A 2017 article by the Star-Telegram revealed that Hidalgo and Cameron County are the two most ticketed counties in Texas even though they are not among the most densely populated counties in Texas. Texas Highway Patrol (DPS) records obtained from the American Civil Liberties Union (ACLU) of Texas for the month of October 2017 shows that in that month alone, DPS made at least 17 traffic stops in the Rio Grande Valley that ended with a call to U.S. Customs and Border Patrol agents. According to DPS records, the majority of the stops were made because of minor traffic violations-alleged tail and/or headlamp violations, expired license plates or registrations, failure to drive in a single lane or to signal lane changes, failure to stop at a stop sign, speeding, etc. Two stops were also made due to alleged violations of the Federal Motor Vehicle Safety Standards Section 571.108 which outlines certain rules and regulations around lamps, reflective devices, and associated equipment.
While the information shared above may help illuminate precautionary measures undocumented members of our community may want to take, awareness of the reasons DPS says it pulls people over is not enough. Given the political climate created by the Trump administration, growing evidence of collaboration between DPS and immigration agents in the Rio Grande Valley, and the heavy policing border communities are being subjected to by multiple agencies, including local police, DPS, Border Patrol, and Immigration Customs Enforcement (ICE), all border residents need to know what their rights are and how to protect themselves if they are stopped or pulled over by any law enforcement officer. To this end, Neta did some research and checked in with community organizations and experts on the topic to provide border residents with a basic overview of their rights and various considerations they should be aware of.
Who has rights in the United States?
Everyone, regardless of their race, nationality, immigration status, religion, gender, sexual orientation, and what law enforcement agency they are dealing with has certain basic rights. Among them are the right to remain silent, to deny consent for warrantless searches, and to refuse to sign any documents or paperwork not fully understood. Rights are not automatic, however. They must be invoked.
If I am stopped or pulled over, what information do I need to share?
Regardless of immigration status, if a law enforcement officer stops you or pulls you over the only personal information you are required to provide is your name. You are NEVER required to provide any information about your immigration status, where you were born, how many years you have lived in the United States, etc.
Do I need to show identification?
If you are stopped or detained on the street, at work, or anywhere else that is not behind the wheel of a car, the only information that you must provide is your name. Texas drivers, however, must have a valid, legal, driver’s license. DPS or local police can write you a ticket or, worse, arrest you if you are caught driving without a license. If an officer requests an ID or driver’s license, individuals should make an assessment of their own risks and benefits.
In the case of undocumented residents, Marco Lopez, a community organizer with La Union del Pueblo Unido (LUPE) shared that they don’t recommend showing a foreign passport or consular ID. Although possessing foreign identification documents doesn’t necessarily mean that you are undocumented, an officer may make that assumption and call Border Patrol. If you choose to provide a form of identification, Lopez shared, it’s better to use “another type of ID…like if you’re a student and you have a school ID, if you have LUPE ID.” Lopez noted, however, that not all officers will accept these type of ID’s. Ultimately, it all depends on the officer.
If you’re a passenger in a car, all of the aforementioned rights apply to you! However, since you are not in the driver’s seat, you aren’t required to produce an I.D. or Driver’s License.
If I don’t answer or provide them with the information they want, how long can DPS or a police officer keep me there? Will they arrest me?
Without probable cause of a crime or violation of a law, officers shouldn’t detain you. This doesn’t mean that they won’t. Even if you know your rights and invoke them, there is no guarantee that the officer you are interacting with will also know them or that he won’t willingly choose to ignore them. When interacting with any officer, individuals should try make an analysis of the situation, the officer’s actions and demeanor, and the risks associated with their own body and identity. Officers are not always polite or adequately trained individuals capable of remaining calm and collected. As the Black Lives Matter movement has shown, people of color have a higher likelihood of experiencing abuse and brutality at the hand of officers.
One way to try to determine whether you are being detained is by politely asking, “Am I free to go?” If the officer says that you are, then you aren’t being detained or arrested. You should calmly leave the scene right away. If the officer, however, responds that you aren’t free to go that is a cue that the officer may plan to cite or arrest you. You have the right if ask if a ticket or citation will be issued. If you are being detained or arrested, you have a right ask on what grounds. This might put pressure on an officer to make sure he’s not detaining you more than he actually needs to, which may reduce the window of time that an officer has to request assistance from other agencies, Border Patrol included.
Beyond that, exercise caution with whatever information you share. Lying to an officer can be treated as a crime and create further complications. To avoid providing incriminating information or future complications, many attorneys and organizations usually recommend invoking your right to remain silent until a lawyer is present.
What rights do I have at home?
Although different rules apply to private property depending on the proximity to the border, a private residence is a constitutionally protected space. If a law enforcement officer(s) shows up at your home, you have the right to keep your door closed, to ask why they are at your doorstep, and to have them properly identify themselves.
Don’t open your door. The officer may lie or use a variety of excuses or ruses to get you to open your door. Don’t. Your door is the only thing between you and that officer. By opening the door, even if you just wanted to talk to the officer from the door, your actions may be interpreted as providing the officer with consent to enter your home (which they likely will) and to search anything and anyone.
Ask for a warrant. If an officer wants to enter your home, they need a warrant. Demand that they show you a warrant. If they have one, they can show it to you by sliding it under the door or by placing it against a window. Don’t just look at the warrant. Check it. A valid, legal, warrant should have your exact, correctly-spelled, name, your address, and should be signed by a U.S. judge. Border Patrol or ICE agents might try showing you an administrative warrant (which is not signed by a judge). If the warrant is an administrative Department of Homeland Security (DHS) warrant and not a warrant signed by an actual federal judge, you don’t need to open the door.
The warrant will specify what it gives an officer permission to do. If the warrant is an arrest warrant, it provides the officer with the right to arrest the named individual. The named individual may want to step out of the home to prevent giving access to their home. Without a search warrant detailing the areas the officer is authorized to search, an arrest warrant doesn’t give officers permission to search through your home or belongings. If an officer forcibly enters you home, do not resist, but make clear and state that you do not consent to the officer entering your home.
Officers may try to trick you into disclosing information that could later hurt you. Remember, you are never obliged to produce an ID or to answer any questions about your nationality, your status, etc. In some cities, Border Patrol and ICE have asked to screen people’s fingerprints. Do not consent. Whenever possible, always avoid giving unnecessary access to your information.
Sample ICE administrative warrants not signed by a judge. Obtained through the Immigrant Resource Legal Center. Click here for large samples.
The officer wants to conduct a search. What do I do?
If an officer wants to conduct a search, double check that they have warrant authorizing them to do so. If the officer asks to conduct a search on your person or through any of your belongings without a warrant or simply does so without asking, make sure to verbalize that you do not consent!
What rights do I have at school, work, and/or private properties?
While everyone has the right to remain silent and to refuse to provide incriminating information wherever they are, people in authority positions also possess special rights they should be aware of. If a law enforcement officer seeks entry into a school or business, administrators and business managers/owners, for example, may possess rights they can use to protect themselves and others.
“Officers need a warrant, consent, or exigent circumstances to enter non-public areas, but no warrant is needed for areas where the public may come and go freely,” stated Edgar Saldivar of the American Civil Liberties Union (ACLU). Non-public spaces include areas where a person has a reasonable expectation of privacy. Examples of such spaces may include gated private university dorms, the backend of a restaurant, and private work offices. Unless an officer has a valid warrant to arrest someone or conduct a search in such nonpublic spaces, school administrators and business owners may be able to refuse access to officials and ask them to vacate the premises.
Public spaces, however, are spaces anyone can generally walk into at will and where people do not have an expectation of privacy, like open areas of a public university or public parks. Like any other person, law enforcement officers can likely enter these spaces without a warrant.
If I am detained by police, Border Patrol, or any other law enforcement agency, what rights do I have in jail or in a detention center?
The right to remain silent continues to apply if you are arrested. If you’re sent to a county or local jail, local officials and/or ICE officials at the jail may collaborate and attempt to ask questions about your citizenship. According to Carlos M. Garcia, a Rio Grande Valley based immigration attorney, you can refuse to answer their questions. Invoking your right to remain silent is important because any information you provide can be used against you.
As practical advice, Garcia also stressed that people should not feel pressured to accept or go by whatever the Border Patrol or ICE agent tells them. Rather, they should demand to speak with an immigration attorney and—where applicable— for an opportunity to go before an immigration judge. “What the immigration officer tells you isn’t necessarily the truth,” Garcia stated. “You need to listen to the advice of someone who has only your interest in mind.” If you have are placed in deportation proceedings and fear for your safety if deported, Garcia indicated agents should be notified immediately.
What are my rights with Border Patrol at an immigration checkpoint?
Most Rio Grande Valley residents are aware of the permanent immigration checkpoint located about two hours away from Brownsville and one hour away from McAllen in Falfurrias, Texas.
According an ACLU of Arizona pamphlet, Border Patrol may ask a few, limited, questions to verify citizenship. They should not, however, ask “questions unrelated to verifying citizenship, nor can they hold you for an extended time without cause.” According to Saldivar, citizens are not required to show papers or ID, but the reality is they may not be allowed to proceed until the inspecting agent is satisfied that all occupants of the vehicle traveling through the checkpoint have a valid immigration status.
While anyone can assert their right to remain silent and to refuse to respond to questions about citizenship, it is important to note that “officials may detain you longer in an attempt to verify that you are legally present in the U.S.” which could pose certain risks for those who are not U.S. citizens.
Can I film officers? What are my rights with my electronic devices?
As a bystander in a public space, you have the right to photograph or film the police, ICE, and Border Patrol so long as you do so from a distance that does not interfere with their investigation or actions. When you are on a private property, however, the owner has the right to ask you to stop and to order you to leave their property if you refuse. Officers have the right to ask you to step back if they feel that you are interfering with their activities, but they don’t have a right to seize your camera or phone or to ask for your password unless they have a warrant for it. They don’t have a right to delete or alter any photographs or video you record either.
Harsher rules may apply to our electronics upon attempted entry or exit at the border and at immigration checkpoints. Although much about what the border patrol can and cannot do has yet to be definitively established, the Electronic Frontier Foundation (EFF), a digital rights non-profit, stated in a December 2017 report that they do not believe that the search or seizure of electronics or the request of passwords without a probable cause warrant is legal. In practice, however, different people will face different risks if they choose to assert their rights to not hand over their electronics or to provide passwords without a warrant. Anyone who is not a citizen, e.g. individuals with temporary immigration status or legal permanent resident status, should consider their own risk factors as they are likely to be subjected to higher scrutiny, harassment, and could see their status challenged.
Moreover, EFF also noted that while the matter remains legally gray, the reality is that if an agent asks for access to your devices and you refuse to provide it, the border patrol agent may seize it anyway. While they should not conduct an in-depth thorough and intrusive search without first obtaining a warrant, your device might still be under their possession for months. During this time not only will you not have any access to your device, you also will have no way of knowing for certain what they do or do not do with your device. In 2016, EFF noted the U.S. government reported 23,877 searches at the border, a five-fold increase from the previous year. According to the EFF, “every one of those searches was a potential privacy violation.”
For a more detailed analysis by the EFF as well as crucial device and electronic security recommendations, click here.
ACLU KYR Wallet Cards. Printable copies can be found here.
The importance of learning your rights cannot be overstated. However, just learning or even refreshing up on your rights is not enough. For most people, being pulled will cause stress and anxiety. Thinking ahead, imagining potential scenarios, and practicing invoking your rights can ensure you are better prepared in case a stop does happen. Equally important, is having a plan in case your rights are violated.
Although in stressful situations it can be very difficult to do this, if you believe that your rights are being violated you should try to collect as much information about the officer(s) as possible. To the best of your ability, try to obtain the officers’ names and badges and make immediate and detailed notes about their behavior and conduct. If your rights were violated all of these details may help you challenge you arrest.
Finally, know who to contact if your rights are violated. LUPE (956-787-2233) and the local chapter of the ACLU(956-465-1905) are two local organizations that residents can contact if they believe that their rights have been violated.