Everyone in the United States, non-citizens included, has certain fundamental legal rights under the United States Constitution. The following material about those rights is for informational purposes only and does not consititute legal advice. For details, see
Your Right to Remain Silent.
Among our Constitutional Rights is the Fifth Amendment Right to remain silent. This right is always active. It does not spring to life only after one is arrested. It does not come into being only when we are advised of our Miranda rights following an arrest. ("You have the right to remain silent. Anything you say can and will be used against you in a court of law. . . . ") The right to remain silent can be invoked at any time because law enforcement will use anything you say against you, even if you say it before you are arrested,
Many of us are unaware of the scope of this fundamental right to remain silent. We wrongly believe that we must cooperate whenever a police officer asks us a question. But doing so may lead us to waive another related fundamental right: the right to not incriminate ourselves.
Many officers are clever at getting us to say things that are against our own best legal interests. Courts have even empowered officers to pursue that objective by giving them permission to lie to us without punishment. However, our lying to officers is an offense, punishable in some cases by six months in jail, or more. (Cal. Veh. Code section 31; Cal. Pen. Code section 148.9(a), to name just two such offenses.)
This is all the more reason to choose to invoke our Constitutional Right to remain silent when confronted by law enforcement. While officers must lawfully investigate reports of crimes, so too are we legally protected from aiding them in our own prosecution.
When approached by law enforcement in public places, at work, or at our homes, we have no legal obligation to speak with officers or to answer their questions. Whether we are approached casually, or as a possible subject in an investigation, we may lawfully inform officers that we choose not to speak with them based on our Fifth Amendment Rights.
If you are arrested, your Fifth Amendment Rights are there to protect you when you inform officers that you choose to remain silent and that you want to talk to a criminal defense lawyer only.
Your Right to Refuse to Consent to a Warrantless Search
Also among these rights is your Fourth Amendment Constitutional Right to refuse to consent to a warrantless search of your person, possessions, home and vehicle.
Frequently during encounters with law enforcement, officers will ask us if we would mind if they search our persons. They may ask to search our possessions - our purses, suitcases, backpacks, cell phones, and the like. If approached at our homes, they may ask us to allow them to enter; once inside, they may ask if we would mind if they looked around. During a traffic stop, they may request to look inside our vehicles - under the seats, inside glove compartments and trunks.
In none of those circumstances are we legally required to consent to their request. In every one of them we have the Constitutional Right to tell them, "No. You may not."
When police have a lawful reason to conduct a warrantless search, they don't need to ask for your permission first. They search first, and ask questions later.
The purpose of a search is to collect evidence that can be used to charge us with a crime. (Police may also conduct a limited warrantless search of our person, but to do so they must first have a legitimate reason to believe we pose a threat to their safety.)
Only lawfully obtained evidence is admissible in court. Warrantless searches are unlawful, unless police have a legitimate reason to conduct the search. There are only a handful of reasons the law recognizes as legitimate. When police do not have one of them, they must first ask for your permission to make the search lawful and any evidence obtained admissible.
If you grant their request, your consent transforms what would have been an illegal warrantless search (with inadmissible evidence) into a lawful warrantless search (with admissible evidence.) In asking for your consent, police are not simply being polite.
Even when police believe they have a lawful reason to conduct a warrantless search, it is still preferable to object. A defense lawyer reviewing the facts leading up to the search may determine, as I have done in certain cases, that police wrongly believed they had a lawful reason to conduct a warrantless search. Under these circumstances, evidence obtained is inadmissible in court. However, one's failure to object to the search may be seen by a court as a grant of voluntary consent, thereby legitimizing an otherwise illegal search.
Protect yourself during encounters with law enforcement. Your Fourth Amendment Constitutional Right to refuse to consent to a warrantless search does just that.