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Convicted for a felony after a cop sees the car going one mile over the speed limit – KNOW YOUR RIGHTS

Nov 13, 2011 Convicted for a felony after a cop sees the car going one mile over the speed limit – KNOW YOUR RIGHTS

For over a decade, my website has prominently featured a Know Your Rights page and one-page printable version of those rights. Those rights are prominently linked in the blue KNOW YOUR RIGHTS box on the lefthand side of this blog. Repeatedly, people get arrested, and often convicted for not knowing those rights, or else for knowing those rights but not exercising them. I religiously hand the rights list to those who meet with me about their criminal cases. Some of them who return to me as repeat clients — even after having had the list for over a year — have in the second go-around given up the rights listed therein to remain silent and to refuse searches.

Who knows whether Saul Guijon-Ortiz knew he had no obligation, as a car passenger, to hand over his permanent residence/green card to a deputy sheriff who stopped the car in which he was a passenger, for a moving violation. Who knows whether he knew he had no obligation to answer the telephone inquiries of an immigration official about his immigration status in the United States, all without receiving Miranda rights to remain silent during the twilight zone of Deputy Flowers’s obtaining the car’s occupants and checking for open arrest warrants and immigration violations, a twilight zone during which courts repeatedly do not require Miranda  warnings. U.S. v. Guijon-Ortiz, ___ F.3d ___ (4th Cir., Nov. 10, 2011).

This I know. Mr. Guijon had a falsified green card. He had no obligation to show any identification. He did not even have an obligation to say who he was. Had he just clammed up and not handed over his false green card, today he would not stand convicted and sentenced in federal court for illegal entry after deportation, which conviction the Fourth Circuit upheld on November 10, 2011.

Having given up his right to keep his mouth shut and not to provide any identification document to the deputy sheriff, Mr. Guijon was left with little more to argue on appeal than that the officer detained his green card too long — after finding no open arrest warrants — by following up with spending time to find the phone number for Immigration and Customs Enforcement, putting Mr. Guijon on the phone with ICE, and ICE determining that he was in the United States unlawfully. Mr Guijon by now has been ICE-picked. 

In refusing to suppress the evidence uncovered through the extra step in Deputy Flowers’s calling ICE, the Fourth Circuit ruled the extra delay de minimis, ad the Fourth Amendment’s not having been violated. Guijon also takes the time to address other circuits that have addressed the issue of extended detentions during traffic stops beyond the original purpose for the stop, all in accord with the Fourth Circuit.

What are the racial and ethnic profiling undertones and overtones of Guijon? How are they absent? Consider what the deputy sheriff said led him to follow Guijon’s car:

With his radar, [Deputy Flowers] clocked a passing Dodge pickup truck at 66 miles per hour on a stretch of highway with a posted limit of 65 miles per hour. Flowers testified that the driver braked when he saw Flowers with his radar gun, and that the driver and front passenger turned their heads down (away from Flowers) as they passed. Flowers pulled off the shoulder and began to follow the truck.

Guijon (emphasis added).

What are the foreign language issues in Guijon? Consider this:

[Deputy] Flowers then asked [the driver, Juan] if Guijon-Ortiz spoke English; Juan replied that he did not. Flowers asked Juan to  repeat the request in Spanish, which he did. At that point, Guijon-Ortiz handed Flowers a Lawful Permanent Resident Card ("LPR card" or "green card") in the name of Daniel Gaitan (the "Gaitan ID").

Guijon.

Of course, the driver, Juan, had no obligation to tell Deputy Flowers about Guijon or his English abilities, nor to interpret Deputy Flowers’ request for Guijon’s identification document. Nobody told Juan he had no such obligation. Juan complied with the deputy, and he went free with his front seat passenger, with Guijon arrested, prosecuted, convicted and sentenced.

In sum: Guijon would not be convicted had he kept his mouth shut and his false green card to himself. His driver friend had no obligation to talk to Deputy Flowers, and that includes no obligation for Juan to tell Deputy Flowers about Guijon’s inability to speak English and no obligation for Juan to interpret the deputy’s words. Deputy Flowers would not likely have followed Guijon’s truck, exceeding the speed limit by only one mile per hour, if the occupants did not "look foreign." 

Know your rights with the police, and EXERCISE THEM.

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