Month: July 2016

Right for Counsel at a Port of Entry

There is a scene in the movie Charles, where as Ray Charles is exiting the airplane in New York’s airport, the FBI detains him.  His attorney tries to intervene and he gets a cold answer from the agent:  “This is a port of entry, he has no right to counsel.”  Unfortunately, that is true. Under current law an applicant for admission is not entitled to representation in primary or secondary inspections, unless he or she “has become the focus of a criminal investigation and has been taken into custody.”  An individual that is being detained cannot communicate with any individual until he has been processed.  That processed may be an arrest, a removal or simply questioning.

If an individual is being questioned he does have a right not to answer any questions and he can request for an attorney to be present.  However, if an individual requests access to a attorney during a personal search, more likely than not he will be advised by the officer that a personal search is not an interrogation and that the individual is thus not entitled to an attorney during the search.  Also, a detained individual does not have the right to consult with an attorney until his Miranda warnings are given.

It’s clear that an individual does not have a right to counsel during primary or secondary inspection.  However, that individual has a right not to answer any questions and he can always invoke his or her fifth-amendment right.  Also, any inspections on any devices have to be “reasonable.”  If one is being questioned during an inspection he should answer truthfully, but in the event he may self incriminate he can always invoke his rights under the fifth-amendment.