US v. Dubon: Richmond police officers got a tip that a man (not Dubon) was preparing to engage in a mass shooting. They knocked on Dubon’s door as part of that investigation. After Dubon allowed them in and some questions were asked, an officer said to Dubon (in Spanish) that they were going to “check and see if there is anyone else here in the house.” Dubon responded (also in Spanish) “[g]o check . . . there’s no one else,” and “nodded and, with un upturned palm, gestured forward toward the rooms in the rear of the residence.” A few seconds later, Dubon said “I understand you can’t get into my house without warrant, then. But . . .” and shrugged his shoulders. The search uncovered firearms and Dubon was charged with being an unlawful alien in possession of a firearm. After the district court denied his motion to suppress, Dubon entered a conditional guilty plea and was sentenced to 16 months in prison.
On appeal, the Fourth Circuit affirmed the denial of Dubon’s motion to suppress. While the district court did so on two bases, the Fourth Circuit relied on only one – that Dubon consented to the search of his home. The court held that the district court’s factual conclusions regarding consent were not clearly erroneous. That included not just the initial consent but what Dubon argued was revocation, the statement about a warrant accompanied by a shoulder shrug, with the court concluding that it was not a clear withdrawal of consent and “readily susceptible to different meanings” including an expression of resignation that he was allowing the search anyway. Because the court affirmed on that basis it explicitly did not address the district court’s other basis for denying the motion, that the search was a lawful protective sweep.
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