Consent to enter to arrest did not permit search of a case under bed / Denial of possession does not open door to refusal to consent

In a classic example of a scope of search being limited to that which is being sought, an officer who was permitted to enter to search for a person for whom he had an arrest warrant looked under a bed and pulled out a case and looked inside. That exceeded the scope of search. Looking in the closet was permissible, and the officer found guns. When defendant came home, the officer determined that defendant was a felon, so the seizure of the guns from the closet was valid. He pulled them out for his own safety until the search for the warranted person was complete. State v. Giamarco, 2007 Ohio 6794, 2007 Ohio App. LEXIS 5950 (5th Dist. December 3, 2007).*

Defendant’s mere denial he was in possession of drugs found in his car was not “opening the door” to the state’s offering evidence of his refusal of consent. He had a right to refuse consent, and this was not “opening the door” to anything. And, the state is caught parsing a quotation in its brief to leave out the part that benefits the defendant. State v. Moller, 217 Ore. App. 49, 174 P.3d 1063 (2007):

In this case, defendant exercised his constitutional right to refuse consent to a warrantless search of his car. And, the admission of evidence of that refusal invited inferences prejudicial to his defense. It would seem necessarily to follow that the trial court erred in admitting the evidence of defendant’s refusal. As we have noted, the state concedes that ordinarily it is erroneous to admit evidence of a defendant’s refusal to consent to a search. The state nevertheless insists that no reversible error occurred in this case because defendant, by insisting that he knew nothing of the contents of the car, invited the state to disprove the assertion with evidence of his refusal. Quoting Green, the state contends that evidence of defendant’s refusal to consent to the search “is relevant in that it shows that he believed that the results [of a search] would tend to incriminate him and thus shows that he believed that he was guilty.” 68 Ore. App. at 522.

The state does not explain, however, and we do not understand, how a defendant “opens the door” to testimony about a decision to invoke his constitutional rights merely by denying that he committed the crime charged. The state’s reliance on Green certainly does not provide the answer to that question. The portion of the decision that it quotes is taken from this court’s explanation of why evidence of a defendant’s exercise of constitutional rights cannot be admitted, i.e., precisely because it may give rise to an inference that the defendant believes that he or she had something to hide. It is, we explained in the balance of the paragraph from which the state derives its quotation,

“testimony concerning the defendant’s belief in the central issue of the case. For him to reveal his inner thoughts [by electing, in that case, to refuse to take a field sobriety test] is necessarily to make a communication, whether by words or by actions. For the state to compel a defendant to reveal those thoughts is to require him to testify against himself and thus to violate Article I, section 12, of the Oregon Constitution.”

Id. at 522-23.

Changing the argument on appeal from the one presented to the trial court is a waiver of the argument not presented to the trial court. State v. Jones, 217 Ore. App. 110, 174 P.3d 1037 (2007).*