On April 30, 2025, the Fourth Circuit Court of Appeals decided United States v. Dubon[i], which serves as an excellent review of the law related to consent to search a residence. The relevant facts of Dubon, taken directly from the case, are as follows:
In July 2022, three officers knocked on the door of a house in Richmond, Virginia. The officers were looking for a man named Rolman Balcarcel, who a tipster said had “an AR-15 and other big weapons” and may have been planning to shoot up “schools, events, etc.” JA 236-37. Alvarado Dubon answered the door and allowed the officers to enter the house’s small front room.
Once inside, the officers saw a handgun magazine on a mantle. Another man (later identified as Balcarcel) soon entered the front room from a room further back in the house. An officer asked the men in Spanish whether they recognized Balcarcel’s name and picture, but both said no. The Spanish-speaking officer also asked Alvarado Dubon if there were other people or any firearms in the house. Alvarado Dubon claimed no one else was in the home but “did not respond regarding whether firearms were in the residence.” JA 241.
The Spanish-speaking officer then told Alvarado Dubon in Spanish that the officers were going to “check to see if there is anyone else here in the house.” Alvarado Dubon responded in Spanish: “Go check, . . . there’s no one else.” As he spoke, Alvarado Dubon “nodded and, with an upturned palm, gestured forward toward the rooms in the rear of the residence.” JA 241. Another officer immediately left the front room to check the rest of the house.
A few seconds after the searching officer left the front room, Alvarado Dubon made the following statement in Spanish before trailing off and shrugging his shoulders: “Well, I understand you can’t get into my house without a warrant, then. But . . .” The Spanish-speaking officer did not translate that statement to the other officers and instead replied in Spanish: “We are going to check that nobody’s there.” Less than 20 seconds after leaving the room, the searching officer returned and said he had found “the rifle.” The officers seized two long rifles, a handgun, magazines, and other ammunition from the house.[ii]
Dubon was subsequently charged with federal firearms violations. He filed a motion to suppress, and the district court denied the motion. Dubon pleaded guilty with the right to appeal the denial of his motion to suppress.
On appeal, Dubon argued (1) that he never voluntarily consented to an officer going beyond his front room and (2) that he withdrew his consent before his firearm was located.
The standard by which the court reviews this type of case is the “clearly erroneous” standard. Thus, in order to overturn the ruling of the district court, the court of appeals must find that the district court’s finding of fact regarding the consent was “clearly erroneous.”
First, the court examined Dubon’s consent to proceed past the front room to conduct a protective sweep of the residence.
For consent to be valid, it must be freely and voluntarily given, with consideration to the
[A]ctions, his age, and the conditions under which he gave consent.” Id.; see Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (courts should consider “both the characteristics of the accused and the details of” the interaction).[iii]
In Dubon’s case, when the Spanish-speaking officer told him they were going to check if anyone else was in the residence, Dubon stated, “Go check, …there’s no one else”. The district court interpreted this statement as verbal consent for the search for other people in the residence. Additionally, the court stated that the consent “was bolstered by [Dubon’s] body language as he nodded and gestured towards the area to be searched with an upturned hand.”[iv] The court of appeals noted
Consent may be inferred from actions as well as words.[v]
Dubon argued that he made the statement that the officers interpreted as consent only after they told him they were going to go check for other people, rather than asking Dubon if they could check for other people. To this, the court of appeals replied
[T]hose statements were made before Alvarado Dubon gave consent, and “the Government need not demonstrate that the defendant knew of his right to refuse consent to prove that the consent was voluntary.” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc). And here the district court carefully explained why “the conditions under which [Alvarado] Dubon consented do not suggest he was operating under any coercion or duress,” including that the officers “never displayed force” or “raised [their] voice during the interaction.”[vi]
Dubon also argued that his “inability to speak fluent English” enhanced the concern regarding whether he freely and voluntarily consented to the protective sweep. The court stated
No doubt, language barriers may affect the voluntariness of consent. But the district court never suggested otherwise, and the facts here support the court’s conclusion that—language barriers aside—Alvarado Dubon “freely and voluntarily consented to the search.”[vii]
The court observed that the Spanish-speaking officer spoke to Dubon in Spanish and Dubon responded to the officer, in Spanish, that they should “go check.”
Therefore, the district court’s determination that Dubon understood the exchange with the officer and freely and voluntarily consented to the protective sweep was permissible.
Second, the court examined whether the district court permissibly determined whether Dubon withdrew his consent before the rifle was located.
The court of appeals first noted
A consent to search is not irrevocable, and thus if a person effectively revokes . . . consent prior to the time the search is completed, then the police may not thereafter search in reliance upon the earlier consent.” Lattimore, 87 F.3d at 651 (quotation marks removed). But “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,'” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006), and reasonable officers need not be mind readers. So just as “the scope of a suspect’s [initial] consent” depends on how “the typical reasonable person [would] have understood . . . the exchange between the officer and the suspect,” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991), the same is true when a person asserts that any consent was later withdrawn.[viii]
Dubon’s argument is based upon his statement, “Well, I understand you can’t get into my house without a warrant, then. But …”. Dubon shrugged his shoulders as he said this. Dubon argued that this statement was a revocation of his consent.
The district court, however, stated that this statement was open to various interpretations or meanings and suggested that Dubon “could have finished his comment by saying “I’m allowing you to search anyway.” The court of appeals noted that
Police officers do not act unreasonably by failing to halt their search every time a consenting suspect equivocates.[ix]
The district court also stated that Dubon’s actions did not suggest that he was withdrawing his consent because he did not protest the officer’s continued search nor did he tell the officers to stop or leave his residence. Specifically, the court stated
Alvarado Dubon neither “protested” the officers’ actions nor “told the officers to stop or get out of his home.” JA 246; see United States v. Jones, 356 F.3d 529, 534 (4th Cir. 2004) (stating that “a suspect’s failure to object (or withdraw his consent) when an officer exceeds limits allegedly set by the suspect is a strong indicator that the search was within the proper bounds of the consent search“). And although Alvarado Dubon asserts that the officers “seemingly ignored” his statement about the need for a warrant, Alvarado Dubon Br. 14, the officers did not have to tell Alvarado Dubon that he had the right to revoke his consent to the search. See United States v. Mendenhall, 446 U.S. 544, 558, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (“[T]he Constitution does not require proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search.”[x]
Thus, the court of appeals held that the district court did not err by concluding that Dubon did not revoke his consent prior to the rifle being located.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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[i] No. 24-4076 (4th Cir. April 30, 2025)
[ii] Id. at 1-3
[iii] Id. at 5 (emphasis added)
[iv] Id. at 6
[v] Id. (quoting United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003))
[vi] Id. (emphasis added)
[vii] Id. at 7 (emphasis added)
[viii] Id. at 7-8 (emphasis added)
[ix] Id. at 8 (citing United States v. $304,980.00 in U.S. Currency, 732 F.3d 812, 820 (7th Cir. 2023))
[x] Id. at 9 (emphasis added)
