United States v. Robertson, No. 12-4486 (4th Cir. 2013)

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Justia Opinion Summary

Defendant pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). On appeal, defendant challenged the district court's denial of his motion to suppress evidence. Surrounded by police officers, defendant watched as every individual in a bus shelter next to him was handled by the police. Soon thereafter, defendant was confronted by a police officer who immediately sought to verify whether defendant was carrying anything illegal before waving him forward. The court concluded, given these facts, that defendant merely obeyed the police officer's orders without giving valid consent to a search. Accordingly, the court reversed the judgment of the district court.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4486 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMAAL ANTONIO ROBERTSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge; Catherine C. Eagles, District Judge. (1:11-cr00296-CCE-1) Argued: September 20, 2013 Decided: December 3, 2013 Before GREGORY and DUNCAN, Circuit Judges, and Samuel G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation. Reversed by published opinion. Judge Gregory wrote the majority opinion, in which Judge Duncan joined. Judge Wilson wrote a dissenting opinion. ARGUED: Ronald Cohen, Wilmington, North Carolina, for Appellant. Michael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. GREGORY, Circuit Judge: This appeal stems from an interaction between Jamaal Robertson and Durham Police Officer Doug Welch in a bus shelter. Officer Welch had come to the neighborhood around the bus shelter in response to reports of a foot chase involving a gun. After some initial investigations, Officer Welch and a crew of police officers focused their response on a bus shelter containing six individuals. Among them was Jamaal Robertson. While several officers engaged the other bus shelter denizens, Officer Welch approached and eventually searched Mr. Robertson, who is a convicted felon and was carrying a firearm. Mr. Robertson pled guilty to violating 18 U.S.C. ยง 922(g)(1). Mr. Robertson argues that he never consented to the police officer s search, rendering it presumptively unreasonable absent probable cause. We agree with Mr. Robertson. Because we find that in submitting to the search, Mr. Robertson merely obeyed the police officer s orders without giving valid consent, we reverse. I. Because this is a defendant s appeal from a motion to suppress, we construe the facts in the light most favorable to the government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). 2 On April 14, 2011, the Durham Police Department received a call reporting an altercation in MacDougald Terrace. The caller stated that three African-American males in white t-shirts were chasing an individual who was holding a firearm. Doug Welch drove to the area in his patrol car. Officer After arriving, he approached a group of people who were standing near where the foot chase was reported. The group was apparently uninvolved in the chase, however, and was unable to give Officer Welch any useful information. Officer Welch started to walk back to his patrol car. It was then that he noticed a group of six or seven individuals in a sheltered bus stop. Three of the individuals were African- American males wearing white shirts. Jamaal Robertson was in the bus shelter but was wearing a dark shirt. Officer Welch approached the bus shelter to investigate. By the time he arrived, three or four other police officers had already converged on the scene. Officer Welch s, were nearby. Their patrol cars, like While the other officers were already dealing with the other subjects at the bus shelter, (J.A. 34), Robertson was still seated in the Officer Welch decided to focus on Mr. Robertson. shelter, so Officer Welch stopped about four yards in front of Mr. Robertson, who was sitting with his back to Mr. Robertson was blocked the on shelter s three 3 sides back by wall. walls, Thus, faced a police officer directly in front of him, and had another three or four police officers nearby who were dealing with every other individual hearing, in Officer the stop. could Welch bus During not recall the if suppression all of these individuals were searched, explaining that once he approached the bus shelter, he focused entirely on Mr. Robertson. After approaching Mr. Robertson, Officer Welch first asked whether Mr. Mr. Robertson Robertson remained had anything silent. illegal Officer Welch on him. then waved Mr. Robertson forward in order to search Mr. Robertson, while simultaneously asking to conduct the search. In response to Officer Welch s hand gesture, Mr. Robertson stood up, walked two yards towards hands. Officer Welch, turned around, and raised his During the search, Officer Welch recovered a firearm from Mr. Robertson. After being indicted for illegal possession of a firearm, Mr. Robertson moved to suppress all evidence seized during the search. Mr. Robertson Officer Welch, turned obeying an order argued around from that and Officer when raised Welch. he walked towards his hands, he As such, he was merely submitted to a search, rather than validly consenting to one. The district court denied the Mr. Robertson filed a timely appeal. 4 motion to suppress, and II. The Fourth searches and Amendment seizures. protects U.S. against Const. amend. unreasonable IV. Searches without probable cause are presumptively unreasonable, but if an individual consents to a search, probable cause is unnecessary. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). We review for clear error a district court s determination that a search is consensual under the Fourth Amendment. See United States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990). We apply a subjective test to analyze whether consent was given, looking to the totality of the circumstances. Wilson, 895 F.2d at 171 72. The government has the burden of proving consent. States v. Mendenhall, 446 U.S. 544, 557 See United (1980). Relevant factors include the officer s conduct, the number of officers present, the time of the encounter, and characteristics of the individual who was searched, such as age and education. Lattimore, 87 F.3d at 650. Whether the individual searched was informed decline of his relevant factor. At the exclusively testimony. right to the search is a highly Wilson, 895 F.2d at 172. outset, we on facts the emphasize as that taken our from ruling Officer is based Welch s In the suppression hearing, there were many factual discrepancies between the testimony of Mr. Robertson and Officer Welch, but our reversal in this 5 case is based entirely on Officer Welch s version of events. We stress this because the district court credited Officer Welch s testimony but did not credit Mr. Robertson s. In general, we apply a particularly strong clear error standard to factual determinations when they are based on oral testimony. See Lattimore, 87 F.3d at 650 51. This stems from district courts ability to observe witnesses demeanor firsthand. from Officer Id. However, because our reversal stems Welch s version of events, determinations play no part in our ruling. facts credited by the district court, credibility Rather, based on the we are compelled to conclude that the government has failed to meet its burden of proving consent. See Bumper v. North Carolina, 391 U.S. 543, 548 49 (1968) (ruling that the government s burden of proving consent cannot be discharged by showing no more than acquiescence to a claim of lawful authority ). This case turns on the difference between voluntary consent to a request versus begrudging submission to a command. Mr. Robertson s behavior was the latter. The area around the bus shelter was dominated by police officers. F.3d at 650 (citing number weighing against consent). five uniformed officers of officers Here, See Lattimore, 87 present as a factor There were three patrol cars and with holstered weapons. Before the encounter, Mr. Robertson observed every other individual in the bus shelter get handled by the other police officers. 6 (J.A. 46.) As these individuals were being dealt with, yet another officer approached the bus shelter and focused on Mr. Robertson. The officer s questioning was immediately accusatory: Officer Welch s first question was whether Mr. Robertson had anything illegal on him. that friendly See Elie, 111 F.3d at 1145 (arguing conversation rather militates towards consent). than accusatory questions When Mr. Robertson responded with silence, the officer waved Mr. Robertson forward and asked to conduct a search. Mr. Robertson s exit was blocked by Officer Welch, who never informed Mr. Robertson that he had the right to refuse the search. See Lattimore, 87 F.3d at 650 (citing individual s knowledge of a right to refuse a search as relevant to accusatory a consent question, finding). combined Officer with Welch s the initial, police-dominated atmostphere, clearly communicated to Mr. Robertson that he was not free to leave conduct a search. or to refuse Officer Welch s request to Mr. Robertson s only options were to submit to the search peacefully or resist violently. chose the sensible route. Mr. Robertson See United States v. Albrektsen, 151 F.3d 951 (9th Cir. 1998) ( [Defendant] was forced to move so that the entering officers would not knock him down. Consent that is not. ) (internal quotations omitted). Further, the police interaction in this case lacks factors that indicate consent. In United States v. Elie, involving a 7 search of relevant the that defendant s the hotel defendant room, we repeatedly found asked search and secure the items in his hotel room. 1145 (4th Cir. 1997). it the highly police to 111 F.3d 1135, Similarly, in Lattimore, the defendant gave verbal consent and also signed a written consent form after the police officer carefully explained that he wanted to search the defendant s car. 87 F.3d at 649 50. In this case, meanwhile, Mr. Robertson never gave verbal or written consent; he merely surrendered to a police officer s command. Further, in both Elie and Lattimore, the interactions between the police and the defendants occurred in broad daylight and were characterized by relaxed, friendly conversation between the two sides. See Elie, 111 F.3d at 1145 ( nothing in the record indicates an environment that was coercive or intimidating. fact, Elie engaged the officers in friendly In conversation ); Lattimore, 87 F.3d at 651 ( at no time did the officer use force or a threat of force to coerce Lattimore s consent. In fact, the two men engaged in friendly conversation ). The situation here, of meanwhile, lacks those indicia consent. Officer Welch s initial question was accusatory and was met with cold silence. consent. voluntary Mr. Officer Welch never received verbal or written Robertson s invitation to be behavior searched; surrender to Officer Welch s order. 8 was it not was a clear-eyed, a begrudging In sum, the facts as presented by Officer Welch are not enough for the government to demonstrate valid consent. Surrounded by police officers, Mr. Robertson watched as every individual in a bus shelter next to him was handled by the police. Soon police officer thereafter, who Mr. Robertson immediately sought was to confronted verify by a whether Mr. Robertson was carrying anything illegal before waving him forward. Given these facts, we are compelled to conclude that the government has failed to meet its burden of demonstrating consent. Accordingly, we reverse the district court s refusal to suppress evidence. REVERSED 9 WILSON, District Judge, dissenting: There are now two opinions with their own plausible findings, one from the district court finding that Mr. Robertson voluntarily consented to the search court finding the exact opposite. based upon all the facts and and the other from this Both opinions purport to be circumstances. The district court s findings, which include the determination that Officer Welch was credible and that Mr. Robertson was not, follow an evidentiary hearing. This court s findings follow consideration of the evidence from the written record. because I believe under the I respectfully dissent circumstances Supreme Court precedent requires this court to defer to the district court s plausible findings. In a thorough, well-reasoned written opinion, the district court made its findings of fact, which I distill for brevity s sake. white Officers respond to a distress call that three men in t-shirts are chasing another caller, a firearm is involved. and it is nighttime. man. According to the It is a known high crime area, When Officer Doug Welch arrives in the vicinity, three other officers are speaking with various people. There are more Welch notices non-officers Mr. illegal on you? Robertson present and than asks, Do officers. you Mr. Robertson does not reply. have Officer anything The diminutive officer, who is 5'2" tall, has not drawn his firearm (nor has 10 any other officer) and simply follows up with a gesture and question, Do you mind if I search you? Mr. Robertson, who is much taller than Officer Welch, comes forward, turns, and puts his hands above his head. Officer Robertson s actions indicate his consent. produces a firearm. lasting seconds. judge, The entire Welch believes Mr. The resulting search encounter is quite brief, The conditions, in the words of the district were neither coercive nor intimidating and demonstrate[] by a preponderance of the evidence that Robertson knowingly and voluntarily consented to the search of his person. (J.A. 88, 93) The question, voluntariness and determination as of a the of consent reviewing district to search court, court we unless is must its a factual affirm finding the is clearly erroneous. United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996)(en banc). As the Supreme Court has stated in explaining this standard: If the district court s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder s choice between them cannot be clearly erroneous. This is so even when the district court s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. 11 Anderson, 470 U.S. at 573-74 (internal citations omitted). Here, the majority emphasizes that its ruling is based exclusively on the facts as taken from Officer Welch's testimony and, therefore, is not inconsistent with the clearly erroneous standard of review. According to the majority, [t]his case turns on the difference between voluntary consent to a request versus begrudging submission to command, and Mr. Robertson s behavior was the latter. The majority then lists those circumstances it finds compelling in reaching its conclusion. do not dissent because I find the opinion to be illogical or implausible. majority s findings I and To the contrary, I find them every bit as logical and plausible as I find the district court s findings and opinion. But as the Supreme Court has cautioned, the question is not whether the court of appeal s interpretation of the facts [is] clearly erroneous, but whether the District Court s finding [is] clearly erroneous. Id. at 577. In my view it is not. dissent. 12 Consequently, I respectfully