Hiibel V. Sixth Judicial District Court of Nevada - Dissenting Opinions

Dissenting Opinions

Justice Stevens opined that the Court’s precedent required it to strike down Nevada’s stop-and-identify law. Under the Court's Terry jurisprudence, a suspect has always had the right to refuse to answer questions put to him by police officers during a Terry stop. And the Fifth Amendment privilege had always attached during custodial interrogations because information extorted by the police during such interrogations is unavoidably testimonial. Why else would the police ask for a person’s name, if not to determine whether that person was either wanted for committing a crime or directly suspected of committing a crime? “The officer in this case told that he was conducting an investigation and needed to see some identification. As the target of that investigation, in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.”

Justice Breyer noted that “the Court wrote that an ‘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 obliged to respond.’ Berkemer v. McCarty, 468 U.S. 420 (1984) (emphasis added).... the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years. There is no good reason now to reject this generation-old statement of the law.″

Justice Breyer also expressed a “slippery-slope” concern that the majority’s opinion would lead to allowing the police to ask follow-up questions, such as what the person’s license number is, or where a person lives, without running afoul of constitutional protections.