With the “fifth amendment loophole” police could use your silence during a traffic stop against you
Imagine this. You’re pulled over for speeding. The cop asks if you’ve been drinking. You stay silent, thinking you’re safe under the Fifth Amendment. But what if that silence gets used against you in court? It’s not a far-fetched nightmare—it’s a legal loophole police have used in the past. The only way to protect yourself? Say, “I’m invoking my Fifth Amendment rights.” Just staying silent could backfire on you.
When silence gets twisted under the Fifth Amendment
Juan Selenas learned this the hard way. Police questioned him about a murder. He voluntarily answered most questions—until they asked if his father’s shotgun matched shell casings at the scene. Selenas froze and went silent.
Prosecutors pounced. They argued an innocent man would’ve said “no” immediately. Attorney Jeff Hampton explains, “Because he chose to remain silent, they inferred guilt from his silence.”
Despite his defense, the court ruled that Selenas’ silence wasn’t protected by the Fifth Amendment. Hampton warns, “Instead of preserving his innocence, his silence was actually used as evidence of guilt.”
The Fifth Amendment loophole explained
So how is this legal? The Supreme Court ruled that the Fifth Amendment doesn’t automatically protect your silence unless you explicitly invoke it.
Hampton breaks it down: “You must clearly articulate your desire to be silent in the face of police questioning.” Staying quiet isn’t enough—you need to say it out loud. He adds, “The courts decided that silence, in and of itself, can be used as a weapon against you.”
This loophole is even worse during traffic stops. Officers often ask casual questions—like “Where are you coming from?”—before you’re formally under arrest. If you stay silent without invoking the Fifth Amendment, that silence can raise suspicion. Hampton explains, “In voluntary interactions with the police, they can use your silence against you in court.”
How to protect your rights during traffic stops
If you’re stopped, don’t panic. But don’t stay completely silent either. Instead, invoke your Fifth Amendment rights—out loud. Hampton stresses, “The correct response is: ‘I’m invoking my Fifth Amendment right to remain silent, and I will not answer any more questions.’”
You can follow these steps:
- Stay calm and polite.
- Say, “I’m invoking my Fifth Amendment rights.”
- Refuse searches without a warrant.
- Ask, “Am I free to leave?”
- Repeat your rights if pressured.
Want to know more about how police use this loophole? Attorney Jeff Hampton explains it in detail—and shows how to defend yourself. Watch the full breakdown in the video below:
