ESTHER GOMEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Esther Gomez was convicted of cocaine trafficking after a jury trial. The Fifth District Court of Appeal reversed and remanded for a new trial because a state witness improperly commented on Gomez's exercise of her Fourth Amendment right to refuse consent to search her vehicle.
The court held that commenting on a defendant's refusal to consent to a search constitutes constitutional error of the same magnitude as commenting on Fifth Amendment silence. While such error can be harmless, the state must prove beyond a reasonable doubt that the error did not contribute to the guilty verdict. Here, the error was not harmless because the evidence of Gomez's knowledge was circumstantial.
[1] A witness's comment on a defendant's refusal to consent to a search constitutes constitutional error of the same magnitude as commenting on the right to remain silent.
[2] A defendant has a constitutional right to refuse consent to a search when the officer lacks probable cause, and should be free to exercise this right without inference of…
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Join FLexlaw to unlock all legal intelligence“A defendant who has a constitutional right to refuse to consent to a search (as Gomez did here, because Bartholome did not have probable cause to search at that point) should be free to exercise that right with impunity. No comment on its exercise should be permitted to raise an inference of guilt, if the Fourth Amendment right against unreasonable search and seizure is to be given its full meaning.”
Establishes the core principle that defendants have a constitutional right to refuse consent searches and cannot have that refusal used against them
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Join FLexlaw to unlock all legal intelligenceOfficer Bartholome asked Gomez and a passenger for permission to search their vehicle for cocaine. Gomez refused. During cross-examination at trial, t…
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W. SHARP, Judge.
Gomez appeals from a judgment rendered after a jury trial which adjudicated her guilty of trafficking in cocaine in an amount of 400 grams or more. §§ 893.-135(l)(b)(3) and 893.03(2)(a)(4), Fla.Stat. (1987). She argues the search and seizure of her automobile was illegal for several reasons. None appears to have any merit. However, we agree with Gomez that she is entitled to a new trial because of a state witness’ comment on the exercise of Gomez’s Fourth Amendment right.1
While Officer Bartholome was being cross-examined by defense counsel, he described his conversation with Gomez prior to her arrest. He said:
[A]nd I asked for a consent to search their vehicle. That’s permission to search the vehicle, based on their knowledge what I’m going to be searching for, and it was understood by both ladies that I was going to be searching for cocaine, and I was asked [sic] permission to, to search their vehicle and it was denied. They didn’t....
Defense counsel immediately objected and moved for a mistrial. The trial judge denied the motion on the ground that the witness merely responded to defense counsel’s question.
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,2 constitutes constitutional error of the same magnitude.3 A defendant who has a constitutional right to refuse to consent to a search (as Gomez did here, because Bartholome did not have probable cause to search at that point) should be free to exercise that right with impunity. No comment on its exercise should be permitted to raise an inference of guilt, if the Fourth Amendment right against unreasonable search and seizure is to be given its full meaning.4
However, commenting on a defendant’s remaining silent or refusing to give consent to a search can be harmless error. The burden is on the state to establish beyond a reasonable doubt that the error did not contribute to the guilty verdict, or that there was no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
In this case, we cannot say the error was harmless. The evidence that Gomez knew cocaine was lodged in the back seat of her car was circumstantial. Her passenger (Neugart) could have put it there without Gomez’s knowledge, but Neugart was unavailable at the trial. There were no fingerprints belonging to Gomez on the cocaine package.
Accordingly, we reverse this cause and remand for a new trial.
REVERSED and REMANDED.
GOSHORN and PETERSON, JJ„ concur. . U.S. Const. Amend. IV.
. U.S. Const. Amend. V.
. See Padgett v. State, 590 P. 2d 432 (Alaska 1979); Bargas v. State, 489 P. 2d 130 (Alaska 1971); People v. Turner, 730 P. 2d 333 (Colo.App.1986); People v. Stephens, 133 Mich.App. 294, 349 N.W. 2d 162 (Mich.App.1984).
.See also United States v. Thame, 846 F. 2d 200 (3d Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988) (improper comment in prosecutor’s closing argument); United States v. Taxe, 540 F. 2d 961 (9th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977) (improper prosecutor comment).
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Jennings v. State, 124 So. 3d 257 (Fla. 3d DCA 2013)…g conviction where State argued it was unable to obtain certain evidence because of defendant’s exercise of his constitutional rights under the Fourth and Fifth Amendments). See also Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011); Gomez v. State, 572 So. 2d 952 (Fla. 5th DCA 1990).…
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Kearney v. State, 846 So. 2d 618 (Fla. 4th DCA 2003)…on a defendant’s right to be free from unreasonable searches and seizures are not regarded any more favorably. In fact, comments on the Fourth Amendment and Fifth Amendment are considered “constitutional error of the same magnitude.” Gomez v. State, 572 So. 2d 952, 952 (Fla. 5th DCA 1991). In the present case, it is clear that the first comment explicitly highlighted the Fourth and Fifth Amendments as impediments to the prosecution’s ability to [*621] produce the tape. The second comment is even more egregio…
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Federico Martin Bravo, II v. State, 65 So. 3d 621 (Fla. 1st DCA 2011)…consent to the search. He argues that the introduction of this testimony, combined with the prosecutor’s closing argument, amounted to an improper comment on Bravo’s right to be free from unreasonable searches and seizures, citing to Gomez v. State, 572 So. 2d 952 (Fla. 5th DCA 1990), and Kearney v. State, 846 So. 2d 618 (Fla. 4th DCA 2003) (applying the rationale of Gomez). The State concedes the point, but argues that any error must be deemed harmless under the dictates of State v. DiGuilio, 491 So. 2d 1129…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Solem v. Vosburg, 488 U.S. 928 (U.S. 1988)
- Taxe v. United States, 429 U.S. 1040 (U.S. 1977)
- Kelly v. United States, 429 U.S. 1040 (U.S. 1977)
- United States v. Taxe, 540 F.2d 961 (9th Cir. 1976)
- United States v. Thame, 846 F.2d 200 (3d Cir. 1988)