Prosecutor’s repeated, yet unobjected to, references to defendant refusing consent to show consciousness of guilt was plain error. People v. Pollard, 2013 COA 31, 307 P.3d 1124 (2013):
[*P28] Courts in other jurisdictions uniformly hold that the prosecution may not use evidence of a person's refusal to consent to a search to prove his or her guilt through an inference of guilty knowledge or consciousness of guilt. See United States v. Clariot, 655 F.3d 550, 555 (6th Cir. 2011) ("The exercise of a constitutional right, whether to refuse to consent to a search, to refuse to waive Miranda rights or to decline to testify at trial, is not evidence of guilt."); United States v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002) ("[T]he 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."); Prescott, 581 F.2d at 1351 ("[Refusing to consent to a search] cannot be a crime. Nor can it be evidence of a crime. ... [I]f the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be 'freely and voluntarily given.'") (citations omitted); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979) (Fourth Amendment right to refuse consent "would be effectively destroyed if, when exercised, it could be used as evidence of guilt"); State v. Stevens, 267 P.3d 1203, 1209 (Ariz. Ct. App. 2012) (court "erred by permitting the State to introduce as direct evidence of guilt that [the defendant] invoked her Fourth Amendment rights and then argue she did so because she knew police would find illegal drugs and drug paraphernalia inside her house"); People v. Keener, 195 Cal. Rptr. 733, 736 (Cal. Ct. App. 1983) (use of evidence of refusal to consent to "demonstrate a consciousness of guilt merely serves to punish the exercise of the right to insist upon a warrant"); Gomez v. State, 572 So. 2d 952, 953 (Fla. Dist. Ct. App. 1990) ("Comment on a defendant's denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant's right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.") (footnote omitted); Mackey v. State, 507 S.E.2d 482, 484 (Ga. Ct. App. 1998) ("refusal to consent to the search cannot be used as evidence of guilty knowledge"); State v. Wright, 283 P.3d 795, 806 (Idaho Ct. App. 2012) ("[E]liciting testimony from a witness regarding a defendant's refusal to consent to a search, when used for the purpose of inferring guilt, is prosecutorial misconduct ...."); Coulthard v. Commonwealth, 230 S.W.3d 572, 584 (Ky. 2007) ("Generally, ... exercising one's privilege to be free of warrantless searches is simply not probative (or has low probative value) to a determination of guilt, and thus, the defendant's right to not be penalized for exercising such a privilege is paramount."); Longshore v. State, 924 A.2d 1129, 1159 (Md. 2007) ("A person has a constitutional right to refuse to consent to a warrantless search of his or her automobile, and such refusal may not later be used to implicate guilt. An unfair and impermissible burden would be placed upon the assertion of a constitutional right if the State could use a refusal to a warrantless search against an individual."); People v. Stephens, 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); Ramet, 209 P.3d at 270 ("The defendant's invocation of his Fourth Amendment right [to refuse consent to a search] cannot be used as evidence of a crime or consciousness of guilt ...."); State v. Banks, 790 N.W.2d 526, 533-34 (Wis. Ct. App. 2010) ("[I]t is a violation of the defendant's right to due process for a prosecutor to comment on a defendant's failure to consent to a warrantless search. It has long been a tenet of federal jurisprudence that a defendant's invocation of a constitutional right cannot be used to imply guilt ....") (citations omitted).
[*P29] Courts recognize, however, that the prosecution may use evidence of a person's refusal to consent to a warrantless search for purposes other than to support an inference of guilt. See Runyan, 290 F.3d at 249 n.18; People v. Chavez, 190 P.3d 760, 766 (Colo. App. 2007) (upholding admission of evidence of a defendant's refusal to consent to a search to impeach the defendant's assertion that he did not live in a particular place); see also Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (evidence of refusal to voluntarily provide a blood sample was admissible to attack the defendant's claim of cooperation: "Before there was ever any mention of the blood test, [the defendant] had already launched himself on his theme of cooperation. The prosecutor was entitled to question that theme by showing that the leitmotiv was actually one of resistance."); United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (evidence of refusal to consent to search was admissible where it was "introduced, not to impute guilty knowledge to [the defendant], but for the proper purpose of establishing dominion and control over the premises where a large part of the cocaine was found"); United States v. McNatt, 931 F.2d 251, 256-58 (4th Cir. 1991) (evidence of refusal to consent to search was admissible as a fair response to the defendant's claim that Drug Enforcement Agency agent had planted cocaine in the defendant's truck; under such circumstances, use of the evidence was "not an unfair penalty for defendant's asserting a constitutional privilege"); Coulthard, 230 S.W.3d at 582 (evidence of refusal to consent to a search was admissible for rebuttal and impeachment of the defendant's claim of self-defense).
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)