CO: References before jury to defendant refusing consent were plain error

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).