The Fifth Amendment right against self-incrimination means people cannot be forced to reveal to government officials any information that might subject them to criminal prosecution, including during a search. Government officials include police officers, prosecutors, judges and others.
What does the Fifth Amendment say about your rights during a search?
The Fifth Amendment states, in full, as follows:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
More simply, people have the right to remain silent, even during a search of their person, property and belongings. In fact, people do not even have to agree to a police search of their person, property and belongings. And, even if you initially give police consent to search, you may not realize that you can take away your consent to search at any time. But the Fifth Amendment allows you to do that.
How should you exercise your Fifth Amendment rights during a search?
Even though you have the right to remain silent during a search, attorneys often advise that people to make it clear that they are exercising their Fifth Amendment right to remain silent. However, note that making such a statement is not necessary in order to have the protection of the Fifth Amendment against self-incrimination. For this reason, attorneys also encourage you to clearly state that you do not consent to a police search. This kind of a clear statement can help you down the road in court.
This does not mean, however, that you don’t have to say anything. In some states, people must provide their name if police ask them to identify themselves, and police may arrest you for refusing to do so. Police may also search your person, property or belongings without your consent in certain circumstances.
Specifically, police may conduct a frisk or pat-down search to retrieve dangerous weapons. Police may conduct a search based on probable cause of potential crimes. Police may conduct a search in an emergency. And police may also obtain a search warrant authorizing a search. Through it all, people need not say anything to police to assist law enforcement with their search or criminal investigation.
The Takeaway:
The Fifth Amendment includes the prohibition against self-incrimination. This prohibition prevents the government from forcing you to reveal information that might expose you to criminal prosecution. These protections apply throughout a criminal case, including during a search.
