NV: DA’s comment on defendant’s refusal of consent required reversal

The DA’s comment on defendant’s refusal of consent required reversal. Defendant had a constitutional right to refuse consent. Ramet v. State, 125 Nev. 195, 209 P.3d 268 (2009):

While there are no Nevada cases on point, the Ninth Circuit Court of Appeals, in United States v. Prescott, held that “refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing.” 581 F.2d at 1351; see also United States v. Taxe, 540 F.2d 961, 969 (9th Cir. 1976). That court reasoned that “[t]he right to refuse [entry] protects both the innocent and the guilty, and to use its exercise against the defendant would be, as the Court said in Griffin, a penalty imposed by courts for exercising a constitutional right.” Prescott, 581 F.2d at 1352. We agree with the reasoning of the Ninth Circuit. Allowing the prosecution to use evidence of a defendant’s invocation of a constitutional right against him would “make meaningless the constitutional protection against unreasonable searches and seizures.” Bargas v. State, 489 P.2d 130, 132 (Alaska 1971).

Other jurisdictions have also held that the prosecution may not use a defendant’s refusal to consent to a search as evidence of guilt. See U.S. v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000) (the Fourth Amendment entitled defendant to withhold consent to the search, and so introducing the invocation of that right as evidence of guilt may have been inconsistent with due process); U.S. v. Thame, 846 F.2d 200, 206-07 (3d Cir. 1988) (error for the prosecutor to argue that the defendant’s refusal to consent to search of his bag constituted evidence of his guilt); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979) (right to refuse to consent to warrantless search of car would be “effectively destroyed if, when exercised, it could be used as evidence of guilt”); State v. Palenkas, 188 Ariz. 201, 933 P.2d 1269, 1280, 1282 (Ariz. Ct. App. 1996) (prosecutor’s use of defendant’s contacting his attorney and his invocation of his right to refuse a warrantless search as evidence of his guilt denied due process and required a new trial); People v. Wood, 103 Cal. App. 4th 803, 127 Cal. Rptr. 2d 132, 136 (Ct. App. 2002) (defendant’s invocation of his rights under the Fourth Amendment was improperly used to demonstrate his consciousness of guilt; however, this error was harmless); People v. Keener, 148 Cal. App. 3d 73, 195 Cal. Rptr. 733, 735-36 (Ct. App. 1983) (the trial court improperly admitted evidence of defendant’s refusal to allow police to enter his apartment to show a consciousness of guilt); Gomez v. State, 572 So. 2d 952, 953 (Fla. Dist. Ct. App. 1990) (police officer’s comment on defendant’s refusal to consent to a search without probable cause was constitutional error); People v. Stephens, 133 Mich. App. 294, 349 N.W.2d 162, 163-64 (Mich. Ct. App. 1984) (the Fourth Amendment gives the defendant the constitutional right to refuse to consent to a search and the assertion of that right cannot be evidence of a crime).

We agree with the cases cited above; therefore, we hold that the State may not introduce evidence of a defendant’s refusal to submit to a warrantless search, or argue it to the jury as evidence of guilt. The defendant’s invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt, and the district court abused its discretion by admitting this evidence.