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What To Do If Stopped By Police Or Immigration

If an undocumented alien is stopped by an Immigration or police officer without probable cause or reasonable suspicion, a Court Motion to Suppress may be initiated to prevent the evidence obtained by immigration from proving that the alien is illegally present in the U.S. This evidence is excludable to discourage the government’s illegal action. The Constitutional basis for a Motion to Suppress is based on the Fourth and Fifth Amendments, and the Due Process clause of the Constitution.

Suppression motions would exclude physical, documentary or testimonial evidence. The government must prove that the arrested individual is an alien who is illegally present in the U.S. An attorney should not concede at a hearing the alien’s age; neither the alien’s country of birth. In Immigration Court the alien through his lawyer must object to the evidence offered against him or her. Otherwise the Motion to Suppress will be denied because the body or identity of a Respondent was provided voluntarily by the arrested party. A proper Motion to Suppress must prove at the proceedings that this evidence was illegally obtained.

If immigration agents enter a home without a warrant, and question the residents about their immigration status and the alien objects to revealing any facts of his or her identity, any evidence collected would likely be suppressed because the Immigration Service had taken possession of the home or apartment without a warrant. The argument would be that the occupants were not able to leave because of police pressure and that their answers were compelled. Even though the government may have obtained the name of a restrained individual due to the unlawful restraint, and thereby the government is able obtain the birth certificate, the birth certificate could be suppressed because of the unlawful detention. If the government is led to a preexisting file for the alien because the government has illegally found the name of the person, the person’s identity was thereby illegally obtained. The evidence would be banned because the information was unlawfully obtained. Constitutional violations such as downtown stops, random arrests, vehicle stops would exclude this evidence obtained as a result.

The exclusionary rule remains available for egregious violations, namely transgressions of fundamental fairness that undermine the value of the evidence obtained.

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