If You Get Detained or Arrested, Should You Really Stay Quiet?
The “right to remain silent” granted by the Fifth Amendment is one of the most widely-recognized rights provided to people through the United States Constitution. It is always something that shows up in television and movies when someone gets put into handcuffs, and the “Miranda rights” it establishes can probably be recited by most any adult in the country. With the prominence of the right to remain silent, is it really something you should invoke when detained or arrested?
For the most part, the answer is a resounding yes. When you are detained by the police, they are looking for a reason to justify an arrest. That is to say, detainment is the precursor to being put into handcuffs rather than just being a way to keep you in place for a while. The more you say when you are detained, the more likely you will say something that sounds suspicious and could give the police an opportunity to say they had established probable cause to make an arrest.
If you have already been arrested, you should still use your right to stay silent. Once you are arrested, the law enforcement agent already sees you as guilty, or else they would not have made the arrest in the first place. At that point, they just want to help the court or prosecutor in the future by getting more evidence out of you to use in the case against you. Anything you say “can and will be used against you,” after all.
It is best not to say anything that could incriminate you. Open-ended questions are particularly risky and should be met with respectful silence. You can say something like, “I am invoking my Fifth Amendment right to remain silent until given an opportunity to speak with my attorney.” Keep in mind that some questions with direct answers should be met with a response, like “What is your name?”
Also, it is important to realize that the Fifth Amendment protects everyone in the country, including criminals and undocumented immigrants. If you get stopped by Immigrations and Customs Enforcement (ICE) agents who want to grill you about why you are in the country, then you can use your inherited right to remain silent, even if you know you are in the country illegally. Not telling too much to ICE is often the first step in a successful deportation defense.
San Diego Attorney Protecting the Accused
Have you been accused of a serious crime, or of illegal immigration? Do you think you said too much to law enforcement? Or, did you say not much but now need help from a defense attorney right away?
Call (619) 332-1703 to connect with Rodriguez Law Firm in San Diego. We proudly take criminal and deportation defense cases to protect the rights of the accused in Southern California. Schedule your case evaluation to begin today!
Who is eligible for an initial DACA grant?
To be eligible for deferred action under the DACA program, you must:
- Have come to the United States before your 16th birthday.
- Lived continuously in the U.S. since either June 15, 2007.
- Have been present in the U.S. on June 15, 2012, and on every day since August 15, 2012.
- Have not had a lawful immigration status on June 15, 2012. To meet this requirement, you must have entered the U.S. without papers before June 15, 2012, or, if you entered lawfully, your lawful immigration status expired before June 15, 2012.
- Not have a lawful immigration status at the time of your application.
- Be at least 15 years old. If you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order, and are not in immigration detention, you may request DACA even if you are not yet 15 years old.
- Have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, be an honorably discharged veteran of the Coast Guard or U.S. armed forces, or “be in school” on the date that you submit your DACA application.
- Have not been convicted of a felony offense.
- Have not been convicted of a significant misdemeanor offense or three or more misdemeanor offenses.
- Not pose a threat to national security or public safety (including gang membership, participation in criminal activities, or participation in activities that threaten the U.S.)
How do I request expanded DACA?The application forms are currently not available for the “expanded” DACA program. A federal district court in Texas temporarily stopped the expanded DACA. We will post updates as we get them from USCIS. Although the new expanded DACA is not currently available, people may be eligible under the current DACA program. Continue reading for more information for those that are looking to apply.
If Questioned about Your Immigration Status
- You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents, or any other officials.
- You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country (separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers).
- If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
- Do not lie about your citizenship status or provide fake documents.
If You Are Stopped While Driving
- Stop the car in a safe place as quickly as possible.
- When asked, show the police your driver’s license, registration, and proof of insurance.
- If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. If police believe your car contains evidence of a crime, your car can be searched without your consent.
- Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.
Other Important Rights
- Ask police if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, they should tell you.
- You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
- You do not have to consent to a search of yourself or your personal belongings. For officer safety reasons a Police officer can do a “pat down” search to look for possible weapons. This is a limited search and different from a more extensive search of your person, personal belongings, car, or home. You should not physically resist, but you have the right to refuse consent for any further search.
Undocumented Aliens Have Constitutional Rights
If you are stopped by the police, always remember the following:
- You have the right to remain silent. If you wish to exercise that right, say so out loud.
- You have the right to refuse to consent to a search of yourself, your car or your home.
- If you are not under arrest, you have the right to leave. If you do try to leave say that will be leaving and do so calmly and peacefully.
- You have the right to a lawyer if you are arrested. Ask for one immediately.
- Regardless of your immigration or citizenship status, you have constitutional rights.
- Stay calm and be polite.
- Do not interfere or obstruct the ICE or police investigation.
- Do not lie or give false documents.
- Remain as calm and do not run, or resist if ICE or police arrest you.
- Assert your rights to remain silent by telling police you do not want to make any statement and would like a lawyer.
What qualifies as “currently in school?”
To meet the “currently in school” requirement, you must be enrolled in:
- A public, private, or charter elementary school; junior high or middle school; high school; secondary school; alternative program; or homeschool program that meets state requirements;
- An education, literacy, or career-training program (including vocational training) that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in post-secondary education, job training, or employment, and where you are working toward such placement; or
- An education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other equivalent state-authorized exam.
NOTE: On Feb. 16, 2015, a federal district court in Texas issued an order that puts the expanded DACA program on hold temporarily. People cannot apply for expanded DACA at this time. However, people who believe they are eligible for DACA under the pre-expansion guidelines may still apply for DACA.
How was the DACA program expanded?
The following three changes to DACA were made on November 20, 2014:
- Previously, a person could qualify for DACA only if he or she was born on or after June 16, 1981. Under the “expanded” DACA program, people born before June 16, 1981, will qualify for DACA.
- Under the pre-expansion requirements, a person must have lived continuously in the U.S. since June 15, 2007 in order to qualify. Under the “expanded” program, a person must have lived continuously in the U.S. since January 1, 2010 in order to qualify.
- Under the pre-expansion requirements, DACA deferred action and work permits were issued for two-year renewable periods. After November 24, 2014, the “expanded” DACA will be issued for a three-year renewable period.