UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES,
v. No. 25-cr-249 (TSC) JUDGE ALSTON,
Defendant.
MEMORANDUM OPINION
On August 12, 2025, seven U.S. Marshals partially surrounded Defendant Judge Alston’s
car over a minor parking violation. The Government concedes that before Alston gave any
consent, a Marshal began illegally searching his car. Because that initial illegal search both tainted
Alston’s subsequent consent and rendered it involuntary, the court will GRANT Alston’s Motion
to Suppress Tangible Evidence, ECF No. 18.
I. BACKGROUND
On February 6, 2026, the court held an evidentiary hearing on Alston’s Motion to Suppress.
See Min. Entry (Feb. 6, 2026). It heard testimony from Alston and from Deputy U.S. Marshal
David Lozada, a three-year veteran of the Marshals Service who participated in the search and
seizure of Alston’s car. See Hr’g Tr. (Rough Draft) at 2, 59. Lozada authenticated the body-worn
camera footage of Senior Inspector John Dugan, Inspector Michael Longo, and Senior Inspector
Edward Bruton. See id. at 9–11, 14, 19–20; see also Gov’t Ex. 1 (Dugan Footage); Gov’t Ex. 2
(Longo Footage); Gov’t Ex. 3 (Bruton Footage). Lozada also authenticated his own body-worn
camera footage, but his footage did not capture the most relevant moments of the stop because, as
Lozada conceded, he did not activate his camera until well after he began searching Alston’s car.
Page 1 of 17 See Hr’g Tr. at 33–35; see also Def. Ex. 1 (Lozada Footage). The three other Marshals present at
the scene did not activate their body-worn cameras at all. See Hr’g Tr. at 36–37. The witnesses’
testimony and the body-worn camera footage establish the following:
On August 12, 2025, at around 9:30 p.m., Alston was sitting in the driver’s seat of his car,
which was double parked outside 3534 East Capitol Street NE in Washington, D.C. See Hr’g Tr.
at 59–60. Alston’s keys were in the ignition, but the engine was not running. Id. at 7, 60; see also
Gov’t Ex. 3 at 1:32:52–1:32:55.1 Three unmarked police vehicles carrying a team of seven U.S.
Marshals converged on Alston’s car, blocking it from the front and rear. See Hr’g Tr. 5–8; see
also Gov’t Ex. 1 at 1:32:48–1:33:00. The Marshals were wearing tactical vests and carrying tasers
and guns, though no weapons were drawn. Hr’g Tr. at 28. They were operating as part of the
“federal takeover” of Washington, D.C., pursuant to the President’s “Make D.C. Safe and
Beautiful” Executive Order. Id. at 3–4, 25. Deputy Lozada described the “takeover” as a “high-
visibility” “operation” involving a “large law enforcement presence” and traffic stops in “high-
crime areas.” Id. at 3–4.
After partially surrounding Alston’s car, three Marshals, including Senior Inspectors
Dugan and Bruton, approached Alston’s window. See Gov’t Ex. 1 at 1:32:55–1:33:00. Bruton
informed Alston that he was parked illegally and asked what was going on. Alston replied that he
was waiting for someone to come out of the building. See Gov’t Ex. 3 at 1:33:03–1:33:10. Dugan
then asked, “Why are you just sitting here like this?” Alston repeated that he was waiting for
someone. Gov’t Ex. 1 at 1:33:11–1:33:16. Dugan asked Alston for identification. When Alston
produced a D.C. identification card, Dugan asked Alston if he had a driver’s license, and Alston
1 The time stamps on the body-worn camera footage reflect a time zone four hours ahead of Washington, D.C. See Hr’g Tr. at 11.
Page 2 of 17 said he did not. Gov’t Ex. 1 at 1:33:18–1:33:43. While Dugan questioned Alston, Deputy Lozada
began shining his flashlight through the passenger side windows. See id.
After Alston said he did not have a driver’s license, Dugan and Bruton walked to the rear
of Alston’s car to confer. Dugan said to Bruton, “We could get him for no permit. If you want to
step him out and tell him, we’ll search the car. You want to do that?” Gov’t Ex. 3 at 1:33:40–
1:33:56. Bruton replied, “Yeah.” Gov’t Ex. 1 at 1:33:56–1:33:59. Dugan then reapproached
Alston and ordered him out of the vehicle. Gov’t Ex. 1 at 1:34:00–1:34:02. As Alston opened the
door to exit, Dugan noticed a baseball bat wedged between the driver’s seat and door. Dugan
jokingly exclaimed, “you got a baseball bat?!” Gov’t Ex. 1 at 1:34:05–1:34:11. Dugan then briefly
patted down Alston’s waistband area, removed a small pocketknife clipped to Alston’s front pant
pocket, told Alston he would “throw the knife in the car real quick,” and instructed Alston to “go
talk” to Inspector Bruton at the back of the car. Gov’t Ex. 1 at 1:34:10–1:34:19. Dugan then
crouched into the driver seat area with his flashlight for a brief moment. Id.
Dugan also unlocked Alston’s car, allowing Deputy Lozada to open the front passenger
door and begin searching the front passenger area. Gov’t Ex. 1 at 1:34:22–1:34:29. Specifically,
as Lozada testified at the hearing, he went “into the car and then . . . start[ed] searching the front
passenger’s seat.” Hr’g Tr. at 19. Lozada testified that he began searching because he believed
he had “consent at that time;” he conceded, however, that no one had told him that Alston had
consented to a search. Id. at 40. During his initial search, which lasted approximately twenty
seconds, Lozada leaned into the car, grabbed a yellow bag from the front passenger seat floor,
emptied the bag’s contents onto the front passenger seat, and rummaged through Alston’s private
effects. See Gov’t Ex. 1 at 1:34:28–1:34:32; Gov’t Ex. 2 at 1:34:28–1:34:46; see also Hr’g Tr. at
21–23, 39–41; Def. Ex. 3 (showing Alston’s personal items scattered across the front passenger
Page 3 of 17 seat). Lozada did not open the center console or discover any weapons or contraband. See Hr’g
Tr. at 22. Inspector Dugan saw Lozada begin this search but did not attempt to stop him. See
Gov’t Ex. 1 at 1:34:28–1:34:32.
Meanwhile, at the rear of the car, Inspector Bruton, flanked by other Marshals, began an
extensive pat down of Alston’s person. See Gov’t Ex. 3 at 1:34:27–1:34:46. During this pat down,
which did not reveal any contraband or weapons, Alston was facing towards the front of his car
with his hands on the trunk and saw Lozada searching inside his car. See id.; see also Hr’g Tr. at
64. As Inspector Bruton searched Alston’s person and Deputy Lozada searched Alston’s car,
Inspector Dugan said to Alston:
All right, so here’s the deal man. You can go [to jail] for not having a valid driver’s license. You’re sitting in the driver’s seat of the car, you got the, got the uh key in the ignition. Alright? Is it cool if we just check and see if there’s anything in the car?
Gov’t Ex. 1 at 1:34:36–1:34:45. Alston replied, “Go ahead, sir.” Gov’t Ex. 1 at 1:34:45–1:34:47.
Alston testified that when he said, “Go ahead,” he “didn’t think [he] had a choice because they
was already in the car.” Hr’g Tr. at 66. He further testified that he did not think he could stop the
officers from continuing their search. Id.
At the same second Alston said, “Go ahead,” Deputy Lozada withdrew his body from
Alston’s car. See Gov’t Ex. 2 at 1:34:45–1:34:47. Lozada then stood outside the car for less than
ten seconds. See Gov’t Ex. 2 at 1:34:46–1:34:55. He testified that he “wanted to confirm that we
had consent before I start[ed] searching again.” Hr’g Tr. at 23. Once Lozada saw Dugan walking
back towards the driver’s seat, Lozada resumed his search. Id. Shortly thereafter, Lozada opened
the center console and found a handgun. See id. Inspector Dugan then directed Alston to put his
hands behind his back and another officer handcuffed him. See Gov’t Ex. 1 at 1:35:16–1:35:34.
Page 4 of 17 A grand jury subsequently indicted Alston for unlawful possession of a firearm by a person
convicted of a felony in violation of 18 U.S.C. § 922(g)(1). See Indictment, ECF No. 12. Alston
now moves to suppress the firearm, arguing that his consent was involuntary, and that, in any
event, it was not an intervening act of free will sufficient to purge the taint of Deputy Lozada’s
unlawful search. See Def.’s Mot. to Suppress at 5–6, ECF No. 18. The Government appears to
concede that Lozada’s initial search violated the Fourth Amendment, 2 but contends that Alston’s
consent was voluntary and that the initial illegal search was not causally connected to the
subsequent search which recovered the firearm. See Gov’t’s Opp’n at 9, 12, ECF No. 21.
II. LEGAL STANDARDS
The Fourth Amendment protects the “right of the people to be secure in their persons
. . . against unreasonable searches and seizures.” U.S. Const. amend. IV. “A search conducted
without a warrant is ‘per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.’” United States v. Maynard, 615 F.3d
544, 566 (D.C. Cir. 2010) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One
“exception to the warrant requirement” is consent by a person possessing authority over the area
to be searched. United States v. Glover, 144 F.4th 336, 339 (D.C. Cir. 2025). Consent must be
voluntary; if it is “coerced by threats or force, or granted only in submission to a claim of lawful
authority,” it is invalid. Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973). The voluntariness
2 The Government “does not contest that Deputy Marshal Lozada conducted a search when . . . he leaned into the front passenger compartment.” Gov’t’s Opp’n at 12, ECF No. 21; see also United States v. Powell, 483 F.3d 836, 838 (D.C. Cir. 2007) (recognizing that an officer conducts a search by leaning into a vehicle). And the Government makes no attempt to justify that initial search, as would be its burden. See United States v. Jackson, 415 F.3d 88, 92 (D.C. Cir. 2005) (explaining that it is the Government’s burden to justify a warrantless search). The court therefore understands the Government to have conceded that Deputy Lozada conducted an illegal search of Alston’s car before Alston consented.
Page 5 of 17 inquiry is subjective: It “‘turns not on whether a reasonable person in the defendant’s position
would have felt compelled to consent . . . , but, rather, on whether’ the person who agreed to the
search ‘actually felt compelled to consent.’” Glover, 144 F.4th at 340 (quoting United States v.
Hall, 969 F.2d 1102, 1106 (D.C. Cir. 1992)). Critically, when the Government contends that a
defendant consented to a warrantless search, the Government bears the burden of proving that the
consent was voluntary. Schneckloth, 412 U.S. at 222.
When “consent [is] given after an illegal search or seizure,” the Government’s burden is
even greater. United States v. Holmes, 505 F.3d 1288, 1294 (D.C. Cir. 2007). It must show that
the “consent is not merely voluntary but ‘sufficiently an act of free will’ that it was not a result of
the exploitation of” the earlier unlawful search. Id. (quoting Brown v. Illinois, 422 U.S. 590, 599
(1975)); see also United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994) (“When
a consensual search is preceded by a Fourth Amendment violation, . . . the government must prove
not only the voluntariness of the consent . . . , but the government must also establish a break in
the causal connection between the illegality and the evidence thereby obtained.” (cleaned up)).
This fruit-of-the-poisonous-tree analysis comes from Wong Sun v. United States, which held that
evidence must not have “been come at by exploitation of [the initial] illegality [but] instead by a
means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. 471, 488 (1963).
This test “extends to invalidate consents which are voluntary” because there will be cases where
the “pressure upon the person . . . is not so great that ‘his will has been overborne’ under the
Schneckloth voluntariness rule, but yet it cannot be said under Wong Sun that his consent was
‘sufficiently an act of free will to purge the primary taint.’” Wayne R. LaFave, Search and Seizure
§ 8.2(d) (6th ed. 2025) (emphasis in original).
Page 6 of 17 Although the fruits analysis imposes a distinct burden on the Government, on the facts of
this case, it shares significant analytical overlap with the voluntariness test. See Melendez-Garcia,
28 F.3d at 1054 (explaining that “the two requirements will often overlap to a considerable
degree,” in part because “an illegal search or seizure . . . may affect the voluntariness of the
defendant’s consent”); see also LaFave, Search and Seizure § 8.2(d) (“[T]here is sufficient overlap
of the voluntariness and fruits tests that often a proper result may be reached by using either one
independently[.]”). Consent given “‘only in submission to an officer’s claim of lawful authority’
to carry out the search” is involuntary under Schneckloth. Glover, 144 F.4th at 340 (quoting
Schneckloth, 412 U.S. at 233). And when consent immediately follows an illegal search, it may
amount to “nothing more than ‘submission or resignation to police authority’” if the illegal search
“‘erroneously’” convinced the suspect that police already had authority to search and thus “‘it was
useless to resist.’” LaFave, Search and Seizure § 8.2(d) (quoting People v. Clark Mem’l Home,
252 N.E.2d 546, 549 (Ill. App. Ct. 1969)); see also State v. Gorup, 782 N.W.2d 16, 28 (Neb. 2010)
(quoting State v. Cates, 522 A.2d 788, 792 (Conn. 1987) (“Consent to search given in very close
temporal proximity to the official illegality is often a mere submission or resignation to police
authority and not necessarily an act of free will.”). By the same logic, when an illegal police search
leads a suspect to consent under the false impression that police can proceed with or without his
agreement, the suspect’s consent is not only involuntary but also a fruit of the initial illegal search.
See LaFave, Search and Seizure § 8.2(d) (“[A] consent to search which fails the voluntariness test
because of a prior illegality may just as convincingly be said to be a fruit of the prior illegality[.]”).
III. DISCUSSION
Here, the voluntariness inquiry and the fruits-of-the-poisonous-tree inquiry independently
lead to the same conclusion: Alston’s consent constituted mere surrender to an implied claim of
Page 7 of 17 police authority and thus cannot justify the warrantless search of his car. The search of Alston’s
car therefore violated the Fourth Amendment, and the resulting firearm must be suppressed. See
United States v. Green, 149 F.4th 733, 743 (D.C. Cir. 2025) (“[T]he remedy [for a Fourth
Amendment violation] is generally exclusion—courts must suppress the unlawfully obtained
evidence and any derivative evidence tainted by the violation unless an exception [to the
exclusionary rule] applies.”).
A. Voluntariness
It is well established that consent given “only in submission to an officer’s claim of lawful
authority” is involuntary. Glover, 144 F.4th at 340 (quoting Schneckloth, 412 U.S. at 233). That
is because “[w]hen a law enforcement officer claims authority to search,” “he announces in effect
that the [suspect] has no right to resist,” rendering the “situation . . . instinct with coercion.”
Bumper v. North Carolina, 391 U.S. 543, 550 (1968). Although this doctrine is most clearly
applicable “where a person agrees to a search after officers misrepresent that they have a search
warrant,” Glover, 144 F.4th at 341, the officer’s assertion of authority need not be so explicit. The
Supreme Court has said that consent must “not be coerced, by explicit or implicit means.”
Schneckloth, 412 U.S. at 228 (emphasis added). The D.C. Circuit has also endorsed the proposition
that “consent is ineffective if it follows an express or implied claim by the police that they can
immediately proceed to make the search.” Glover, 144 F.4th at 341 (emphasis added) (quoting
Orhorhaghe v. INS, 38 F.3d 488, 501 (9th Cir. 1994)). The Circuit has further indicated that an
“ambiguous” claim of lawful authority can “vitiate[] voluntary consent.” Id.
Alston testified that he “didn’t think [he] had a choice” when the Marshals asked for his
consent “because they was already in the car.” Hr’g Tr. at 66. He further testified that he did not
think the Marshals would stop searching his car if he withheld consent. See id. Based on Alston’s
Page 8 of 17 demeanor as a witness and the circumstances of the August 12 seizure, the court finds his testimony
credible. As courts have repeatedly recognized, “[a] suspect’s knowledge of a prior illegal search
can give rise to a sense that refusing to consent would be futile.” United States v. Washington,
387 F.3d 1060, 1074 (9th Cir. 2004); see also United States v. Haynes, 301 F.3d 669, 683 (6th Cir.
2002) (same). That is so in part because “police activity in searching place A may fairly be said
to be a manifestation of authority to search place A,” and thus withholding consent would be
pointless. LaFave, Search and Seizure § 8.2(d); see also State v. Garcia, 461 N.W.2d 460, 465
(Iowa 1990) (reasoning that an illegal search of defendant’s car did not invalidate defendant’s
subsequent consent to search his motel room in part because “the officers had exercised no control
over defendant’s motel room” and therefore “defendant had no reason to believe the search would
be conducted with or without his consent”).
Apply those principles to the facts of this case: Alston watched Deputy Lozada search his
car before Alston had given any consent. By searching Alston’s car without first asking for his
permission, Lozada implied to Alston that his consent was unnecessary—he “ha[d] no right to
resist the search” that the Marshals had already begun. Bumper, 391 U.S. at 550; see also
Washington, 387 F.3d at 1074. In other words, the earlier search gave Alston “reason to believe
the search would be conducted with or without his consent.” Garcia, 461 N.W.3d at 465.
Accordingly, he understandably interpreted Dugan’s subsequent question—“is it cool” if we do
what we are already doing?—not as a meaningful request for permission but as an empty gesture
that involved no real choice. His consent, then, was nothing more than mere submission to implied
police authority. See Gorup, 782 N.W.2d at 28 (“Consent to search given in very close temporal
proximity to the official illegality is often a mere submission or resignation to police authority[.]”
(cleaned up)).
Page 9 of 17 Notably, none of the officers informed Alston of his right to withhold consent. Although
“the police are not required to give such a warning before conducting a consensual search, the
failure to give such a warning is one of the factors relevant to the voluntariness inquiry.” Hall,
969 F.2d at 1108 n.7 (emphasis in original); see also United States v. Sparks, 594 F. Supp. 3d 9,
22 (D.D.C. 2022) (“Such a warning is not necessary for voluntary consent, but the lack of one is a
relevant factor to be considered in the totality of the circumstances.”). Here, the Marshals falsely
implied to Alston that his consent was not necessary by searching his car without it. By failing to
explicitly warn Alston that he could in fact withhold consent, the Marshals did nothing to dispel
the false impression that their illegal conduct had created or to inform him of his right to stop the
police by saying no. See LaFave, Search & Seizure § 8.2(d) (suggesting that “the illegality of the
first search will not necessarily invalidate the consent” subsequently given “by one who knows
that the police do not claim any authority to continue the search without consent” (emphasis
added)).
The Government emphasizes several factors which would, in a case involving no implied
assertion of lawful authority, support a finding of voluntary consent: Alston was 56 years old, had
a high school education, and had prior experience with the criminal justice system; the Marshals
did not use force or subject Alston to repeated and prolonged questioning; and the Marshals
otherwise maintained a cordial, conversational tone of voice. See Gov’t Opp’n at 9–12; see also
United States v. Robinson, 698 F.2d 448, 455 (D.C. Cir. 1983) (holding that a statement was
“clearly voluntary” where the defendant “was 30 years old, possessed an eleventh-grade education,
and had been convicted twice before of serious felonies” and where law enforcement made “no
threats” and used no force).
Page 10 of 17 But Deputy Lozada’s initial illegal search significantly changes the calculus because it put
Alston under the false impression that he had no right to resist the search. See Bumper, 391 U.S.
at 548–49 (The Government’s burden of establishing voluntary consent “cannot be discharged by
showing no more than acquiescence to a claim of lawful authority.”). Moreover, as explained in
more detail below, see infra Part III.B.2, Alston otherwise “faced a coercive situation at the time
he gave consent.” Holmes, 505 F.3d at 1295. Among other things, there was a heavy police
presence, Inspector Dugan implicitly threatened Alston with arrest for driving without a license if
he did not consent, Inspector Bruton was actively engaged in an invasive pat-down search of
Alston’s person when Dugan sought consent, and Alston had already seen Lozada searching his
car when Dugan asked for his consent. These factors reinforced Alston’s perception that he had
no meaningful ability to stop what the police were already doing. Alston’s consent was therefore
mere acquiescence to an implied claim of police authority and cannot justify the warrantless search
of his car. The gun must be suppressed on this basis alone.
B. Fruit of the Poisonous Tree
The fruit-of-the-poisonous-tree doctrine independently requires suppression. That is
because the discovery of the gun in Alston’s center console is a fruit of Deputy Lozada’s initial
illegal search and the Government has failed to show that Alston’s consent was an act “sufficient
to ‘purge the primary taint’ and break the causal chain between the illegal [search] and the [gun’s]
ultimate discovery.” Holmes, 505 F.3d at 1294 (quoting Brown, 422 U.S. at 602). Indeed, because
Alston’s consent “flowed directly from the [illegal search], it is hard to spot any attenuation” at
all. United States v. Brodie, 742 F.3d 1058, 1063 (D.C. Cir. 2014).
Page 11 of 17 1. Prima Facie Showing of Causal Connection
The Government first contends that Alston has failed to show a causal connection between
Deputy Lozada’s initial illegal search and the subsequent discovery of the firearm. Gov’t Opp’n
at 12–13. Although the Government is correct that a “defendant must make a prima facie showing
of a causal nexus between the Fourth Amendment violation and the evidence he seeks to suppress,”
Holmes, 505 F.3d at 1292, Alston has amply made that showing.
To start, Deputy Lozada had just searched the very place that Inspector Dugan requested
permission to search. When “the illegal action and the subsequent consent search are of the same
location, . . . the likelihood is greater that illegal action influenced the consent, and therefore the
causal connection is stronger.” United States v. Robeles-Ortega, 348 F.3d 679, 684 (7th Cir. 2003).
That is so here. Alston credibly testified that he did not think he could stop the Marshals from
searching his car “because they was already in the car.” Hr’g Tr. at 66. Alston has therefore made
a prima facie showing that Lozada’s initial illegal search caused his consent, and that his consent
caused the subsequent discovery of the firearm.
The Government stresses that Lozada’s initial illegal search did not uncover any evidence,
describing the initial illegal search as “merely an investigative detour that led to a dead end.” Gov’t
Opp’n at 13. To be sure, if Deputy Lozada’s initial search had uncovered contraband, the causal
connection between that search and a subsequent search would be stronger. That is because when
a suspect is confronted with contraband obtained in a search he has just watched unfold, the suspect
would believe that he has been “caught red-handed,” “the jig was up,” and there was “no real
choice” but to consent. United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007). But it does
not follow that Deputy Lozada’s initial lack of success somehow severs the connection between
his initial search, Alston’s consent, and the subsequent search. See Gorup, 782 N.W.2d at 30
Page 12 of 17 (“Relying on cases in which the suspects observed officers seize contraband or learned of the
discovery from the officers does not show that the taint of the illegal action is purged unless those
facts are present.”). “[E]ven if [an initial illegal search] did not produce incriminating evidence,”
it “may have been sufficiently similar and recent as to make a later consent involuntary because
the earlier experience causes the consenter to conclude that refusal to consent on the present
occasion would be pointless.” LaFave, Search and Seizure § 8.2(d); see also United States v.
Simpson, 439 F.3d 490, 495 n.3 (8th Cir. 2006) (“[I]n cases where, for example, the defendant
consents to a search, the time between the initial illegality and the defendant’s consent is critical
because the closer this period, the more likely the defendant’s consent was influenced by, or the
product of, the police misconduct. Evidence recovered under these circumstances is ordinarily
considered tainted and therefore inadmissible.”). That is so here. Because Alston had just
witnessed Deputy Lozada search his car, he was justified in his belief that he could not stop the
officers from searching further by withholding consent. His consent was therefore a product of
the initial illegal search and provides a causal link between the initial illegal search and the
subsequent search that uncovered the gun.
2. Brown Factors
With a prima facie causal connection established, the burden shifts to the Government to
prove by a preponderance of the evidence that the discovery of the gun “was so attenuated from
the illegal search” that “the taint” of the initial illegality had “dissipated.” Holmes, 505 F.3d at
1293. In assessing whether consent given after an illegal search “is a sufficiently free act to purge
the taint” of an initial illegal search, the court considers the four factors from Brown v. Illinois:
“(1) whether Miranda warnings were given; (2) the temporal proximity of the [initial illegal
search] and consent; (3) the presence of intervening circumstances; and (4) the purpose and
Page 13 of 17 flagrancy of the official misconduct.” Id. at 1294 (citing Brown, 422 U.S. at 603–04). These
factors are “non-exclusive” and “no single fact is dispositive.” Id. (cleaned up).
Beginning with “the issue of temporal proximity,” “there was virtually no temporal gap
between the [illegal search] and the consent.” Holmes, 505 F.3d at 1295; see also Brodie, 742
F.3d at 1063 (“The evidence was discovered mere seconds after the illegal seizure, so time
obviously did not purge the taint.”). Deputy Lozada was actively searching Alston’s car when
Inspector Dugan asked Alston if it was “cool” to search it, and Lozada withdrew from the
passenger compartment at the same time Alston said, “Go ahead.” To the extent this can even be
characterized as a break in time, “[i]t is difficult to imagine a shorter time frame between the
unconstitutional action and consent.” Robeles-Ortega, 348 F.3d at 683. This factor therefore
“weighs heavily against a finding” that Alston’s consent “purge[d] the taint of the earlier illegal
police conduct.” Holmes, 505 F.3d at 1295. Notably, the D.C. Circuit in Holmes cited cases which
found 15- and 45-minute time lapses insufficient. See id. (citing United States v. Washington, 387
F.3d 1060, 1073 (9th Cir. 2004) and United States v. Maez, 872 F.2d 1444, 1456 (10th Cir. 1989)).
“Further, any ‘intervening circumstances’ are of little help to the government.” Holmes,
505 F.3d at 1295. After stopping Alston, the agents ordered him out of the vehicle, started
searching his car, and frisked him twice.3 Indeed, Deputy Lozada was actively searching Alston’s
car and Inspector Bruton was actively searching Alston’s person as Inspector Dugan asked for
consent. Moreover, immediately before asking Alston whether it was “cool” if the Marshals
3 The parties debate whether the frisks were justified, but the court need not decide that issue. Even assuming the frisks were lawful, they still contributed to a police-dominated atmosphere where the coercive pressures on Alston were significant. See United States v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013) (explaining that a “police-dominated atmosphere” weighs against a finding of voluntary consent to a search); see also Sherrod v. McHugh, 334 F. Supp. 3d 219, 246 (D.D.C. 2018) (“Courts in this jurisdiction have held that a show of force by the police may render consent involuntary[.]”).
Page 14 of 17 searched his car, Dugan informed Alston that he could be arrested for driving without a license.
Because the timing of Dugan’s statements reasonably implied to Alston that his best hope of
“avoiding arrest that night was to consent to the search” that had already begun, Alston “faced a
coercive situation at the time he gave consent.” Holmes, 505 F.3d at 1295. There is no indication,
moreover, that Alston had any time “to pause and reflect” before he gave consent, United States
v. Brandwein, 796 F.3d 980, 986 (8th Cir. 2015) (citation omitted), much less an opportunity to
consult a family member or a lawyer, see United States v. Conrad, 673 F.3d 728, 733 (7th Cir.
2012).
The Government argues that, despite the striking similarities between this case and Holmes,
there are several differences which make the circumstances less coercive. See Gov’t Opp’n at 13–
16. In Holmes, the officers had chased the suspect after he fled, handcuffed him, and questioned
him about where he had come from and how he had gotten there, all this occurring “in the middle
of the night on an empty street.” 505 F.3d at 1295. Alston, by contrast, was never chased or
handcuffed, was not similarly questioned, and the traffic stop occurred around 9:30 p.m., not 3:40
a.m.—though notably, Alston was stopped on a quiet side street that the Marshals had blocked off
to other traffic.
On the other hand, there are also several factors present in this case and absent in Holmes
which cut against the Government. First, in Holmes, the officers “informed [the suspect] of his
right to refuse consent” by reading him a consent form that they then had him sign. 505 F.3d at
1294. Here, none of the officers advised Alston of his right to refuse consent, much less had him
sign a consent form. Nor did they read Alston his Miranda rights. Although the Government may
be right that Inspector Dugan was not required to read Alston his Miranda rights at the time, Gov’t
Opp’n at 14–15, the absence of Miranda and other warnings is still relevant to determining whether
Page 15 of 17 there was an intervening event that helped dispel the false impression of lawful authority that
Alston was under. See Hall, 969 F.2d at 1108 n.7; see also United States v. Robertson, 736 F.3d
677, 680 (4th Cir. 2013) (“Whether the individual searched was informed of his right to decline
the search is a highly relevant factor” in assessing voluntariness. (cleaned up)).
Second, the seizure in Holmes involved only two police officers. See 505 F.3d at 1290.
Here, by contrast, the seizure involved three police vehicles and seven federal agents in tactical
gear—a far heavier police presence than normal for a routine traffic stop. See Berkemer v.
McCarty, 468 U.S. 420, 438–39 (1984) (explaining that the “ordinary traffic stop” is not a heavily
“police dominated” atmosphere, in part because “the detained motorist typically is confronted by
only one or at most two policemen”); see also Robertson, 736 F.3d at 680 (concluding that the
presence of “three patrol cars and five uniformed officers” rendered the area “dominated by police
officers” and weighed against a finding that consent was voluntary). Indeed, as Deputy Lozada
himself testified, his deployment that evening as part of a “high-visibility,” “large law enforcement
presence” was designed to project an imposing show of force in “high-crime areas.” Hr’g Tr. at
3–4, 25–26. “Courts in this jurisdiction have held that a show of force by the police” can weigh
against a finding that consent is voluntary. Sherrod v. McHugh, 334 F. Supp. 3d 219, 246 (D.D.C.
2018).
Finally, “while the police conduct may not have been especially flagrant, neither was it a
case of an innocent mistake.” Brodie, 742 F.3d at 1063. Although Lozada testified that he believed
Alston had consented, Lozada neither heard Alston consent nor was told by anyone on the scene
that Alston had consented. Hr’g Tr. at 18, 40. It is not reasonable to invade a constitutionally
protected space without a meaningful indication of permission or probable cause. Moreover,
Dugan’s earlier statement to Bruton—that they should “step [Alston] out and tell him, we’ll search
Page 16 of 17 the car”—further suggests that obtaining Alston’s consent was, at best, an afterthought. Even
setting aside these problematic facts and assuming there was a “lack of flagrant police
misconduct,” the “absence of that factor” would not “compensate[] for the strongly coercive
circumstances otherwise surrounding [Alston’s] grant of consent to search.” Holmes, 505 F.3d at
1295.
In short, Alston’s consent to a search that had already begun—consent that was given under
highly coercive circumstances and under the false impression that police had the authority to
search—was not “an intervening act of free will that broke the causal link” between the initial
illegal search and the subsequent discovery of the gun. Id. The gun is therefore a fruit of Deputy
Lozada’s initial illegal search and must be suppressed on this independent basis as well.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT Alston’s Motion to Suppress Tangible
Evidence. A separate order will issue.
Date: March 5, 2026
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 17 of 17