CA9: Comment on refusing consent was not plain error where no objection

AUSA’s unobjected-to comment in closing argument defendant didn’t consent to taking biological samples in a murder case was not plain error. United States v. Zamastil, 550 Fed. Appx. 446 (9th Cir. 2013):

We review prosecutorial statements to which the defendant does not object for plain error. United States v. Brown, 327 F.3d 867, 871 (9th Cir. 2003). The district court did not plainly err by allowing the government to briefly question about Zamastil refusing to provide his biological samples absent a search warrant, or by permitting the government to reference the search warrant’s execution in its closing argument. Because it is improper for a prosecutor arguing to the jury to “note[] that [a defendant] did not consent to a search” by law enforcement, United States v. Taxe, 540 F.2d 961, 968-69 (9th Cir. 1976), the government referencing the search warrant in closing argument may have been error. However, this potential error was not “clear and obvious” under established law. See United States v. Romero-Avila, 210 F.3d 1017, 1022 (9th Cir. 2000). Our precedent does not bar evidence of a defendant’s possible refusal to consent to a search due to such evidence’s admission violating the defendant’s Fourth Amendment rights, or the government’s bare mention of a search warrant in its closing argument.