Access to legal counsel at port of entry

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Old Jun 7, 15, 1:50 pm
  #31  
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http://en.wikipedia.org/wiki/Miranda_warning
in police custody (or in a custodial interrogation)
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Old Jun 7, 15, 2:27 pm
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@kaghitokiri The question is whether it's an interrogation, vs some other form of question. CBP aren't quite police; they're also customs, which comes under different law.
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Old Jun 7, 15, 2:37 pm
  #33  
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Originally Posted by saizai View Post
@kaghitokiri The question is whether it's an interrogation, vs some other form of question. CBP aren't quite police; they're also customs, which comes under different law.
CBP are federal law enforcement officers. They are indeed police.
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Old Jun 7, 15, 5:08 pm
  #34  
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you have to be in custody

what kinds of feds is it a crime to lie to? only agents like FBI and IRS?

Last edited by Kagehitokiri; Jun 7, 15 at 5:20 pm
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Old Jun 7, 15, 5:39 pm
  #35  
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Originally Posted by Kagehitokiri View Post
you have to be in custody

what kinds of feds is it a crime to lie to? only agents like FBI and IRS?
Lying to police is a crime. Best bet say nothing.
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Old Jun 8, 15, 6:56 am
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Originally Posted by Boggie Dog View Post
CBP are federal law enforcement officers. They are indeed police.
Yes, but I was making a more nuanced point. Some questioning from CBP might be interrogation, some might not.

Originally Posted by Kagehitokiri View Post
you have to be in custody
You're in custody whenever you're not free to go. That includes detention, not just arrest.

what kinds of feds is it a crime to lie to?
18 USC 1001(a)

… whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years, …
So basically any federal agent, with some limitations on judicial and legislative branches (see link). CBP definitely counts.
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Old Jun 8, 15, 6:58 am
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Also, see these handy flowcharts for 5th Amendment and 4th Amendment rights.

It covers what counts as 'custody' etc.
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Old Jun 8, 15, 8:07 am
  #38  
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then why do they never prosecute people who lie to CBP ? odd but good.

re-entry is an interesting question. technically one could fly back out then come back.
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Old Jun 8, 15, 8:22 am
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Originally Posted by Kagehitokiri View Post
then why do they never prosecute people who lie to CBP ?
I would assume they sometimes do. It's a pretty common charge — e.g. Dennis Hastert's current indictment has two charges, one of which is 18 USC 1001(a)(2), for lying to the FBI about why he was withdrawing money.

I would also assume that lying to CBP and getting caught would usually raise other actions so they might not bother. /shrug Prosecutors have a ton of discretion.

re-entry is an interesting question. technically one could fly back out then come back.
That'll probably raise a red flag for more search. Unless you're a USN they can bounce you without reason.
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Old Jun 8, 15, 9:03 am
  #40  
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Originally Posted by saizai View Post
Yes, but I was making a more nuanced point. Some questioning from CBP might be interrogation, some might not.
The part of your remark I responded to was this:

CBP aren't quite police; they're also customs, which comes under different law.
It is true that they are customs but it is not true that they "aren't quite police".

I don't get any nuance out of that statement just misinformation.
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Old Jun 21, 15, 6:39 pm
  #41  
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I did a little research with Westlaw and it appears the right to counsel had not attached at the time the OP tried to call his lawyer. According to US v. Salgado, a 1996 Federal Court case, the OP was still part of a routine inspection at the time he tried to call his lawyer and that he was not in custody yet ("restraint on freedom of movement of the degree associated with a formal arrest") and therefore, his right to counsel had not yet attached.

Since then, federal courts, especially courts of appeals, have been very much on the side of law enforcement and CBP so I don't think CBP was in the wrong for preventing you from calling your lawyer when they did.
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Old Jun 21, 15, 9:12 pm
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By the way, you can make a FOIA request for your entry/exit records, but in my experience they will redact any details about what transpired in secondary inspection or why you were sent there.
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Old Jun 23, 15, 12:30 am
  #43  
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If you are detained by law enforcement, whether CBP or local cops, you do not have the right to counsel on the spot. The sixth amendment specifically says that you have the right to counsel "in all criminal prosecutions". Unless CBP is planning to use your responses to file criminal charges, I don't see how you can claim that you are entitled to the presence of counsel while answering their questions.
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Old Jun 23, 15, 1:34 pm
  #44  
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Originally Posted by cbn42 View Post
If you are detained by law enforcement, whether CBP or local cops, you do not have the right to counsel on the spot. The sixth amendment specifically says that you have the right to counsel "in all criminal prosecutions". Unless CBP is planning to use your responses to file criminal charges, I don't see how you can claim that you are entitled to the presence of counsel while answering their questions.
And lawyers will advise people to not answer any questions asked by LEO's.

CBP are LEO's.
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Old Jun 24, 15, 5:03 am
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You shouldn't answer their questions. While you may not have the right to counsel, they should stop interrogating you if you ask for one and tell them you wish to remain silent.
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