Essential Know Your Rights Info For Anyone Physically Within the United States

What to do if the Police or ICE Come to Your House

Fourth Amendment

The Fourth Amendment states in part, quote, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Arrest Warrants

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably crossed without a warrant.

Police

This means that generally, the police must have a valid and lawfully issued search or arrest warrant issued by a neutral and detached magistrate or judge, based upon probable cause, before they can enter your home without your consent to search for items or persons described in the warrant to be seized. A Form I-200, U.S. Department of Homeland Security Warrant for Arrest of Alien doesn’t cut it.

Judicially issued warrants shall only be issued upon a finding of probable cause, which must be based upon specific articulable facts that the items, (such as instrumentalities or fruits of a crime) are more likely than not to be located within the home, or that a person whom the police have probable cause has committed a crime will be located in the home.

ICE

In matters where ICE is attempting to arrest an individual within a home, ICE must have an arrest warrant issued by a federal magistrate or federal judge, not ICE or other Department of Homeland Security Officials ferreting out potential violations of potential immigration law.

What to Do When Authorities Come to Your Home

If the Police or ICE come to your home, they generally must announce their presence before making entry. Note that in some circumstances, such as where they have probable cause that their announced presence may result in threats to officer safety, the destruction of evidence, or the flight of an individual described in an arrest warrant, authorities may make unannounced entry.

If the Police or ICE come to your home, do not immediately open the door. Grab your phone and record the encounter. You are permitted to record the police or ICE while they are engaged in their official capacities, as long as you do not unlawfully interfere with them.

Next, request that they present to you a valid warrant to search your home or to arrest someone that they believe is in your home. Let them insert that warrant underneath the door or show it to you by putting it up to a window.

If the document looks like it has been signed by a court, you should open the door. If you are not presented with a document that looks like it’s been signed by a court, you can continue to speak to them through the closed door or not speak with them.

Whether you open the door, which I do not recommend if you are not presented with a valid warrant issued by a court, you are not required to answer any of their questions.

Fifth Amendment Right to Remain Silent

The Fifth Amendment of the U.S. Constitution states in part, quote, “No person shall be compelled in any criminal case to be a witness against himself.” This means that the government does not have the authority to make you answer questions that may incriminate yourself.

Sixth Amendment Right to Counsel

The Sixth Amendment of the U.S. Constitution states in part, quote, “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.” This means that you have the right to speak with an attorney before answering any questions from the police or ICE.

Forced Entry into Home by Law Enforcement

If the Police or ICE force their way into your home, do not resist. Tell everyone in the home to remain silent and don’t answer any questions until they have had the opportunity to privately speak with a lawyer.

You have the right to remain silent. You do not have to discuss anything with them including your immigration status, whether you are a U.S. citizen or anything. If you have valid immigration documents you should show them. If you are arrested, say that you wish to speak to a lawyer before answering any questions. After making that clear, police or ICE should honor that request. They cannot compel you to say anything once you have invoked those rights.

Immediately contact an attorney as soon as possible if you believe your rights have been violated by a government official. If a state or local official violates your constitutional rights, you may have a claim where you could recover damages under 42 U.S.C. 1983- titled, “Civil Action for Deprivation of Rights.” If a federal official violates your constitutional rights, you may have a claim where you could recover damages, which is called a Bivens claim, under the 1973 U.S. Supreme Court precedent from case named Bivens v. Six Unknown Named Agents.

What to do if the Police or ICE stop Your Car

Fourth Amendment

The Fourth Amendment states, quote, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Automobile Warrant Exception

While this means that law enforcement must generally have a warrant issued by a neutral and detached judge or a magistrate upon a showing of probable cause, the U.S. Supreme Court in a case called, Carroll v. United States (1924) stated in part, quote “… if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”

The Supreme Court reasoned that it may not be practicable to secure a warrant to search a vehicle, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Therefore, it’s important to keep in mind that if the police or ICE either observe illegal contraband in plain sight in your vehicle, other evidence of a crime, or they smell illegal substances such as Marijuana, they will likely be lawfully permitted to search your vehicle without a search warrant and without your consent, so long as they are able to point to specific articulable facts to build probable cause to trigger the Supreme Court’s Automobile exception to the Fourth Amendment’s warrant requirement.

Circling back to the Marijuana example, if the police smell marijuana emanating from your car, they will likely be permitted to search any part of your car which could contain marijuana, which is basically your entire car, that is of course, if marijuana is outlawed by your state’s laws.

Traffic Stop

If the Police or ICE attempt to stop your car, pull over in a safe, preferably well-lit area if it is dark out, and stop as soon as you can make safely stop your vehicle. Don’t flee. Turn your car off. Then turn on the cabin lights in your car if it is dark out, so the Police or ICE can see you. You don’t want to give them the appearance that you maybe have a weapon, or that you may otherwise present a threat to officer safety. Grab your phone and place it in your cupholder or another location and record your encounter. Recording police and ICE while they are acting within their official capacities in public is protected First Amendment conduct. Plus if something goes wrong with the stop, you have a record that you can provide your lawyer. Further, police generally need a warrant or your consent to access the contents of your phone.

Finally, roll down your driver’s side window and be courteous, respectful and appear cooperative. If it is the police, be prepared to present a copy of your driver’s license, registration and proof of insurance. The police are permitted to ask for these items and you are required to provide them if you are driving. If you are driving a rental car, have the rental reservation documents handy. Never present fake documentation or identification.

Be aware that the police or ICE may lawfully request that the driver and passengers exit the car for officer safety, pursuant to the U.S. Supreme Court’s rulings in two cases named Pennsylvania v. Mimms (1977) and Maryland v. Wilson (1997). Officers may then pat you down for weapons if they have reasonable suspicion that you may be armed and pose a threat to them.

If you are not a U.S. citizen, but you are legally in the United States, federal law requires you to carry your immigration paperwork with you, if you are over the age of 18. If you have valid documents, present them if you are stopped by ICE.

If you are not a U.S. citizen, and you are in the United States illegally, remain calm. Do not resist, run, lie or provide false documents. Stay even keeled and do not answer any questions.

Fifth Amendment Right to Remain Silent

The Fifth Amendment of the U.S. Constitution states in part, quote, “No person shall be compelled in any criminal case to be a witness against himself.” This means that the government does not have the authority to make you answer questions that may incriminate yourself.

Don’t Answer Questions, Don’t Consent to a Search

Therefore, do not answer any questions about your day, where you are coming from, your immigration status, how much you had to drink tonight or anything for that matter. However, be respectfully in declining to answer any questions. For example, say, “officer, I respectfully decline to answer any questions.”

Additionally, do not consent to any searches.

Sixth Amendment Right to Counsel

The Sixth Amendment of the U.S. Constitution states in part, quote, “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.” This means that you have the right to speak with an attorney before answering any questions from the police or ICE.

Refuse to Speak with Police or ICE

Finally, if you are arrested, make it clear that you refuse to answer any questions until you have had the opportunity to speak with a lawyer.

Immediately contact an attorney as soon as possible if you believe your rights have been violated by a government official. If a state or local official violates your constitutional rights, you may have a claim where you could recover damages under 42 U.S.C. 1983- titled, “Civil Action for Deprivation of Rights.” If a federal official violates your constitutional rights, you may have a claim where you could recover damages, which is called a Bivens claim, under the 1973 U.S. Supreme Court precedent from case named Bivens v. Six Unknown Named Agents.

What to do if the Police or ICE Come to Your Workplace or Business

Fourth Amendment

The Fourth Amendment states, quote, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

ICE In Workplace or Business

Generally, Police and ICE may enter places of a business that are open to the general public without any prior authorization. However, Police and ICE are not allowed to enter places of the premises that are not open to the public, like a back office, employee breakroom, employee only restrooms, kitchens, employee locker rooms, etc. Make sure that you take your phone a film the encounter but do not touch or obstruct the officers from lawful conduct. Filming police and ICE while they are engaged in their duties or acting under color of law is conduct that is protected by the First Amendment of the U.S. Constitution.

Further, the police or ICE cannot make you delete the contents of your phone or search the contents of your phone without your permission or a valid search warrant issued by a magistrate or judge. Additionally, send a text message or email to your attorney that the police or ICE are at your workplace or business. Whatever you do, do not run, or get violent or make threats of violence against Police or ICE. If you run or physically fight, they will have probable cause to seize you.

Finally, shut your mouth and do not answer any questions that the Police or ICE may ask you. Simply and respectfully state, “I do not wish to answer any questions until I speak with a lawyer.” Then ask “Am I free to go.” If they say you are free to go, walk away. If they say you are being detained, do not walk away but respectfully ask, “what crime am I suspected of committing.” Make sure to record this exchange if possible. At a minimum, try to have a non-police or non-ICE person present as a witness.

Fifth Amendment Right to Remain Silent

The Fifth Amendment of the U.S. Constitution states in part, quote, “No person shall be compelled in any criminal case to be a witness against himself.” This means that the government does not have the authority to make you answer questions that may incriminate yourself.

Valid Search Warrant Parameters

If the Police or ICE have a valid search warrant to search your work place or business, that is issued by a neutral and detached magistrate or judge, that specifically authorizes the Police or ICE to search the employee only areas of a business for things such as prohibited contraband or individuals named to be seized and arrested, they may search. Beware, a Form I-200, U.S. Department of Homeland Security Warrant for Arrest of Alien or similar document is not a valid warrant because it is not issued by a Judge or Magistrate through a Court. In other words by the judicial branch, not the executive branch.

If the Police or ICE have a valid, judge or magistrate issued warrant, which should have a caption of the Court it is issued from and a judicial signature, you must permit them to conduct a search as prescribed in the warrant. As a non-ICE related example, if the Police are searching a home or other place for a shotgun that is named in a valid warrant, they cannot access areas where a shotgun could not fit like a medicine cabinet or a night stand drawer. In other words, police and ICE cannot search areas that could not possibly contain items or persons to be seized in a warrant.

As another example, if ICE comes with a valid arrest warrant to be executed at your workplace or business for a named individual, they cannot search for places where that individual could not possible be like in drawers, or on your computer. Also know that any contraband in plain view may also be seized by the Police in addition to whatever they are searching for, provided they locate that.

You may observe the Police or ICE conduct their search pursuant to a validly issued warrant, but keep your distance and do not obstruct their search or make any physical contact with them.

If the Police or ICE do not have a valid, Judge or Magistrate issued search or arrest warrant, naming the specific location to be searched, and the items or persons to be seized, do not consent to a search of the non-public areas of the business or work place. If you say no to a search, they will generally need a come back with a warrant signed by a judge or magistrate to conduct a search, which must be based upon a judge or magistrate’s finding of probable cause.

Again, if the Police or ICE attempt to ask you questions, respectfully decline to answer any questions. If you or a co-worker or employee are seized, they should assert that they will not answer any questions until they have spoken with an attorney.

Sixth Amendment Right to Counsel

The Sixth Amendment of the U.S. Constitution states in part, quote, “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.” This means that you have the right to speak with an attorney before answering any questions from the police or ICE.

Forced Entry into Business by Law Enforcement

If the Police or ICE force their way into your work place or business, do not resist. Tell everyone in the business or work place to remain silent and don’t answer any questions until they have had the opportunity to privately speak with a lawyer.

You have the right to remain silent. You do not have to discuss anything with them including your immigration status, whether you are a U.S. citizen or anything else for that matter. If you have valid immigration documents you should show them. If you are arrested, say that you wish to speak to a lawyer before answering any questions. After making that clear, police or ICE should honor that request. They cannot compel you to say anything once you have invoked those rights.

Immediately contact an attorney as soon as possible if you believe your rights have been violated by a government official. If a state or local official violates your constitutional rights, you may have a claim where you could recover damages under 42 U.S.C. 1983- titled, “Civil Action for Deprivation of Rights.” If a federal official violates your constitutional rights, you may have a claim where you could recover damages, which is called a Bivens claim, under the 1973 U.S. Supreme Court precedent from case named Bivens v. Six Unknown Agents.

What to do if the Police or ICE Stop you in Public

First Amendment

The First Amendment of the U.S. Constitution states in part, quote, “Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

First Amendment Filming

While the U.S. Supreme Court has not yet addressed this issue, several U.S. Circuit Courts of Appeals have found that taking photos and filming in public places is also protected First Amendment Conduct.

The Seventh Circuit Court of Appeals for example, in a case called Am. C.L. Union of Illinois v. Alvarez, in 2012 held quote, “the act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”

Also know that the police generally cannot search the contents of your phone or make you delete contents according to the U.S. Supreme Court’s 2014 ruling in a case called Riley v. California.

Police Encounters

If you are approached by Police or ICE, it’s always best to remain polite, respectful and even keeled. You are protected by the Fourth Amendment of the U.S. Constitution from unreasonable searches and seizures of your person and your belongings. And remember you are permitted to film your encounter, as long as you do not obstruct lawful police or ICE actions, such as lawfully arresting another individual in your vicinity.

Fourth Amendment

The Fourth Amendment states in part, quote, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The Fourth Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

Police Stops and Detentions

If you are stopped or detained by police, be polite, don’t resist, and ask, “Am I free to go?” Remember, until you ask to leave, being stopped is considered voluntary.

If the police respond, “no, you are not free to go”, then you are being detained. If you are being detained, politely ask what crime you’re suspected of committing.  

In order to detain you, police or ICE must have a reasonable suspicion that you are engaged in or about to engage in criminal activity. Generally, the authority of ICE to detain you only relates to violations of U.S. federal Immigration law. That reasonable suspicion must be based on specific facts that the police can articulate. Police and ICE cannot detain you based solely on “inchoate and unparticularized suspicions or hunches.” There must be “some minimal level of objective justification” for making the stop.

Keep in mind though, if you feel that you are being unlawfully detained, ask to contact an attorney and let them sort it out.

The U.S. Supreme Court has stated in a case called United States v. Sokolow in 1989, quote, “The concept of reasonable suspicion, like probable cause, is not “readily, or even usefully, reduced to a neat set of legal rules.” In evaluating the validity of a stop we must consider “the totality of the circumstances the whole picture.”

Know that if you are stopped, if officers have a reasonable belief under the circumstances, they can conduct an exterior pat down of your body, known as a Terry stop, to feel for weapons for officer safety.

Fifth Amendment Right to Remain Silent

The Fifth Amendment of the U.S. Constitution states in part, quote, “No person shall be compelled in any criminal case to be a witness against himself.” This means that the government does not have the authority to make you answer questions that may incriminate yourself.

The Fifth Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

Sixth Amendment Right to Counsel

The Sixth Amendment of the U.S. Constitution states in part, quote, “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense.” This means that you have the right to speak with an attorney before answering any questions from the police or ICE.

The Sixth Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

Assert Your Rights

You have the right to remain silent. You do not have to discuss anything with them including your immigration status, whether you are a U.S. citizen or anything. If you have valid immigration documents you should show them. If you are arrested, say that you wish to speak to a lawyer before answering any questions. After making that clear, police or ICE should honor that request. They cannot compel you to say anything once you have invoked those rights. 

Immediately contact an attorney as soon as possible if you believe your rights have been violated by a government official. If a state or local official violates your constitutional rights, you may have a claim where you could recover damages under 42 U.S.C. 1983- titled, “Civil Action for Deprivation of Rights.” If a federal official violates your constitutional rights, you may have a claim where you could recover damages, which is called a Bivens claim, under the 1973 U.S. Supreme Court precedent from case named Bivens v. Six Unknown Named Agents.

Contact Biazzo Law at (703) 297-5777; corey@biazzolaw.com if you need assistance.