Revoking consent to search.

The Fourth Amendment states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...." (1) Law enforcement officers, however, do not need probable cause or a warrant to conduct a search if a person with proper authority voluntarily consents to the search. (2) The U.S. Supreme Court, on a number of occasions, has stated that an individual may limit the scope of a consent to search by the terms of the authorization. (3) One of the most obvious ways that an individual may limit the consent to a search is by revoking the consent.

This article explores the issue of an individual's withdrawal of consent to search previously given to law enforcement officers. More particularly, the article discusses when consent can be withdrawn; what actions or statements courts have found sufficient or insufficient, whichever the case, to constitute a revocation; the relevance of an officer having reasonable suspicion or probable cause prior to revocation; and whether a revocation of consent can be considered by law enforcement officers in determining the existence of reasonable suspicion or probable cause to conduct a search or seizure.

[ILLUSTRATION OMITTED]

Withdrawal of Consent

Unlike situations involving an individual limiting the scope of a consent search when the consent is first given, questions involving the withdrawal of consent arise after an individual already has consented to the search. The prevailing view (4) is that an individual may revoke a previously given consent to search at any time prior to the discovery of the items sought. (5) In United States v. Dyer, (6) the U. S. Court of Appeals for the Seventh Circuit stated that "[C]learly a person may limit or withdraw his consent to a search and the police must honor such limitations. But, where a suspect does not withdraw his valid consent to a search for illegal substances before they are discovered, the consent remains valid and the substances are admissible as evidence." (7)

The predominant view that an individual may revoke previously given consent to search is not, however, without exceptions. For example, revocation of consent to search generally is not recognized in primarily two contexts--airport passenger screening and prison visitation. (8)

For example, in United States v. Herzbrun, (9) Herzbrun had gone to the Orlando airport, purchased a ticket, and walked to the security checkpoint where signs were posted informing passengers that if they passed through the checkpoint, they would be searched. When Herzbrun went through the checkpoint, X-ray machine security personnel could not identify a dark mass in the bottom of his bag. Herzbrun told security personnel that he had clothing at the bottom of the bag. However, when the screener opened the bag and felt inside, she could tell that the mass was not clothing.

At that point, Herzbrun told the screener to stop searching the bag and shut it on the screener's hand. Police were called to the scene, and Herzbrun was informed that to board the plane, the bag would have to be searched. Herzbrun then left the checkpoint and went to a taxi where officers placed him under arrest. Subsequently, a drug detection dog alerted to the bag, and the officers obtained a search warrant. A search of the bag revealed the presence of a pound of cocaine. The U.S. Court of Appeals for the Eleventh Circuit stated that Herzbrun "had no constitutional right to revoke his consent to a search of his bag once it entered the X-ray machine and he walked through the magnetometer." (10)

[ILLUSTRATION OMITTED]

Other courts also have found that those who present "themselves at a security checkpoint thereby consent automatically to a search, and may not revoke that consent if authorities elect to conduct a search." (11) Practically speaking, therefore, to avoid being searched at an airport screening checkpoint, an individual must choose not to fly before putting baggage down on the X-ray machine at the screening checkpoint. Another court taking this position has reasoned "a rule allowing a passenger to leave without a search after an inconclusive X-ray scan would encourage airline terrorism by providing a secure exit where detection was threatened." (12) While a few courts have expressed the view that an individual can withdraw from the screening process at any time, (13) given the heightened security concerns of today, it is likely that this view would no longer have much support.

The same rationale has been applied in the prison context. At least one court has held that once a prison visitor who is forewarned that all visitors will be searched and consents to the search, that consent cannot be withdrawn once the search begins. (14) That court reasoned

    Defendant received fair notice that he would be thoroughly searched.
    After all, he was seeking to visit an inmate in a prison and he
    surely knew that the aims of the search to which he consented was
    first to deter contraband smuggling, and then, if deterrence failed,
    to detect the contraband .... Put another way, a rule allowing
    consent to be withdrawn at any time would encourage contraband
    smuggling into prisons by providing a secure escape for a smuggler
    whenever the search threatened to detect the contraband. (15)

Another issue that arises within the context of an individual revoking consent to search is whether law enforcement officers must conduct a consent search in a manner or time frame that gives the individual an opportunity to revoke the consent. Officers are not required to conduct consent searches in plain view of an individual. (16) For example, the U.S. Court of Appeals for the Fifth Circuit "has specifically rejected the notion 'that enforcement officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search.'" (17)

Actions or Statements Sufficient to Constitute Revocation

The U.S. Supreme Court has ruled that a court reviewing whether an individual voluntarily consented to a search must consider the totality of the circumstances surrounding the consent. (18) The government has the burden to prove that a subject voluntarily consented to a search. (19) While an individual can limit the scope of a consent search by law enforcement, (20) the individual has the burden to express that limitation. (21) To carry the burden of limiting or revoking consent to search, an individual's withdrawal must be an "unequivocal act or statement of withdrawal." (22)

[ILLUSTRATION OMITTED]

An individual may revoke a validly given consent for law enforcement officers to search through statements, actions, or a combination of the two. For example, in United States v. Bily, (23) the court found that Bily's statement to agents of "That's enough, I want you to stop" (24) was an immediate revocation of consent. In United States v. Ho, (25) the U.S. Court of Appeals for the Fifth Circuit found that Ho consented to a search of his person and a portfolio he carried. The officer testified that Ho's subsequent actions in struggling to retrieve the portfolio from the officer during the course of the search made it obvious to the officer that Ho did not want the officer to look at the portfolio any longer. The officer found blank white plastic cards that were the size and shape of a credit card and counterfeit travelers checks in the portfolio. The court found that Ho's struggle constituted a withdrawal of his earlier consent to search the portfolio. (26)

Actions or Statements Insufficient to Constitute Revocation

In many cases, defendants will argue that their actions or statements made after they have given a law enforcement officer consent to conduct a search were sufficient to constitute an effective withdrawal of consent. Courts must determine whether the defendant's statements or actions were clear and unequivocal and, thus, a sufficient revocation. Often, the courts reject the defendant's claim. (27)

An example of a case in which an individual's actions were insufficient to constitute a withdrawal of consent is the U.S. Court of Appeals for the Fourth Circuit case of United States v. Lattimore. (28) In this case, a law enforcement officer stopped Lattimore for speeding. Lattimore gave oral consent to a search of his car. However, when the officer presented Lattimore with a written consent to search form to sign, he expressed concern about signing the form. He eventually signed the form, and the officer found cocaine, razor blades, a scale, and plastic bags during the search.

In examining the issue of whether Lattimore's expression of concern operated to revoke his original consent to search, the court stated, "[W]e do not hesitate to conclude that the search was proper because Lattimore never withdrew his oral consent to the search of his automobile. Indeed, it is undisputed that at no time did Lattimore expressly withdraw his consent for the search." (29) The court also noted that "[i]t is clear, however, that a refusal to execute a written consent form subsequent to a voluntary oral consent does not act as an effective withdrawal of the prior oral consent." (30) In Lattimore, the court found that even if he had refused to sign the written consent to search, the officer still could have searched the car on the basis of the valid oral consent. (31) The Lattimore court concluded by stating that "if Lattimore's refusal to sign the written consent form would not be adequate to affect a withdrawal of this consent, certainly his question concerning the form coupled with his subsequent signature of it cannot have been." (32)

Similarly, in United States v. Gray, (33) the U.S. Court of Appeals for the Eighth Circuit found that the defendant did not revoke consent to search a vehicle. In Gray, an officer pulled Gray over for weaving and following another car too closely. After issuing a citation and obtaining lies and conflicting stories from both the driver and the passenger, the officers obtained consent to search the vehicle from both occupants. During the search, the officer noted that the car contained an excessive amount of luggage for the stated duration of the trip. Additionally, the officer found loose rivets in the rear of the car and some carpeting that had been spot glued down. After initially finding no contraband in the car, the officer's drug dog alerted to the vehicle, and the officer found 17.5 pounds of cocaine in the firewall.

During the course of the search, Gray and the passenger began to express concern about the length of time of the search. Gray testified that he stated "[t]his is ridiculous" and asked "how long the search was going to take." (34) After these comments, the officer had a second conversation with Gray wherein the officer testified that Gray merely asked that the search be speeded up and did not withdraw consent. Gray, however, testified that he again voiced concern over the length of the search and that he and his passenger were "ready to go now." The court stated that

    The district court found that Gray and Lawrence made "protests to
    leave," but concluded that "there was no specific request to leave,
    and under the circumstance, ... [the officer] was reasonable in
    continuing the search beyond the initial contact at 11:30." The
    district court further found that when the defendants became "more
    strident about their desire to leave," [the officer] decided to use
    Rudy, and only about 9 or 10 minutes elapsed between the time Gray
    first began objecting and the time Rudy alerted .... At most, Gray's
    first conversation with [the officer] amounted to an expression of
    impatience, which is not sufficient to terminate consent. (35)

Courts also have found that an individual's actions or statements have been insufficient to constitute withdrawal of consent when the individual showed reluctance in admitting that he was carrying keys to luggage; (36) reached into the bag he had been carrying as the officer began to search it; (37) remained silent after being told that the driver consented to a search of a car while acknowledging ownership of a bag in the vehicle; (38) stated that he did not know anything about the existence of a compartment in the car he was driving; (39) and was placed under arrest. (40)

Reasonable Suspicion or Probable Cause Established Prior to Revocation

An officer may develop reasonable suspicion or probable cause prior to or during the revocation of the consent to search. (41) For example, in United States v. Black, (42) two officers working in an airport approached a man, identified themselves as police, and asked if he would talk with them. The officers determined that the man was traveling on a first-class, one-way ticket purchased for cash under a fictitious name. The officers asked the man for consent to search his travel bag, and he agreed to the search. The man reached into the bag, pulled out a book, and handed it to one of the officers. The officer then reached into the bag, pulled out a shaving kit, looked through the kit, and placed it on the floor next to the bag. The officer again reached into the bag, grasped a shirt, and began to take the shirt out of the bag. At this point, the other officer could see a clear plastic bag containing a white powder wrapped in the folds of the shirt. As the searching officer's hand reached the top of the open bag, the man grabbed the officer's wrist while pulling his hand out of the bag and told him not to search any more. When the man took the officer's hand out of the bag, the bag containing the white powder fell out of the shirt to the bottom of the travel bag. The searching officer saw the plastic bag containing the white powder in plain view in the bottom of the travel bag and arrested the man. (43)

[ILLUSTRATION OMITTED]

With regard to the attempted revocation of consent to search in this case, the court stated that

    By the time that [the man] revoked his consent to the search of his
    travel bag, [the officer] was in the process of withdrawing the
    shirt in which the cocaine was wrapped from the travel bag. [The
    officer] could see the bag containing the white powder wrapped in
    the shirt and [the man's] clumsy and mistimed attempt to pull [the
    officer's] hand out of the bag was itself the cause of the cocaine
    coming into [the officer's] view. (44)

Even if an individual's statements or actions are sufficient to withdraw consent to search, officers may have established probable cause prior to the revocation. In United States v. West, (45) a deputy sheriff stopped an individual for speeding on a highway. During the course of the traffic stop, the deputy noticed that the individual's hands were shaking and there was a distinct odor of air freshener about the car. The deputy asked the individual for consent to search the vehicle. After obtaining consent to search, the deputy took the car keys, opened the trunk, and detected the odor of methamphetamine. The individual stated that the deputy could not search a locked briefcase found in the trunk, but otherwise did not limit the search of the car in any way. The deputy detected the odor of methamphetamine coming from a zippered bag in the trunk. The bag had a lock on it but it was not fully closed. The deputy put his fingers through an opening in the bag and could feel plastic and a package he believed contained methamphetamine. The deputy placed the individual under arrest. (46)

The court found that the individual had given valid consent for the deputy to search the car. The defendant argued that consent to search had been withdrawn prior to the deputy finding the contraband. The U.S. Court of Appeals for the Tenth Circuit concluded that

    We decline to decide whether West's consent to search the car was
    revoked by him refusing permission to open the locked briefcase
    because [the deputy], in the course of the consent search, acquired
    probable caused to search the zippered bag, rendering consent by
    West irrelevant. (47)

The West court noted that it is well established that probable cause to search a car can be developed during the course of a traffic stop even if it did not exist at the time the car was initially stopped for a traffic violation. In West, the court concluded that the deputy had probable cause to search the bags in the trunk when he smelled a strong odor of methamphetamine as soon as he opened the trunk. (48)

Revocation as a Factor in Establishing Reasonable Suspicion or Probable Cause

If reasonable suspicion or probable cause to search or seize has not been established prior to an individual's withdrawal of consent, the reliance on tshe withdrawal of consent as a factor to establish the existence of reasonable suspicion or probable cause becomes an issue. The U.S. Court of Appeals for the District of Columbia has stated that "[t]he 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 the reasonable suspicion that makes consent unnecessary." (49) And yet, another court addressing the issue noted that "[m]ere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause." (50)

Even though the revocation of consent to search generally cannot be used to establish reasonable suspicion or probable cause, actions taken by an individual after withdrawing consent to search have been found to contribute to the existence of reasonable suspicion. (51) Additionally, in the U.S. Court Appeals for the Fourth Circuit decision of United States v. Wilson, (52) the court stated that "[w]e are not prepared ... to rule that the form of denial never can be included as a factor to be considered in determining whether an investigative stop was justified." (53) With regard to this statement, one judge noted

    While the Fourth Circuit did indeed refuse to establish any per se
    rule that the way consent is denied can never be considered in the
    reasonable suspicion calculus, it also refused to permit the manner
    of declining consent to be the factor that "pushes the situation
    into the realm of 'reasonable suspicion.'" I agree with the Fourth
    Circuit that in all but the most extraordinary circumstances the
    police should have sufficient objective evidence for an
    investigative detention independent of the refusal or withdrawal
    of consent and the manner in which either is executed. (54)

Finally, while the revocation of consent to search may generally not be used to establish reasonable suspicion or probable cause, such a revocation can be used to demonstrate that an individual understood that he had the right to refuse to consent to a search by police. For example, in United States v. Matau, (55) the court stated that "Matau's understanding that he could refuse consent is evidenced by his withdrawal of his earlier consent to search his bag." (56)

Conclusion

The predominant legal view is that an individual can limit the scope of a consent to search by revoking the consent given to law enforcement officers. However, within certain contexts, such as airport screening, the prevailing view is that an individual cannot withdraw consent to search once consent has been given and the search has begun. While an individual can withdraw consent either verbally or through action, such a revocation must be clear and unequivocal. Therefore, law enforcement officers must be aware of both the context in which the consent to search is withdrawn and the exact manner in which the individual revoked consent to search. Officers should remember that in any consent to search situation, a court will analyze the totality of the circumstances surrounding the consent to search and the reasonableness of the officer's actions. Additionally, officers need to be aware that an ambiguous withdrawal of consent to search is not effective to constitute a true withdrawal.

Law enforcement officers may establish reasonable suspicion or probable cause during the course of a consent search to conduct a subsequent search or seizure. Therefore, officers should focus on exactly what they are observing during the course of the search to be able to articulate what specifically was seen and why it may contribute to a finding of reasonable suspicion or probable cause in case an individual revokes consent to search prior to finding the object of the search. As with any consent search issue, officers must be extremely diligent about providing extensive detail regarding what they did and said and what the individual did and said during the course of obtaining consent to search, the search itself, any attempted revocation or withdrawal of consent, and after the search is finished.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

(1) U.S. CONST. Amend. IV.

(2) Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

(3) Id.: Florida v. Jimeno, 500 U.S. 248, 252 (1991).

(4) See United States v. Springs, 926 F.2d 1330, 1334 (D.C. Cir. 1991); United States v. Black, 675 F.2d 129 (7th Cir. 1982); United States v. Ward, 576 F.2d 243, 244 (9th Cir. 1978); United States v. Seely, 570 F.2d 322, 323 (10th Cir. 1978); Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977). See also 3 Wayne R. LaFave, Search and Seizure [section] 8.1(c) (3d ed. 1996).

(5) In contrast, the contrary and distinctly minority view articulated in two old state cases is that once an individual consents to a search, that consent cannot subsequently be withdrawn. Smith v. Commonwealth, 246 S.W. 449 (Kent. 1923), People v. Kennard, 488 P.2d 563 (Colo. 1971). See also 3 Wayne R. LaFave. Search and Seizure [section] 8.1(c) (3d ed. 1996).

(6) 784 F.2d 812 (7th Cir. 1986).

(7) Id. at 817. See also United States v. Cady, 22 C.M.A. 408 (1973). "We see no reason to hold that a consent to search must be unlimited in scope. Neither do we find any reason to hold that a consent, once given may not be withdrawn. It is true that the contrary view has been expressed."

(8) There also is authority stating that "when an employee as a condition of employment has agreed to be searched by his employer, it is questionable at best whether the employee may freely withdraw his consent, short of resignation." United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991).

(9) 723 F.2d 773 (11th Cir. 1984).

(10) Id. at 778.

(11) Id. at 776. See also United States v. McKennon, 814 F.2d 1539 n. 12 (11th Cir. 1987); United States v. Wehrli, 637 F.2d 408 (5th Cir.), cert. denied, 452 U.S. 942 (1981); United States v. DeAngelo, 584 F.2d 46, 48 (4th Cir. 1978), cert. denied, 440 U.S. 935 (1979); United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973), cert. denied, 415 U.S. 902 (1974); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); United States v. Bell, 464 F.2d 667 (2d Cir.), cert, denied, 409 U.S. 991 (1972).

(12) United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th Cir. 1986). See also United States v. Haynie, 637 F.2d 227, 230 (4th Cir. 1980) ("It appears to us that a rule under which consent to a screening search is limited by the availability to withdraw at any time could only encourage attempted hijackings by providing a secure exit should detection be threatened.").

(13) United States v. Freeland. 562 F.2d 383 (6th Cir. 1977), cert. denied, 434 U.S. 957 (1977) (defendant could have withdrawn consent to search checked baggage); United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976), cert. denied, 431 U.S. 940 (1977).

(14) United States v. Spriggs, 827 F. Supp. 372 (E.D. Va. 1993), aff'd, 30 F.3d 132 (4th Cir. 1994).

(15) Id. at 375.

(16) See, e.g., United States v. George, 987 F.2d 1428 (9th Cir. 1993); United States v. Lechuga, 925 F.2d 1035, 1041 (7th Cir. 1991).

(17) United States v. Dominguez, 911 F. Supp. 261, 262 (S.D. Tex. 1995) (quoting United States v. Rich, 992 F.2d 502, 507 (5th Cir. 1993)).

(18) Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

(19) Bumper v. North Carolina, 391 U.S. 543 (1968).

(20) Florida v. Jimeno, 500 U.S. 248 (1991).

(21) United States v. Kim, 27 F.3d 947, 957 (3rd Cir. 1994), cert. denied, 513 U.S. 1110 (1995).

(22) United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001) (citing United States v. Martel-Martines, 988 F.2d 855, 585 (8th Cir. 1993)); United States v. Lyton, 161 F.3d 1168, 1171 (8th Cir. 1998).

(23) 406 F. Supp. 726 (E.D. Pa. 1975).

(24) Id. at 726.

(25) 94 F.3d 932 (5th Cir. 1996).

(26) Id. See also United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996) (defendant revoked consent to search luggage after being informed he could withhold consent); United States v. Carter, 985 F.2d 1095 (D.C. Cir. 1993) (defendant revoked consent to search a brown paper bag he carried when he grabbed the bag from the officer and later verbally confirmed that he did not want the officer to search the bag). But see United States v. Flores, 48 F.3d 467 (10th Cir. 1995) (The defendant consented to a search of a car at an immigration checkpoint and opened the trunk. After being asked to step away from the car during the search, the defendant shut the trunk. The defendant reopened the trunk after being told that the search had not been completed. After the defendant reopened the trunk and the search resumed, officers found marijuana in the door frame. The court stated that "[b]ecause we hold that defendant voluntarily consented to the continued search of her car by reopening the trunk, we assume, without deciding, that defendant revoked her initial consent by closing the trunk."); United States v. Akins, 995 F. Supp. 797, 807 (M.D. Tenn. 1998) (Once the defendant invoked his Fifth Amendment right to counsel, the defendant "effectively withdrew his consent to speak with the officers, and by extension his consent to be searched."); Metcalf v. Long, 615 F. Supp. 1108, 1117 (D. Del. 1985) (The defendant's statement that "If you want to go in there, kick the door in" is not an explicit withdrawal of consent, but its import is apparent. The court found "that even if defendant's version of the facts was correct and Metcalf initially consented to the search, his later noncooperation with the officers indisputably indicates that his consent was no longer effective.").

(27) See, e.g., United States v. Ross, 263 F.3d 844 (8th Cir. 2001); United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991).

(28) 87 F.3d 647 (4th Cir. 1996).

(29) Id. at 651.

(30) Id. (citing United States v. Thompson, 876 F.2d 1381, 1384 (8th Cir.), cert. denied, 493 U.S. 868 (1989)); United States v. Castillo, 866 F.2d 1071, 1081-82 (9th Cir. 1988); United States v. Boukater, 409 F.2d 537, 539 (5th Cir. 1969).

(31) For additional information regarding this issue, see Jayme W. Holcomb, "Obtaining Written Consent to Search," FBI Law Enforcement Bulletin, March 2003, 26.

(32) United States v. Lattimore, 87 F.3d 647, 652 (4th Cir. 1996).

(33) 369 F.3d 1024 (8th Cir. 2004).

(34) Id. at 1026.

(35) Id. at 1029. See also United States v. Ross, 263 F.3d 844 (8th Cir. 2001).

(36) United States v. Brown, 884 F.2d 1309, 1311 (9th Cir. 1989), cert. denied, 493 U.S. 1025 (1990).

(37) United States v. Joseph, 892 F.2d 118, 122 (D.C. Cir. 1989).

(38) United States v. West, 321 F.3d 649 (7th Cir.), cert, denied, 124 S. Ct. 385 (2003).

(39) United States v. Bullock, 877 F. Supp. 270 (E.D. Va. 1995), aff'd, 94 F.3d 896 (4th Cir. 1996).

(40) United States v. Mitchell, 82 F.3d 146 (7th Cir.), cert. denied, 519 U.S. 856 (1996).

(41) See, e.g., United States v. Booker, 186 F.3d 1004 (8th Cir. 1999) (probable cause established prior to revocation of consent to search); United States v. Newsome, 124 F. Supp. 2d 1301 (E.D. Tex. 2000) (reasonable suspicion to detain defendant while awaiting arrival of drug dog established prior to withdrawal of consent to search).

(42) 510 F. Supp. 989 (N.D. Ill. 1981), aff'd, 675 F.2d 129 (7th Cir. 1983).

(43) Id. at 992.

(44) Id. at 993.

(45) 219 F.3d 1171 (10th Cir. 2000).

(46) Id. at 1174.

(47) Id. at 1177.

(48) Id. at 1179. Under the motor vehicle exception to the search warrant requirement, police may search a motor vehicle without a search warrant if the search is supported by probable cause. California v. Acevedo, 500 U.S. 565 (1991); United States v. Ross, 456 U.S. 798 (1982).

(49) United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) (citations omitted). See also United States v. Skidmore, 894 F.2d 925, 927 (7th Cir. 1990) ("Skidmore is correct in arguing, and the government does not contest, that a law enforcement official cannot consider Skidmore's refusal to consent as a factor in the official's determination of reasonable suspicion.").

(50) United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997). See also United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996) ("under these facts, no adverse inference can be drawn from Fletcher's revocation of his consent to search his bag."); United States v. Taxacher, 902 F.2d 867, 872 n.6 (11th Cir. 1990).

(51) United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) ("Carter had withdrawn his consent when he retook the bag. His subsequent offer to show Detective Buss the food did not constitute a second consent, for he did not propose to allow the police officer to search the bag but instead indicated that he would himself show the officer the food he said it contained. For us to countenance the officer's reasonable suspicion based upon such post-withdrawal conduct in no way bears upon the extent to which reasonable suspicion may be based upon "the manner" in which consent is withdrawn.").

(52) 953 F.2d 116 (4th Cir. 1991).

(53) Id. at 126.

(54) United States v. Carter, 985 F.2d 1095, 1100 (D.C. Cir. 1993) (Wald. J., dissenting).

(55) 191 F. Supp. 2d 1173 (D. Hawaii 2002).

(56) Id. at 1184.

By JAYME W. HOLCOMB, J.D.

Ms. Holcomb serves as chief of the Legal Instruction Section, DEA Training Academy.