NJ finally holds that the state’s repeated references to defendant refusing consent as consciousness of guilt violated his Fourth and Fifth Amendment rights. State v. Sui Kam Tung, 2019 N.J. Super. LEXIS 101 (June 28, 2019):
No published case in New Jersey has addressed whether evidence regarding a defendant’s refusal to consent to a search may be properly admitted at trial. However, federal and state courts have uniformly held that, because suspects have a constitutional right to refuse consent to a search, it is improper to allow a refusal to consent to be used at trial as evidence suggesting guilt or guilty knowledge. See United States v. Thame, 846 F.2d 200, 206-07 (3d Cir. 1988) (concluding that it was error for the prosecutor to argue in summation that the defendant’s refusal to consent to a full search of his luggage at a train station was evidence of his guilt, but reversal was not required where there was considerable other evidence of his guilt); see also United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (reversing the defendant’s conviction where the trial court erroneously allowed evidence from the forcible entry and warrantless search of her apartment and holding that her refusal to consent to a warrantless search was “privileged conduct which [could not] be considered as evidence of criminal wrongdoing”).
Federal “circuit courts that have directly addressed this question have unanimously held that a defendant’s refusal to consent to a warrantless search may not be presented as evidence of guilt.” United States v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002); accord United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (noting that “asking a jury to draw adverse inferences from such a refusal may be impermissible if the testimony is not admitted as a fair response to a claim by the defendant or for some other proper purpose”); United States v. McNatt, 931 F.2d 251, 257-58 (4th Cir. 1991) (holding that evidence of the defendant’s refusal to consent to search was admissible to respond to the defendant’s claim that police planted evidence, not as an inference of guilt).
Likewise, various state courts have consistently held that evidence of a defendant’s refusal to consent to a search is inadmissible at trial. In a sexual assault case, the defendant, on the advice of counsel, refused to voluntarily provide a DNA sample, which was ultimately obtained pursuant to a warrant. State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126, 129-30 (Wash. Ct. App. 2013) (finding “manifest constitutional error” where the prosecutor argued in her closing that the defendant refused to provide a DNA sample because he was guilty). The Gauthier court held that “[t]he jury should not be allowed to infer guilt” from a defendant’s refusal to consent to a warrantless search. Id. at 131.