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.”
The Court explained that “[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.'” United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978).. . .The Birchfield decision also held that while refusal to consent to a blood test could result in civil penalties under implied consent laws (such as loss of a driver’s license), it could not result in criminal penalties.