Larry Dudley Hiibel v. The Sixth Judicial Court of the State of Nevada, et al

30 October 2003. Thanks to Robyn Wagner for original hardcopy. See related documents:

http://freetotravel.org/hiibel.html
http://www.epic.org/privacy/hiibel/default.html

http://news.findlaw.com/ap/a/w/1154/10-20-2003/20031020084503_19.html

October 20, 2003
Court Takes Police Identification Case
By GINA HOLLAND Associated Press Writer
WASHINGTON (AP) - The Supreme Court said Monday it will consider whether people have a constitutional right to refuse to tell police their names.
Justices will review the prosecution of a man under a Nevada law that requires people suspected of wrongdoing to identify themselves to police, or face arrest.
The issue had split the Nevada Supreme Court, which sided with police on a 4-3 vote last year in a case involving a man who refused 11 times to give his name to officers.
The man was convicted of a misdemeanor charge of resisting arrest, based on his silence. He was fined $250.
The justices will hear arguments next year in the latest in a handful of cases this term that pit law enforcement against a person's Fourth Amendment protection from unreasonable searches. Justices next month will consider if police can arrest all occupants of a car during a traffic stop in which drugs are found.
In the Nevada case, an attorney for Larry Hiibel argued that he did not believe he had done anything wrong when officers approached his parked truck in Humboldt County in 2000.
He was suspected of drinking and driving and of hitting his daughter. Prosecutors later dropped a misdemeanor domestic battery charge, and he was not charged with drunken driving.
His lawyer, public defender James P. Logan, said in a filing that in some parts of the country "a person under a shadow of suspicion, who has not committed any crime, can be approached by the police, do absolutely nothing, and yet be arrested, convicted and incarcerated."
"It is inimical to a free society that mere silence can lead to imprisonment," he wrote.
The identification requirement helps police avoid wrongful arrests, state attorney Conrad Hafen told justices, and it only applies when officers have a reasonable suspicion that there was a crime.
"The public interest in crime prevention and effective police work outweighs Hiibel's claimed right of privacy," he wrote.
The Nevada Supreme Court had said the case had implications for the government's terrorism fight. "We are at war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled," wrote Chief Justice Cliff Young.
The case is Hiibel v. Sixth Judicial District Court of the state of Nevada, 03-5554.

Larry Dudley Hiibel v. The Sixth Judicial Court of the State of Nevada, et al

CONTENTS

No. Document Date

1 PETITION FOR A WRIT OF CERTIORARI December 4, 2001

EXHIBIT A -- Summons May 21, 2000

EXHIBIT B -- Motion to Dismiss Domestic Battery Case Setember 29, 2000

EXHIBIT C -- Order to Dismiss Domestic Battery Case September 29, 2000

EXHIBIT D -- Findings of Facts, Conclusions of Law, Ruling February 21, 2001

EXHIBIT E -- Court memo March 14, 2001

EXHIBIT F -- Notice of Appeal March 14, 2001

EXHIBIT G -- Transcript Court Trial, November 7, 2000 March 15, 2001

EXHIBIT H -- Transcript Court Trial, February 13, 2001 March 15, 2001

EXHIBIT I -- Appellant's Brief on Appeal May 4, 2001

EXHIBIT J -- Respondent's Answering Brief May 9, 2001

EXHIBIT K -- Appellant's Reply Brief to Apellee's Opposition May 14, 2001

EXHIBIT L -- Order June 26, 2001

2 SUPPLEMENT TO PETITION FOR WRIT OF CERTIORARI December 18, 2001

3 ANSWER TO PETITION FOR WRIT OF CERTIORARI February 1, 2002

4 SUPPLEMENT TO ANSWER TO WRIT OF CERTIORARI March 15, 2002

5 PETITION FOR REHEARING January 7, 2003

6 ANSWER TO PETITION FOR REHEARING March 4, 2003

[Document 1, 13 pp.]

ORIGINAL

FILED
DEC 04 2001
JANETTE M. BLOOM
CLERK OF SUPREME COURT
BY [Signature]
DEPUTY CLERK

IN THE SUPREME COURT OF THE STATE OF NEVADA

LARRY DUDLEY HIIBEL,

Petitioner,

vs.

THE SIXTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA AND THE
COUNTY OF HUMBOLDT AND THE
HONORABLE RICHARD A. WAGNER,
DISTRICT JUDGE FOR THE STATE OF
NEVADA, IN AND FOR THE COUNTY OF
HUMBOLDT.

Respondent.

____________________________________________/

CASE NO. 38876

PETITION FOR A WRIT OF CERTIORARI

TO: THE HONORABLE JUSTICE OF THE SUPREME COURT

1. Petitioner, Larry Dudley Hiibel, was the subject of proceedings instituted by the State of Nevada, charging Mr. Hiibel with Resisting a Public Officer, on May 21, 2000.

2. The respondent is the Honorable Richard A. Wagner, presiding judge in the Sixth Judicial District Court of the State of Nevada, in and for Humboldt County, State of Nevada.

3. Respondent has a duty resulting from an office trust and station to enforce and protect the due process Fourteenth, Fourth and Fifth Amendment rights of all those who come before him in his official capacity as District Court Judge. Respondent is without jurisdiction to affirm criminal convictions obtained in violation of the United States Constitution. Specifically, Respondent has a duty to reverse criminal convictions which have been obtained in the lower court by violations of an individual rights. A criminal defendant has the Fourth Amendment right to be free from unreasonable searches and seizures and the Fifth Amendment right not to be compelled to incriminate himself and Respondent has the duty to enforce those rights through the exercise of his appellate jurisdiction.

4. As part of the decision in the lower court the Respondent erroneously ruled that NRS 171.123 was constitutional.

5. Respondent has refused to reverse Petitioner's conviction which was obtained in violation of his Fourth, Fifth and Fourteenth Amendment rights.

6. Petitioner has no plain, speedy and adequate remedy at law by which to challenge Respondent's refusal to reverse his conviction.

WHEREFORE, Petitioner respectfully prays that this court:

1. Issue a Writ of Certiorari and determine that NRS 171.123 is unconstitutional.

2. Reverse Petitioner's conviction for resisting a public officer on May 21, 2000.

3. For such other and further relief as the Court deems proper.

RESPECTFULLY SUBMITTED this 4th day of December 2001.

STEVEN G. McGUIRE
Nevada State Public Defender
By:
[James P. >Logan]
JAMES P. LOGAN
Chief Appellate Deputy
Bar I.D. No. 1791
511 E. Robinson St.
Carson City, NV 89701
(775) 687-4880

_________________________________________

VERIFICATION

STATE OF NEVADA)
)ss
CARSON CITY )

LARRY DUDLEY HIIBEL, declares under penalty of perjury:

1. That he is the Petitioner in this matter and under penalties of perjury, the undersigned declares that he is the Petitioner named in the foregoing Petition for Writ of Certiorari and knows the contents thereof; that the pleading is true of his own knowledge, except as to those matters stated on information and belief, and that as to such matter believes it to be true.

[Larry Dudley Hiibel]
LARRY DUDLEY HIIBEL
Petititioner

SUBSCRIBED AND SWORN to before me this 26 day of November, 2001.

[Karen M. Dunham]
KAREN M. DUNHAM
Notary Public - State of Nevada
Humboldt County
My appointment expires Oct. 15, 2005
#91-0017.9

POINTS AND AUTHORITIES

FACTS

The Petitioner, Larry Dudley Hiibel, was originally charged with Domestic Battery and Resisting a Public Officer on May 21, 2000. Exhibit A. However, the Domestic Battery charge was later dismissed upon the motion of the State. Exhibits B, C. A trial was held in the Justice Court of Union Township, in and for the County of Humboldt, State of Nevada. Exhibits G, H. Mr. Hiibel was convicted. Exhibits D, E.

During the course of the trial it was established that on May 21, 2000, Deputy Dove was dispatched to a report of a battery that occurred on Grass Valley Road in Humboldt County. Exhibit H, pgs. 3-5. Upon arriving at Grass Valley Road, Deputy Dove spoke with a citizen who informed the deputy he had observed a battery taking place. The citizen pointed out a vehicle which was pulled over along the side of the road. Upon arriving at the vehicle noticed that the vehicle "appeared to have been pulled over in a fast, aggressive manner; there were skid marks in the gravel where it stopped. It was parked -- It wasn't parked in a normal fashion." Mr. Hiibel was standing outside the vehicle. Exhibit H, pgs. 5-7. Upon approaching Mr. Hiibel, the deputy noticed that Mr. Hiibel showed signs that he had been drinking. The deputy also noticed that there was a female occupant of the vehicle. The deputy commenced to conduct an investigation. Exhibit H, pg. 8.

The deputy "tried to obtain his personal information and determine what had taken place in the vehicle off the side of the road, and started to conduct an investigation into the reported battery." 'When the deputy asked Mr. Hiibel to identify himself, Mr. Hiibel refused and kept turning around, putting his hands behind his back and telling the deputy to take him to jail. Exhibit H, pgs. 8, 9. Due to the situation, the deputy placed Mr. Hiibel in handcuffs and placed him in the police car. Exhibit H, pg. 9. After placing Mr. Hiibel in the police car, the deputy did not feel Mr. Hiibel was cooperating with him. However, Mr. Hiibel was eventually, somehow identified. Exhibit H, pg. 10.

A video tape of what transpired at the scene was introduced into evidence.¹ After viewing the tape the deputy conceded that he had asked Mr. Hiibel for identification approximately eleven times before placing him in handcuffs. The deputy also conceded that he was staying at the scene until he discovered Mr. Hiibel's identification and what happened about the battery. Exhibit H, pgs. 16-20.

__________________

1 An inquiry to this Court disclosed that the Court does not initially accept video tapes. Therefore, a copy of the video was not attached to this petition. A copy of the video is available if this Court desires.

Mr. Hiibel was eventually charged with domestic battery and resisting a public officer. Exhibit A.

The Justice Court found as fact, the following:

Dove asked the male for personal identification and was refused. Dove asked him several more times for identification and when asked, "why"?, replied that he needed his identification because of a reported fight. The man refusing to give his name, placed his hands behind his back and told Dove to take him to jail. Dove asked the man eleven times for his identification and finally told him that if he didn't give any identification he would be arrested for delaying an officer. Dove asked him if he was going to cooperate? The man refused to identify himself and Dove arrested him for Resisting Public Officer per NRS 199.280 and took him to jail. Exhibit D, pg. 2.

The Justice Court went on to hold that Mr. Hiibel had an obligation to identify himself pursuant to NRS 171.123(3) and the failure to do so constituted a crime. Exhibit D, pgs. 2, 3.

I. PROPRIETY OF EXTRAORDINARY RELIEF

A Writ of Certiorari is available in all cases where an inferior tribunal, board or officer exercising judicial functions has exceeded its jurisdiction and there is no appeal nor plain, speedy and adequate remedy. NRS 34.020(2), Zamarripa v. District Court, 103 Nev. 638, 747 P.2d 1386 (1987); Braham v. District Court, 103 Nev. 644, 747 P.2d 1390 (1987); Steele v. District Court, 108 Nev. 352, 830 P.2d 1340 (1992); see also City of Las Vegas v. Carver, 92 Nev. 198, 547 P.2d 688 (1976). The meaning of the term "jurisdiction" in NRS 34.020(2) which authorizes the granting of a writ of certiorari if an inferior tribunal exceeds its jurisdiction, has a broader meaning than the concept of jurisdiction over the person or subject. The term includes constitutional limitations. Watson v. Housing Authority, 97 Nev. 240, 627 P.2d 405 (1981); Public Service Commission v. Eighth Judicial District Court, 107 Nev. 680, 818 P.2d 396 (1991). In the present case, the lower court exceeded its jurisdiction by allowing Mr. Hiibel to be convicted and sentenced for resisting a public officer, for failing to identify himself. This violated the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. See Zamarripa v. District Court, supra.

In addition, the writ of certiorari is proper to obtain review of the constitutionality of an statute or ordinance. NRS 34.020(3); City of Reno v. Second Judicial District Court, 83 Nev. 201, 427 P.2d 4 (1967); Glass v. Eighth Judicial District Court, 87 Nev. 321, 486 P.2d 1180 (1971); City of Las Vegas v. Carver, 92 Nev. 198, 547 P.2d 688 (1976); Dinitz v. Christensen, 94 Nev. 230, 577 P.2d 873 1978). Here the district court, found NRS 171.123, which requires an individual to identify himself is constitutional. Exhibit L.

Also, the extraordinary remedy of certiorari is only available when there is no appeal nor any plain, speedy and adequate remedy. NRS 34.020(2). Mr. Hiibel was convicted in the Justice Court of Union Township and then was unsuccessful in an appeal to the district court. Mr. Hiibel has no further right to appeal, nor any plain, speedy or adequate remedy. Nev. Const. Art. § 6; City of Las Vegas v. Carver, supra; Zamarripa v. District Court, supra.

Petitions for extraordinary relief are addressed to the sound discretion of this Court. Brewery Arts Ctr. v. State Brd. Examiners, 108 Nev. 1050, 843 P.2d 369 (1992) (writ is discretionary with supreme court); Clark County Liquor v. Clark, 102 Nev. 654, 730 P.2d 443 (1986) (writ denied re discovery order); State ex re. Dept. Transportation v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983) (supreme court can limit its discretion; no more review of summary judgment denials or motion to dismiss denials); Poulos v. District Court, 98 Nev. 453, 652 P.2d 1177 (1982) (supreme court limits discretion to cases involving serious issues of public policy or important precedential issues of statewide interest), However, this Court has exercised its discretion on issues of emergency or great public necessity. Ashokan v. State, Dept. of Ins., 109 Nev. 662, 856 P.2d 244 (1993) (new statute; statewide importance); Mays v. District Court, 105 Nev. 60, 768 P.2d 877 (1989) (review of NRCP 16.1 issue; issue of first impression on important new rule, with statewide concerns); State v. District Court, 101 Nev. 658, 708 P.2d 1022 (1985) (constitutional issue of statewide importance); Southwest Gas Corp. v. Pub. Serv. Commission, 92 Nev. 48, 546 P.2d (1976) (statewide precedent on public utility issue).

Here, the constitutionality of NRS 171.127 is a matter of great public necessity and of statewide importance. It is the obligation of this Court to enforce the terms of the United States constitution. A statute exists which, if enforced, violates the federal constitutional rights of the citizens of this state. It is now time for this Court to decide the constitutionality of NRS 171.123. In addition, the issue presented in this case is of national importance. The United States Supreme Court has not specifically addressed the issue. There has been litigation nationwide concerning the issue. It is time the issue was resolved.

ARGUMENT

This case presents the issue of the constitutionality of NRS 171.123 which requires someone to identify himself when confronted by the police during a Terry stop.

Both the Fourth and Fifth Amendments to the United States Constitution are applicable to state prosecutions by way of the Fourth amendment to the United States Constitution. See Mapp v. Ohio, 367 U.S. 643 (1961); Malloy v. Hogan, 378 U.S. 1 (1964).

NRS 171.123 is Nevada's codification of the decision in Terry v. Ohio, 392 U. S. 1 (1968); State v. Lisenbee, 116 Nev. _, 13 P. 3d 947, 950 (2000). In the Terry decision the United States Supreme Court held that a police officer may stop a person and conduct a brief investigation when the officer has a reasonable, articulable suspicion that criminal activity is taking place or is about to take place. In its decision, the district court correctly pointed out that NRS 171.123 expands on the Terry case by including a bright line time restriction of 60 minutes on such detentions and requiring the subject of the detention to identify himself. (The Supreme Court only spoke of reasonable detentions, reasonableness to be determined by the circumstances). Exhibit L. NRS 171.123 provides as follows:

1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
2. Any peace officer may detain any person the officer encounters under circumstances which reasonably indicate that the person has violated or is violating the conditions of his parole or probation.
3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.
4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested. (Emphasis added.)

In this case there is no question that the police officer had an "articulable suspicion" that a battery had taken place. In addition, upon approaching Mr. Hiibel, the officer also had an "articulable suspicion" to believe a DUI may have occurred. The officer was certainly entitled to detain Mr. Hiibel and conduct a further investigation. However, the question raised is whether Mr. Hiibel was within his rights to refuse to identify himself as required by NRS 121.123. If Mr. Hiibel was within his constitutional rights to refuse to identify himself, then his conviction for resisting a public officer must be reversed.

On two occasions the United States Supreme Court has been confronted with this very issue. On two occasions the United States Supreme Court has decided the case on other grounds.

In Brown v. Texas, 443 U.S. 47, the United States Supreme Court was faced with a statute which made it a crime to refuse to identify yourself to an officer. The Court never reached the constitutionality of the statute because it held the initial detention was illegal. Therefore, anything which occurred after the illegal seizure was suppressible.

Another case in which the United States Supreme Court avoided the issue was Kolender v. Lawson, 461 U.S. 352 (1983). This case involved a statute which required someone to produce identification upon police request. The Court again avoided deciding the issue of compulsory identification by holding the statute void for vagueness.

These two cases have caused some courts to hold that the issue of whether an individual was required to identify themselves during a Terry stop, as not being a clearly established rule. See e.g. Albright v. Rodriguez, 51 F.3rd 1531 (10th Cir. 1995); Gainor v. Rogers, 973 F.2nd 1379, 1386 (1996). However, these types of cases involve civil rights litigation and are trying to resolve the issue of whether a public official can be held liable for violating someone's civil rights when the rule has not been clearly resolved. Looking at these cases is where our district court was misled and therefore drew the wrong conclusions. In fact, although the United States Supreme Court has not directly addressed the issue, it has been spoken many times that an individual need not identify themselves to the police.

In Terry v. Ohio, 392 U.S. 1, 34 (1968), Justice White explained in his concurring opinion that "of course, the person stopped is not obligated to answer, . . . and refusal to answer furnishes no basis for an arrest, although it may alert the officers to the need for continued observation."

In Berkemer v. McCarty, 468 U.S. 420, 439 (1984), while discussing Terry stops, the Court stated:

[T]he stop and inquiry must be "reasonably related in scope to the justification for their initiation." Ibid. (quoting Terry v. Ohio, supra, at 29, 20 L.Ed 2d 889, 88 S.Ct. 1868). Typically, this means that the officer must ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obligated to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. (Emphasis added.)

In his concurring opinion in Michigan v. DeFillippo, 443 U.S. 31, 44 (1979), Justice Blackmun stated:

Furthermore, while a person may be briefly detained against his will on the basis of reasonable suspicion "while pertinent questions are directed to him ... the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest . . . ." Terry v. Ohio, supra, at 34, 20 L.Ed.2d 889, 88 S.Ct. 1868, 44 Ohio Ops 2d 383 (White, J., concurring). In the context of criminal investigation, the privacy interest in remaining silent simply cannot be overcome at the whim of any suspicious police officer. "[W]hile the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." Davis v. Mississippi, 394 U.S. 721, 727 n.6, 22 L.Ed.2d 676, 89 S.Ct. 1394.(1969).

In note 6 in Davis v. Mississippi, 394 U.S. 721, 727 (1969) the Court stated:

The State relies on various statements in our cases which approve general questioning of citizens in the course of investigating a crime. See Miranda v. Arizona, 384 U.S. 436, 477-478, 16 L.Ed.2d 694, 725, 726, 86 S.Ct. 1602, 10 ALR3d 974 (1966); Culombe v. Connecticut, 367 U.S. 568, 635, 6 L.Ed.2d 1037, 1076, 13 81 S.Ct 1860 (concurring opinion) (11961). But these statements merely reiterated the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.

Finally, Justice Brennan, in his concurring opinion in Kolender v. Lawson, 461 U.S. 352, 364, 365 (1983), while he was discussing Terry stops, stated:

For precisely that reason, the scope of seizures of the person on less than probable cause that Terry permits is strictly circumscribed to limit the degree of intrusion they cause. Terry encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him. (Emphasis added.)

Considering the wealth of authority contained in several of the decisions of the United State Supreme Court, it is very understandable that several of the federal circuit courts have held that there is no need to answer questions posed by the police during a detention. See Lawson v. Kolender, 658 F.2d 1362 (9th Cir. 1981); Richardson v. Bonds, 860 P.2d 1427, 1432 (7th Cir. 1988); Moya v. United States, 761 F.2d 322, 325 (7th Cir. 1984) (probable cause not established by failing to present identification to a police officer upon request by a law enforcement officer); United States v. Brown, 731 F.2d 1491, 1494 (1 1th Cir.) modified on other grounds, 731 F.2d 1505 (11th Cir. 1984) (per curiam); Spring v. Caldwell, 516 F.Supp. 1223, 1229-30 (S.D. Tex. 1981) rev'd on other grounds 692 F.2d 994 (5th Cir. 1982); Martinelli v. Beaumont, 820 F.2d 1491 (9th Cir. 1987).

At least three states are also in accord. See People v. DeFillippo, 80 Mich. App. 197, 262 N.W.2d 921 (1977); People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N-E.2nd 411, 414-15, cert. denied, 414 U.S. 1093 (1973); State v. White, 640 P.2d 1061 (Wash. 1982).

While the United States Supreme Court has not addressed the issue, it is very clear that the clear weight of authority is that someone is not required to identify themselves during a Terry stop. The portion of NRS 171.123 which requires the person detained to identify themselves is clearly unconstitutional.

CONCLUSION

The portion of NRS 121.123 which requires someone to identify themselves during a detention is unconstitutional. Because Mr. Hiibel was convicted of resisting a public officer because he refused to identify himself, the conviction must be reversed.

Dated this 4th day of December 2001.

STEVEN G. McGUIRE
Nevada State Public Defender
By:
[James P. Logan]
JAMES P. LOGAN
Chief Appellate Deputy
Bar I.D. No. 1791
511 E. Robinson St.
Carson City, NV 89701
(775) 687-4880

_________________________________________

CERTIFICATE OF SERVICE

I hereby certify that I am an employee of the Office of the Nevada State Public Defender and on this 4th day of December 2001, I served the foregoing PETITION FOR WRIT OF CERTIORARI by mailing a copy thereof to:

Attorney General
100 N. Carson St.
Carson City, NV 89701

Humboldt County D.A.
P. O. Box 909
Winnemucca, NV 89446

The Hon. Richard A. Wagner
District Court Judge
P. O. Box H
Lovelock, NV 89419

Larry D. Hiibel
P. O. Box 1323
Winnemucca, NV 89446

[Anne Bowen]

______________________________________________

EXHIBIT A

_________________________________

EXHIBIT B

FILED

SEP 29 2000

JUSTICE OF THE PEACE
BY MUNICIPAL JUDGE
BY ______________CLERK

No. XX-69056

IN THE JUSTICE'S COURT OF UNION TOWNSHIP,

COUNTY OF HUMBOLDT, STATE OF NEVADA.

-oOo-

THE COUNTY OF HUMBOLDT,

Plaintiff,

VS. MOTION TO DISMISS

LARRY DUDLEY HIIBEL,

Defendant.

_________________________________/

COMES NOW, the State of Nevada, by and through its attorney, CONRAD HAFEN, Humboldt County Deputy District Attorney, and does respectfully ask leave of Court to dismiss, without prejudice, the above-entitled action charging the Defendant with the crime of DOMESTIC BATTERY, in violation of NRS 200.485, for the following reason, to-wit: eye witness cannot be found.

DATED this 30 day of September 29, 2000.

[Conrad Hafen]
CONAD HAFEN
Deputy District Attorny

_________________________________

EXHIBIT C

No. XX-69056

IN THE JUSTICE'S COURT OF UNION TOWNSHIP,

COUNTY OF HUMBOLDT, STATE OF NEVADA.

-oOo-

THE COUNTY OF HUMBOLDT,

Plaintiff,

VS. ORDER

LARRY DUDLEY HIIBEL,

Defendant.

_________________________________/

Based upon the Motion to Dismiss by the State, it is hereby ordered that the above-entitled case is dismissed without prejudice.

DATED this day of September 29, 2000.

[Gene Wombolt]
JUSTICE OF THE PEACE

_______________________________________

CERTIFICATE OF SERVICE

Pursuant to NRCP 5(b), I certify that I am an employee of the Humboldt County District Attorney's Office, and that on the 3RD day of October 2000, 1 deposited for mailing at Winnemucca, Nevada, a true copy of the MOTION AND ORDER TO DISMISS to:

Bob Dolan
Public Defender
Humboldt County Courthouse
Winnemucca, Nevada 89445

Paige Brown

_______________________________________

EXHIBIT D

No. XX-69056

IN THE JUSTICE COURT OF UNION TOWNSHIP,

IN AND FOR THE COUNTY OF HUMBOLDT, STATE OF NEVADA.

-oOo-

THE COUNTY OF HUMBOLDT,

Plaintiff, FINDING OF FACTS

VS. CONCLUSIONS OF LAW

RULING
LARRY DUDLEY HIIBEL,

Defendant.

_________________________________

On December 13th 2001 at 9:00 a.m. in Union Township Justice Court, a trial in the criminal matter of the County of Humboldt vs. LARRY DUDLY HIIBEL on a misdemeanor complaint of DELAYING AN OFFICER was heard by UNION TOWNSHIP JUSTICE of the PEACE GENE WAMBOLT. The matter was taken under advisement after final arguments.

FINDING OF FACTS

On May 21st, 2000 at 1900 hours, Deputy Dove responded to a report from Humboldt County Dispatch, that a witness saw two people in a RED and SILVER GMC pick-up truck involved in a FIGHT or DOMESTIC BATTERY. The report further described the RED and SILVER GMC pick-up truck and it was located on Grass Valley Road just past B. J's. Market. Dove proceeded South on Grass Valley Road and stopped in his patrol car near Lynx Road and had brief conversation and received directions from a witness Mr. Riddley. Dove then continued South again on Grass Valley Road and saw a vehicle matching the description which he was advised of by dispatch and noticed that the pick-up truck had pulled off the road rapidly, because of the skid marks and the position in which it was parked. As Dove stopped his vehicle, a man who was standing next to the pick-up truck started walking towards him and Dove noticed signs of his intoxication. Dove observed a female in the cab of the pick-up truck. Dove asked the male for personal identification and was refused. Dove asked him several more times for identification and when asked, "why"?, replied that he needed his identification because of a reported fight. The man refusing to give his name, placed his hands behind his back and told Dove to take him to jail. Dove asked the man 11 times for his identification and finally told him that if he didn't give any identification he would be arrested for delaying an officer. Dove asked him if he was going to cooperate? The man refused to identify himself and Dove arrested him for RESISTING PUBLIC OFFICER per NRS 199.280 and took him to jail.

CONCLUSIONS OF LAW

NRS 171.123 (3) provides:

"The officer may detain any person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

In this instant case Dove received a report from dispatch and was responding to a fight or domestic battery. Because of potential seriousness of injury as a result of domestic battery'and that the report from dispatch and the eyewitness were confirmed by Dove's observations when he arrived at the scene, it was not beyond his duty to lawfully ask for identification. Dove's conduct throughout asking for identification was not overbearing (defendant Exhibit A) or harassing. NRS 171.123 (3) states in part, "person so detained SHALL identify himself." (Underlining for emphasis.) The man who refused to identify himself was arrested (delaying an officer) and only then could he be identified as Larry Dudley Hiibel.

NRS 199.280 provides:

"A person who, in any case or under any circumstances not otherwise specially provided for, willfully resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his office shall be punished."

Dove requested identification 11 times and the individual refused each request. At the initial contact with Hiibel, he was asked only for identification and failure to provide identification obstructed and delayed Dove as a public officer in attempting to discharge his duty and was in violation to NRS 199.280.

"[E]xtent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in an appropriate circumstances and in an 13 appropriate manner approach a person for purpose if investigating possibly criminal behavior even though there is no probable cause to make an arrest". Terry v. Ohio, 392 15 US 1, 20 L Ed 2d 889.

RULING

Based on the above FINDINGS OF FACT, CONCLUSIONS OF LAW plus the testimony and evidence received at the trial; I find that Humboldt County Deputy Dove acted properly and lawfully when he asked Larry Dudley Hiibel for identification and subsequently arrested him for refusing and therefore find Larry Dudley Hiibel GUILTY of DELAYING AN OFFICER and set 13 th March 2001 at 11:00 for a Sentencing Hearing.

DATED this 21 dayof FEBRUARY 2001.

[Gene Wambolt]
Gene Wambolt,
Justice of the Peace.

_________________________________

EXHIBIT E

__________________________________

EXHIBIT F

FILED

01 MAR 14 PM 3:46

GENE WAMBOLT
JUSTICE OF THE PEACE
MUNICIPAL JUDGE
BY SMOCK CLERK

Case:XX-69056

IN THE JUSTICE'S COURT OF UNION TOWNSHIP,

COUNTY OF HUMBOLDT, STATE OF NEVADA.

-oOo-

THE COUNTY OF HUMBOLDT,

Plaintiff,

VS. NOTICE OF APPEAL

LARRY DUDLEY HIIBEL,

Defendant.

_________________________________/

NOTICE is hereby given that the defendant LARRY DUDLEY HIIBEL, hereby appeals from the Judgment of Conviction filed on March 13, 2001, to the Sixth Judicial District Court of Nevada.

This appeal is to all issues of law and fact.

DATED this 14th day of March, 2001.

STEVEN G. MCGUIRE
Nevada State Public Defender
[Robert E. Dolan]
ROBERT E.DOLAN
Deputy Public Defender

_____________________________________

CERTIFICATE OF SERVICE

I, ANNE BOWEN, pursuant to NRCP5 (b), hereby certify that I am an employee of the Office of the Nevada State Public Defender and that on this 14th day of March 2001, I personally served a true and correct copy of the foregoing to the Humboldt County District Attorney's Office and Edward Von Ruden, court reporter.

Anne Bowen

__________________________________

EXHIBIT G

COPY

FILED

2001 MAR 15 PM 1:05
[Illegible]
DISTRICT COURT CLERK

CASE NO. XX-69056

IN THE JUSTICE COURT OF UNION TOWNSHIP, IN AND FOR

THE COUNTY OF HUMBOLDT, STATE OF NEVADA

HONORABLE GENE WAMBOLT, JUSTICE OF THE PEACE

---0O0---

LARRY DUDLEY HIIBEL,

PLAINTIFF, COURT TRIAL

vs. NOVEMBER 7 2000

LARRY DUDLEY HIIBEL, WINNEMUCCA, NEVADA

DEFENDANT.

-----------------------------------/

REPORTERS TRANSCRIPT OF PROCEEDINGS

VOLUME I

REPORTED BY: EDWARD VON RUDEN, CSR # 261
PO BOX 2545
WINNEMUCCA, NEVADA 89446
(775) 623-6452

COPIES:
DA
DEFT: (DOLAN)

1
________________________________________

A P P E A R A N C E S.

FOR THE COUNTY: CONRAD HAFEN, ESQ.
DEPUTY DISTRICT ATTORNEY
COUNTY OF HUMBOLDT

FOR THE DEFENDANT: ROBERT E. DOLAN, ESQ.
DEPUTY PUBLIC DEFENDER
WINNEMUCCA, NEVADA

WITNESSES DIR. CR. REDIR. RECR VOIR DIRE

THOMAS MERSCHEL 4 14

EXHIBITS IDENT. EVID.

2
________________________________________

1 THE COURT: COURT IS IN SESSION. THIS IS THE

2 TIME AND PLACE SET FOR A TRIAL IN THE CRIMINAL MATTER OF

3 THE COUNTY OF HUMBOLDT VERSUS MR. LARRY DUDLEY HIIBEL ON A

4 MISDEMEANOR CHARGE OF DELAYING AN OFFICER, UPON WRITEN

5 COMPLAINT SIGNED BY LEE DOVE AS COMPLAINANT UNDER JUSTICE

6 COURT NUMBER XX-69056.

7 LET THE RECORD SHOW THAT THE DEFENDANT, MR.

8 HIIBEL, IS PRESENT, IS REPRESENTED BY MR. ROBERT DOLAN.

9 LET THE RECORD SHOW THAT THE COUNTY IS REPRESENTED BY MR.

10 CONRAD HAFEN AS HUMBOLDT COUNTY DEPUTY DISTRICT ATTORNEY.

11 LET THE RECORD FURTHER SHOW THAT THE DEFENDANT WAS DULY

12 ARRAIGNED ON JUNE 19TH OF THE YEAR 2000. AND ARE YOU READY

13 TO PROCEED, GENTLEMEN?

14 MR. HAFEN: YES, YOUR HONOR. YOUR HONOR, BEFORE

15 WE BEGIN, I WOULD LIKE TO INFORM THE COURT ON THE RECORD

16 THAT YESTERDAY MR. DOLAN AND I WERE IN COURT IN DISTRICT

17 COURT AND DEPUTY DOVE WAS SUBPOENAED BUT WAS UNABLE TO

18 APPEAR BECAUSE APPARENTLY HIS MOTHER WAS SENT TO THE

19 HOSPITAL, SO HE IS UP IN IDAHO.

20 DISPATCH CALLED ME EARLIER TODAY AND CONFIRMED

21 THAT HE WAS STILL UP THERE. HE IS A WITNESS IN THIS CASE,

22 AND IT'S PROPOSED THAT WE HAVE TROOPER MERSCHEL GIVE HIS

23 TESTIMONY AND THEN CONTINUE THE MATTER TO ANOTHER DATE WHEN

24 DEPUTY DOVE CAN COME BACK AND TESTIFY.

3
________________________________

1 I HAVE TALKED TO MR. DOLAN. HE APPEARS TO BE IN

2 AGREEMENT WITH THAT.

3 THE COURT: MR. DOLAN?

4 MR. DOLAN: THANK YOU, YOUR HONOR. I HAVEN'T

5 TALKED TO MY CLIENT

6 THE COURT: WOULD YOU LIKE A MOMENT FOR THAT, SIR?

7 MR. DOLAN: YES, JUDGE. YOUR HONOR, WE WOULDN'T

8 HAVE ANY OBJECTION TO THAT PROCEDURE.

9 THE COURT: THANK YOU, MR. DOLAN. WILL THE

10 WITNESS PLEASE RISE TO BE SWORN.

11 THOMAS MERSCHEL

12 CALLED AS A WITNESS BY THE COUNTY HEREIN, BEING

13 FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

14 THE COURT: PLEASE STATE YOUR NAME AND SPELLING

15 FOR THE RECORD.

16 THE WITNESS: MY NAME IS THOMAS MERSCHEL;

17 M-E-R-S-C-H-E-L.

18 DIRECT EXAMINATION

19 BY MR. HAFEN:

20 Q SIR, WHERE ARE YOU CURRENTLY EMPLOYED?

21 A WITH THE NEVADA HIGHWAY PATROL IN WINNEMUCCA.

22 Q HOW LONG HAVE YOU WORKED THERE?

23 A SINCE APRIL 19TH OF 1993.

24 Q DIRECTING YOUR ATTENTION TO MAY 21ST, 2000, WERE

4
_________________________________

1 YOU WORKING THAT DAY?

2 A YES, I WAS.

3 Q DID YOU HAVE OCCASION TO RESPOND TO THE 7200

4 BLOCK ON GRASS VALLEY ROAD?

5 A YES, SIR, I DID.

6 Q WHAT WAS THE REASON FOR YOU GOING TO THAT

7 LOCATION?

8 A I HEARD OVER MY HANDHELD RADIO -- SCANNING THE

9 HUMBOLDT COUNTY CHANNEL, I HEARD THERE WAS A DOMESTIC

10 BATTERY IN PROGRESS. IT WAS IN A VEHICLE THAT WAS

11 TRAVELLING ON GRASS VALLEY ROAD. I HEARD THAT DEPUTY DOVE

12 WAS RESPONDING AND I KNEW HE WAS RESPONDING ALONE.

13 KNOWING THOSE THINGS, AND KNOWING DOMESTIC

14 BATTERY IS A --

15 MR. DOLAN: YOUR HONOR, I'M GOING TO MOVE TO

16 STRIKE THIS TESTIMONY REGARDING ANY REFERENCE TO THE

17 DOMESTIC BATTERY PORTION OF THE ANSWER ON THE BASIS THAT

18 WE'RE TALKING ABOUT PRIOR UNCHARGED CONDUCT, WHICH IS UNDER

19 THESE FACTS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE.

20 I DON'T BELIEVE THAT IT'S NEEDED. IT'S UNDULY PREJUDICIAL

21 FOR MY CLIENT.

22 THE COURT: THANK YOU, MR. DOLAN.

23 MR. HAFEN: MAY I RESPOND, YOUR HONOR?

24 THE COURT: YOU MAY.

5
________________________________

1 MR. HAFEN: TWO POINTS. FIRST OF ALL, THAT CHARGE

2 AGAINST THE DEFENDANT HAS BEEN DISMISSED. SECOND, I DON'T

3 BELIEVE IN HIS TESTIMONY HE'S MENTIONED THE DEFENDANT AT

4 ALL IN THIS. I THINK WHAT HE'S DOING IS JUST EXPLAINING

5 WHY HE WAS THERE, SO FOR WHATEVER THAT'S WORTH THE COURT

6 CAN GIVE WHATEVER WAIT IT DEEMS, BUT THE DEFENDANT'S NAME

7 HASN'T COME UP ONCE. HE'S JUST EXPLAINING WHY HE WENT

8 THERE, SO I DON'T KNOW WHY THIS IS PREJUDICIAL TO THE

9 DEFENDANT BECAUSE WE ARE NOT CONNECTING IT TO HIM AT ALL.

10 THE COURT: THE OBJECTION IS OVERRULED.

11 MR. DOLAN: THANK YOU, YOUR HONOR.

12 BY MR. HAFEN:

13 Q SO, TROOPER MERSCHELI YOU HAD OCCASION THEN AFTER

14 GETTING THAT INFORMATION TO RESPOND TO THAT LOCATION ON

15 GRASS VALLEY ROAD?

16 A YES, SIR.

17 Q DID YOU RESPOND TO COVER DEPUTY DOVE?

18 A YES, SIR.

19 Q WHEN YOU ARRIVED AT THAT LOCATION, CAN YOU

20 DESCRIBE WHAT YOU FIRST SAW?

21 A I SAW DEPUTY DOVE'S CAR PARKED ON THE WEST ROAD

22 EDGE OF GRASS VALLEY ROAD, ABOUT THE 7200 BLOCK. GRASS

23 VALLEY ROAD IS A NORTH-SOUTH ROAD, SOUTH BEING TOWARDS

24 PERSHING COUNTY.

6
_______________________________

1 HIS LIGHTS WERE ON. HE WAS OUTSIDE HIS TRUCK.

2 HE WAS TALKING TO THE MAN -- THE GENTLEMAN SEATED HERE, MR.

3 HIIBEL WITH THE GRAY JACKET ON.

4 Q LET ME ASK YOU THAT QUESTION. DO YOU SEE THAT

5 INDIVIDUAL IN THE COURTROOM TODAY?

6 A YES, I DO.

7 Q WILL YOU POINT TO HIM, DESCRIBE WHAT HE'S

8 WEARING?

9 A HE'S THE GENTLEMAN SEATED NEXT TO MR. DOLAN WITH

10 THE GRAY JACKET AND THE TAN SHIRT.

11 THE COURT: LET THE RECORD SHOW THAT THE WITNESS

12 HAS IDENTIFIED THE MR. HIIBEL, THE DEFENDANT, IN THE

13 COURTROOM TODAY.

14 MR. HAFEN: THANK YOU, YOUR HONOR.

15 BY MR. HAFEN:

16 Q TROOPER MERSCHEL, AFTER MAKING THAT OBSERVATION,

17 DID YOU THEN APPROACH THE LOCATION OF WHERE DEPUTY DOVE AND

18 THE DEFENDANT WERE?

19 A YES.

20 Q AS YOU WALKED UP TO DOVE AND THE DEFENDANT, DID

21 YOU MAKE ANY OTHER OBSERVATIONS AS TO THE DEMEANOR OF THE

22 DEFENDANT?

23 A HE APPEARED TO BE VERY AGITATED. HE AND DEPUTY

24 DOVE WERE IN A VERBAL ARGUMENT OR DISAGREEMENT. DEPUTY

7
__________________________________

1 DOVE WAS ASKING MR. HIIBEL FOR IDENTIFICATION. MR. HIIBEL

2 TOLD --

3 MR. DOLAN: OBJECTION, HEARSAY; WHAT DEPUTY DOVE

4 WAS ASKING, WHAT HE WAS SAYING.

5 MR. HAFEN: THAT'S FINE, YOUR HONOR; WE'LL BRING

6 DEPUTY DOVE IN, ASK HIM.

7 MR. DOLAN: MOVE TO STRIKE.

8 THE COURT: YOUR OBJECTION IS SUSTAINED AND MOTION

9 TO STRIKE IS GRANTED.

10 MR. DOLAN: THANK YOU, YOUR HONOR.

11 BY MR. HAFEN:

12 Q NOW, YOU TESTIFIED THAT IT APPEARED AS THOUGH THE

13 DEFENDANT APPEARED TO BE AGITATED, IS THAT CORRECT?

14 A YES.

15 Q DO YOU RECALL WHAT HE WAS TELLING DEPUTY DOVE?

16 A HE WAS TELLING HIM THAT HE WAS BEING COOPERATIVE,

17 THAT HE WASN'T GOING TO GIVE HIM HIS IDENTIFICATION.

18 AT ONE POINT HE PUT HIS HANDS BEHIND HIS BACK AND

19 TOLD DEPUTY DOVE TO ARREST HIM.

20 Q WERE YOU CLOSE ENOUGH TO THE DEFENDANT TO SMELL

21 ANYTHING ON HIS PERSON?

22 A NOT AT THIS POINT.

23 Q AFTER YOU GOT TO THE LOCATION OF DEPUTY DOVE AND

24 THE DEFENDANT, WHAT DID YOU DO?

8
________________________________

1 A MR. HIIBEL TOLD ME -- HE DIRECTED HIS DISCUSSION

2 TOWARDS ME -- HE SAID HE WAS BEING COOPERATIVE, THAT I

3 SHOULD TELL DEPUTY DOVE THAT HE WAS BEING COOPERATIVE.

4 I TOLD MR. HIIBEL IF HE WAS BEING COOPERATIVE

5 THAT HE SHOULD GIVE DEPUTY DOVE HIS IDENTIFICATION.

6 HE TOLD DEPUTY DOVE THAT HE WASN'T IN THE CAR --

7 OR IN THE TRUCK -- AND THAT HIS TRUCK WAS LEGALLY PARKED.

8 Q AT THAT POINT WERE YOU ABLE TO NOTICE ANYTHING

9 COMING FROM THE PERSON OF THE DEFENDANT?

10 A NO.

11 Q DID YOU MAKE ANY OBSERVATIONS ABOUT HIS EYES OR

12 HIS DEMEANOR?

13 A HE WAS JUST VERY AGITATED, VERY ANGRY, VERY

14 UNCOOPERATIVE.

15 Q WHAT DID YOU DO NEXT?

16 MR. DOLAN: I MOVE TO STRIKE THAT LAST

17 CHARACTERIZATION; CALLS FOR A CONCLUSION OF BEING

18 UNCOOPERATIVE. I THINK UNDER THIS CASE THAT'S A CONCLUSION

19 OF LAW THAT A WITNESS IS UNABLE TO PROVIDE TO THIS COURT

20 BECAUSE THE NATURE OF THIS CASE THAT GOES TO THE HEART

21 OF -- THE NATURE OF THE DEFENSE.

22 MR. HAFEN: I THINK BASED ON WHAT HE OBSERVED HE

23 CAN DRAW A CONCLUSION AND RENDER AN OPINION, YOUR HONOR.

24 THE COURT: I'LL ALLOW IT UNDER THE OBSERVATION,

9
_________________________________

1 SO THE ANSWER WILL STAND.

2 BY MR. HAFEN:

3 Q WHAT DID YOU DO NEXT, TROOPER MERSCHEL?

4 A WALKED TO THE SILVER AND GRAY CHEVY TRUCK THAT

5 WAS REPORTED TO BE INVOLVED IN THE REASON WHY WE WERE AT

6 THE DOMESTIC BATTERY CALL. THERE WAS A FEMALE SEATED IN

7 THE TRUCK.

8 Q AFTER THIS INITIAL OBSERVATION OF THE DEFENDANT

9 WITH DEPUTY DOVE, DID YOU HAVE ANY OTHER INVOLVEMENT? WHEN

10 YOU LEFT DID YOU COME BACK AND HAVE ANY OTHER INVOLVEMENT

11 WITH THE DEFENDANT?

12 A YES.

13 Q CAN YOU DESCRIBE THAT?

14 A WHEN I WAS AT THE TRUCK SPEAKING TO WHO I THOUGHT

15 WAS THE VICTIM, THE FEMALE IN THE TRUCK --

16 MR. DOLAN: YOUR HONOR, I MOVE TO STRIKE THE

17 TESTIMONY ABOUT THE VICTIM OF THE ALLEGED DOMESTIC BATTERY

18 AS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE.

19 IT'S NOT POSSIBLE FOR A FACTFINDER TO NOT

20 CONNECT THIS DEFENDANT IS CHARGED WITH DELAYING OR

21 OBSTRUCTING.

22 THE DOMESTIC BATTERY, THE ACKNOWLEDGED VICTIM,

23 THIS IS ALL SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE.

24 MR. HAFEN: WE CAN MOVE ON; THAT'S FINE.

10
_________________________________

1 THE COURT: PLEASE DO, MR. HAFEN, AND YOUR

2 OBJECTION IS SUSTAINED.

3 BY MR. HAFEN:

4 Q TROOPER MERSCHEL, I JUST WANT YOU TO TESTIFY AS

5 TO WHAT YOU SAW IN REGARD TO THE DEFENDANT, OKAY? SO YOU

6 TESTIFIED PREVIOUSLY THAT YOU WENT TO THE TRUCK, IS THAT

7 CORRECT?

8 A YES.

9 Q AT SOME POINT DID YOU THEN GO BACK TO THE

10 DEFENDANT?

11 A YES.

12 Q CAN YOU DESCRIBE WHAT OTHER THINGS THAT YOU

13 OBSERVED WHEN YOU WENT BACK TO THE DEFENDANT?

14 A I SAW THAT DEPUTY DOVE WAS PLACING MR. HIIBEL IN

15 HANDCUFFS. I WALKED BACK TO BE CLOSER TO DEPUTY DOVE TO

16 COVER HIM IN CASE THERE WAS A PHYSICAL ALTERCATION.

17 Q WHY DID YOU HAVE SOME CONCERN THERE WOULD BE A

18 PHYSICAL ALTERCATION BETWEEN DEPUTY DOVE AND THE DEFENDANT?

19 A BECAUSE WHEN I FIRST ARRIVED, AS I TESTIFIED

20 EARLIER, MR. HIIBEL WAS BEING UNCOOPERATIVE. HE WAS

21 REFUSING TO GIVE HIS IDENTIFICATION. HE WAS ARGUMENTIVE.

22 HE WAS SAYING HE HAD NO REASON TO TALK TO DEPUTY

23 DOVE BECAUSE HE SAID HIS TRUCK WAS LEGALLY PARKED ON THE

24 ROAD, THAT HE WASN'T DRIVING.

11
____________________________________

1 HE PUT HIS HANDS OUT; HE CHALLENGED DEPUTY DOVE

2 TO ARREST HIM AT ONE POINT, TO JUST GO AHEAD AND ARREST

3 HIM. THOSE ARE THE REASONS WHY.

4 Q WHILE YOU WERE AT THE TRUCK DID YOU MAKE ANY

5 OBSERVATIONS OF THE DEFENDANT IN REGARD TO HIS RELATIONSHIP

6 OR ENCOUNTER BETWEEN HE AND DEPUTY DOVE?

7 A YOU NEED TO REASK YOR QUESTION; I DON'T

8 UNDERSTAND.

9 Q YOU TESTIFIED PREVIOUSLY THAT INITIALLY YOU

10 APPROACHED DEPUTY DOVE AND THE DEFENDANT.

11 A YES.

12 Q AND YOU LEFT THAT LOCATION AND WENT TO THE TRUCK.

13 A YES.

14 Q AND THEN YOU WENT FROM THE TRUCK BACK TO THEIR

15 LOCATION, IS THAT CORRECT?

16 A YES.

17 Q BUT WHILE YOU WERE AT THE TRUCK DID YOU HEAR

18 ANYTHING AT THAT LOCATION, AT THAT POINT COMING FROM THE

19 DEFENDANT? OR WAS THERE ANYTHING ELSE GOING ON BETWEEN

20 DEPUTY DOVE AND THE DEFENDANT WHILE YOU WERE AT THE TRUCK?

21 A NO.

22 Q SO THE ONLY TWO INCIDENTS THAT YOU OBSERVED

23 INVOLVING THE DEFENDANT'S BEHAVIOR WERE WHEN YOU WERE RIGHT

24 AND DEPUTY DOVE, IS THAT CORRECT?

________________________________

1 A NO.

2 Q OKAY. WERE THERE ANY OTHER THINGS THAT YOU

OBSERVED THEN AT SOME POINT?

4 A YES.

5 Q OKAY. WOULD YOU EXPLAIN THAT TO THE COURT?

6 A AFTER WE SECURED THE SITUATION, EVERYTHING WAS

7 TAKEN CARE OF AND ANOTHER PERSON WAS PUT IN CUSTODY, AFTER

8 THAT WE WERE BACK AT THE TRUCK AND WE WERE MOVING MR.

9 HIIBEL FROM ONE VEHICLE TO ANOTHER. HE WAS VERY AGITATED

10 WITH ME BECAUSE I HAD ARRESTED HIS DAUGHTER. HE WAS ANGRY

11 AT ME, SAYING THAT I WAS A TOUGH GUY, THAT I LIKED TO PICK

12 ON GIRLS.

13 HE CHALLENGED ME SEVERAL TIMES, SAYING HE WAS

14 GOING TO GET ME LATER ON BECAUSE I ARRESTED HIS DAUGHTER.

15 AT THAT POINT I NOTICED -- I COULD SMELL A STRONG

16 ODOR OF INTOXICANTS FROM HIS BREATH AND PERSON. HIS EYES

17 WERE VERY BLOODSHOT. HE WAS VERY ANGRY.

18 HE WAS IN HANDCUFFS AT THE TIME, AND AS I SAID

19 BEFORE, HE CHALLENGED ME SEVERAL TIMES. HE SAID I WAS

20 ALWAYS PICKING ON GIRLS AND HITTING GIRLS.

21 Q WAS DEPUTY DOVE HAVING ANY DIFFICULTY IN PLACING

22 THE DEFENDANT IN THE PATROL VEHICLE?

23 A YES.

24 Q CAN YOU DESCRIBE THAT?

_______________________________

1 A HE WOULD GET VERY STIFF LEGGED. HE DIDN'T WANT

2 TO BE MOVED. HE CONTINUOUSLY CHALLENGED ME. HE WAS ANGRY

3 WITH ME BECAUSE I HAD PLACED HIS DAUGHTER IN CUSTODY.

4 HE DIDN'T WANT TO BEND DOWN TO GET IN THE CAR.

5 OFTEN TIMES WE'LL PUT ONE HAND ON TOP OF THE PERSON'S HEAD

6 TO GET THEM IN THE CAR SO THEY DON'T HIT THEIR HEAD. HE

7 DIDN'T WANT TO COMPLY IN ANY WAY, SHAPE OR FORM.

8 HE CONTINUALLY CHALLENGED ME BECAUSE I HAD

9 ARRESTED HIS DAUGHTER.

10 MR. DOLAN: YOUR HONOR, I MOVE TO -- NO

11 OBJECTION.

12 MR. HAFEN: THAT'S ALL THE QUESTIONS I HAVE.

13 BY MR. HAFEN:

14 Q OH, I'M SORRY; WHAT COUNTY DID THIS ALL OCCUR IN?

15 A HUMBOLDT COUNTY.

16 MR. HAFEN: THAT'S ALL THE QUESTIONS I HAVE, YOUR

17 HONOR.

18 THE COURT: MR. DOLAN, YOU MAY CROSS EXAMINE.

19 MR. DOLAN: THANK YOU, YOUR HONOR.

20 CROSS EXAMINATION

21 BY MR. DOLAN:

22 Q WHEN YOU FIRST ARRIVED AT THE SCENE, TROOPER

23 MERSCHEL, TO THE TIME OF SEEING MR. HIIBEL BEING PLACED IN

24 CUSTODY, WHAT PERIOD OF TIME ELAPSED?

____________________________________

1 A I'D SAY FIVE MINUTES OR LESS.

2 Q DURING THOSE FIVE MINUTES DID YOU SEE MR. HIIBEL

3 TAKING A SWING AT DEPUTY DOVE?

4 A NO.

5 Q DID YOU SEE DEPUTY DOVE TAKE A SWING AT THE

6 DEFENDANT?

7 A NO.

8 Q PRIOR TO BEING PLACED IN CUSTODY DID YOU HEAR MR.

9 HIIBEL USE CURSE WORDS DIRECTED TOWARDS DEPUTY DOVE OR

10 YOURSELF?

11 A NO.

12 Q DID YOU HEAR MR. HIIBEL THREATEN TO USE FORCE

13 AGAINST DEPUTY DOVE?

14 A NO.

15 Q DID YOU HEAR HIM THREATEN TO USE FORCE AGAINST

16 YOU PRIOR TO BEING PLACED IN CUSTODY?

17 A NOT PRIOR TO, NO.

18 Q WERE THERE OTHER MEMBERS OF LAW ENFORCEMENT ON

19 THE SCENE OTHER THAN DEPUTY DOVE AND YOURSELF?

20 A AT WHAT TIME?

21 Q AT ANY TIME.

22 A YES.

23 Q WHO WERE THEY?

24 A TROOPER BUELL AND FORMER TROOPER RADKE ARRIVED ON

________________________________

1 THE SCENE AFTER THE ARREST.

2 Q WHO?

3 A FORMER TROOPER RADKE.

4 Q WOULD YOU KNOW HOW TO SPELL THAT IF POSSIBLE?

5 A R-A-D- -- I THINK IT'S K-E. BUELL IS B-U-E-L-L.

6 ALSO SERGEANT SMITH FROM THE HUMBOLDT COUNTY SHERIFF'S

7 OFFICE ARRIVED AFTER THE ARREST, AFTER MR. HIIBEL'S ARREST,

8 AND I BELIEVE TOWARD THE END, OR RIGHT AFTER MIMI HIIBEL'S

9 ARREST, WHO WAS THE JUVENILE.

10 Q BY THE WAY, IN CONNECTION WITH YOUR INVOLVEMENT

11 IN THIS MATTER YOU MADE A WRITTEN REPORT?

12 A YES.

13 Q DO YOU RECALL WHETHER OR NOT YOU INCLUDED IN YOUR

14 WRITTEN REPORT ANY INFORMATION RELATIVE TO THE DEFENDANT

15 BEING STIFF OR UNCOOPERATIVE WHEN YOU TRANSPORTED HIM IN

16 YOUR PATROL VEHICLE -- BETWEEN PATROL VEHICLES?

17 A NO, I DID NOT ADDRESS THAT IN MY REPORT, AND HE

18 WASN'T NECESSARILY TRANSPORTED; HE WAS MOVED FROM ONE

19 VEHICLE TO ANOTHER.

20 WHEN I USE THE WORD TRANSPORTED IT MEANS DRIVING;

21 I'LL JUST TELL YOU THAT, BUT NO, I DID NOT HAVE THAT IN MY

22 REPORT.

23 Q I TAKE IT PRIOR TO TESTIFYING TODAY YOU'VE HAD

24 THE OPPORTUNITY TO REVIEW THE REPORT THAT YOU GENERATED IN

____________________________________

1 CONNECTION WITH THIS CASE?

2 A YES.

3 Q IN THAT REPORT THAT YOU REVIEWED, DID YOU INCLUDE

4 ANY REFERENCE TO THE FACT THAT HE CONSTANTLY CHALLENGED

5 YOU?

6 A AFTER THE ARREST?

7 Q AT ANY TIME.

8 A NO, I DID NOT.

9 Q IN THE REPORT DID YOU WRITE THAT HE WAS MAD AT

10 YOU FOR PICKING ON GIRLS OR THE LIKE?

11 A NO, I DID NOT.

12 Q IN YOUR REPORT DID YOU WRITE THAT HE THREATENED

13 TO GET YOU LATER?

14 A NO, I DID NOT.

15 Q DID YOU WRITE THAT HE BECAME STIFF WHEN YOU WERE

16 PLACING HIM IN THE VEHICLE?

17 A THIS IS THE SECOND TIME I HAVE ANSWERED THAT

18 QUESTION, BUT NO, I DID NOT.

19 Q IS IT BECAUSE THOSE THINGS WERE IRRELEVANT?

20 A NO, IT'S NOT, BECAUSE THEY ARE.

21 Q SO IS IT YOUR PRACTICE TO EXCLUDE RELEVANT

22 MATERIAL FROM YOUR REPORTS?

23 A NO, IT IS NOT.

24 Q IS THAT WHAT HAPPENED IN THIS CASE THOUGH?

___________________________________

1 A IS WHAT WHAT HAPPENED IN THIS CASE?

2 Q YOUR EXCLUSION OF RELEVANT INFORMATION, FROM YOUR

3 POLICE REPORT?

4 A ASK ME THE QUESTION AGAIN. IF YOU'RE ASKING ME

5 IF I EXCLUDED FACTS FROM MY REPORTS, THAT'S CORRECT. IS IT

6 MY PRACTICE? NO.

7 CAN I GIVE YOU A REASON WHY?

8 MR. DOLAN: NO, YOU CANNOT AT THIS TIME. I HAVE

9 NO FURTHER QUESTIONS.

10 THE COURT: MR. HAFEN, YOU MAY REDIRECT.

11 MR. HAFEN: NOTHING FURTHER, YOUR HONOR.

12 THE COURT: YOU MAY STEP DOWN.

13 THAT'S YOUR ONLY WITNESS, MR. HAFEN?

14 MR. HAFEN: AT THIS TIME. WE'D ASK THE MATTER BE

15 CONTINUED.

16 THE COURT: MR. DOLAN, DO YOU HAVE ANYTHING ELSE

17 BEFORE THE COURT AT THIS TIME, SIR?

18 MR. DOLAN: NO, YOUR HONOR. I DID SPEAK WITH MY

19 CLIENT. WE ARE NOT OBJECTING TO THE STATE MOVING FOR A

20 CONTINUANCE OF THIS MATTER BECAUSE OF THE FAMILY EMERGENCY

21 THAT DEPUTY DOVE HAS.

22 THE COURT: THANK YOU, MR. DOLAN.

23 NO OTHER MATTERS BEFORE THE COURT IN THIS REGARD.

24 THE COURT: DO YOU HAVE A DATE FOR CONTINUANCE?

___________________________________

1 IS MR. HIIBEL ON BAIL?

2 MR. DOLAN: MR. HIIBEL DOES NOT KNOW, YOUR HONOR,

3 BUT IF HE IS OUT ON BAIL, CAN THAT BAIL BE EXONERATED?

4 THE CLERK: HOW ABOUT NOVEMBER 30TH, 2:00

5 O'CLOCK.

6 MR. HAFEN: THAT SHOULD BE FINE.

7 MR. DOLAN: MR. HIIBEL IS ADVISING ME THAT HE DID

8 BAIL OUT OF JAIL AND THE THERE MAY BE A BAIL BOND IN

9 EXISTENCE.

10 A HE IS ON BAIL FOR $3425.00.

11 MR. DOLAN: WELL, YOUR HONOR I BELIEVE THAT SINCE

12 MR. HIIBEL APPEARS TO BE A LOCAL PERSON, HE HAS APPEARED IN

13 COURT, THERE IS LITTLE LIKELIHOOD THAT HE'S A RISK OF

14 FLIGHT, AND GIVEN THE FACT THAT WE ARE NOT OPPOSING A

15 CONTINUANCE AS REQUESTED BY THE STATE, IT MIGHT BE A

16 CIRCUMSTANCES WHERE BAIL BE EXONERATED.

17 THE COURT: THAT WAS SET FOR DOMESTIC BATTERY,

18 WHICH WAS DISMISSED, SO IT WAS SET IN THAT AMOUNT, SO I

19 WILL ALLOW THE BAIL TO BE RETURNED.

20 THE CLERK: EXONERATED.

21 MR. DOLAN: ON NOVEMBER 30TH, MADAM CLERK, WHAT

22 TIME.

23 THE CLERK: NOVEMBER 30TH, 3:00 P.M.

24 THE COURT: THANK YOU, GENTLEMEN.

_______________________________

EXHIBIT H

COPY

FILED

2001 MAR 15 1:05
[Illegible]
DISTRICT COURT CLERK

CASE NO. XX-69056

IN THE JUSTICES COURT OF UNION TOWNSHIP, IN AND FOR THE

STATE OF NEVADA, COUNTY OF HUMBOLDT

HONORABLE GENE WAMBOLT, JUSTICE OF THE PEACE

--- 0o0---

COUNTY OF HUMBOLDT, COURT TRIAL

PLAINTIFF, FEBRUARY 13, 2001

vs. WINNEMUCCA, NEVADA

LARRY D. HIIBEL,

DEFENDANT.

-------------------------------------/

VOLUME II

COPIES:

DEFT (DOLAN)

REPORTED BY: EDWARD VON RUDEN, CSR #261
PO BOX 2545
WINNEMUCCA, NEVADA 89446
(775) 623-6452

_________________________________

A P P E A R A N C E S

FOR THE COUNTY: CONRAD HAFEN,ESQ.
DEPUTY DISTRICT ATTORNEY
COUNTY OF HUMBOLDT

FOR THE DEFENDANT: ROBERT E. DOLAN,ESQ.
DEPUTY PUBLIC DEFENDER
WINNEMUCCA, NEVADA

WITNESSES DIR. CROSS REDIR. RECRS VOIRDIRE
LEE DOVE 4 11

EXHIBITS IDENT EVID
DEFENDANT'S A - VIDEO TAPE OF STOP 17 21

________________________________

1 THE COURT: COURT IS IN SESSION. THIS IS THE

2 TIME AND PLACE SET FOR TRIAL IN THE CRIMINAL MATTER OF THE

3 COUNTY OF HUMBOLDT VERSUS MR. LARRY D. HIIBEL ON

4 MISDEMEANOR CHARGE OF DELAYING AN OFFICER UPON WRITTEN

5 COMPLAINT SIGNED BY MR. LEE DOVE AS COMPLAINANT UNDER

6 JUSTICE COURT NUMBER XX-69056.

7 LET THE RECORD SHOW THAT THE DEFENDANT IS PRESENT

8 WITH COUNSEL, MR. ROBERT DOLAN. LET THE RECORD SHOW THAT

9 THE COUNTY IS REPRESENTED BY MR. CONRAD HAFEN AS HUMBOLDT

10 COUNTY DEPUTY DISTRICT ATTORNEY. LET THE RECORD FURTHER

11 SHOW THAT THE WAS DULY ARRAIGNED ON JUNE 19TH OF THE YEAR

12 2000.

13 ARE YOU READY TO PROCEED, GENTLEMEN?

14 MR. HAFEN: YES, YOUR HONOR.

15 MR. DOLAN: YES, YOUR HONOR.

16 THE COURT: WILL THE WITNESSES WHO ARE TO TESTIFY

17 IN THIS MATTER PLEASE RISE TO BE SWORN.

18 MR. HAFEN, YOU WILL CALL YOUR FIRST WITNESS.

19 MR. HAFEN: CALL DEPUTY DOVE.

20 LEE DOVE

21 CALLED AS A WITNESS BY THE COUNTY HEREIN, BEING

22 FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS'

23 THE COURT: PLEASE STATE YOUR NAME AND SPELLING

24 FOR THE RECORD.

_______________________________

1 THE WITNESS: FIRST IS LEE; LAST IS DOVE; SPELLING

2 D-O-V-E.

3 DIRECT EXAMINATION

4 BY MR. HAFEN:

5 Q WHERE ARE YOU CURRENTLY EMPLOYED?

6 A I AM A PATROL DEPUTY WITH THE HUMBOLDT COUNTY

7 SHERIFF'S OFFICE.

8 Q HOW LONG HAVE YOU WORKED THERE?

9 A TWO YEARS.

10 Q HOW LONG HAVE YOU WORKED IN LAW ENFORCEMENT?

11 A I'VE GOT I THINK IT'S AT THE EIGHT YEAR MARK

12 TOTAL COMBINED EXPERIENCE.

13 Q DIRECTING YOUR ATTENTION TO MAY 21ST THE YEAR

14 2000, WERE YOU WORKING THAT DAY?

15 A YES.

16 Q WERE YOU WORKING AT APPROXIMATELY -- WHAT'S 1900

17 HOURS?

18 A 7:00 O'CLOCK IN THE EVENING.

19 Q WERE YOU WORKING AT 7:00 O'CLOCK IN THE EVENING

20 ON THAT DAY?

21 A YES.

22 Q ON THAT DAY, AT THAT TIME, DID YOU HAVE AN

23 OPPORTUNITY TO -- OR WERE YOU INVOLVED IN THE RESPONDING TO

24 A REPORT OF A BATTERY THAT OCCURRED ON GRASS VALLEY ROAD?

______________________________

1 A YES.

2 Q WOULD YOU EXPLAIN WHAT YOU DID IN THAT REGARD?

3 A I WAS DISPATCHED TO GRASS VALLEY ROAD FROM A

4 REPORT OF A SUBJECT WHO CALLED DISPATCH OF A SUBJECT

5 HITTING A FEMALE SUBJECT IN A RED AND SILVER VEHICLE.

6 I RESPONDED TO THE LOCATION, LOCATED THE

7 REPORTING PARTY, WHO POINTED OUT THE VEHICLE TO ME AND

8 WHERE IT WAS LOCATED OFF GRASS VALLEY ROAD, AND I RESPONDED

9 TO THE VEHICLE.

10 Q ON YOUR WAY TO GO TO WHERE THE INCIDENT HAD BEEN

11 REPORTED TO HAVE OCCURRED, WHAT ROAD WERE YOU TRAVELLING

12 NOW?

13 A I WAS DRIVING SOUTHBOUND ON GRASS VALLEY ROAD

14 NEAR B.J.'S MARKET IN HUMBOLDT COUNTY.

15 Q PRIOR TO GETTING TO THE LOCATION, DID YOU STOP

16 AND AND TALK WITH SOMEBODY?

17 A YES, I DID.

18 Q DO YOU RECALL WHERE ON GRASS VALLEY ROAD YOU

19 TALKED TO THAT PERSON?

20 A I TALKED TO THE REPORTING PARTY, WHOSE LAST NAME

21 IS RIDLEY. I SPOKE TO HIM. I BELIEVE HE WAS STOPPED

22 SOMEWHERE IN THE AREA OF WHERE THE ROAD LINKS, THOMAS

23 CANYON MEETS GRASS VALLEY ROADf SOMEWHERE IN THAT AREA.

24 Q HOW LONG DID YOU HAVE THIS CONVERSATION WITH MR.

____________________________________

1 RIDLEY?

2 A REAL SHORT PERIOD OF TIME, ENOUGH THAT HE TOLD ME

3 HE WAS THE ONE THAT CALLED. HE POINTED TO THE VEHICLE THAT

4 HE HAD WITNESSED THE BATTERY TAKING PLACE.

5 IT WAS PARKED, PULLED OVER TO THE SIDE OF THE

6 ROAD SOUTH OF WHERE WE WERE AT.

7 Q DID YOU THEN LEAVE THE LOCATION FROM MR. RIDLEY

8 AND PROCEED FURTHER DOWN GRASS VALLEY ROAD?

9 A YES.

10 Q DID YOU THEN ARRIVE AND SEE THE VEHICLE THAT HE

DESCRIBED TO YOU?

12 A YES.

13 Q DO YOU RECALL AGAIN WHAT COLOR, WHAT TYPE OF

14 VEHICLE THAT WAS?

15 A YES, IT WAS A RED AND SILVER, GMC PICKUP TRUCK. I

16 NOTED THE PLATE WHEN I CALLED IN. I DON'T RECALL WHAT IT

17 IS RIGHT NOW.

18 Q WHEN YOU GOT TO THAT LOCATION WHERE THE RED AND

19 SILVER TRUCK WAS, WHAT DID YOU INITIALLY OBSERVE?

20 A I PULLED UP TO THE VEHICLE. THE REPORT OF THE

21 BATTERY IS WHAT I HAD IN MY MIND.

22 WHEN I SHOWED UP I SAW THE CAR APPEARED TO HAVE

23 BEEN PULLED OVER IN A FAST, AGRESSIVE MANNER; THERE WERE

24 SKIDS MARKS IN THE GRAVEL WHERE IT STOPPED. IT WAS

_______________________________

1 PARKED -- IT WASN'T PARKED IN A NORMAL FASHION. IT WAS

2 PULLED OFF THE ROAD, LOOKED LIKE IT HAD BEEN PULLED OFF THE

3 TO THE SIDE OF THE ROAD RAPIDLY.

4 Q WHEN YOU FIRST GOT THERE WAS ANYBODY OUTSIDE THE

5 TRUCK?

6 A YES.

7 Q AND DO YOU RECALL WHO WAS OUTSIDE THE TRUCK?

8 A YES, SIR.

9 Q WHO WAS THAT?

10 A THE DEFENDANT, MR. HIIBEL.

11 Q DO YOU SEE HIM IN COURT TODAY?

12 A YES.

13 Q WILL YOU POINT TO HIM, DESCRIBE WHAT HE'S

14 WEARING?

15 A HE'S SITTING AT THE DEFENDANT'S TABLE WEARING A

16 LIGHT OR SKY BLUE WESTERN BUTTONED LONG SLEEVED SHIRT.

17 THE COURT: LET THE RECORD SHOW THAT THE WITNESS

18 HAS IDENTIFIED THE DEFENDANT.

19 MR. HAFEN: THANK YOU, YOUR HONOR.

20 BY MR. HAFEN:

21 Q DID YOU MAKE CONTACT WITH THE DEFENDANT AT THAT

22 POINT?

23 A YES.

24 Q AND WHAT OBSERVATIONS DID YOU MAKE OF HIM AT THAT

_______________________________

1 TIME?

2 A MY IMMEDIATE OBSERVATIONS WERE HE WAS SHOWING

3 SIGNS OF ALCOHOL CONSUMPTION. I THOUGHT HE WAS PROBABLY

4 INTOXICATED BASED ON HIS EYES, HIS MANNERISMS, HIS SPEECH

5 AND THE ODOR I WAS GETTING FROM HIM.

6 Q AT THAT POINT, WHEN YOU MADE THOSE OBSERVATIONS,

7 WERE YOU ABLE TO OBSERVE IF THERE WAS ANYBODY IN THE TRUCK?

8 A YES.

9 Q WERE YOU ABLE TO IDENTIFY THE GENDER OF THAT

10 INDIVIDUAL?

11 A I COULD TELL IT WAS A FEMALE THAT WAS IN THE

12 VEHICLE.

13 Q DID YOU CONTINUE TO TALK TO THE DEFENDANT AT THAT

14 POINT?

15 A YES.

16 Q WHAT DID YOU TRY TO OBTAIN?

17 A I TRIED TO OBTAIN HIS PERSONAL INFORMATION, AND

18 DETERMINE WHAT HAD TAKEN PLACE IN THE VEHICLE OFF TO THE

19 SIDE OF THE ROAD, AND STARTED TO CONDUCT AN INVESTIGATION

20 INTO THE REPORTED BATTERY.

21 Q HOW DID THE DEFENDANT RESPOND WHEN YOU ASKED HIM

22 TO IDENTIFY HIMSELF?

23 A HE WOULD NOT IDENTIFY HIMSELF. HE KEPT TURNING

24 AROUND AND PUTTING HIS HANDS BEHIND HIS BACK AT TIMES AND

__________________________________

1 TELLING ME TO TAKE HIM TO JAIL.

2 Q AT SOME POINT WHILE YOU WERE TALKING TO THE

3 DEFENDANT DID ANOTHER OFFICER ARRIVE?

4 A YES.

5 Q WHO WAS THAT?

6 A THAT WAS TROOPER MERSCHEL.

7 Q DO YOU RECALL AFTER TROOPER MERSCHEL ARRIVED WHAT

8 YOU AND TROOPER MERSCHEL DID WITH THE DEFENDANT?

9 A TROOPER MERSCHEL -- I'M NOT SURE IF I EXPLAINED

10 TO HIM WHAT WAS GOING ON, BUT DURING MY CONVERSATION WITH

11 MR. HIIBEL, THERE WAS A POINT WHERE HE BECAME SOMEWHAT

12 AGRESSIVE.

13 I FELT BASED ON ME NOT BEING ABLE TO FIND OUT WHO

14 HE WAS, TO IDENTIFY HIM, I DIDN'T KNOW IF HE WAS WANTED OR

15 WHAT IS SITUATION WAS, I HASN'T ABLE TO DETERMINE WHAT WAS

16 GOING ON CRIMEWISE IN THE VEHICLE, BASED ON THAT I FELT HE

17 WAS INTOXICATED, AND HOW HE WAS BECOMING AGRESSIVE AND

18 MOODY, I WENT AHEAD AND PUT HIM IN HANDCUFFS SO I COULD

19 SECURE HIM FOR MY SAFETY, AND PUT HIM IN MY PATROL VEHICLE.

20 WHILE I WAS DOING THAT TROOPER MERSCHEL WAS UP AT

21 THE CAR WITH THE FEMALE.

22 Q DID THERE COME A POINT WHERE THE FEMALE THEN LEFT

23 THE TRUCK?

24 A SHE MADE ONE OR TWO ATTEMPTS -- I BELIEVE IT

_________________________________

1 WAS TO GET OUT OF THE CAR. TROOPER MERSCHEL HELD THE

2 DOOR SHUT, AND THERE WAS A POINT WHERE SHE ENDED UP KICKING

3 THE DOOR OUT, AND WE HAD TO PUT HER ON THE GROUND AND

4 SECURE HER AS WELL.

5 Q AFTER PLACING THE DEFENDANT IN HANDCUFFS AND IN

6 YOUR PATROL CAR, DID HE PROVIDE YOU WITH ANY INFORMATION

7 CONCERNING HIS IDENTITY AND WHAT WAS GOING ON WITH THE

8 SITUATION?

9 A I DON'T REMEMBER HIM EVER COOPERATING WITH

10 TELLING ME WHAT HAD TAKEN PLACE, AND I DON'T REMEMBER WHEN

11 OR HOW I IDENTIFIED HIM. IT MAY HAVE BEEN IN THE BACK OF

12 MY CAR, BUT I DON'T REMEMBER.

13 HE WAS EVENTUALLY IDENTIFIED; I JUST DON'T KNOW

14 HOW THAT WAS DONE.

15 Q YOU HAD A VIDEO TAPE OF THIS INCIDENT, IS THAT

16 CORRECT?

17 A YES.

18 Q DO YOU RECALL HOW LONG IT'S BEEN SINCE YOU'VE

19 LAST SEEN THE VIDEO TAPE?

20 A SINCE THE DAY OF ARREST, SO ALMOST A YEAR AGO.

21 Q YOU HAVEN'T SEEN IT SINCE?

22 A NO.

23 MR. HAFEN: THAT'S ALL THE QUESTIONS --

24 BY MR. HAFEN:

__________________________________

1 Q I'M SORRY; WHAT COUNTY DID THIS OCCUR IN?

2 A HUMBOLDT COUNTY.

3 MR. HAFEN: THAT'S ALL THE QUESTIONS I HAVE.

4 THE COURT: MR. DOLAN, YOU MAY CROSS EXAMINE.

5 MR. DOLAN: YOUR HONOR, PRIOR TO -- THERE AS A

6 VIDEO OF THIS ENCOUNTER WHICH WE WILL BE PLAYING DURING THE

7 CROSS EXAMINATION. I CHECKED WITH YOUR CLERK YESTERDAY AND

8 YOU HAVE THE FACILITIES HERE IN THE COURTROOM TO PLAY THE

9 TAPE, AND I HAVEN'T DISCUSSED THIS PREVIOUSLY WITH THE

10 STATE, BUT I ULTIMATELY WILL NEED TO HAVE THIS VIDEO

11 ADMITTED INTO EVIDENCE.

12 MR. HAFEN: DO YOU'VE ANY OTHER -- DEPUTY DOVE,

13 DO YOU HAVE ANY OTHER THINGS ON THIS VIDEO TAPE RELATING TO

14 OTHER INVESTIGATIONS?

15 THE WITNESS: NO.

16 MR. HAFEN: THAT'S FINE WITH THE COUNTY, YOUR

17 HONOR.

18 CROSS EXAMINATION

19 BY MR. DOLAN:

20 Q LET ME JUST COVER A FEW MATTERS.

21 DEPUTY DOVE, WHEN YOU ARRIVED ON THE SCENE, YOUR

22 UNIT, WERE YOU BY YOURSELF?

23 A YES.

24 Q AND WAS IT DAY TIME?

________________________________

1 A YES.

2 Q AND PRIOR TO SPEAKING WITH MR. HIIBEL, HAD YOU

3 ANY PERSONAL KNOWLEDGE OF HIM? VISUALLY HAD YOU RECOGNIZED

4 HIM?

5 A DID I KNOW HIM FROM ANYWHERE ELSE?

6 Q YES, SIR.

7 A NO.

8 Q YOU TESTIFIED THAT YOU NOTED THE PLATES WHEN YOU

9 CALLED IT IN WHEN YOU ARRIVED AT THE SCENE?

10 A UH-HUH.

11 Q CAN YOU TELL ME WHAT THAT MEANS?

12 A I WOULD HAVE PULLED UP TO THE VEHICLE AND

13 NOTIFIED MY DISPATCH OF WHERE I WAS AT. IT'S CUSTOMARY TO

14 CALL OUT THE PLATES TO DISPATCH.

15 Q BY CALLING OUT THE PLATES TO DISPATCH, DO YOU

16 HAVE AN EXPECTION OF WHAT DISPATCH WILL DO?

17 A YES.

18 Q WHAT IS IT THAT YOU EXPECT DISPATCH TO DO?

19 A THEY WILL GENERALLY RUN THE PLATES, MAKE SURE

20 IT'S VALID, WHO IT'S REGISTERED TO, MAKE SURE IT'S NOT

21 STOLEN, THOSE SORTS OF THINGS.

22 Q TYPICALLY HOW LONG DOES THAT TAKE?

23 A IT CAN DEPEND. IF THE SYSTEM IS DOWN THEY CAN'T

24 GET IT DONE. ON A NORMAL TRAFFIC STOP, IF I'M MAKING A

______________________________

1 TRAFFIC STOP, THREE TO FIVE MINUTES MAYBE.

2 Q AND IN THIS INSTANCE YOU PULLED UP AND THE

3 DISTANCE BETWEEN YOUR UNIT AND THE DEFENDANT'S TRUCK WAS

4 20, 30 FEET.

5 A YES.

6 Q AND YOU CALLED OUT THE PLATE?

7 A I BELIEVE I DID.

8 Q DID YOU WAIT FOR THE INFORMATION TO COME BACK, OR

9 EXIT YOUR UNIT BEFORE GETTING THE INFORMATION BACK?

10 A I CALLED IN ON SCENE -- I WANT TO TESTIFY

11 CORRECTLY HERE -- I'M PRETTY SURE I CALLED; MAYBE I DID

12 BUT I CALLED OUT AT THE SCENE, GOT OUT OF MY VEHICLE

13 IMMEDIATELY AND --

14 Q BUT WE CAN AGREE I DID SEE THE TAPE MYSELF,

15 AND I CAN'T RECALL WHETHER OR NOT YOU DID OR NOT.

16 A IT'S NORMAL PROCEDURE FOR ME TO DO THAT, CALL THE

17 PLATE OUT.

18 Q BUT WHEN YOU PULLED UP AT THE SCENE, YOU WENT

19 BACK, SAW MR. HIIBEL STANDING OUTSIDE THE TRUCK

20 A HE WAS OUTSIDE THE VEHICLE, YES.

21 Q AND YOU HAD RECEIVED A CALL OF A POSSIBLE

22 BATTERY, AND THAT MAY HAVE BEEN SOMETHING THAT WAS MORE

23 IMPORTANT TO CONCERN YOURSELF WITH THAN WITH THE

24 DEFENDANT'S IDENTIFICATION, LICENSE PLATE, IF HE WAS THE

_______________________________

1 REGISTERED OWNER THEREOF?

2 A I WOULD HAVE CALLED OUT -- ROUTINELY WOULD HAVE

3 CALLED IN THE PLATE, BUT SEEING HIM OUT OF THE CAR I WOULD

4 HAVE MADE THE CALL ON SCENE.

5 Q WHEN HE GOT OUT OF THE CAR, WHEN YOU SAW MR.

6 HIIBEL, WAS HE ARMED? DID HE HAVE A GUN?

7 A NO.

8 Q DID HE HAVE A KNIFE?

9 A THERE MAY HAVE BEEN ONE ON HIM, BUT THERE WAS

10 NOTHING BEING WAVED AROUND OR ANYTHING LIKE THAT.

11 Q WHEN YOU SAY THERE MAY HAVE BEEN A KNIFE ON HIM,

12 IT MIGHT HAVE BEEN A KNIFE ON HIS BELT OR SOMETHING ALONG

13 THOSE LINES?

14 A OR POCKET KNIFE, AND I DON'T RECALL IF THERE WAS

15 ANYTHING LIKE THAT.

16 Q BUT IT'S FAIR TO SAY THAT YOU DIDN'T SEE THAT IN

17 HIS HAND WHEN YOU ARRIVED ON THE SCENE?

18 A THAT'S FAIR TO SAY.

19 Q WAS MR. HIIBEL STANDING BY HIMSELF?

20 A YES.

21 Q FROM THE TIME YOU EXITED YOUR CAR TO THE TIME YOU

22 PLACED MR. HIIBEL IN CUFFS, WHAT PERIOD OF TIME ELAPSED?

23 A YOU KNOW, I DON'T KNOW. SEVERAL MINUTES, BUT I

24 DON'T KNOW THE DELAY.

________________________________

1 Q DURING THE COURSE OF YOUR CONVERSATION WITH MR.

2 HIIBEL, DO YOU RECALL EVER IDENTIFYING YOURSELF?

3 A OTHER THAN THE FACT THAT I WAS IN UNIFORM, IN A

4 MARKED PATROL CAR WITH LIGHTS, THAT'S -- I MEAN I DIDN'T

5 TELL HIM "MY NAME IS DEPUTY DOVE; I'M WITH THE HUMBOLDT

6 COUNTY SHERIFF'S OFFICE".

7 Q BUT IT WAS OBVIOUS YOU WERE FROM LAW ENFORCEMENT?

21 A YES.

22 AND DURING THOSE FEW MINUTES IN FACT HE DID NOT

23 TELL YOU WHO HE WAS?

24 A THAT'S CORRECT.

_________________________________

1 THE COURT: ASK THE QUESTION AGAIN.

2 BY MR. DOLAN:

3 Q AND DURING THAT FEW MINUTES HE IN FACT DID NOT

4 TELL YOU WHO HE WAS?

5 A YES.

6 Q IS IT ALSO TRUE THAT HE DID NOT SHOW YOU ANY

7 IDENTIFICATION?

8 A YES.

9 Q ISN'T IT TRUE THAT JUST PRIOR TO PLACING MR.

10 HIIBEL IN CUFFS, YOU ASKED HIM WHETHER OR NOT HE WAS GOING

11 TO COOPERATE WITH YOU OR NOT?

12 A I MAY HAVE. I HAVEN'T SEEN THE TAPE, BUT IF --

13 Q OKAY. AND ISN'T IT TRUE THAT YOU ASKED HIM ABOUT

14 WHETHER OR NOT HE WAS GOING TO COOPERATE WITH YOU WITH

15 SPECIFIC REFERENCE TO WHETHER OR NOT HE WAS GOING TO

16 PROVIDE YOU WITH IDENTIFICATION?

17 A I THINK I DID, YES.

18 Q AND THEN YOU PLACED HIM UNDER ARREST AT THAT TIME

19 FOR NOT PROVIDING YOU WITH IDENTIFICATION; THAT IS WHEN HIS

20 LIBERTY WAS TAKEN FROM HIM BECAUSE HE FAILED TO IDENTIFY

21 HIMSELF, ISN'T THAT TRUE?

22 A NO, I DON'T THINK MY REASON FOR -- I NEVER

23 TOLD -- I DON'T REMEMBER EVER TELLING HIM HE WAS UNDER

24 ARREST. THE REASON I WAS PUTTING HIM IN HANDCUFFS WAS JUST

________________________________

1 FOR MY SAFETY BASED ON HIS DEMEANOR, UNTIL I COULD FIGURE

2 OUT WHAT WAS GOING ON AND TALK WITH THE OTHER HALF AND

3 TROOPER MERSCHEL.

4 MR. DOLAN: OKAY. NOW, IN THAT CONNECTION, I'D

5 LIKE TO STOP MY CROSS EXAMINATION AT THIS POINT AND PLAY

6 THE TAPE, BECAUSE I BELIEVE IT BEARS ON WHAT I WAS ASKING

7 IN CROSS EXAMINATION. BEFORE I DO THAT, LET ME JUST

8 AUTHENTICATE THIS TAPE.

9 BY MR. DOLAN:

10 Q DEPUTY DOVE, DO YOU RECOGNIZE THIS VIDEO TAPE?

11 A YES, I DO. THIS IS THE TAPE IN MY HANDWRITING

12 THAT I SIGNED WITH MY SIGNATURE AND BADGE NUMBER WITH THE

13 CASE NUMBER OF THIS CASE AND THE DATE IT TOOK PLACE.

14 Q AND ISN'T IT FAIR TO SAY THERE CAME A TIME WHEN

15 YOU PERSONALLY DELIVERED THAT VIDEO TAPE TO MR. HAFEN?

16 A YES.

17 MR. DOLAN: YOUR HONOR, I'M GOING TO ASK THAT THIS

18 BE PLAYED.

19 (WHEREUPON TAPE MARKED FOR IDENTIFICATION AND

20 PLAYED)

21 MR. DOLAN: OKAY; I'M GOING TO STOP IT RIGHT

22 THERE, YOUR HONOR.

23 BY MR. DOLAN:

24 Q NOW, AFTER HAVING REVIEWED THAT TAPE HERE IN

__________________________________

1 COURT, BY MY COUNT THERE WERE APPROXIMATELY ELEVEN REQUESTS

2 THAT YOU MADE FOR I.D., BEGINNING WHEN YOU FIRST MADE

3 CONTACT WITH MR. HIIBEL TO THE TIME THAT YOU PLACED HIM IN

4 CUFFS; IS THAT A FAIR ESTIMATION OF THE NUMBER OF TIMES YOU

5 --

6 A YES, SURE.

7 Q DO YOU RECALL SAYING TO HIM BEFORE PLACING HIM

8 UNDER ARREST -- WE WERE ABLE TO HEAR YOU SAYING TO HIM THAT

9 YOU WOULD PLACE HIM UNDER ARREST IF HE WASN'T GOING TO

10 COOPERATE BY SHOWING YOU IDENTIFICATION?

11 A I THINK I SAID HE COULD FACE BEING PLACED UNDER

12 ARREST. I DON'T THINK THAT I SAID, "I WILL ARREST YOU."

13 Q WHEN YOU DID PLACE HIM IN CUFFS WERE YOU IN FACT

14 PLACING HIM UNDER ARREST AT THE TIME FOR NOT PROVIDING YOU

15 WITH ANY I.D.?

16 A I DID NOT REMEMBER TELLING HIM HE WAS UNDER

17 ARREST, AND MY MAIN CONCERN FOR PUTTING HIM IN HANDCUFFS

18 WAS FOR MY OWN SAFETY, IN OTHER WORDS SO WE COULD FIND OUT

19 WHAT WAS GOING ON.

20 Q SO YOU ARE TAKING ISSUE WITH THE FACT WHETHER OR

21 NOT THAT CONSTITUTED AN ARREST AT THAT TIME?

22 A I DON'T KNOW -- I DON'T KNOW IF I'M TAKING ISSUE

23 OR YOU ARE. I KNOW THAT I EXPLAINED TO HIM WHAT BASICALLY

24 THE RAMIFICATIONS COULD BE, AND PLACED HIM IN HANDCUFFS

______________________________

1 BASED ON THE DEMEANOR THAT I WAS SEEING.

2 I DON'T REMEMBER ARRESTING HIM OR TELLING HIM HE

3 WAS UNDER ARREST FOR THAT.

4 Q OTHER THAN NOT PROVIDING YOU WITH IDENTIFICATION,

5 WHAT OTHER LAWFUL OBLIGATIONS DID HE NOT MEET AT THAT

6 SCENE?

7 A WELL, HE'S REQUIRED TO -- AN INDIVIDUAL THAT HAS

8 POTENTIALLY COMMITTED A CRIME, OR HAS COMMITTED A CRIME,

9 NEEDS TO IDENTIFY HIMSELF TO ME. I WAS ACTUALLY TALKING TO

10 AN INDIVIDUAL THAT I DIDN'T KNOW. THAT WAS MY REASON FOR

11 TRYING TO GET HIS IDENTIFICATION AND INFORMATION TO CONDUCT

12 AN INVESTIGATION INTO WHAT WAS GOING ON.

13 Q DEPUTY DOVE, WHEN YOU SPEAK ABOUT AN OBLIGATION

14 THAT A PERSON HAS TO IDENTIFY THEMSELVES, ARE YOU REFERRING

15 TO NRS 171.123(3)?

16 A YES.

17 Q OKAY. FOR THE RECORD, I'M SHOWING DEPUTY DOVE A

18 COPY OF THE STATUTE 171.123 (3).

19 A DO YOU WANT ME TO READ IT?

20 Q JUST TO YOURSELF.

21 A OKAY.

22 Q WOULD YOU CHARACTERIZE THE INVESTIGATION THAT YOU

23 WERE CONDUCTING WITH MR. HIIBEL AS A KIND OF TERRY

24 SITUATION?

__________________________

1 A WELL, I WAS JUST AT THE SCENE. DEFINITELY I WAS

2 STAYING UNTIL I CAN FIGURE OUT WHAT WAS GOING ON AND

3 OBTAINING AN IDENTIFICATION, AND WHAT THE CIRCUMSTANCES

4 WERE SURROUNDING THE BATTERY REPORT.

5 Q WHEN YOU ARRIVED AT THE SCENE YOU DID NOT HAVE

6 PROBABLE CAUSE TO MAKE AN ARREST, DID YOU?

7 A WOULD I -- YOU MEAN HAD I NOT TALKED TO ANYONE,

8 COULD I HAVE JUST WALKED UP AND ARRESTED HIM?

9 Q CORRECT.

10 A NO.

11 Q BUT YOU YOU HAD SOME TYPE OF RESOURCE FROM A

12 REPORTING PARTY REGARDING ALLEGED CONDUCT?

13 A YES, I HAD THAT INFORMATION.

14 Q BY THE WAY, WAS THIS -- STRIKE.THAT.

15 DID YOU KNOW THE REPORTING PARTY WHO YOU SPOKE TO

16 JUST PRIOR TO MAKING CONTACT WITH THE DEFENDANT?

17 A NO.

18 Q SO YOU HAD NO PRIOR DEALINGS WITH THAT PERSON,

19 DID YOU?

20 A NO.

21 Q AND IN FACT, YOU HAD NO WAY OF KNOWING WHETHER OR

22 NOT HE WAS A TRUTHFUL OR RELIABLE PERSON?

23 A I HAD NOT EVER MET THE MAN BEFORE, NO. I JUST

24 KNOW THAT HE HAD RELAYED THE INFORMATION TO DISPATCH AND

___________________________

1 DISPATCH RELAYED IT TO ME ON THE RADIO.

2 Q WHICH IS WHAT WE CALL A CITIZEN INFORMANT?

3 A HE IS A REPORTING PARTY, YES.

4 Q DID YOU KNOW HIS NAME AT THE TIME?

5 A AT THE TIME, NO.

6 Q ISN'T IT FAIR TO SAY THAT AFTER MR. HIIBEL WAS

7 PLACED IN CUSTODY, AS SHOWN ON THIS VIDEO TAPE, HE REMAINED

8 IN CUSTODY UNTIL ULTIMATELY BEING RELEASED FROM THE JAIL?

9 A YES

10 MR. DOLAN: YOUR HONOR, I'M GOING TO ASK THAT

11 THIS VIDEO TAPE BE ADMITTED INTO EVIDENCE.

12 MR. HAFEN: I THINK WE HAVE ALREADY STIPULATED TO

13 THAT.

14 THE COURT: WHAT IS IT, A?

15 MR. DOLAN: THAT WILL BE DEFENDANT'S FIRST IN

16 ORDER, A.

17 THE COURT: A IS RECEIVED INTO EVIDENCE.

18 (WHEREUPON DEFENDANT'S EXHIBIT A RECEIVED IN

19 EVIDENCE.)

20 MR. DOLAN: I HAVE' NO FURTHER QUESTIONS.

21 THE COURT: THANK YOU; MR. HAFEN?

22 MR. HAFEN: I HAVE NOTHING FURTHER, YOUR HONOR.

23 THE COURT: YOU MAY STEP DOWN.

24 MR. DOLAN: I HAVE NO OBJECTION TO THE DEPUTY

__________________________

1 REMAINING IN THE COURTROOM. WE HAVE ALREADY ALREADY HAD

2 TESTIMONY FROM TROOPER MERSCHEL.

3 THE COURT: DO YOU HAVE ANY WITNESSES TO CALL AT

4 THIS TIME, SIR?

5 MR. DOLAN: THE DEFENSE RESTS, YOUR HONOR.

6 THE COURT: THANK YOU. FINAL ARGUMENT, MR. HAFEN.

7 MR. HAFEN: YOUR HONOR, YOU'VE HEARD THE EVIDENCE.

8 I DON'T KNOW IF YOU'VE GOT THE TRANSCRIPT OF TROOPER

9 MERSCHEL'S TESTIMONY. IT'S BEEN A WHILE AGO.

10 I WILL SUBMIT IT ON THE EVIDENCE, SAVE ANY

11 REBUTTAL FOR MR. DOLAN'S ARGUMENT.

12 THE COURT: THANK YOU. MR. DOLAN.

13 MR. DOLAN: JUDGE, I REMEMBER DISTINCTLY TROOPER

14 MERSCHEL'S TESTIMONY. IT INCLUDED TESTIMONY COMPLETELY

15 UNRELATED TO ANYTHING THAT THE DEFENDANT DID PRIOR TO BEING

16 PLACED IN CUSTODY, AND THE DEFENDANT IS NOT CHARGED WITH

17 ANY ACTIVITY THAT TROOPER MERSCHEL TALKED ABOUT THAT

18 OCCURRED. HE IS NOT CHARGED WITH ANYTHING THAT OCCURRED

19 AFTER HE WAS PLACED IN CUSTODY BY DEPUTY DOVE, SO IT'S

20 COMPLETELY IRRELEVANT TO THE CHARGE HERE.

21 THE DEFENDANT WAS ARRESTED BY LAW ENFORCEMENT AT

22 THE SCENE BECAUSE HE FAILED TO IDENTIFY HIMSELF DURING THE

23 FEW MINUTES ENCOUNTER WITH THE DEPUTY IN QUESTION.

24 yOUR HONOR, THERE IS A CASE, BERKEMER --

___________________________

1 B-E-R-K-E-M-E-R -- VERSUS MCCARTY. BERKEMER V. MACARTY IS

2 FOUND AT 468 U.S. 420, AND 82D LAWYERS EDITION 2D, AND IN

3 BERKEMER V. MCCARTY, 468 U.S, PAGE 334, THE UNITED STATES

4 SUPREME COURT ADDRESSES THE ISSUES RELATIVE TO A PERSON OR

5 DETAINEE'S RIGHTS AND RESPONSIBILITIES DURING THE COURSE OF

6 A TERRY STOP UNDER INVESTIGATIVE CIRCUMSTANCES.

7 AND THE LANGUAGE IN BERKEMER, WHICH I'VE SHOWN TO

8 MR. HAFEN, HAVEN'T SHOWN TO THE COURT BUT I WILL SHOW TO

9 THE COURT IF I MAY APPROACH --

10 THE COURT: YOU MAY. I'VE READ THAT, MR. DOLAN.

11 MR. DOLAN: YOU CAN SEE CLEARLY THAT THE UNITED

12 STATES SUPREME COURT INDICATES ON PAGE 334 THAT QUOTE "THE

13 STOP AND INQUIRY MUST BE REASONABLY RELATED TO THE SCOPE

14 AND JUSTIFICATION FOR THEIR INITIATION, QUOTING TERRY V.

15 OHIO, SUPRA AT 29."

16 ARE YOU WITH ME, YOUR HONOR?

17 THE COURT: YES.

18 MR. DOLAN: THEN CONTINUING," TYPICALLY THIS

19 MEANS THAT THE OFFICER MAY ASK THE DETAINEE A MODERATE

20 NUMBER OF QUESTIONS TO DETERMINE HIS IDENTITY AND TO TRY TO

21 OBTAIN INFORMATION CONFIRMING OR DISPELLING THE OFFICER'S

22 SUSPICIONS."

23 AND HERE'S THE IMPORTANT ONE, "BUT THE DETAINEE

24 IS NOT OBLIGATED TO RESPOND. AND UNLESS THE DETAINEE'S

______________________________

1 ANSWERS PROVIDE THE OFFICER WITH PROBABLE CAUSE TO ARREST

2 HIM HE MUST THEN BE RELEASED".

3 IN THIS CASE, YOUR HONOR, MR. HIIBEL DID NOT

4 RESPOND, DID NOT PROVIDE THE OFFICER WITH IDENTIFICATION.

5 AND WE ULTIMATELY REACH THE CONCLUSION THAT NRS

6 171.123(3), TO THE EXTENT THAT IT CREATES A CRIMINAL

7 LIABILITY DURING TERRY STOP CIRCUMSTANCES WITH A DETAINEE'S

8 FAILURE TO IDENTIFY HIMSELF IS UNCONSTITUTIONAL UNDER THE

9 FOURTH AMENDMENT.

10 I WOULD ASK THE COURT TO DO ONE OF TWO THINGS:

11 FIND THAT THE ACTIVITIES OF THE DEFENDANT AT THE SCENE DID

12 NOT AMOUNT TO OBSTRUCTION OR DELAYING AS A MATTER OF

13 STATUTORY CONSTRUCTION, OR HAVE THIS COURT FIND THAT IN

14 LIGHT OF THE TERMS OF THE FOURTH AMENDMENT BY THE UNITED

15 STATES SUPREME COURT UNDER THE CASE BERKEMER V. MCCARTY,

16 THAT THIS STATUTE AS APPLIED IN THIS CASE IS

17 UNCONSTITUTIONAL AND THEREFORE FIND THE DEFENDANT NOT

18 GUILTY.

19 THE COURT: THANK YOU, MR. DOLAN.

20 MR. HAFEN.

21 MR. HAFEN: YOUR HONOR, I DON'T BELIEVE MR. DOLAN

22 CITED ANY NEVADA CASE OR UNITED STATES SUPREME COURT CASE

23 THAT 171.123 IS UNCONSTITUTIONAL.

24 THE STATUTE CLEARLY SAYS THAT AN INDIVIDUAL SHALL

_______________________________

1 IDENTIFY THEMSELVES. IT WAS CLEAR BASED ON THE VIDEO TAPE

2 THAT DEPUTY DOVE WAS IN UNIFORM, THAT HE WAS RESPONDING IN

3 A MARKED UNIT.

4 YOU SAW FOR YOURSELF THE EVIDENCE THAT THE

5 DEFENDANT WAS IN FACT DELAYING AN OFFICER AS HE WAS SIMPLY

6 ENGAGED IN AN OFFICIAL DUTY WE'D ASK THAT YOU FIND HIM

7 GUILTY ON THE CHARGE OF DELAYING AN OFFICER.

8 THE COURT: GENTLEMEN, I WANT TO STUDY THIS,

9 MATTER SO I AM GOING TO TAKE IT UNDER ADVISEMENT. I WILL

10 GIVE YOU A WRITTEN OPINION.

11 MR. DOLAN: THANK YOU, YOUR HONOR.

12 --- 0o0---

______________________________

1 STATE OF NEVADA )
) SS.
2 COUNTY OF HUMBOLDT )

5 THIS IS TO CERTIFY THAT, I, EDWARD VON RUDEN, A

6 CERTIFIED COURT REPORTER IN THE STATE OF NEVADA, WAS

7 PERSONALLY PRESENT AT THE TIME AND PLACE THE FOREGOING

8 PROCEEDINGS WERE HAD;

9 THAT I REPORTED SAID PROCEEDINGS IN MACHINE SHORTHAND

10 AND HAVE THEREAFTER TRANSCRIBED THE SAME BY COMPUTER INTO

11 TYPEWRITING AS APPEARS BY THE FOREGOING TRANSCRIPT;

12 THAT SAID TRANSCRIPT, CONSISTING OF PAGES 1 TO

13 26, BOTH INCLUSIVE, IS A FULL, TRUE AND CORRECT RECORD

14 OF THE PROCEEDINGS HAD IN THE ABOVE ENTITLED CASE.

15 DATED THIS 21ST DAY OF FEBRUARY 2001, WINNEMUCCA, NEVADA.

18 EDWARD VON RUDEN, CSR 261

______________________________

EXHIBIT I

FILED

2001 MAY -4 4:44
SUSAN E. HARRER
DIST. COURT CLERK

__________________

CASE NO. 01-4463

DEPT. NO. 1

IN THE SIXTH JUDICIAL DISTRICT COURT IN AND FOR THE STATE OF NEVADA

IN AND FOR THE COUNTY OF HUMBOLDT

**************************
LARRY DUDDLY HIIBEL,

Appellant,

vs. APPELLANT'S BRIEF ON APPEAL

THE STATE OF NEVADA,

Appellee.

**************************

COMES NOW the appellant, Larry D. Hiibel,, by and through the undersigned counsel, and submits the following brief in support of his appeal from a conviction below to the charge of Resisting Public Officer in violation of NRS 199.280 on the grounds that said conviction is in violation of the Fourth and Fifth Amendments to the U.S. Constitution and Article I section 8 (1) of the Nevada State Constitution.

Respectfully submitted this 4th day of May, 2001.

[Robert E. Dolan]
Robert E. Dolan

STATEMENT OF FACTS

1) The defendant was charged, via a citation, with violating NRS 199.280, Resisting Public Officer. The gravamen of the state's case was that since the defendant refused to identify himself to deputy Dove during a police-citizen encounter, he "delayed" the deputy, and thereby committed a offense.
A trial was had in the Justice Court of Union Township on December 13, 2000. On February 21, 2001 a Finding of Fact, Conclusion of Law was filed by the Justice of the Peace, Gene Wambolt.

2) A video tape was admitted in evidence at the misdemeanor trial. This revealed that Deputy Dove arrived at the right side of the road, behind the appellant's parked small truck, in response to an alleged domestic battery call. It's clear from the video tape that within a period of about two minuets and twentv seconds from the deputy's arrival the appellant was arrested and placed in custody simply because he failed to identify himself.

3) In the Findings of Fact below the Justice of Peace found that Deputy Dove asked the appellant about 11 times for his identification. Then the appellant was placed under arrest for delaying the officer.

POINTS AND AUTHORITIES

4) It can not be disagreed that if, during the citizen-police encounter Hiibel was free to leave, then he was also free not to identify himself and no criminal liability could attach. Therefore, only if Hiibel was not free to leave (because he found himself in a Terry situation) can any possible criminal liability even remotely constitutionally attach.

In Florida v. Royer, 460 U.S. 491 (1983) the U. S. Supreme Court, in a plurality opinion, explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such question." Id at 497.

5) The Justice of the Peace must have concluded that in fact a Terry situation existed because he relied on NRS 171.123 (3) as the basis for finding the appellant quilty of Delaying an Officer under NRS 199.280.

The Nevada Supreme court has found that NRS 171.123 (1) codifies Terry. See, State v. Lisenbee, 116 Nev. (2000).

In the Conclusion of Law below, the Justice of the Peace determined that NRS 171.123 imposes an affirmative obligation on a citizen to identify himself within the context of a Terry stop. This statutorily imposed obligation is unconstitutional because:

a) It violates the Fourth Amendment to the U.S. Constitution as regards the obligations of a citizen has to the state once seized by an officer; and
b) It violates the Fifth Amendment to the U.S. Constitution and Article I section 8 (1) of the Nevada State Constitution because a citizen retains the fight be remain silent and the imposition of criminal sanctions for the invocation of said right unconstitutional.

The appellant maintains that NRS 171.123 (3) is unconstitutional not on its face under the Fourth and Fifths Amendments of the U.S. Constitution and Article I section 8 (1) of the Nevada State Constitution but, as applied, to the facts of this case. Accordingly, the conviction had below must be reversed.

6) The police-citizen encounter in the instant case amounts to a Terry situation. Terry stands for the proposition that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion. In fact, the tape reveals that the deputy restricted the movement of the appellant prior to being placed under arrest.

7) In Berkemer v, McCarty, 468 U.S. 420; 104 S.Ct. 3138, 3150 (1984) the U.S. Supreme Court, stated, "The stop and inquiry must be reasonably related in scope to the justification for their initiation. Terry, 392 U.S. at 29. Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obligated to respond. And unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released".

9) The Fifth Amendment to the U.S. Constitution provides in relevant part that, . . . " (no) person shall be compelled in a criminal case to be a witness against himself. . . .". The statutory obligation imposed on citizens by NRS 171.123 (3) violates this amendment. Certainly the deputy attempted to impose or in fact did imposed an obligation on the citizen (and attempted to compel a response) by asking the citizen if he was going to cooperate and identify himself The U.S. Supreme Court described a similar citizen-police encounter (traffic stop) as follows:

"To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions". Berkemer v.McCarthy, 468 U.S. 420,438 (1984).

Then the deputy arrested the appellant simply because he remained silent. It is settled law that the Fifth Amendment governs state as well as federal criminal prosecutions. Malloy v. Hogan, 378 U.S. 1, 8 (1964).

10) Article I section 8 (1) provides in relevant part that, "...No person ... shall be compelled, in any criminal case to be a witness against himself.

Wherefore the undersigned counsel prays that the appellant's conviction be reversed for the reasons stated herein.

[Robert E. Dolan]
Robert E Dolan

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a true and copy of the foregoing was served on the Humboldt County District Attorney's Office on May 4, 2001 by personal delivery.

[Robert E. Dolan]
Robert E Dolan

_________________________________

EXHIBIT J

FILED

2001 MAY -9 2:34
SUSAN E. HARRER
DIST. COURT CLERK

___________________

Case No. CR 01-4463

Dept. No. 1

IN THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF HUMBOLDT

-oOo-

LARRY DUDLEY HIIBEL,

Appellant,

V. RESPONDENT'S ANSWERING BRIEF

THE COUNTY OF HUMBOLDT,

Respondent,

________________________________/

Comes Now the County of Humboldt by and through its attorney of record, Conrad Hafen, Chief Deputy District Attorney and submits this answer to appellant's brief on appeal.

This answer is made and based upon the points and authorities submitted herewith, the papers and pleadings on file herein, the affidavits and exhibits attached hereto and any such oral argument as required by this court at the time this matter is presented.

POINTS AND AUTHORITIES

During the trial evidence was presented by the testimony of Deputy Lee Dove and the videotape that Deputy Dove was responding to a domestic violence call. The caller provided a.description of a truck and that he saw a mate hitting a female. The videotape shows dove stopping to meet with the individual who called dispatch and then proceeding further down grass valley road. Dove saw a truck that matched the description pulled off the side of the road. He pulled up behind it and approached a male who was now outside of the truck. Up to this point, Dove has been given information that a domestic battery had already occurred. Therefore, pursuant to 5 NRS 171.123 he could investigate the facts and circumstances as presented to him and detain the individuals for up to sixty (60) minutes.

Appellant counsel claims that NRS 171.123(3) is unconstitutional but cites no Nevada or United States Supreme Court cases that have specifically ruled this language to be unconstitutional. Appellate cites Berkemer v. McCarty, 468 U.S. 420 (1984) but a review of that decision indicates that this issue was not raised on appeal. The county argues that section three (3) is not an unreasonable requirement in light of present day law enforcement activity. This requirement protects both the officer and the citizen. The citizen is protected because if the citizen's name is different than the name previously given to the officer the encounter can be concluded rather quickly. If the information provided by the citizen to the officer leads to additional information about the person's propensity for violence, the Officer can take the necessary precautions to protect himself.

Finally, appellate argues that this statute violates the Fifth Amendment because a citizen has the right to remain silent. The county submits that this right only applies once an individual is placed into custody. Further, this question does not constitute any type of interrogation 23 because it is not a question that is designed to elicit incriminating statements. Rhode Island v. Innis, 446 U.S. 219 (1980) The same type of question can be asked after a person is taken into custody. Such questions have been ruled to be permissible during the booking process even though an individual has greater constitutional protections once they are placed into custody. Pennsylvania v. Muniz, 496 U.S. 582 (1990)

The county contends that questions relating to identification are necessary for effective law enforcement. The question is asked during the detention of an individual and prior to being placed into custody. As a result, the individual has less constitutional protections. Therefore, the county asks this court to dismiss the appeal.

Dated this 9 Day of May 2001

[Conrad Hafen]
Conrad Hafen
Chief Deputy District Attorney

_____________________________________

EXHIBIT K

FILED

2001 MAY 14 PM 1:32
SUSAN E. HARRER
DIST. COURT CLERK

___________________

CASE NO. CR 01-4463

DEPT NO. 1

IN THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OFHUMBOLDT

**********************************

LARRY DUDLEY HIIBEL,

Appellant,

vs. APPELLANT'S REPLY BRIEF TO
APPELLEE'S OPPOSITION

THE COUNTY OF HUMBOLDT,

Appellee.

**********************************

Comes now the appellant by and through the undersigned counsel and Replies to the Appellee's opposition by stating the following.

In support hereof are Points and Authorities and any evidence and argument presented at the hearing hereon.

Respectfully submitted this 14th day of May, 2001.

[Robert E. Dolan]
Robert E. Dolan

POINTS AND AUTHORITIES

FIFTH AMENDMENT

1) In its answering brief, the State argues that the Fifth Amendment applies only when an individual is placed in custody. However, that position seems to be clearly at odds with the Nevada Supreme Court. For instance in Brown v. State, 113 Nev. 275, 291 (1997) the Court concluded that the district court's consideration of appellant's refusal to admit guilt and show remorse violated appellant's Fifth Amendment fight to not be compelled to be a witness against himself because appellant maintained his innocence and, therefore, "was unable to express remorse without foregoing his right to not incriminate himself, and the fact that he took the stand at trial does not change this analysis because appellant maintained his innocence", Id at 291 (citing Bushnell v. State, 97 Nev. 591 (198 1). Most interesting is that the district court judge in Brown directly addressed the defendant and stated, inter alia, ... "I'm offering you an opportunity to be a man ...". In the instant matter, appellant argues that a similar kind of statement was made by the deputy just prior to arresting the appellant. Recall, from the video tape (which was admitted in evidence at trial) that the deputy said (or asked) the appellant a question which was something to the effect; "are you going to cooperate (and identify yourself)"? The deputy's comments didn't produce the desired verbal response from the appellant just as the district court judge's comments in Brown didn't produce the desired verbal response from the defendant.

Again in Brake v. Nevada, 113 Nev. 579, 585, the Nevada Supreme Court reiterated its position that the Fifth Amendment operates to prevent a person from having a harsher sentence imposed if they maintain their silence during sentencing hearings. Appellant argues that a citizen's maintaining of silence during a Terry situation can not serve as the basis for the imposition of criminal sanctions under both the Fifth Amendment and Fourth Amendment of the U.S. Constitution.

[2) not used.]

3) Also, the United States Supreme Court has cautioned that the Constitution limits "the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly' ". Spevack v. Klein, 385 U.S. 511, 515 (1967)(quoting Griffen v. California, 380 U.S. 609, 614 (1965)). In , 431 U.S. 801, 807-09 (1977), the U.S. Supreme Court struck down a state statute that required an officer of a political party to either waive the Fifth Amendment or forfeit his office. The Court commented: "We have already rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need. Id. at 808. The threatened loss of a party office with its prestige and political influence was inherently coercive, Id. at 807, and therefore, the statute forcing the officer to choose between his right to participate in political associations and the privilege against self-incrimination was unconstitutional. Id. at 808.

4) So clearly the Fifth Amendment's protections are broader than the State believes it to be as stated in its opposition brief The appellant maintains that the Fifth Amendment prevents the silence of the defendant from serving as the basis for the criminal prosecution herein.

Wherefore the undersigned counsel prays that the conviction had below be reversed because same was obtained in violation of appellant's rights under both the Fourth and Fifth Amendments to the U.S. Constitution and similar provisions of the Nevada State Constitution.

[Robert E. Dolan]
Robert E. Dolan

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a true and correct copy of the foregoing was served on the Humboldt Count district Attorney by personal delivery on May 14, 2001.

[Robert E. Dolan]
Robert E. Dolan

__________________________________

EXHIBIT L

FILED

2001 JUN 26 AM 10:59
SUSAN E. HARRER
DIST. COURT CLERK

____________________

File No. CR 01-4463

Dept. No. 1

IN THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF HUMBOLDT

* * * *

LARRY DUDLEY HIIBEL,

Appellant,

VS. O R D E R

THE COUNTY OF HUMBOLDT,

Respondent.

__________________________________

On May 4, 2001 Appellant, through his attorney, filed his brief on appeal. Later, on May 9, 2001 Respondent, through its attorney, filed an answering brief. Thereafter, on May 14, 2001 Appellant filed a reply brief. Later, on June 18, 2001 the Court held a hearing on this matter.

The Court, having reviewed the above documents and listened to the arguments of counsel, finds and concludes as follows:

This case presents a question which does not have settled law either by the United States Supreme Court or the Nevada Supreme Court. The narrow issue of this case is the constitutionality of NRS 171.127 which is the Nevada codification of the United States Supreme Court case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 1889 (1968). In addition to placing a bright line time restriction of 60 minutes on such detentions, under subsection three of NRS 171.123, it provides the officer may detain such person only to ascertain the identification of such person and the suspicious circumstances surrounding his presence abroad. Any person further detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer. It is clear that this provision pertains only to those situations in which the peace officer has what is called "articulable or reasonable suspicion."

The United States Supreme Court in the case of Kolender v. Lawson, 461 US 352, 75 L.Ed.2d 903, 103 S.Ct. 1855 (1983), ruled that a California statute which required suspects under cases of articulable suspicion to provide "credible and reliable" identification was unconditionally vague on its face because it encouraged arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy this statute.

It is equally clear in the Kolender case, supra, that the United States Supreme Court distinguished the California statues from statutes which are kmown as simply "stop and identify" statutes.

The Nevada Supreme Court has not ruled on the constitutionality of NRS 171.123 (2) which is a simple "stop and identify" statute, however, the Ninth Circuit Court of Appeals in the case of Martinelli v. City of Beaumont, 820 F.2d 491 (9th Cir. 1987), construed the Kolender case as applying to simple "stop and identify" statutes while the Tenth Circuit Court of Appeals in the case of Albright v. Rodriguez, 51 F.3d 1531 (10th Cir. 1995), has found to the contrary. Within the Albright case, supra, it indicates that the United States Supreme Court has specifically on two occasions refused to determine when an individual can be arrested for refusing to identify himself in the context of a lawful investigatory stop. The Tenth Circuit Court of Appeals then cited the case of Brown v. Texas, 443 U.S. 47, 99 S-Ct. 2637, 61 L.Ed.2d 357 (1979), as well as the Kolender case, supra. Within the Albright opinion it cites various other circuits who are at odds with the Martinelli case of the Ninth Circuit. It can then be concluded that this specific issue before this Court is not settled law in either the State of Nevada or by the United States Supreme Court. It is, therefore, the duty of this Court to apply the best reasoned opinions to the facts of the particular case before the Court.

It is the opinion of this Court that even without determining the constitutionality issue as to whether NRS 24 171.123(2) is valid or invalid On its face, that there was sufficient evidence under the totality of the circumstances of this case that the justice court could and did correctly conclude that the Appellant resisted or delayed officer Lee Dove, a deputy sheriff of the Humboldt County Sheriff's Department on May 21, 2000 in Humboldt County, Nevada.

The particular facts of this case which give rise to this Court's determination in this matter are based upon the trial transcript before the justice of the peace, Honorable Gene Wambolt, on November 7, 2001 and February 13, 2001. It is also based upon the evidence consisting of a video tape of the entire incident which was also viewed by the justice of the peace. The pertinent f acts of this case which relate to this Court's conclusions are as follows:

At approximately 7:00 p.m. on May 21, 2000 Deputy Dove was advised by his dispatcher that a reporting party had observed an individual hitting a female subject in a red and silver vehicle on the Grass Valley Road south of Winnemucca. On the way to the incident, the officer stopped briefly to talk to the reporting party whose last name was Ridley who then pointed further down. the road to the vehicle in which he had seen the battery taking place. A short distance down the road the officer located the red and silver G.M.C. pickup truck which had been pointed out to him by the reporting party, and as he pulled up, he noticed the vehicle which appeared to have been pulled over in a fast, aggressive manner as there were skid marks in the gravel where it stopped. The vehicle was not parked in a normal fashion as it appeared to the officer that it had been pulled off to the side of the road rapidly. The Appellant was outside the truck, and the officer immediately observed that the Appellant was showing signs of alcohol consumption, and the officer believed he was probably intoxicated based on his eyes, his mannerisms, his speech and the odor that was coming from the Appellant.

The officer was able to determine that there was a female person in the vehicle. As the officer approached the Appellant, he told him that he had received a report that they had been fighting and asked the Appellant to identify himself. The Appellant was in an agitated condition and was determined to tell the officer that he was parked legally off from the roadway.

At one point from the video tape, it is clear that the officer, in repeatedly asking the Appellant for his identification, is attempting to protect the Appellant from stepping out onto the highway into traffic; and as the officer attempts by touching the Appellant on the shoulder to move hIm to a safer location, the Appellant pulls away in anger and is resisting and delaying the officer in carrying out his pressing duty of determining whether a battery and possibly a domestic battery has just taken place. It is a reasonable and necessary order that the officer request the Appellant to identify himself at that time.

on numerous occasions the Appellant placed his hands together, telling the officer to arrest him and take him to jail. When the officer was simply, trying to conduct his, investigation, which at such point not only included a possible battery but also a possible drunk-driving offense, it is clear in addition to the facts found by the justice of the peace that the Appellant resisted and/or delayed the officer, and that there were other actions and behavior of the Appellant over and above simply failing to identify himself which constituted delaying and obstructing the officer in his lawful investigation.

The video tape illustrates that the Appellant resisted and obstructed the officer when he was trying to remove the Appellant from the roadway.

The officer directed the Appellant out of traffic for his own safety in order to safely conduct the investigation.

Also, the officer certainly had reason to believe that Appellant had been drinking and driving.

These facts, together with those specifically found by the justice of the peace, firmly establish that the officer had a right to require identification from the Appellant, and that the Appellant by his refusal to identify himself as well as his other contact at the scene, delayed and obstructed the officer in conducting his important and pressing investigation of a possibly battery and/or domestic violence.

It is also clear that the officer had at least articulable suspicion regarding drunk driving in this matter, which absolutely required the identification of the Appellant.

This Court conunends and upholds the findings of fact and conclusions of law of the justice of the peace. His order is accurate, articulate, and precise, and this Court affirms the order of the justice of the peace.

This Court in ultimately deciding this case believes that it must do a balancing of the right to protect the public interest as opposed to an individual's constitutional right to remain silent. Justice Stewart summarized this issue in his concurring opinion in Leary v. United States, (1969), supra, 395 U.S. 6, at page 54 [23 L.Ed.2d 57, at page 92] He stated:

" ... I have before now expressed my conviction that the Fifth Amendment guarantee against compulsory self-incrimination was originally intended to do no more than confer a testimonial privilege in a judicial proceeding. But the Court through the years has drifted far from that mooring; the Marchetti and Grosso cases are simply the most recent in a long line of decisions marking the extent of the drift. Perhaps some day the Court will consider a fundamental re-examination of its decisions in this area, in the light of the original constitutional meaning. Until that day comes, it seems to me that the authoritative weight of precedent permits no escape from the conclusion reached by the Court in this case." (Fns. omitted.) (Emphasis added.)

In determining the issue before the Court today and applying this balancing test, the Court has to balance the public interest in requiring identify of a person who is a suspect in a battery or domestic violence case and a possible DUI suspect to be required to identify himself as opposed to that individual's right to remain silent. This Court must note that with both domestic battery and DUI the identify of the suspect may be crucial to determine not only for the officer's safety but also for the protection of possible victims. This is particularly so if the suspect has previous convictions for domestic battery or DUI.

IT IS HEREBY ORDERED that this matter be remanded to the Justice Court for further proceedings in affirming the findings of the Justice Court.

IT IS SO ORDERED.

DATED this 25th day of June, 2001.

[Richard A. Wagner]
RICHARD A. WAGNER, DISTRICT COURT JUDGE

__________________________________

[Larry Dudley Hiibel, Appellant, vs. The County of Humboldt, Appellee.]

Sixth Judicial District Court of Nevada, Case No. CR 01-4463

DECLARATION OF SERVICE

i am a citizen of the Untied States, over the age of 18 years, and not a Party to or interested in this action. I am an employee of the Humboldt County Clerk's Office, and my business address is 50 W 5Th Street, Vtrmnemucca, NV 89445. On this day I caused to be served the following document(s):

ORDER

______ By placing in a sealed envelope, with postage fULfly prepaid, in the United States Post Office, Wimemucca, Nevada, persons addressed as set forth below. I am familiar with this office's practice whereby the mail, after being placed in a designated area, is given the appropriate postage and is deposited in the designated area for pick up by the United States Postal Service.

X By personal delivery of a true copy to the person(s) set forth below by placement in the designated area in the Humboldt County Clerk's Office for pick up by the person(s) or representative of said person(s) set forth below.

Humboldt County District Attorney
PO Box 909
20 Winnemuca, NV 89446-0909
(Hand-Delivery - Clerk's Office)
Nevada State Public Defender
PO Box 309
Winnemucca, NV 89446-0309
(Hand-Delivery - Clerk's Office)

I declare under penalty of pedury under the laws of the State of Nevada that the foregoing is true and correct.

Executed on June 26, 2001 at Winnemucca, Nevada.

[Illegible]
DEPUTY CLERK

[Document 2, 4 pp.]

ORIGINAL

FILED
DEC 18 2001
JANETTE M. BLOOM
CLERK OF SUPREME COURT
BY [Signature]
DEPUTY CLERK

IN THE SUPREME COURT OF THE STATE OF NEVADA

LARRY DUDLEY HIIBEL,

Petitioner,

vs.

THE SIXTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA AND THE
COUNTY OF HUMBOLDT AND THE
HONORABLE RICHARD A. WAGNER,
DISTRICT JUDGE FOR THE STATE OF
NEVADA, IN AND FOR THE COUNTY OF
HUMBOLDT.

Respondent.

____________________________________________/

CASE NO. 38876

SUPPLEMENT TO PETITION FOR WRIT OF CERTIORARI

The Order of the lower court which is Exhibit L to the petition, has been amended by the court. The amendment is attached hereto as Exhibit A.

Dated this 17 day of December, 2001.

STEVEN G. McGUIRE
Nevada State Public Defender
By: [Signature]
JAMES P. LOGAN
Chief Appellate Deputy
Bar I.D. No. 1791
511 E. Robinson St.
Carson City, NV 89701
(775) 687-4880

RECEIVED
DEC 18 2001
JANETTE M. BLOOM
CLERK OF SUPREME COURT
DEPUTY CLERK

_____________________________________

CERTIFICATE OF SERVICE

I hereby certify that I am an employee of the Office of the Nevada State Public Defender and on this 18th day of December, 2001, I served the foregoing SUPPLEMENT TO PETITION FOR WRIT OF CERTIORARI by mailing a copy thereof to:

Attorney General
100 N. Carson St.
Carson City, NV 89701

Humboldt County D.A.
P. O. Box 909
Winnemucca, NV 89446

The Hon. Richard A. Wagner
District Court Judge
P. O. Box H
Lovelock, NV 89419

Larry D. Hiibel
P. O. Box 1323
Winnemucca, NV 89446

[Anne Bower]

_____________________________________

Case No. CR 01-4463

Dept. No. 1

IN THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF HUMBOLDT

LARRY DUDLEY HIIBEL,

Appellant,

vs.

THE COUNTY OF HUMBOLDT,

Respondent.

____________________________________________/

AMENDED ORDER

In this Court's order filed June 26, 2001 the Court indicated that it would consider the constitutionality of NRS 171.127. Lines 25-26, pg. 1 of Order filed June 26, 2001. This Court finds that the statute number has been misstated. The actual statute the Court considered the constitutionality of is NRS 171.123.

THEREFORE, IT IS HEREBY ORDERED, that the order filed June 26, 2001 is amended to refer to the constitutionality of NRS 171.123.

IT IS SO ORDERED dated this 3rd day of December, 2001.

[Richard A. Wagner]
DISTRICT COURT JUDGE

EXHIBIT A

_____________________________________

CERTIFICATE OF SERVICE

Pursuant to NRCP 5 (b) , I certify that I am an employee of the Humboldt County District Attorney's Office, and that on the 4th day of December, 2001, I placed in the rounds box, at the Humboldt County District Attorney's Office, Winnemucca, Nevada, a true copy of the AMENDED ORDER to be hand-delivered to:

Nevada State Public Defender's Office
Winnemucca, Nevada

[Paige Brown]

[Document 3, 14 pp.]

ORIGINAL

FILED
FEB 01 2002
JANETTE M. BLOOM
CLERK OF SUPREME COURT
BY [Signature]
DEPUTY CLERK

IN THE SUPREME COURT OF THE STATE OF NEVADA

LARRY DUDLEY HIIBEL,

Petitioner,

vs.

THE SIXTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF,
HUMBOLDT, AND THE HONORABLE
RICHARD A. WAGNER

Respondent.

and
THE STATE OF NEVADA,
Real Party in Interest

NO. 38876

________________________________________________________________

ANSWER TO PETITION FOR WRIT OF CERTIORARI

LEGAL ARGUMENT

A. THE DISTRICT COURT DID NOT PASS UPON THE
CONSTITUTIONALITY OR VALIDITY OF NRS 171.123.

Petitioner claims in the writ of certiorari that this court should entertain his writ because District Court Judge Richard Wagner ruled on the constitutionality of NRS 171.123 and therefore pursuant to NRS 34.020 this court has jurisdiction. A review of Judge Wagner's order reveals that he made no finding as to the constitutionality of NRS 171.123. Judge Wagner's order discusses the constitutionality of NRS 171.123 and provides some case law indicating that the United States Supreme Court has never really addressed the issue of whether it is a violation of the Fifth Amendment to require an individual to identify them self.

Judge Wagner made his decision by applying the standard of whether there was sufficient evidence presented to the justice of the peace for a finding of guilt. Judge Wagner specifically stated: "it is the opinion of this court that even without determining the constitutionality issue as to whether NRS 171.123 (2) is valid or invalid on its face, that there was sufficient evidence under the totality of the circumstances of this case that the justice court could and did correctly conclude that the Appellant resisted or delayed officer Lee Dove ..." (Petitioner's Exhibit p.3 lns 22-26, p.4 lns 1-2)

As the reviewing court, Judge Wagner chose not to determine the constitutionality of NRS 171.123 but decided the appeal on another basis. That basis was whether there was sufficient evidence presented to the justice of the peace to substantiate petitioner's conviction. Judge Wagner states in his order that he reviewed the trial transcript and the same videotape presented to the justice of the peace during the trial. (Petitioner's Exhibit L p.4 lns 4-11) As a result, he held that all the acts by petitioner during his encounter with the Deputy Dove constituted resisting an officer. (Petitioner's Exhibit L p.5 lns 13-26, p.6) Since Judge Wagner never specifically ruled on the constitutionality of NRS 171.123 when considering the merits of petitioner's appeal from the justice court this court does not have jurisdiction to grant petitioner's writ of certiorari. See NRS 34.020 (3).

Furthermore, petitioner has failed to show how Judge Wagner exceeded his jurisdiction pursuant to NRS 34.020 (2) by ruling there was sufficient evidence presented to the justice of the peace to sustain petitioner's conviction. Petitioner properly appealed his conviction to the district court pursuant to NRS 189.010. Therefore, Judge Wagner had jurisdiction over the parties. NRS 189.050 requires that all appeals to the district court from the justice court be judged on the record. Judge Wagner's order makes it very clear that he considered 4 petitioner's appeal on the record and found there was sufficient evidence to sustain his conviction.

A writ of certiorari can only be granted if petitioner demonstrates that the court exceeded its jurisdiction and there is no plain, speedy and adequate remedy. Goicoechea v. Fourth Judicial District Court, 96 Nev. 287, 607 P.2d 1140 (1980); See Also NRS 34.020 (2) In the writ of certiorari presented to this court petitioner has failed to establish that Judge Wagner exceeded his jurisdiction. Therefore, the authority of this court ceases and it cannot determine if any errors were committed by the district court. State ex. rel. Hinckley v. Sixth Judicial District Court, 53 Nev. 343, 1 P.2d 158 (1931) The state asks this court to deny issuance of petitioner's writ of certiorari because petitioner has failed to meet the statutory requirements set for in NRS 34.020 (2)(3).

B. REQUIRING AN INDIVIDUAL TO IDENTIFY THEM SELF AS SET FORTH
IN NRS 171.123(3) DOES NOT RISE TO THE LEVEL OF A FOURTH OR FIFTH
AMENDMENT VIOLATION.

Petitioner claims that his Fourth and Fifth Amendment rights were violated because Deputy Dove arrested him for not providing identification. The state submits that petitioner has not made it clear as to what aspect of the Fourth and/or Fifth Amendments were violated and therefore it is difficult to respond to a particular argument. Nevertheless, this appears to be a case of first impression in Nevada. The United States Supreme Court has been given the opportunity to rule on the issue presented in this Writ of Certiorari but has declined to do so. The state believes that based on the argument and legal analysis set forth below NRS 171.123(3) is not unconstitutional and Petitioner's writ should not be issued.

FOURTH AMENDMENT

The state submits that under the facts presented in this case petitioner's Fourth Amendment rights were not violated because reasonable suspicion existed at the time he was detained. In Brown v. Texas, 443 U.S. 47 (1979) the United States Supreme Court discussed why it is important that an officer have reasonable suspicion of criminal conduct prior to detaining an individual and asking to identify them self. Brown was detained by an officer because of suspicious circumstances and asked to produce identification. Brown refused so the officer arrested him pursuant to a Texas statute. The Texas statute required a person who was "lawfully stopped" to provide a name and address when requested by the officer. Failure to do so could result in a criminal charge.

The court found the officer violated Brown's Fourth Amendment rights because he did not have reasonable suspicion to detain Brown. In fact, the record revealed that one of the officers admitted during a hearing in the lower court that the only reason he stopped Brown was to ascertain his identity. Id at 52. Since the officer did not have reasonable suspicion to detain Brown his right to be free from arbitrary interference by law enforcement had been violated and his conviction improper.

The court stopped short of deciding if a person had to provide identification when an officer had reasonable suspicion to detain him. However, the court's opinion indicates that a "balancing" test should be applied to decide if, under the circumstances of the case, the public interest of having a suspect identify himself outweighs the right to be free from arbitrary interference by law officers.

As stated by petitioner NRS 171.123 is a codification of Terry v. Ohio, 392 U.S. 1 (1968) NRS 171.123 requires that an officer have reasonable suspicion prior to stopping an individual and asking for identification. This prerequisite would equate to the "lawfully stopped" requirement in the Texas statute. Reasonable suspicion is the great leveler and maintains the proper balance referred to by the court. However, once an officer has reasonable suspicion he should not be hindered in the pursuit of the investigation. Part of that investigation is to discover the identity of the suspect. If we place barriers to an officer's ability to identify the individual he is confronting then the investigation is stifled. Without a proper investigation those who are innocent might be falsely accused. Those who were guilty might wholly escape prosecution and many crimes would go unsolved. As a result, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503 (1963)

Petitioner concedes that Deputy Dove had reasonable suspicion to detain him and the record on appeal is certainly in accord. (Petition for Writ of Certiorari p.8 lns 10-14) Unlike the officer in Brown Deputy Dove complied with the requirements of NRS 171.123. The "balance between the public interest and the ndividual's right to personal security free from arbitrary interference by law officers" was maintained and petitioner was not illegally detained. Pennsylvania v. Mimms, 434 U.S. 106,109 (1977)

The state submits that since Dove had reasonable suspicion to detain petitioner then petitioner was obligated to identify himself. If Dove was not engaged in a lawful detention then petitioner could withhold his identification and any subsequent arrest would have been a violation of his Fourth Amendment rights. In Oliver v. Woods, 209 27 F.3d 1179 (2000) the Tenth Circuit Court of Appeals reached the same conclusion. Oliver, a criminal defense attorney, was taking his car to an auto repair shop. In the process of driving his car into the shop he triggered a silent alarm. Law enforcement officers installed the silent alarm to catch individuals who had been dumping illegal oil near the auto shop. An officer approached Oliver and asked for his name and identification. Oliver refused and quoted the Utah statute regarding when an officer can ask for identification. The officer asked for identification again and told Oliver he was not free to leave. Oliver ignored the officer and left in another vehicle that was there to pick him up. The officer followed Oliver and upon receiving backup stopped Oliver's car. Oliver was told to get out of his car but he refused. After a brief scuffle he was arrested for failing to provide identification.

The prosecutor reviewed the case and determined that no penalty was imposed for violating this statute. The charge was amended to failing to display motor vehicle registration. The justice of the peace dismissed the charge because he determined the officers did not have reasonable suspicion. Oliver filed a 1983 action alleging the officers violated his constitutional rights.

On appeal the Tenth Circuit noted that the Utah statute Oliver was arrested under codified the requirements for an investigative or Terry detention. The court reviewed the facts leading up to Oliver's arrest and determined that the officer did have reasonable suspicion to detain him. Id at 1187-8 The court then addressed the issue of whether the officer had probable cause to arrest Oliver when he refused to produce identification. The court cited Adams v. Williams, 407 U.S. 143 (1972) and stated "when an officer is conducting a lawful investigative detention based on reasonable suspicion of criminal activity, the officer may ask for identification and an explanation of the suspect's presence in the area." The court ruled that the officer gave Oliver a lawful order when he told him to present identification and remain in the parking lot while he conducted an investigation. When Oliver refused to present identification he refused to perform an act required by a lawful order that was necessary to effect the detention. Id at 1189 The Tenth Circuit concluded its opinion by holding that Oliver had no clearly established constitutional right to violate Utah code 76-8-305 which makes it a misdemeanor to interfere with an officer when he is seeking to effect a lawful detention. Id at 1190 See United States v. Trimble, 986 F.2d 394 (10th Cir. 1993)

In the case at bar, Deputy Dove was effectuating a detention based on reasonable suspicion. NRS 199.280 prohibits an individual from delaying or obstructing an officer while he is discharging any legal duty. Deputy Dove had reasonable suspicion to investigate a reported crime and therefore was engaged in a legal duty. When petitioner refused to produce identification during the course of the lawful detention he delayed and obstructed Deputy Dove as he discharged his legal duty. As in Oliver, petitioner has no clearly established constitutional right to violate NRS 199.280. Therefore, arresting petitioner for failing to produce identification and other acts amounting to resisting a public officer under NRS 199.280 does not make NRS 171.123(3) unconstitutional under the Fourth Amendment.

Petitioner's right of privacy under the Fourth Amendment was also not violated. The state could not find any case law from the United States Supreme Court or any other jurisdiction that permits an individual to refuse to identify them self because they have a privacy right under the Fourth Amendment. In fact, the court has upheld roadblocks that require a driver to produce identification through license and registration. When deciding whether a privacy right exists under these circumstances the United States Supreme Court has applied a "balancing" test to determine if the governmental interest outweighed the individual's right to privacy. The court has held that as long as there were limits placed on the officer's discretion the public interest in reducing crime outweighed the minimal intrusion caused by asking for identification. Delaware v. Prouse, 440 U.S. 648 (1979); See United States v. Martinez-Fuerte, 428 U.S. 543 (1976); See Also United States v. Duncan, 629 A.2d l(D.C. App. (1993)

The state asks this court to apply a balancing test when determining if NRS 171.123 (3) is unconstitutional. The only question that NRS 171.123(3) compels an individual to answer is "who are you?" When balancing the need for a law enforcement officer to investigate a crime against an individual's right to privacy this one question constitutes a minimal intrusion. Furthermore, when considering the possibility that a truly innocent person could be falsely arrested or a guilty person permitted to leave, requiring identification during a Terry stop is reasonable.

The state understands that this court can broaden the right of privacy under the Fourth Amendment to allow an individual to refuse to identify himself but the more important question is should this court do it. Permitting individuals to refuse to identify themselves once an officer has reasonable suspicion to detain and investigate carves out a much broader privacy right than the constitution envisions. It tips the scale and forces an officer to make more difficult decisions because he no longer has the ability to gather needed information. If this court adopted petitioner's argument an officer could not run a "wants" check on a detained person to see if he is a wanted felon. While detaining an individual that matched the description of a suspect the officer would be unable to verify that he is detaining the right person. These circumstances illustrate why it is reasonable to compel an individual to identify them self once they are lawfully detained.

Arresting a person and charging them with violating NRS 199.280 for refusing to identify himself is also reasonable because it maintains the integrity and purpose of our criminal justice system. If a person can be compelled to identify himself but incur no consequence for refusing then NRS 171.123(3) becomes a hollow statute without meaning or purpose.

FIFTH AMENDMENT

The United States Supreme Court has held that the privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757 (1966) To be testimonial the communication must explicitly or implicitly relate a factual assertion or disclose information. Doe v. United States, 487 U.S. 201 (1988) A suspect is not required to disclose any knowledge he might have or speak to his guilt. United States v. Wade, 388 U.S. 221 (1967) When petitioner was asked to provide identification he was not being compelled to give any factual assertion relating to the battery that Deputy Dove was investigating. This question did not compel him to "speak to his guilt". Petitioner was not forced to choose between truthfully or falsely revealing his thoughts. As a result, compelling petitioner to identify himself did not constitute a violation of the Fifth Amendment right against self-incrimination.

As this court is aware, when a person is placed into custody they must be given a Miranda warning prior to being questioned by law enforcement. Miranda v. Arizona, 384 2 U.S. 436 (1966) There is no clearer indication that a person has been placed into custody than during the booking process. Yet the United States Supreme Court has held that certain questions can be asked of a person during this process and not be in violation of their right to remain silent. In Pennsylvania v. Muniz, 496 U.S. 582 (1990) the court ruled that requiring a person in custody to give his name and address were "routine booking questions" that are necessary to complete the booking process. Muniz illustrates the court's view of how minimal and inconsequential producing identification is when compared to being compelled to give information that can jeopardize a suspect's case. If the United States Supreme Court can find that producing identification after being placed in custody is an exception to the Fifth Amendment, producing identification while being detained but not in custody should also be a recognized exception.

C. PETITIONER HAS FAILED TO CITE ANY COMPELLING CASE LAW TO
PERMIT THIS COURT TO FIND NRS 171.123(3) UNCONSTITUTIONAL.

Petitioner has cited language from Telly v. Ohio, 392 U.S. 1 (1968), Michigan v. Defillippo, 443 U.S. 31 (1979), Davis v. Mississippi, 394 U.S. 721 (1969) and Berkemer v. McCarty, 468 U.S. 420 (1984) in support of his proposition that he cannot be compelled to identify himself during a lawful detention. The state believes that if this argument is a correct interpretation of the court's intent, the court would have reaffirmed that position in Kolender v. Lawson, 461 U.S. 352 (1983) when the issue was before them. The state suggests that a different interpretation can be ascribed to these opinions.

There are various aspects to an investigation. The initial detention is typically used to gather general information from a suspect such as name, address etc. Once this information is obtained the officer can begin asking more substantive, specific questions relating to the particular'crime he is investigating. Upon review of the cases cited by petitioner it is clear the United States Supreme Court is referring to the part of the investigation where the detaining officer is inquiring about specific information relating to the crime being investigated.

In DeFillippo Justice Blackmun states " while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." Id at 44 Compelling an individual to identify himself is not a question concerning an unsolved crime. The answer is not an admission or a confession and provides no details relating to the crime. It is a general, informational type question that helps the officer to determine who he is confronting. The protections under the Fourth and Fifth Amendments apply once the officer begins to ask the suspect specific questions about the crime being investigated. At that point the suspect cannot be compelled to answer because the danger of self-incrimination becomes more apparent.

The state believes the United States Supreme Court's primary concern in these cases was to protect an individual from providing information that ultimately could be used against them at time of trial. The language in NRS 171.123(3) is consistent with this position and provides the same protections.

CONCLUSION

The state submits that this court should not issue petitioner's writ of certiorari because petitioner has failed to meet his jurisdictional burden under NRS 34.020. Petitioner has also failed to provide any compelling argument that NRS 171.123(3) violates the Fourth and/or Fifth Amendments. Petitioner has admitted that he was lawfully detained. Furthermore, he has not shown how the right of privacy protects him from being compelled to give identification to an officer. The state believes that the government's interest in obtaining this information outweighs the individual's right of privacy because it promotes efficient law enforcement and reduces the possibility that an innocent person will be arrested and a guilty person go free.

Finally, the act of producing identification should not be characterized as compelling testimony. This act does not cause the individual to give a factual assertion of an unsolved crime. It involves revealing general information that is a necessary part of law enforcement. The state contends that NRS 171.123(3) is constitutional and establishes a reasonable balance between the interest of law enforcement and the protections afforded to individuals who are detained for investigative purposes. Petitioner's writ of certiorari lacks constitutional merit and should not be issued by this court.

Dated This 31 Day of January 2002

[Conrad Hafen]
Conrad Hafen
Chief Deputy District Attorney

_____________________________________________

CERTIFICATE OF SERVICE

Pursuant to NRCP 5(b), I certify that I am an employee of the Humboldt County District Attorney's Office, and that on the 31st day of January, 2002, I deposited for mailing at Winnemucca, Nevada, a true copy of the ANSWER TO PETITION FOR WRIT OF CERTIORARI to:

Supreme Court Clerk's Office
Supreme Court Building
201 South Carson Street, Suite 250
Carson City, Nevada 89701-4702
Public Defender
11 East Robinson Street
Carson City, Nevada 89701
Attn: Gary Logan
Attorney General's Office
100 North Carson Street
Carson City, Nevada 89701

[Paige Brown]

_____________________________________________

HUMBOLDT COUNTY DISTRICT ATTORNEY

DAVID ALLISON POST
DISTRICT ATTORNEY
OFFICE BOX 909
WINNEMUCCA, NEVADA 89446

January 31, 2002

Nevada Supreme Court Clerk
201 South Carson Street, Suite 250
Carson City, Nevada 89701-4702

RE: HIIBEL, LARRY v. SIXTH JUDICIAL DISTRICT COURT

Dear Court Clerk:

Enclosed please find original and two copies of Answer to Petition for Writ of Certiorari regarding the above-entitled matter. Please file-stamp and return file-stamped copy to our office in the enclosed, self-addressed stamped envelope.

Thank you and if you have any questions, please do not hesitate to contact our office.

Sincerely,
[Paige Brown]
Paige Brown
Legal Secretary

:pb
encl.

CRIMINAL DIVISION (775) 623-6363 - CIVIL / CHILD SUPPORT (775) 623-6360 - FAX (775) 623-6365

[Document 4, 6pp. (1 missing)]

FILED
MAR 15 2002
JANETTE M. BLOOM
CLERK OF SUPREME COURT
BY [Signature]
DEPUTY CLERK

IN THE SUPREME COURT OF THE STATE OF NEVADA

LARRY D. HIIBEL,

Petitioner,

vs.

THE SIXTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF,
HUMBOLDT, AND THE HONORABLE
RICHARD A. WAGNER

Respondent.

and
THE STATE OF NEVADA,
Real Party in Interest

NO. 38876

________________________________________________________________

SUPPLEMENT TO ANSWER TO WRIT OF CERTIORARI

On February 6, 2002 and February 21, 2002 petitioner filed a motion and an errata requesting that he be allowed to supplement his writ of certiorari with a recent decision by the Ninth Circuit Court of Appeals. The state did not oppose the motion to supplement because it wanted to file a supplemental answer if the court granted the motion. On February 25, 2002 this court entered an order granting petitioner's motion to supplement the writ of certiorari. Therefore the state submits this supplement for the court's consideration as a result of the Ninth Circuit Court of Appeals opinion in Carey v. Nevada Gaming Control Board filed February 4, 2002.

LEGAL ARGUMENT

A. THE NINTH CIRCUIT COURT OF APPEALS' DECISION IN CAREY
FAILS TO PROPERLY BALANCE THE INTEREST OF GOVERNMENT
AND THE RIGHT TO BE FREE FROM ARBITRARY INTERFERENCE.

The Nevada Supreme Court is not obligated to follow the legal reasoning of the Ninth Circuit Court of Appeals. In Blanton v. North Las Vegas Municipal Court, 103 ) Nev. 623, 748 P.2d 494 (1987) this court noted that decisions of federal circuit courts and panels are not binding on the court. The Nevada State Constitution binds the courts of this state to the United States Constitution as interpreted by the United States Supreme Court. The state urges this court not to adopt the rationale in Carey v. Nevada Gaming Control Board, ___ F.3d ___ (Ninth Circuit Court of Appeals Filed February 4, 2002) and to recognize that the opinion creates an unwarranted expansion of Fourth and Fifth Amendment rights that the United States Supreme Court has declined to acknowledge and that other federal circuit courts have rejected. Albright v. Rodriguez, 51 F.3d 1531 (10th Cir. 1995).

The state argues in its answer to petitioner's writ of certiorari that this court should apply a balancing test when deciding if NRS 171.123(3) is unconstitutional. The state cited opinions from the United State Supreme Court in support of this position. In Carey the Ninth Circuit Court of Appeals applied a balancing test but failed to adequately explain how requiring individuals to identify themselves violates the Fourth and/or Fifth Amendments. The only explanation given by the court is a reference to Lawson v. Kolender, 658 F.2d 1362 (9th Cir. 1981) where the court stated "as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and because the serious intrusion on personal security outweighs the mere possibility that identification might provide a link leading to arrest."

The state finds it difficult to conceive how asking for identification is a "serious intrusion on personal security." The answer to such a request does not give law enforcement "substantive information" of a crime. The request to provide identification does not require the person to explain his whereabouts at a particular time or his conduct prior to being detained by an officer. This information can only be described as neutral and non-substantive in nature. Therefore, the state believes that the Ninth Circuit Court's depiction of the serious nature of asking for identification is skewed and fails to take into consideration the complexities of law enforcement.

It is interesting to note that in the opinion the court describes Carey's name as "not relevant to determining whether Carey had cheated." Id at 1725. The state agrees with this assertion. The information itself is not relevant to the crime charged. However, it becomes very relevant for law enforcement purposes. When an officer has reasonable suspicion to detain a person he should be permitted, at a minimum, to know the name of the person he is confronting. So often routine stops turn into situations where an officer's life is threatened. If the officer can obtain the person's identity to determine their criminal history or outstanding warrants, it would cause the officer to act more prudent and alleviate the potential risk of harm to the officer and/or person being detained. Furthermore, since the Ninth Circuit deems this information as "not relevant" it can hardly be deemed compelled testimony under the Fifth Amendment or a threat to personal security under the Fourth Amendment.

In light of the Carey opinion it is clear the Ninth Circuit Court of Appeals believes an individual cannot be compelled to identify himself when detained on reasonable suspicion. With this opinion the court created an unwarranted dilemma for officers in the State of Nevada. Applying the court's rationale it would appear that individuals stopped for committing a traffic violation are no longer required to produce identification when requested by the officer. A routine traffic stop is similar to a Terry stop that is based on reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420 (1984); See Dixon v. State, 103 Nev. 272, 737 P.2d 1162 (1987) If a person is not required to produce identification while being detained on reasonable suspicion then they certainly cannot be compelled to produce identification during a routine traffic stop. This essentially will prevent officers from obtaining the needed information to complete the traffic citation and result in the arrest of the driver. Perhaps this is the quid pro quo the Ninth Circuit had in mind when it deemed that requiring a person to produce identification is a "threat to personal security."

The state fails to see any distinctions between this scenario and when a person is detained on reasonable suspicion. Each encounter involves a police presence. Each encounter requires the officer to do some investigation and gather information before making a decision. By creating a broad prophylactic rule in an attempt to protect individual rights, the Ninth Circuit Court of Appeals has now placed law enforcement officers and citizens at greater risk. The state submits that this has tipped the scales in a direction that is unacceptable and should be rejected by this court.

CONCLUSION

The Ninth Circuit Court of Appeal's opinion falls short in properly balancing the interests of law enforcement with the constitutional rights of individuals. Requiring a person to provide identification while being detained on reasonable suspicion allows an officer to adequately perform his lawful duties while the act of providing identification constitutes a minimal intrusion into a person's life. The information itself is non-testimonial

[Page missing.]

____________________________________

CERTIFICATE OF MAILING

Pursuant to NRCP 5(b) I certify that I am an employee of the Humboldt County District Attorney's Office and that on this 27th day of February, 2002 I deposited by a copy of [sic] to the following:

Attorney General's Office
100 North Carson Street
Carson City, Nevada 89701-4717

Supreme Court Clerk
201 South Carson Street, 4201
Carson City, Nevada 89701

Public Defender
11 East Robinson Street
Carson City, Nevada 89701

[Paige Brown]
PAIGE BROWN

_______________________________________

HUMBOLDT COUNTY DISTRICT ATTORNEY

DAVID ALLISON POST
DISTRICT ATTORNEY
OFFICE BOX 909
WINNEMUCCA, NEVADA 89446

February 27, 2002

Supreme Court Clerk
201 South Carson Street, Suite 201
Carson City, Nevada 89701

RE: Hibel [sic] v. Sixth Judicial Court - 38876

Dear Clerk:

Enclosed please find original and three copies of Supplement to Answer to Writ of Certiorari regarding the above-entitled matter. Please file-stamp and return file-stamped copy to this office.

Thank you, if you have any questions, please do not hesitate to contact our office.

Sincerely,

[Paige Brown]
Paige Brown
Legal Secretary

:pb
encl.

CRIMINAL DIVISION (775) 623-6363 - CIVIL / CHILD SUPPORT (775) 623-6360 - FAX (775) 623-6365

[Document 5, 9 pp.]

ORIGINAL

FILED
JAN 7 2003
JANETTE M. BLOOM
CLERK OF SUPREME COURT
BY [Signature]
DEPUTY CLERK

IN THE SUPREME COURT OF THE STATE OF NEVADA

LARRY DUDLEY HIIBEL,
Petitioner,

vs.

THE SIXTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF,
HUMBOLDT, AND THE HONORABLE
RICHARD A. WAGNER, DISTRICT
JUDGE

Respondents,

and
THE STATE OF NEVADA,
Real Party in Interest

____________________________________/

Case No. 38876

PETITION FOR REHEARING

Petitioner LARRY DUDLEY HIIBEL, by and through his attorneys, STEVEN G. MCGUIRE, Nevada State Public Defender, and JAMES P. LOGAN, Chief Appellate Deputy, petitions this Court for rehearing of its opinion entered in this proceeding on December 20, 2002.

This petition is made pursuant to NRAP 40 on the grounds that the court has overlooked or misapprehended material points of law or fact requiring rehearing. This petition is supported by the following points and authorities and based upon all pleadings, documents and exhibits on file herein as well as the record on appeal.

Stay of the remittitur is requested pursuant to NRAP 41 (a) (timely petition for rehearing stays remittitur).

DATED this day 7 of January, 2003.

STEVEN G. McGUIRE
Nevada State Public Defender
By:
[James P. Logan]
JAMES P. LOGAN
Chief Appellate Deputy
Bar I. D. No. 1791
511 E. Robinson St., Suite 1
Carson City, NV 89701
(775) 687-4880

________________________________________

POINTS AND AUTHORITIES

The issue before this Court, in this case, is whether NRS 171.123(3), which requires persons stopped under reasonable suspicion by a police officer to identify themselves, violates the United States Constitution. Not just the Fourth Amendment! In his petition, Mr. Hiibel cites to not only the Fourth Amendment but also to both the Fourteenth and Fifth Amendments. Petition, pp. 1, 7. This court's discussion in its decision utilizes only a Fourth Amendment analysis. Therefore, the court has overlooked or misapprehended the Fifth Amendment implications of the issue.

The Fourth Amendment protects a person from unreasonable searches and seizures. Fifth Amendment jurisprudence defines when a person may be compelled to give information to governmental authorities.

Perhaps a more precise wording of the issue in this case is better defined as follows: During a valid Fourth Amendment detention, upon less than probable cause, is someone required to identify themselves to a police officer?

It appears that the United States Supreme Court case which is closest to the issue at hand is California v. Byers, 402 U.S. 424 (1971). The case analyzed the constitutionality, under the Fifth Amendment, of a California "hit and run" statute which required motorists involved in a property damage accident to stop and give their name and address. In that case the court stated the general rule as follows:

Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential the judicial scrutiny is invariably a close one. Tension between the State's demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly.

California v. Byers, 402 U.S. at 427.

Although the United States Supreme Court engages in a balancing analysis, that analysis takes into account factors far different than those analyzed by this Court in the instant case.

In Byers, the United States Supreme Court discussed three factors that determine whether a self-reporting requirement violates the Fifth Amendment privilege against self-incrimination: Whether the notice requirement (1) applies to an area of activity that is "permeated with criminal statutes," (2) is directed at a "highly selective" group of persons "inherently suspect of criminal activities," and (3) poses a "substantial hazard" or "direct likelihood" or self-incrimination. See Byers, 402 U.S. at 430 (citing Albertson v. SACB, 382 U.S. 70 (1965), Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968) and Haynes v. United States, 390 U.S. 85 (1968)). Also in these cases, Albertson, Marchetti, Grosso, and Haynes, the court found that compliance with the statutory disclosure requirements would confront the petitioner with "substantial hazards of self-incrimination Also in these cases the disclosures condemned were only those extracted from a "highly selective group inherently suspect of criminal activities" and the privilege was applied only in "an area permeated with criminal statutes" - not in "an essentially noncriminal and regulatory area of inquiry."

In Byers, the United States Supreme Court upheld the California reporting statute. However, the plurality opinion of Chief Justice Burger found it significant that the law "was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities" and was not aimed at a "highly selective group inherently suspect of criminal activities." California v. Byers, 402 U.S. at 430.

By contrast, the Nevada statute, NRS 171.123(3), is entirely different. The request for identification takes place during a valid Fourth Amendment seizures when there is an "articulable suspicion" that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1 (1968). The only time the request for identification takes place is during an actual criminal investigation! Obviously, this is an area of activity "permeated with criminal statutes" and is directed at a "highly selective" group of persons "inherently suspect of criminal activities." Also this type of encounter poses a "substantial hazard" or "direct likelihood" of self-incrimination.

In this case the officer was investigating a possible domestic battery. In addition, the officer noticed the smell of an alcohol on Mr. Hiibel's breath. (The encounter took place along the side of a highway by Mr. Hiibel's vehicle.) The same last name can be evidence of a relationship which triggers the domestic battery laws. Domestic battery differs from simple battery in a number of ways. Police officers must arrest a suspect in a domestic battery case as opposed to using their discretion in a battery case. NIRS 171.137. Once arrested, a domestic battery suspect can not be bailed out of jail for a minimum of twelve (12) hours and then only at exorbitant amounts of bail unless he/she appears before a magistrate, which can take at least as long as forty eight (48) hours. NIRS 178.484(5); Riverside County, Calif. v. McLaughlin, 500 U.S. 44 (1991). Finally, domestic battery, like driving under the influence, subjects offenders to increased punishment for those having prior offenses, ultimately constituting a felony. Compare NRS 200.481, NRS 200.485 and NIRS 484.3792. The prior record of the offender is discovered through data bases indexed by name among other ways. It is clear that at this time in our criminal justice, a person's name can be used to enforce a harsher penalty. While the police can find this information out through other sources, the Fifth Amendment protects individuals from being compelled to provide information which tends to incriminate.

This case should be reconsidered because this Court analyzed the issues under the Fourth Amendment instead of the Fifth Amendment. Because of this error, this Court failed to consider very relevant factors in the balancing analysis. Factors which weigh heavily in favor of Mr. Hiibel. Finally, the issue in this case strikes at the basic freedoms upon which this country was founded and involves passionate response as evidenced by the split of opinion within this Court itself, the passionate dissent of the dissenting justices, and the spirited response of the press regarding this case. See Exhibit A, attached hereto. While this nation is currently involved in a war on terrorism, the majority has understandably been swayed by a desire to enhance public safety. However, by doing so, the majority may have overlooked a warning by one of our forefathers. "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Letter from Benjamin Franklin to Josiah Quincy (Sept. 11, 1773).

The decision in this case should be reconsidered and Mr. Hiibel's conviction reversed.

RESPECTFULLY SUBMITTED this day of January, 2003.

STEVEN G. McGUIRE
Nevada State Public Defender
By:
[James P. Logan]
JAMES P. LOGAN
Chief Appeltate Deputy
Bar I.D. No. 1791
511 E. Robinson St., Suite 1
Carson City, NV 89701
(775) 687-4880

____________________________________________

EXHIBIT A

http://www.reviewjournal.com/lvrj_home/2002/Dec-24-Tue-2002/opinion/20344863.html

EDITORIAL: Your papers, please

Four Nevada high court justices endorse police state

About the only good thing about Friday's state Supreme Court decision that Nevada police can demand of any citizen, anywhere, that he present proof of identification is that it was a close vote.

Three stalwart justices set their jaws and stood firm in a desperate rear-guard defense of our remaining, fast-eroding freedoms, insisting we are not yet -- or shouldn't be -- living out a scene from one of those old black-and-white war movies in which the Gestapo officers in the wide-brimmed hats strut through the train full of terrified escapees, demanding that everyone show their "travel papers, please."

The case began in May of 2000, when Humboldt County Deputy Sheriff Lee Dove was sent by dispatchers to a site where a caller had reported seeing a man strike a girl inside a truck.

Arriving at the scene, Deputy Dove found a man who later turned out to be Larry Hiibel standing outside a truck. Mr. Dove later testified that he believed Hiibel to be intoxicated and that his daughter was sitting inside his truck. Mr. Dove demanded to see the man's identification 11 times. Eleven times the man refused, because he did not believe he had done anything wrong.

Under a law which pretends to require Nevadans to identify themselves to police upon demand, Mr. Hiibel was later convicted of resisting and obstructing a police officer in the performance of his duties. He appealed to the state Supreme Court, where a slim, four-member majority Friday abandoned the cause of privacy and freedom, delivering us instead into the hands of police-state tyranny.

To be forced to reveal one's identity to a cop, even if you're simply standing by the roadside -- Justice Cliff Young wrote for the majority -- is not an invasion of privacy because people give each other their names every day "without much consideration" -- this is merely part of "polite manners," Justice Young explains.

Then, Justice Young goes on to offer the rationale which has justified every police state from the dawn of tyranny -- that any minor "intrusion on privacy" is "outweighed by the benefits to officers and community safety."

"Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop," Justice Young wrote for himself, Chief Justice Bill Maupin, and fellow Justices Myron Leavitt and Nancy Becker.

Can Justice Young still recall anyone who might once have said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety"?

With the growing threat to our constitutional liberties in this post-Sept. 11 atmosphere, "Now is precisely the time when our duty to vigilantly guard the rights enumerated in the Constitution becomes most important," wrote Justice Deborah Agosti, in a brave and ringing dissent joined by Justices Bob Rose and Miriam Shearing.

The "true test of our national courage" is "our necessary and steadfast resolve to protect and safeguard the rights and principles upon which our nation was founded, our constitutional and our personal liberties," Justice Agosti concludes.

Amen to that.

Yes, a policeman's lot can be slightly less safe and convenient in a free country. But ask anyone who survived Russia in the 1930s, Germany in the 1940s, China in the 1950s, or Cambodia or Chile in the 1970s, how much "safer" it felt to live in a nation where everyone was tracked, numbered, and required to show their "papers, please," on demand.

____________________________________

CERTIFICATE OF SERVICE

I hereby certify that I am an employee of the Office of the Nevada State Public Defender and on this 7th day of January, 2003, I served the foregoing PETITION FOR REHEARING by mailing a copy thereof to:

ATTORNEY GENERAL
100 N CARSON ST
CARSON CITY NV 89701

HUMBOLDT COUNTY DISTRICT ATTORNEY
P O BOX 909
WINNEMUCCA NV 89446

THE HON. RICHARD A WAGNER
DISTRICT COURT JUDGE
P O BOX H
LOVELOCK NV 89419

LARRY D HIIBEL
P O BOX 1323
WINNEMUCCA NV 89446

[Jane Rohn]

[Document 6, 12 pp.]

FILED
MAR 4 2003
JANETTE M. BLOOM
CLERK OF SUPREME COURT
BY [Signature]
DEPUTY CLERK

IN THE SUPREME COURT OF THE STATE OF NEVADA

LARRY DUDLEY HIIBEL,

Petitioner,

vs.

THE SIXTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF,
HUMBOLDT, AND THE HONORABLE
RICHARD A. WAGNER

Respondent.

and
THE STATE OF NEVADA,
Real Party in Interest

NO. 38876

________________________________________________________________

ANSWER TO PETITION FOR REHEARING

Comes Now the State of Nevada, Real Party in Interest, and pursuant to NRAP 40(d) and this court's order issued on February 20, 2003 submits this answer to Petitioner's Petition for Rehearing. This answer is made and based upon all the pleading and papers filed herein, the record on appeal, as well as the points and authorities submitted herewith.

LEGAL ARGUMENT

A. THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION
DOES NOT APPLY TO DETENTIONS BASED ON REASONABLE SUSPICION.

5 The Fifth Amendment of the United States Constitution protects a person from being "compelled in any criminal case to be a witness against himself " The word "witness' in the constitutional text only applies to the category of compelling incriminating communications to those that are "testimonial" in nature. The history and policies underlying the self-incrimination clause support the proposition that this privilege may only be asserted to resist compelled explicit or implicit disclosures of incriminating information. This privilege was created to prevent the type of inquisitorial methods used by ecclesiastical courts and the Star Chamber wherein an individual would be compelled under oath to answer questions designed to uncover uncharged offenses without evidence from another source. See Andresen v. Maryland, 427 U.S. 463, 470-471 (1976); 8 Wigniore sec. 2250; See Also Doe v. United States, 487 U.S. 201, 212 (1988)

Based on this historical backdrop the state submits to this court that compelling an individual to produce identification after an officer establishes reasonable suspicion does not constitute a violation of the Fifth Amendment. The state contends that Hibel's name does not have "testimonial" significance. In United States v. Wade, 388 U. S. 218 (1967) defendant was indicted for robbery. Without notice to his attorney, defendant was placed in a lineup and made to wear strips of tape on his face as the robber allegedly had done. Further, defendant was required to repeat the words used by the robber. Defendant was subsequently convicted of robbery and filed a writ of certiorari with the United States Supreme Court. The United States Supreme Court granted certiorari and determined that defendant's Fifth Amendment privilege against self-incrimination was not violated when he was required to speak the same words the robber spoke during the robbery. The court stated that these spoken words did not have any "testimonial significance" because he was not being asked to disclose any knowledge he had about the robbery itself. Id at 222-223. Applying the United States Supreme Court's interpretation of the Fifth Amendment privilege against self-incrimination to the case at bar it seems clear that stating one's name carries with it no "testimonial significance." When comparing both cases there are some very important distinctions that this court should consider. First, unlike Wade, Hibel [sic] was never formally charged with a crime prior to being asked for identification. Deputy Dove made this request while conducting a temporary, detention to investigate a possible battery/domestic battery. The state submits that once a person has been charged and is considered to be the only person who committed the crime, the protections provided by the privilege against self-incrimination become much more important. There is a greater interest in making sure the government does not use compulsive means to extract a confession or information that can be used to assist the prosecution in proving each element beyond a reasonable doubt at time of trial.

Second, unlike Wade, requiring Hibel [sic] to provide identification did not give the prosecution any material information about the crime itself. Compelling Wade to speak the same words as the robber while eye witnesses listen is a greater infringement on the privilege against self-incrimination because it gave the prosecution an important piece of evidence that placed Wade at the scene of the crime. If the witnesses harbored any doubts as to the identity of the perpetrator, hearing the same words and comparing the voices erased these doubts. Again, Wade was compelled to produce this evidence after he was formally charged.

In light of United States v. Wade, 388 U.S. 218 (1967), if this court finds that requiring a person who is detained based on reasonable suspicion to provide identification is a violation of the Fifth Amendment privilege against self-incrimination, the court would be engaging in what Justice Holmes stated to be "an extravagant extension of the Fifth Amendment." See Holt v. United States, 218 U.S. 245 (1910)(compelling a defendant to put on a blouse did not violate the privilege against self-incrimination) It is unreasonable to give a person's name "testimonial" characteristics when the United States Supreme Court has held that other more incriminating evidence does not merit that distinction. The court has ruled that compelling a person to provide a blood sample does not violated the Fifth Amendment. See Schmerber v. California, 384 U.S. 757 (1966) The court has affirmed the compulsion of a handwriting exemplar, recording of a voice or putting on a shirt. Gilbert v. California, 388 U.S. 263 (1967); United States v. Wade, 388 U.S. 218 91967); Holt v. United States, 218 U.S. 245 (1910) All more intrusive than simply requiring a person's name while being detained for investigative purposes. In addition, these other compulsive means provide information that has far more evidentiary value at time of trial than the defendant's name. Yet the court continues to apply the standard that unless the compulsion brings about a communication that relates either express or implied assertions of fact or belief the Fifth Amendment privilege against self-incrimination will not apply. See Pennsylvania v. Muniz, 496 U.S. 582 (1990)

In United Sates v. Dionisio, 410 U.S. 1 (1973) a grand jury was investigating crimes relating to illegal gambling. The grand jury had a tape recording of voices but could not determine the identity of the voices. As a result, the grand jury subpoenaed twenty individuals to compel them to provide voice exemplars. Defendant objected and refused to abide by his subpoena claiming that the voice exemplar violated his Fifth Amendment privilege against self-incrimination. The United States Supreme Court rejected this argument and held that the voice exemplars were used for identification purposes and did not rise to the level of being testimonial in nature.

The facts and opinion in Dionisio bolster the state's position in this case. The grand jury Was engaged in an investigation of criminal activity. It is undisputed that Deputy Dove had reasonable suspicion and was also investigating the crime of domestic battery. The grand jury was investigating potential suspects and based on the evidence presented to them needed to identify the individuals from the tape recording. The only way they could accomplish that goal was to have these suspects utter words so a comparison could be made to the voices on the tape recording.

Deputy Dove was placed in a similar position. He had received information from dispatch that a person witnessed a man hit a woman while they were driving down the road in a truck. When Deputy Dove came upon the scene to start his investigation he saw Hibel [sic] outside the truck. Deputy Dove did not know Hibel's name. In order for Dove to adequately complete his investigation of domestic battery he needed Hibel's name. 15 NRS 171.137(2) states that before an officer can arrest for domestic violence he must consider several factors. One of those factors is whether the suspect has a prior history of domestic violence. See NRS 171.137(2)(a) Before a criminal history could be obtained from dispatch Deputy Dove needed to provide some identification information. If this court finds that requiring identification violates the Fifth Amendment privilege against self-incrimination, how would Deputy Dove comply with this requirement? This is just one of several statutory examples that would create a tremendous conflict for law enforcement officers in this state as they attempt to carry out their duties and responsibilities while investigating crime.

Petitioner relies primarily on Byers v. California, 402 U.S. 424 (1971) to support his argument that requiring a person to identify themselves is a violation of the Fifth Amendment privilege against self-incrimination. However, a closer review of Byers reveals that the United States Supreme Court opinion substantiates the state's position. When addressing the issue of whether compelling an individual to disclose their name and address at an accident is a violation of the Fifth Amendment, the court held that this was "an essentially neutral act." Furthermore, the court found that compelling a person to stop and provide a name and address did not require that person to provide the state with "evidence of a testimonial or communicative nature." Schmerber v. California, supra, at 761

Petitioner's attempt to elevate Byers beyond its reasonable application to the Fifth Amendment amounts to what Justice Holmes reiterated in United States v. Sullivan, 274 12 U.S. 259 (1927) as "an extreme if not extravagant application of the Fifth Amendment." The state urges this court to apply a balancing test. Weigh the importance of Nevada law enforcement officers need to have a suspect's name to further their investigation and obtain information as to what type of suspect they are dealing with against whether a name is testimonial in nature and provides any substantive information that could later be used at trial. When considering the type of information/evidence the United States Supreme Court 19 has held can be obtained from a person through compulsive means, requiring suspects to identify themselves once reasonable suspicion is established is De minimis and does not outweigh law enforcement's need to obtain this information.

In Michigan v. DeFillippo, 443 U.S. 31 (1979) the court was asked to determine if defendant had been lawfully arrested for failing to provide identification. A Michigan Appellate Court found the ordinance to be unconstitutionally vague and reversed defendant's conviction. However, the appellate court did not find that the ordinance violated defendant's Fifth Amendment privilege against self-incrimination. On appeal the United States Supreme Court held that if a person is arrested under a presumptively valid ordinance the arrest is deemed valid. Notably, the court did not take the opportunity to strike down the ordinance as a violation of the defendant's Fifth Amendment privilege against self-incrimination. This failure speaks volumes as to the court's position on this issue. By not addressing the privilege against self-incrimination issue the United States Supreme Court implicitly placed its stamp of approval on this type of ordinance.

Perhaps the most compelling state court decision is State v. Flynn, 285 N.W. 2d 710 (1979). In Flynn an officer was investigating a crime and developed reasonable suspicion to detain the defendant. During the detention the officer asked defendant for identification. Defendant refused to provide his identification so the officer took it from him. On appeal the Wisconsin Supreme Court upheld the officer's conduct. The court stated that unless an officer is entitled to at least ascertain the identity of the suspect the right to stop serves no useful purpose at all. The court determined that to allow a suspect to refuse to provide identification would reduce the officers authority granted in Adams v. Williams, 407 U.S. 143 (1972) to a mere fiction.

A Florida Appellate Court was asked to decide a similar issue. The court ruled that one of the basic reasons for and necessarily one of the primary functions of an investigative stop is to ascertain the identity of the suspect. Citing to State v. Flynn, 285 N.W. 2d 710 (1979), the court upheld the officer's decision to take the defendant's identification which ultimately led to the discovery of other evidence. See Harper v. State, 532 So. 2d 1091 (Fla. App. 3 Dist. 1988); See Also W. LaFave 9.4(g)

Several state courts have also been asked to address the validity of an identification law. In Jones v. Commonwealth of Virginia, 334 S.E.2d 536 (1985) the Virginia Supreme Court, citing DeFillippo, upheld an identification ordinance because a person could only be required to produce identification if an officer had reasonable suspicion to detain the person. An Illinois Appellate court ruled that refusal to provide identification can be part of establishing reasonable suspicion to detain a person's luggage. People v. Evans, 689 N.E. 2d 142 (1997) The State of Ohio has a specific criminal statute requiring a person to provide identification. The Ohio Appellate Court approved of this statute and rejected defendant's 8 argument that it was unconstitutional. State of Ohio v. Pugh, 998 Ohio App. Lexis 2882 (Court of Appeals of Ohio, First Appellate District, Hamilton County)

The state finds it difficult to understand how the giving of one's name results in "self-incrimination." The request does not require the suspect to "speak to his guilt" and the answer to such a request does not give law enforcement "substantive information." United States v. Wade, 388 U.S. 221 (1967) The request to provide identification did not require Hibel [sic] to explain his whereabouts at a particular time or his conduct prior to being detained by Deputy Dove. This information can only be described as neutral and non-substantive in nature. Therefore, the state believes petitioner's argument that requiring persons to identify themselves after being detained on reasonable suspicion is a violation of the Fifth Amendment is skewed and fails to take into consideration the complexities of law enforcement.

Finally, the state is disturbed by petitioner's use of an editorial from the Review Journal. The state submits that attaching the editorial, as an exhibit to the petition for rehearing, is inappropriate. Petitioner appears to be asking this court to step out of its role as a neutral and detached judicial body and decide this issue based on a newspaper's opinion. The state could have attached hundreds of letters by law enforcement officers praising the majority's decision in this case. The state could have informed this court that law enforcement officers throughout the State of Nevada considered this case to be an "officer safety" issue and applauded Justice Maupin's concurring opinion that " our decision today is truly related to the ability of police to properly and safely deal with persons reasonably suspected of criminal misconduct, here, domest ic violence and driving while under the influence of alcohol "

However, this court's role is to decide legal issues as an independent body. Therefore, the state will not adopt petitioner's posture and attempt to influence this court by use of public opinion that strongly favors the majority's position. The state will rely upon the numerous cases cited in this answer that have held the Fifth Amendment privilege against self-incrimination does not protect the giving of identification because a person's name has no "testimonial significance" and is essentially a "neutral" communication.

The state notes after reading the editorial that the Review Journal's interpretation of the majority's opinion is completely misguided and ill informed. Apparently, the editor forgot to read NRS 171.123 that requires an officer to first establish reasonable suspicion before asking for identification. If this threshold is not met then the Fourth and Fifth Amendment protections apply and this court, as the United States Supreme Court did in Brown v. Texas, 21 443 U.S. 47 (1979), can reverse the conviction. It is this requirement that prevents us from being a police state.

The majority's opinion did not, as the dissent claims, "allowed the first layer of our civil liberties to be whittled away." Rather, the majority's opinion reflects a sound, well-reasoned legal analysis of a complex constitutional issue that properly balances an officer's need to have a suspect's name against a suspect's right not to give neutral, non-incriminating information. The majority engaged in common sense and made good law. Peak v. United States, 353 U.S. 43 (1957) The state asks this court to again engage in common sense and deny petitioner's petition for rehearing. The state asks this court to find that a person's name, like a voice exemplar, finger prints, handwriting sample, blood sample, being compelled to wear clothing and being compelled to give your name and address at an accident scene is non-testimonial and therefore the Fifth Amendment privilege against self-incrimination does not apply.

CONCLUSION

The state submits that a person's name is essentially neutral information and requiring a person to give their name to an officer after being detained on reasonable suspicion does not rise to the level of compelled testimony. Requiring Hibel [sic] to give his name to Deputy Dove during the investigative stop did not require Hibel [sic] to "speak to his guilt." Hibel's [sic] name does not reveal any substantive information relating to what may have occurred in the truck. Hibel's name simply reveals his identity like a finger print, handwriting sample or voice exemplar. Further, it would have assisted Deputy Dove in his investigation just like leaving a name and address at an accident scene. Based on the legal analysis presented in this answer, the state urges this court to deny petitioner's petition for rehearing.

Dated This 3 Day of March 2003

[Conrad Hafen]
Conrad Hafen
Chief Deputy District Attorney

_______________________________________

CERTIFICATE OF SERVICE

Pursuant to NRCP 5(b), I certify that I am an employee of the Humboldt County District Attorney's Office, and that on the 3rd day of March, 2003, at Winnemucca, Nevada, I delivered a true copy of the ANSWER TO PETITION FOR RECONSIDERATION, by the following means, to:

Supreme Court Clerk's Office
Supreme Court Building
201 South Carson Street, Suite 250
Carson City, Nevada 89701-4702

Public Defender
511 East Robinson Street
Carson City, Nevada 89701
Attn: Gary Logan

Attorney General's Office
100 North Carson Street
Carson City, Nevada 89701

( ) Certified Mail

(x) U.S. Mail

( ) Hand-delivered

( ) Placed in box at Justice Court

( ) Via Facsimile

[Paige Brown]

_____________________________________

HUMBOLDT COUNTY DISTRICT ATTORNEY

DAVID ALLISON POST
DISTRICT ATTORNEY
OFFICE BOX 909
WINNEMUCCA, NEVADA 89446

March 3, 2003

Supreme Court Clerk's Office
201 South Carson Street
Carson City, Nevada 89701-4702

RE: Hiibel v. Sixth Judicial District Court et al

Dear Court Clerk:

Enclosed please find Answer to Petition for Rehearing regarding the above-entitled matter. Please file-stamp and return file-stamped copy to our office.

If you have any questions, please do not hesitate to contact our office.

Sincerely,

[Paige Brown]
Paige Brown
Legal Secretary

:pb
encl.

CRIMINAL DIVISION (775) 623-6363 - CIVIL / CHILD SUPPORT (775) 623-6360 - FAX (775) 623-6365

CONTENTS
No.	Document	Date
1	PETITION FOR A WRIT OF CERTIORARI	December 4, 2001
	EXHIBIT A -- Summons	May 21, 2000
	EXHIBIT B -- Motion to Dismiss Domestic Battery Case	Setember 29, 2000
	EXHIBIT C -- Order to Dismiss Domestic Battery Case	September 29, 2000
	EXHIBIT D -- Findings of Facts, Conclusions of Law, Ruling	February 21, 2001
	EXHIBIT E -- Court memo	March 14, 2001
	EXHIBIT F -- Notice of Appeal	March 14, 2001
	EXHIBIT G -- Transcript Court Trial, November 7, 2000	March 15, 2001
	EXHIBIT H -- Transcript Court Trial, February 13, 2001	March 15, 2001
	EXHIBIT I -- Appellant's Brief on Appeal	May 4, 2001
	EXHIBIT J -- Respondent's Answering Brief	May 9, 2001
	EXHIBIT K -- Appellant's Reply Brief to Apellee's Opposition	May 14, 2001
	EXHIBIT L -- Order	June 26, 2001
2	SUPPLEMENT TO PETITION FOR WRIT OF CERTIORARI	December 18, 2001
3	ANSWER TO PETITION FOR WRIT OF CERTIORARI	February 1, 2002
4	SUPPLEMENT TO ANSWER TO WRIT OF CERTIORARI	March 15, 2002
5	PETITION FOR REHEARING	January 7, 2003
6	ANSWER TO PETITION FOR REHEARING	March 4, 2003