Exclude defendant’s refusal to consent to a search
A suspect’s right to refuse a search is as sacred as a suspect’s right to refuse to talk with the police. Therefore, such refusal by a criminal defendant should generally be excluded at trial. Whether or not the refusal follows advice from cops about the right to refuse, the jury is not permitted to consider the refusal for purposes of inferring any guilt. Sampson v. Nevada, 122 P.3d 1255, 121 Nev. Adv. Rep. 80 (2005).
The Nevada Supreme Court in 2005 confirmed that the federal courts are in agreement as follows concerning evidence of refusal to consent to a warrantless search as evidence of guilt:
The Fifth Circuit, when determining that it was constitutional error for a trial court to permit the prosecutor to comment or present testimony on a defendant’s refusal to consent to a warrantless search to support an inference of guilt, pointed out that all of the circuit courts that have addressed this issue have determined that a defendant’s refusal to consent to a warrantless search may not be used as evidence of guilt. U.S. v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002) (citing U.S. v. Moreno, 233 F.3d 937, 940-41 (7th Cir. 2000); U.S. v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999); U.S. v. Thame, 846 F.2d 200, 205-08 (3d Cir. 1988); United States v. Prescott, 581 F.2d 1343, 1351-52 (9th Cir. 1978)). At least two other state courts agree with this analysis. See Padgett v. State, 590 P.2d 432, 434 (Alaska 1979); Mackey v. State, 234 Ga. App. 554, 507 S.E.2d 482, 484 (Ga. Ct. App. 1998).
Sampson v. Nevada, 122 P.3d 1255, 1261 n.8
Sampson provides good arguments for putting a defendant’s refusal to consent to a warrantless search on par with refusing to talk with the cops, for purposes of keeping the refusal from jurors’ ears:
Courts addressing this issue recognize that there are similarities between exercising Fourth Amendment rights and exercising other constitutional rights, and they determine that it is improper for the State to effectively punish a defendant for asserting her constitutional rights. 10 [Citing United States v. Thame, 846 F.2d 200, 206-07 (3d Cir. 1988), cert. denied, 488 U.S. 928 (1988); and United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. ).] One court has stated, “Just as a criminal suspect may validly invoke his Fifth Amendment privilege in an effort to shield himself from criminal liability, so one may withhold consent to a warrantless search, even though one’s purpose be to conceal evidence of wrongdoing.” [Citing Prescott, id.]
Sampson v. Nevada, 122 P.3d 1255, 1261.
The foregoing Sampson and Prescott decisions permit a judge to give a curative instruction — rather than to declare a mistrial — when evidence comes in of the defendant’s refusal to submit to a consensual search:
This court has previously addressed references made during trial to a defendant’s exercise of her Fifth Amendment rights, and in Morris v. State, 12 we set forth the test to determine whether such a comment results in reversible error. In Morris, we held that references to a defendant’s exercise of her Fifth Amendment rights are harmless beyond a reasonable doubt and do not require reversal of a conviction if, “(1) at trial there was only a mere passing reference, without more, to an accused’s post-arrest silence, or (2) there is overwhelming evidence of guilt.” 13 Today we adopt this test for comments on a defendant’s exercise of Fourth Amendment rights. Thus, where there is only a mere passing reference, without more, to an accused’s invocation of Fourth Amendment rights, there is harmless error.
Sampson v. Nevada, 122 P.3d at 1262.
Consequently, a motion in limine often will be adviseable to head off testimony about such refusal. Jon Katz
ADDENDUM: Armed with the foregoing caselaw, how does a defendant exclude evidence of a defendant’s refusal to submit to field sobriety tests in a drunk driving case? In such states as Maryland that consider field sobriety tests to constitute warrantless searches — Blasi v. State, 167 Md. App. 483, 893 A.2d 1152, cert. denied, 393 Md. 245, 900 A.2d 751 (2006) — such refusal should be excluded from evidence, because refusal to submit to warrantless searches is not admissible for considering consciousness of guilt. Sampson v. Nevada, 122 P.3d at 1261-62.