Saturday, June 27, 2009

Right to refuse to consent to search

Here is an article on reporting on a recent Nevada case holding that it is improper for a prosecutor to comment on the refusal to consent to a search, just like it is improper for a prosectuor to comment on the exercise of other constitutional rights.

It's particularly useful becase we have been arguing (so far unsuccesfully) that it is improper in DUI cases to comment on the refusal to take a breath test in a DUI case, or to use the refusal as evidence. So far a lot of decisions have relied on Fifth Amendment analysis (saying that a blood/breath test isn't testimonial).

But if you apply a straight-forward Fourth Amendment analysis, as was applied in the Nevada case, it seems like the same result should obtain. You have a right to refuse consent (even if the officers have other authority to conduct the search over your refusal to consent).

Let's say officers have a warrant to search your house, but they know it might be on shaky grounds. So they come to your house and first ask for consent to search, which would render any problems with the warrant moot. But you refuse consent. Can a prosecutor use that refusal at trial against you? Not according to the Nevada case. Even though the officers could go ahead and search pursuant to the warrant. And why would investigation of DUI be any different? Even if the officers can require the test under their statutory authority, you still have the right to refuse.

Anyway, keep this in mind in these cases where the state is relying on the statute that says refusal is admissible in DUI cases.

[Update: here is a Sentencing Law and Policy post reporting that the Ohio Supreme Court upheld a statute criminalizing refusal to take a chemical DUI test in light of a Fourth Amendment challenge.]

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