The issue of whether a person must identify themselves to police has split the Nevada Supreme Court 4-3, but the ruling upholds the law requiring adults to carry proper identification.
The case involved Larry Hiibel, who was arrested by Humboldt County sheriff's deputies after he refused to provide identification. A district court ruled that the deputy's request for identification was reasonable and necessary, saying the defendant was suspected of driving under the influence and of domestic battery against his daughter.
But a minority state Supreme Court opinion issued Friday said the district court ruling undercuts the right to "wander freely and anonymously if we choose," which three justices described as a fundamental right to privacy in a democratic society.
Hiibel was standing outside his truck when a deputy approached and asked for identification. He refused, saying that he would cooperate, but wouldn't provide identification because he believed he had done nothing wrong. He was arrested and found guilty of resisting a public officer by a justice of the peace, who said failure to provide identification obstructed and delayed the arresting officer.
Chief Justice Cliff Young and justices Myron Leavitt and Nancy Becker ruled that any intrusion on individual privacy by the law is outweighed by the benefits to officers and community safety. The key, they wrote, is that the deputy had reasonable suspicion that Hiibel was under the influence and a report that he had committed domestic battery.
Young asked what officers should do about suspicious people loitering outside a day-care center, adding, "Perhaps that person is a sex offender."
He asked how officers could enforce restraining orders and curfew laws for minors without being able to ask for identification.
"Most importantly," he said, "we are at war against enemies who operate with concealed identities, and the dangers we face as a nation are unparalleled," he said, referring to the war on terrorism.
In a dissent, however, Justices Deborah Agosti, Bob Rose and Miriam Shearing said there is a clear difference between stopping a person when there is reasonable suspicion that he or she is engaged in illegal activity. But, they argued, requiring identification constitutes a seizure subject to the Fourth Amendment.
They said officers may question a person, but he or she need not answer, and argued that failing to answer shouldn't be cause for arrest. They said the court must ensure that "an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers."
Writing for the dissenters, Agosti cited a Ninth Circuit Court ruling which tossed out a similar arrest of a woman for refusing to give police her ID. The court said police couldn't use that as an excuse to arrest her when, without it, they didn't have probable cause.
Agosti objected to the majority opinion's "emotional appeal" based on fears police would be powerless to protect innocent children from sex offenders, enforce restraining orders, and other such laws.
She described raising the war on terrorism as an appeal to public fear.
"The majority, by its decision today, has allowed the first layer of our civil liberties to be whittled away," she said.
Agosti said undermining that foundation "is a harm more devastating to our country and to this state than any physical harm a terrorist could possibly inflict."
The deciding vote was cast for those upholding the arrest by Justice Bill Maupin, who pulled the issue back to the facts of the Hiibel case, rather than pursuing a far-reaching debate over the dangers of war and terrorism.
"Our decision today is truly related to the ability of police to properly and safely deal with persons reasonably suspected of criminal misconduct, here, domestic violence and driving under the influence of alcohol."