NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 31 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50294
Plaintiff-Appellee, D.C. No. 8:21-cr-00043-JVS-1 v.
NGUYEN VAN HO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Argued and Submitted September 12, 2023 Pasadena, California
Before: M. SMITH, FRIEDLAND, and MILLER, Circuit Judges. Dissent by Judge M. SMITH.
Defendant Nguyen Van Ho (“Ho”) appeals the district court’s denial of his
motion to suppress drug evidence found during a police search of a car he had been
driving. The court concluded that Ho did not withdraw his consent to a search of
the car when he asked the officer three times, “Can I consent not to search the
vehicle?” The district court clearly erred in finding that Ho had not withdrawn his
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. consent to the search of the car, so we reverse.
Our cases are not consistent on the standard of review for the question
whether a particular statement or type of conduct constitutes withdrawal of
consent. Compare United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990)
(explaining that although “a district court’s finding that a person consented to a
search is generally treated as a factual determination, reversible only if clearly
erroneous[,] . . . [w]hen we are determining whether as a general rule certain types
of actions give rise to an inference of consent, de novo review is appropriate”), and
United States v. Rosi, 27 F.3d 409, 411 n.1 (9th Cir. 1994) (explaining that our
court reviews de novo the question whether a person consented in “cases
involv[ing] conduct that call[s] for the formulation of a general rule that would be
applicable to a wide class of cases”), with United States v. Vongxay, 594 F.3d
1111, 1114, 1119-20 (9th Cir. 2010) (reviewing for clear error whether a person
consented to a search when he placed his hands on his head in response to an
officer’s request to search), and United States v. Russell, 664 F.3d 1279, 1280 n.1
(9th Cir. 2012) (holding that “the determination whether a search was within the
scope of consent” is “reviewed for clear error”).1 We need not decide the standard
1 All of the facts in Ho’s case are undisputed and are captured on video. To the extent that this case therefore presents the issue whether an utterance phrased as a question can constitute an unequivocal withdrawal of consent, the de novo review rule in Shaibu could apply.
2 of review because we hold that the decision that Ho did not withdraw his consent
to the vehicle search was erroneous under either standard.
Consent to a search must be “unequivocal” and “specific.” United States v.
Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (quoting United States v. Basher, 629
F.3d 1161, 1167-68 (9th Cir. 2011)). We have never previously decided whether
the standard for withdrawal of consent is the same, or whether such a withdrawal
may be accomplished with some lesser degree of clarity. The parties here both
assume that the standard for withdrawal of consent is the same as the standard for
giving it. We also need not decide whether the level of clarity needed to withdraw
consent is as high as that needed to give consent because Ho’s withdrawal meets
the unequivocal and specific standard.
The unequivocal and specific standard does not require a person to use exact
language to give or withdraw consent. We have held that a defendant
unequivocally and specifically gave consent when he said, “It don’t matter, I just
got it, I just got it, it don’t matter to me,” id. at 1238, 1244, and that another
defendant gave unequivocal and specific consent when he simply nodded his head ,
Basher, 629 F.3d at 1168. To withdraw consent, however, a person may not
simply express reluctance or impatience. See United States v. Brown, 884 F.2d
1309, 1312 (9th Cir. 1989); United States v. Ross, 263 F.3d 844, 846 (8th Cir.
2001).
3 Ho’s statement was unequivocal because it was a direct request to withdraw
his consent. Although Ho’s “Can I consent not to search the vehicle?” phrasing
may have been awkward, he was not required to use precise language or particular
magic words. His phrasing was no less clear than saying, “It don’t matter, I just
got it, I just got it, it don’t matter to me.” Taylor, 60 F.4th at 1238. Ho was not
simply alluding to being impatient. See Ross, 263 F.3d at 846. Ho’s statement was
sufficiently specific because it clearly referred to the search of the car. See Basher,
629 F.3d at 1168 (noting that a head nod was sufficiently specific because it
“clearly defin[ed] who would enter the tent (his son) and the scope of the activity
(bringing the gun outside)”).
Ho’s withdrawal was not made equivocal simply because it was phrased as a
question. In ordinary conversation, people frequently make requests by asking
“can I [blank]?” See Tobias v. Arteaga, 996 F.3d 571, 580 (9th Cir. 2021) (“In
modern usage, ‘Can I’ and ‘Could I’ are both well understood ways of asking a
direct question.”). If a person ordering at a restaurant asks the waiter, “Can I
cancel the fries?” and the waiter says, “Yes, I’ll talk to the chef,” the diner would
not expect to receive the fries. It was therefore clear error to interpret Ho’s “can I”
statement as something other than a request to withdraw consent. See United
States v. Gainza, 982 F.3d 762, 765 (9th Cir. 2020) (explaining that clear error
exists when we are “left with a ‘definite and firm conviction that a mistake has
4 been committed’” (quoting United States v. Stargell, 738 F.3d 1018, 1024 (9th Cir.
2013))).
The Government argues, however, that there is reason to believe that Ho was
not making a request but instead was merely asking a clarifying question. Because
Ho had borrowed the car from his friend, the Government argues that someone
could have perceived Ho as simply seeking to clarify whether he had the right to
withdraw consent to the search of his friend’s car. But Ho was the one who gave
consent to the search of car, and there is no reason to think that he would have
understood that he had the authority to give consent to a search of his friend’s car
but not understood that he had the authority to withdraw that consent.
The Government also argues that Ho should have done more to vindicate his
right to withdraw his consent, noting that Ho did not follow up after asking if he
could withdraw consent or do anything else to stop the search. But this argument
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 31 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50294
Plaintiff-Appellee, D.C. No. 8:21-cr-00043-JVS-1 v.
NGUYEN VAN HO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Argued and Submitted September 12, 2023 Pasadena, California
Before: M. SMITH, FRIEDLAND, and MILLER, Circuit Judges. Dissent by Judge M. SMITH.
Defendant Nguyen Van Ho (“Ho”) appeals the district court’s denial of his
motion to suppress drug evidence found during a police search of a car he had been
driving. The court concluded that Ho did not withdraw his consent to a search of
the car when he asked the officer three times, “Can I consent not to search the
vehicle?” The district court clearly erred in finding that Ho had not withdrawn his
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. consent to the search of the car, so we reverse.
Our cases are not consistent on the standard of review for the question
whether a particular statement or type of conduct constitutes withdrawal of
consent. Compare United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990)
(explaining that although “a district court’s finding that a person consented to a
search is generally treated as a factual determination, reversible only if clearly
erroneous[,] . . . [w]hen we are determining whether as a general rule certain types
of actions give rise to an inference of consent, de novo review is appropriate”), and
United States v. Rosi, 27 F.3d 409, 411 n.1 (9th Cir. 1994) (explaining that our
court reviews de novo the question whether a person consented in “cases
involv[ing] conduct that call[s] for the formulation of a general rule that would be
applicable to a wide class of cases”), with United States v. Vongxay, 594 F.3d
1111, 1114, 1119-20 (9th Cir. 2010) (reviewing for clear error whether a person
consented to a search when he placed his hands on his head in response to an
officer’s request to search), and United States v. Russell, 664 F.3d 1279, 1280 n.1
(9th Cir. 2012) (holding that “the determination whether a search was within the
scope of consent” is “reviewed for clear error”).1 We need not decide the standard
1 All of the facts in Ho’s case are undisputed and are captured on video. To the extent that this case therefore presents the issue whether an utterance phrased as a question can constitute an unequivocal withdrawal of consent, the de novo review rule in Shaibu could apply.
2 of review because we hold that the decision that Ho did not withdraw his consent
to the vehicle search was erroneous under either standard.
Consent to a search must be “unequivocal” and “specific.” United States v.
Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (quoting United States v. Basher, 629
F.3d 1161, 1167-68 (9th Cir. 2011)). We have never previously decided whether
the standard for withdrawal of consent is the same, or whether such a withdrawal
may be accomplished with some lesser degree of clarity. The parties here both
assume that the standard for withdrawal of consent is the same as the standard for
giving it. We also need not decide whether the level of clarity needed to withdraw
consent is as high as that needed to give consent because Ho’s withdrawal meets
the unequivocal and specific standard.
The unequivocal and specific standard does not require a person to use exact
language to give or withdraw consent. We have held that a defendant
unequivocally and specifically gave consent when he said, “It don’t matter, I just
got it, I just got it, it don’t matter to me,” id. at 1238, 1244, and that another
defendant gave unequivocal and specific consent when he simply nodded his head ,
Basher, 629 F.3d at 1168. To withdraw consent, however, a person may not
simply express reluctance or impatience. See United States v. Brown, 884 F.2d
1309, 1312 (9th Cir. 1989); United States v. Ross, 263 F.3d 844, 846 (8th Cir.
2001).
3 Ho’s statement was unequivocal because it was a direct request to withdraw
his consent. Although Ho’s “Can I consent not to search the vehicle?” phrasing
may have been awkward, he was not required to use precise language or particular
magic words. His phrasing was no less clear than saying, “It don’t matter, I just
got it, I just got it, it don’t matter to me.” Taylor, 60 F.4th at 1238. Ho was not
simply alluding to being impatient. See Ross, 263 F.3d at 846. Ho’s statement was
sufficiently specific because it clearly referred to the search of the car. See Basher,
629 F.3d at 1168 (noting that a head nod was sufficiently specific because it
“clearly defin[ed] who would enter the tent (his son) and the scope of the activity
(bringing the gun outside)”).
Ho’s withdrawal was not made equivocal simply because it was phrased as a
question. In ordinary conversation, people frequently make requests by asking
“can I [blank]?” See Tobias v. Arteaga, 996 F.3d 571, 580 (9th Cir. 2021) (“In
modern usage, ‘Can I’ and ‘Could I’ are both well understood ways of asking a
direct question.”). If a person ordering at a restaurant asks the waiter, “Can I
cancel the fries?” and the waiter says, “Yes, I’ll talk to the chef,” the diner would
not expect to receive the fries. It was therefore clear error to interpret Ho’s “can I”
statement as something other than a request to withdraw consent. See United
States v. Gainza, 982 F.3d 762, 765 (9th Cir. 2020) (explaining that clear error
exists when we are “left with a ‘definite and firm conviction that a mistake has
4 been committed’” (quoting United States v. Stargell, 738 F.3d 1018, 1024 (9th Cir.
2013))).
The Government argues, however, that there is reason to believe that Ho was
not making a request but instead was merely asking a clarifying question. Because
Ho had borrowed the car from his friend, the Government argues that someone
could have perceived Ho as simply seeking to clarify whether he had the right to
withdraw consent to the search of his friend’s car. But Ho was the one who gave
consent to the search of car, and there is no reason to think that he would have
understood that he had the authority to give consent to a search of his friend’s car
but not understood that he had the authority to withdraw that consent.
The Government also argues that Ho should have done more to vindicate his
right to withdraw his consent, noting that Ho did not follow up after asking if he
could withdraw consent or do anything else to stop the search. But this argument
does not reflect what actually occurred after Ho requested if he could “consent not
to search the vehicle.” After Ho made his request, the officer responded, “Yeah,
we gotta talk to this guy right here.” He was presumably referring to the officer
who was conducting a records check in his squad car, who would later conduct the
search. The search did not occur for almost five minutes. At that point, from
where Ho was sitting in the shade between two cars, he would not have been able
to see that a search had begun. From his vantage point, Ho would have thought
5 that he and the officer were simply waiting for the other officer to return from his
squad car so that they could communicate his withdrawal of consent to that officer.
Ho therefore would have had no reason to protest in that moment.
For the foregoing reasons, we REVERSE.
6 FILED United States v. Ho, No. 22-50294 JAN 31 2024
M. SMITH, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Because Ho’s question to the officer “Can I consent not to search the
vehicle?” was not an “unequivocal” withdrawal of consent, see United States v.
Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023); Unequivocal, Black’s Law Dictionary
(11th ed. 2019) (“Unambiguous; clear; free from uncertainty.”), I respectfully
dissent.
The standard of review applicable to withdrawals of consent to search is not
settled in this circuit. I would review the district court’s conclusion for clear error
based on how we review questions of initial consent to search. See United States v.
Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990) (“A district court’s finding that a
person consented to a search is generally treated as a factual determination,
reversible only if clearly erroneous.”); see also United States v. Brown, 884 F.2d
1309, 1312 (9th Cir. 1989) (applying without discussing clear error standard to
district court’s conclusion on whether defendant’s actions were “enough to indicate
he had withdrawn his unambiguous statement of consent”).1 Other circuits have
adopted this approach. See, e.g., United States v. $304,980.00 in U.S. Currency,
1 The Shaibu exception would not apply. See 920 F.2d at 1425 (“There is at least one exception to this principle [of clear error review], however. When we are determining whether as a general rule certain types of actions give rise to an inference of consent, de novo review is appropriate.”). The issue here concerns Ho’s specific statement. There is no general rule to divine. 732 F.3d 812, 820 (7th Cir. 2013) (“Like the question whether consent was given
at all, the question whether the suspect subsequently withdrew or limited the scope
of his consent is a question of fact that we review for clear error.”); United States
v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004) (“The district court’s finding that
[defendant] did not make a specific request to leave is not clearly erroneous. At
most, [defendant’s] first conversation with [the officer] amounted to an expression
of impatience, which is not sufficient to terminate consent.”). However, the
standard of review is not dispositive here. I would affirm the district court’s denial
of Ho’s motion to suppress under either de novo or clear error review.
What my colleagues in the majority gloss over as “awkward” phrasing is
precisely what made Ho’s question unclear. The question was illogical and, as a
result, subject to more than one reasonable interpretation. For example, one could
understand Ho to be asking whether he had the right to withhold consent to search
initially, to be clarifying whether he had the right to later withdraw consent or, as
the majority understands him, to be withdrawing consent. It is not important
which, if any, of these interpretations is correct. It is enough that Ho’s statement
was confusing and not unambiguous. Cf. United States v. Younger, 398 F.3d 1179,
1187–88 (9th Cir. 2005) (holding the question “excuse me, if I am right, I can have
a lawyer present through all this, right?” to be ambiguous and therefore not
sufficient to require officers to stop questioning).
2 The majority suggests that, in ordinary conversation, people make requests
by asking “can I [blank]?” It was thus “clear error to interpret Ho’s ‘can I’
statement as something other than a request to withdraw consent.” Respectfully,
the majority relies on a false analogy. Ho did not ask the logical equivalent of
“Can I cancel the fries?”—i.e., “Can I withdraw my consent?” That case would be
fairly straightforward. Instead he asked, “Can I consent not to search the
vehicle?”, or, in restaurant-terms, “Can I agree not to order the fries?” When
properly drawn, the analogy supports the same conclusion as above: Ho’s
statement was difficult to understand and not unambiguous. Any waiter asked
“Can I agree not to order the fries?” would be puzzled by the request.
The district court did not err in finding that Ho had not unequivocally
withdrawn his consent to the search of the car. For this reason, I respectfully