On the withdrawal of consent in Ford v. US

A defendant can consent to a Fourth Amendment search or seizure, thereby obviating the need for a warrant. 

A defendant can limit the scope of the consent – as in, “you can search the living room but not my bedroom.” 

A defendant can withdraw consent at any time.   

And the assertion of any of these rights cannot be used against the person exercising them.  For example, the invocation of the rights cannot factor into the court’s determination as to whether or not police actions were supported by reasonable suspicion or probable cause.

So held the D.C. Court of Appeals in Marcus Ford v. United States, __ A.3d __ (D.C. 2025).

Police were canvassing the hallways of an apartment building when they encountered Mr. Ford.  Mr. Ford initially agreed when the officer asked to “search” or “check” him.  Mr. Ford then “withdrew that consent by putting his hand on his pocket as the officer was touching what he described as a suspicious bulge in that pocket.” 

On remand, the trial court concluded that the search of Mr. Ford’s pocket after Mr. Ford revoked his consent was supported by probable cause. 

The trial court based its legal determination on a number of factors, including the officers’ experience, the known drug activity – specifically PCP use – in Mr. Ford’s apartment complex, and Mr. Ford’s “unnatural and weird” movements as he interacted with the officers. 

Most importantly, for purposes of this opinion, the trial court cited Mr. Ford’s “fearfulness” in grabbing his pocket as “confirming the officer’s well-founded observations and conclusions that his pocket contained a glass vial of PCP.”  

In other words, the trial court factored Mr. Ford’s actions into the probable cause equation. 

Held the Court of Appeals: 

This constitutional right to withdraw one’s consent to a search . . . would be of little value if the very fact of choosing to exercise that right could serve as any part of the basis for finding reasonable suspicion – or similarly the probable cause – that makes consent unnecessary . . . It is the exercise of these rights – the right not to consent, the right to limit the scope of the consent, the right to revoke the consent –  that cannot be used against the person exercising them.  If a suspect’s exercise of his right to deny consent to search a particular room gave police probable cause to search that room, or if his withdrawal of consent gave police grounds to seize items from pockets or containers the suspect changed his mind about letting police search, the right would be of little worth.  (Internal citations and quotations omitted.).

*****

Judge Patricia Broderick presided at trial.  Jay Mykytiuk represented Mr. Ford at trial and Gregory Lipper represented him on appeal.