IA: Admission of refusal of consent was evidentiary error because it was ambiguous and prejudicial

Using defendant’s refusal of consent against her was prejudicial and reversible error. The court expressly did not decide the issue as a constitutional violation, but decided it as an evidentiary error. State v. Thomas, 766 N.W.2d 263 (Iowa App. 2009):

On the other hand, when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the prejudice. For instance, evidence of refusal to consent to a warrantless search has been admitted as “fair response” to rebut a defendant’s theory. See Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (noting that comments regarding one’s exercise of Fourth Amendment rights are generally improper unless such comments fairly rebut a claim by defendant–in this case, evidence showing that defendant was the only suspect who refused to voluntarily give a blood sample was properly admitted to rebut defendant’s claim that he cooperated with the investigation); United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (finding no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were admitted for proper purposes and were not meant simply to penalize defendant for exercising a constitutional right–in this case, the evidence helped establish that defendant had dominion and control over the premises); United States v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991) (finding no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were in fair response to defendant’s argument that drugs were planted by police in his vehicle).

. . .

C. Relevance of Refusal of Consent. We have already set forth in some detail the testimony of and argument surrounding the admission of Thomas’s refusal to consent to a search. Thomas’s refusal to consent to a search of her home was a recurring theme in the State’s case. The prosecutor’s justification for the refusal to consent evidence was “it would be evidence of the defendant’s recognition that she had illegal substances in her residence and so therefore wasn’t going to grant consent because if officers went in and did a search, they would find the drugs.” This is precisely the improper inference the rules of evidence seek to avoid.

Contrary to the prosecutor’s argument, a defendant’s refusal to consent to a warrantless search is too ambiguous to be relevant–it could mean several things, particularly when it is made post-arrest and post-Miranda. As one court has concluded:

Because the right to refuse entry when the officer does not have a warrant is equally available to the innocent and the guilty, just as is the right to remain silent, the refusal is as “ambiguous” as the silence was held to be in United States v. Hale …. Yet use by the prosecutor of the refusal of entry, like use of the silence by the prosecutor, can have but one objective to induce the jury to infer guilt. In the case of the silence, the prosecutor can argue that if the defendant had nothing to hide, he would not keep silent. In the case of the refusal of entry, the prosecutor can argue that, if the defendant were not trying to hide something … she would have let the officer in. In either case, whether the argument is made or not, the desired inference may be well drawn by the jury. This is why the evidence is inadmissible in the case of silence. It is also why the evidence is inadmissible in the case of refusal to let the officer search.

Inadmissible evidence, which can readily be misinterpreted by the jury, should not be admitted just to put the relevant facts in their true setting …. [T]he facts in issue are so ambiguous as to be irrelevant. Moreover, they are so readily subject to misinterpretation by a jury as to render a curative or protective instruction of dubious value.

United States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978) (internal citations omitted) (emphasis added). As Thomas’s counsel argued,

if someone comes and knocks on my door and says they want to walk through my house, I have the absolute right to say no it is not–it is not indicative of anything other than I know what my rights are.

We conclude the evidence of Thomas’s refusal to consent was irrelevant and unfairly prejudicial, and the district court erred in admitting it.