By the National Lawyers Guild
Although civil liberties seem to be eroding with the likes of the Department
of Homeland Security, the Patriot Act, and no-fly lists, we still have
a few basic rights to make use of. Here, the National Lawyers Guild
provides a clear outline of what everyone should know.
Whether or not you’re a citizen, you have rights under the U.S.
Constitution. The Fifth Amendment gives every person the right to remain
silent: not to answer questions asked by a police officer or government
The Fourth Amendment restricts the government’s power to enter and search
your home or workplace. Without a warrant, police or government agents may not
search your home or office without your consent, and you have the right to refuse
to let them in. They can enter and search without a warrant in an emergency.
New laws have expanded the government’s authority to conduct surveillance.
It is possible that your e-mail, cell and other telephone calls, and conversations
in your home, office, car or meeting place are being monitored without your knowledge.
The First Amendment protects your right to speak freely and advocate for social
change. However, if you are a noncitizen and are deportable, the Department of
Homeland Security (DHS) can target you based on your political activities. (Note:
The Immigration and Naturalization Service (INS) is now part of the DHS.)
Constitutional rights cannot be suspended—even during a state of emergency
or wartime. And they have not been suspended under the “USA PATRIOT Act” or
other recent legislation.
Q: What if police, FBI, or immigration agents contact me?
A: You have the constitutional right to remain silent. It is not a crime to refuse
to answer questions. It is a good idea to talk to a lawyer before agreeing to
answer questions. You can’t lawfully be arrested for refusing to identify
yourself on the street, although this may make the police suspicious, and police
and other agents do not always follow the law. Otherwise, you do not have to
talk to anyone: on the street, at your home or office, if you’ve been arrested,
or even if you’re in jail. Only a judge has the legal authority to order
you to answer questions.
There is only one exception: in some states outside of California, it can be
a crime to refuse to give you name if you have been detained. You do not have
to show ID or give any other information such as your address or immigration
Q: Do I need a lawyer?
A: You have the right to talk to a lawyer before you decide whether to answer
questions. And if you do agree to be interviewed, you have the right to have
a lawyer present. The lawyer’s job is to protect your rights. Once you
tell the agent you want to talk to a lawyer, they should stop trying to question
you and make any further contact through your lawyer. If you don’t have
a lawyer, you can still tell the officer you want to speak to one before answering
questions. Remember to get the name, agency, and telephone number of any investigator
who calls or visits you, and give that information to your lawyer. The government
does not have to provide you with a free lawyer unless you are charged with a
crime, but the NLG or another organization may be able to help you find a lawyer
for free or a reduced rate.
Q: If I refuse to answer questions or if I say I want a lawyer, won’t
seem like I have something to hide?
A: Anything you say to law enforcement can be used against you and others. Talking
to the FBI or other agents can be dangerous. You can never tell how a seemingly
harmless bit of information might be used to hurt you or someone else. That is
why the right not to talk is a fundamental right under our Constitution. Keep
in mind that although they are allowed to lie to you, lying to a government agent
is a crime. The safest things to say are, I am going to remain silent, I want
to speak to my lawyer, and I do not consent to a search.
Q: Can agents search my home, apartment or office?
A: You do not have to let police or other law enforcement agents into your home
or office unless they have a search warrant. A search warrant is a written court
order that allows the police to conduct a specified search. Interfering with
a warrantless search probably will not stop it and you might get arrested. But
you should say, “I do not consent to a search,” and call a criminal
lawyer or the NLG. Do not answer any questions. Your roommate or guest can legally
consent to a search of your house if the police believe that person has the authority
to give consent, and your employer can consent to a search of your workspace
without your permission.
Q: What if I am not at home?
A: Under the “USA Patriot Act,” under certain circumstances agents
may surreptitiously search and not notify you until afterward, perhaps a long
time afterward. It is uncertain whether this provision will stand up in light
of the Fourth Amendment. If you suspect your home or office has been searched
or that you are being surveilled, contact a criminal lawyer or the NLG.
Q: What if agents have a search warrant?
A: If you are present when agents come for the search, you can ask to see the
warrant. The warrant must specify in detail the places to be searched and the
people or things to be taken away. If the police have a warrant, you cannot stop
them from entering and searching, but you should still tell them that you do
not consent to a search. This will limit them to search only where the warrant
authorizes. Ask if you are allowed to watch the search and if so, you should.
Take notes, including names, badge numbers, what agency each officer is from,
where they searched and what they took. If others are present, have them act
as witnesses to watch carefully what is happening. Give this information to your
lawyer. If the officers ask you to give them documents, your computer, or anything
else, look to see if the item is listed in the warrant. If it is not, do not
consent to them taking it without talking to a lawyer. Even if they have a search
warrant, you still do not have to answer any questions. Talk to a lawyer first.
Q: Do I have to answer questions if I have been arrested?
A: No. If you are arrested, you do not have to answer any questions. Ask for
a lawyer right away. Repeat this request to every officer who tries to talk to
or question you. You should always talk to a lawyer before you decide to answer
Q: What if I speak to government agents anyway?
A: Even if you have already answered some questions, you can refuse to answer
other questions until you have a lawyer.
Q: What if the police stop me on the street?
A: Ask if you are free to go. If they say yes, consider just walking away. If
the police say you are not under arrest, but are not free to go, then you are
being detained, but this does not necessarily mean you will be arrested. The
police can pat down the outside of your clothing if they have reason to suspect
you might be armed and dangerous. If they search more than this, say calmly and
clearly, “I do not consent to a search.” They may keep searching
anyway. You do not have to answer any questions.
Q: Do I have to give my name?
A: In California, you cannot be detained or arrested for merely refusing to give
your name. But you can be in some states, including New Mexico and Nevada. And
in any state, police do not always follow the law, and refusing to give your
name may make them suspicious and lead to your arrest, so use your judgment.
If you feel that your name may be incriminating, you can claim the right to remain
silent, and if you are arrested, this may help you later. Giving a false name
could be a crime.
Q: What if police or agents stop me in my car?
A: If you are driving a vehicle, you must show your license, registration and
proof of insurance. Keep your hands where the police can see them. You do not
have to consent to a search. But the police may have legal grounds to search
your car anyway. Clearly state that you do not consent. Officers may separate
passengers and drivers from each other to question them, but no one has to answer
Q: What if I am treated badly by the police or agents?
A: Write down the officer’s badge number, name or other identifying information.
You have the right to ask the officer for this information. Try to find witnesses
and their names and phone numbers. If you are injured, seek medical help and
take pictures of the injuries as soon as possible. Call a lawyer or the NLG as
soon as possible.
Q: What are my rights at airports?
A: You gave airport personnel permission to scan you and your bags by
buying a ticket and going to the airport. They can do additional random searches
persons and property regardless of whether the initial scan turns up anything
suspicious. If the scan does disclose something that might be a weapon, the law
is unclear whether you have the right to leave the airport rather than being
searched. The airplane pilot can refuse to fly a passenger if he or she believes
the passenger is a threat to the safety of the flight. And if you are entering
the country, the U.S. Customs Service has the right to stop and search every
person and item. But you should not be barred from flying or subjected to special
searches or harassment on the basis of your race, sex, religion, national origin,
or political beliefs.
The National Lawyers Guild is an organization of progressive lawyers, law students,
legal workers and jailhouse lawyers fighting for social justice. This text is
adapted from their pamphlet “Know Your Rights” with more extensive
information from their website. Reprinted with kind permission. To learn more,
contact www.nlg.org or (212) 679-5100.