There is no per se rule that “You can’t do that. You can’t search my car.” was a violation of the Fourth Amendment. Under traditional 403 probative value v. prejudice balancing, the trial court did not err in admitting it in a bench trial because it was probative to prove defendant’s possession. [Well, the officers smelled marijuana coming from defendant’s car in a convenience store parking lot, and he was the only one in it. In addition, while the court finds it not a per se violation of the Fourth Amendment, it does not analyze the Fourth Amendment question at all and subordinates it to Rule 403.] Ames v. Commonwealth, 2017 Va. App. LEXIS 277 (Nov. 7, 2017) (unpublished):
The appellant argues that the challenged statements could not be used as substantive evidence of his guilty knowledge of the presence of the contraband in the car any more than an accused’s exercise of his or her Fifth Amendment right to remain silent can be used as evidence of guilt. See Griffin v. California, 380 U.S. 609, 615 (1965) (holding that the prosecution may not comment on “the accused’s silence” and that the trial court cannot instruct the jury that “such silence is evidence of guilt”). He suggests that assertions of Fourth Amendment rights are per se inadmissible evidence but provides no applicable legal authority supporting this proposition.
We see no basis for creation of such a per se rule.
The appellant also contends that the challenged statements were inadmissible under the traditional probative versus prejudice framework because the trial court failed to adequately consider the unfairly “prejudicial effect of penalizing” him for asserting his Fourth Amendment rights. Generally, relevant evidence should be excluded only if “the probative value of the evidence is substantially outweighed by … the danger of unfair prejudice.” [under Rule 403]
The appellant’s question why he was arrested was not prejudicial; it did not tend to “inflame irrational emotions” or give rise to “impermissible inferences,” particularly in the context of a bench trial. Thomas, 44 Va. App. at 758, 607 S.E.2d at 746. To the extent that the appellant’s question of why he was “arrested” and his declaration that the police officers could not search his car supported the inference that the appellant knew that he had contraband in the
car, that incidental prejudice was outweighed by the evidence’s probative value.
The Commonwealth sought to prove the sequence of events underlying the charge of resisting arrest as well as the appellant’s connection to the car. The appellant’s question why he was “arrest[ed]” was relevant to the charge of resisting arrest. In addition, his declaration that the officers could not search “his” car was probative of his connection to the vehicle and consequently relevant to the charges relating to possession of the contraband inside it.
At least it’s not binding authority even in Virgina. h/t to a Virginia reader.