Many people are now concerned about what rights the passenger in a vehicle has when the driver is pulled over for a traffic offense or as part of a roadblock or police license check. The Supreme Court has said that passengers have constitutional rights and can challenge any stop or search if it is not constitutionally valid. So, what are those rights?
Before we get to YOUR rights, lets note the rights of the police officers: They can order a passenger to get out of a car, back into the car, and to do a check for weapons through a simple pat down. They can ask for the identification documents of a passenger, and can ask for the passenger’s name. And, they can expect that any commands relating to their safety be followed to the letter.
What Rights Do Passengers Have?
As a general matter passengers have the same rights as the driver. These rights are:
- The right to free from unreasonable searches;
- The right to remain silent;
- The right to refuse to consent to a search (other than a pat down for weapons); (if the police ask to search to car, be sure to state out loud that you do NOT consent to the search).
- The right to challenge the stop;
- The right to legal counsel if you are being charged with a crime; and
- The right to challenge a search.
In additional Passengers have additional rights:
- Refusal Rights–If an officer pulls a driver over for speeding, during the initial stop, any passengers cannot reasonably be suspected of “speeding by association.” Passengers may refuse to answers any questions including their name.
- Right to Challenge the length of a stop–Passengers may[politely object to the reasonableness of a length of a traffic stop. Generally, the police my detain someone for a “reasonable” period of time without formally arresting them in order for the police do to their job. However, any period of time longer than the short time it takes to verify the license or insurance check of the driver may be used by the passenger as the basis of a susupicionless and unreasonable stop.
- You cannot be legally arrested for refusing to identity yourself to a police officer, unless you are charged with loitering or prowling. That is why you can ask the officer, who asks for your identity, if you are suspected of any crime. He says you are suspected of loitering, you are required to identify yourself, but not required to produce any documents. If he says you are not suspected of any crime, then exercise your right to remain silent. It goes without saying that as a passenger, you should not provide any false or fake documents or lie to an officer by giving a false name.
- You can refuse to answer any question that asks about your immigration status, your birth country, or that asks you to produce any immigration documents. (ICE can request such documents and information, but again, you have the right to remain silent and to refuse to answer such questions). Remember, any answer you give, that in any way suggests that you are undocumented, out-of-status, or otherwise engaged in activity that could render you deportable will certainly be used against you by the police and by ICE.
- Passengers have the right to politely ask the officer if they are free to go, and if they are under arrest or detention. It is essential, that if you are going to ask this, that you be very polite, do not make any sudden moves, and do not in any way put forth a threatening demeanor. A police officer’s safety and ability to control a suspected crime will always be of utmost important to the officer and the courts.
What To Do If You Are Arrested
- Whether or not you are guilty, go with the officer. Do NOT resist arrest. An attorney will fight for you after you are processed.
- Remain silent! Tell the police nothing except your name, age, and address. Don’t give explanations or stories or try to excuse the conduct.
- Ask to speak with an attorney immediately. You can do so by phone right after being taken into custody. If you are arrested and face jail time but can’t afford a lawyer, you may request that a public defender be appointed to represent you. Don’t talk to the police until your lawyer is present.
- Don’t talk to your cell mates. No one is your friend when you are in custody.
- If the police say they have a warrant, ask to see it. Whether or not the police have a warrant to search you or your property, you can protect your rights by making it clear that you do not agree to any search. Do not physically resist if the police continue their search.
- Do not sign ANY immigration papers without first talking to an experienced immigration attorney, like those at Kuck Immigration Partners at 404-816-8611.
- You have NO legal obligation to answer questions from an ICE official or any Sheriff’s deputies or police about your country of origin, how you entered the United States, or what your current immigration status is. By answering these questions, you will certainly put yourself in deportation proceedings.
- If you are detained on state traffic or criminal charges and have an ICE Hold, the ICE Hold does NOT take effect until either the traffic or criminal charges are dismissed, or you pay the bond associated with the charges. Only then does the ICE 48 voluntary hold period being (not counting weekends or holidays). Generally, we advise to pay the bond immediately, even over the objections of the jail, to being that 48 hour period. If ICE does not pick you up within those 48 hours, the jail must, by law, release you.
- Finally, don’t put yourself in a situation where you could be stopped by the police. Don’t drive with someone who has been drinking, smoking marijuana, or doing drugs. Don’t get into a car in which you suspect there are drugs or other illegal substances (you will be charged with their possession even if they are not yours). And, to put it bluntly, don’t do stupid things or hang around with people who do stupid things!
At Kuck Immigration Partners we are here to help you and your loved ones through this difficult time. Please call us with any questions or concerns, or call today at 404-816-8611 for an appointment to discuss your immigration options.