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Refusal of a search is inadmissible at trial

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Bill of Rights

Bill of Rights (From public domain.)

Sometimes prosecutors try to present evidence at trial that my client refused a search. They may not do so:

“A person has a constitutional right to refuse to consent to a warrantless search of his or her automobile, and such refusal may not later be used to implicate guilt. An unfair and impermissible burden would be placed upon the assertion of a constitutional right if the State could use a refusal to a warrantless search against an individual. See, e.g., United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978); Garcia v. State, 103 N.M. 713, 712 P.2d 1375, 1376 (N.M. 1986). Moreover, a person’s refusal to consent to a warrantless search cannot form the basis of reasonable suspicion or probable cause. See Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991) (noting that ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure’); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983) (holding that a person ‘may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds’); United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997) (holding that ‘[t]he failure to consent to a search cannot form any part of the basis for reasonable suspicion’). See also Kenneth J. Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 937 (2002) (rejecting the constitutionalization of what the author terms an evidentiary issue, stating that evidence of refusal to consent is inadmissible ordinarily, not necessarily because it punishes a person for assertion of a constitutional right, but because refusal to consent is not probative of guilt or suspicion and is thus irrelevant).”

Longshore v. Maryland, 399 Md. 486, 537-38, 924 A.2d 1129 (2007).

The foregoing Longshore decision reversed the defendant’s conviction, finding that the introduction before the jury of testimony that defendant refused a search — even if not intentionally produced by the prosecution, but instead by a police witness on the stand — was not harmless error. Id. at 538.

Following the foregoing legal analysis, because field sobriety tests are searches,  Blasi v. State, 167 Md. App. 483, 893 A.2d 1152, cert. denied, 393 Md. 245, 900 A.2d 751 (2006), refusal to perform such tests also is inadmissible at trial.

Most importantly, refuse police searches.

Jon Katz.