3. Returning U.S. Citizens Retain Their Fifth Amendment Right To Silence. Some lawyerly commenters have noted that, when CBP forces a traveller to stand at its kiosks, the traveller is not under full, must-read-Miranda arrest. At many U.S. airports (depending on the federal appellate circuit in which the airport is located), this makes no difference.
Although the lower courts have issued conflicting decisions, the judicial trend is to hold that pre-arrest silence is entitled to Fifth Amendment protection. And, as a practical matter, what a returning U.S. citizen doesn’t say is far less likely to boomerang than what she does say.
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