United States v. Robertson and the Voluntariness of Consent to a Fourth Amendment Search

Yesterday the Fourth Circuit handed down an interesting Fourth Amendment decision in United States v. Robertson, involving a consent search at a bus shelter. It’s a rare published decision from the Fourth Circuit, with a divided vote, and my tentative view is that the dissent is correct.

As I understand the facts, several officers converged on the bus shelter (which I assume something like this) to try to figure out if any of the people at the shelter knew of a foot chase involving a gun that had just been reported in the area. Robertson was one of the men sitting at the bus shelter, and he was approached by Officer Welch. Welch asked Robinson, “Do you have anything illegal on you?”, but Robertson remained silent. Welch then waved Robertson toward him and said, “Do you mind if I search you?” Robertson stood up, walked two yards towards Officer Welch, turned around, and raised his hands above his head. Welch interpreted that as consent, and conducted a search. The search recovered a firearm, and that led to charges for illegal firearms possession.

At trial, Robertson argued that the search was invalid because consent was involuntary. The voluntariness of consent is a question of fact based on a totality of the circumstances that is reviewed for clear error. The district court ruled that the Robertson had voluntarily consented. In today’s decision, the Fourth Circuit ruled that this factual determination was clearly erroneous. From the majority opinion by Judge Gregory, joined by Judge Duncan, with internal citations omitted:

This case turns on the difference between voluntary consent to a request versus begrudging submission to a command. Here, Mr. Robertson’s behavior was the latter. The area around the bus shelter was dominated by police officers. There were three patrol cars and five uniformed officers with holstered weapons. Before the encounter, Mr. Robertson observed every other individual in the bus shelter get “handled by” the other police officers. 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. 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. Officer Welch’s initial, accusatory question, combined with the police-dominated atmosphere, clearly communicated to Mr. Robertson that he was not free to leave or to refuse Officer Welch’s request to conduct a search. Mr. Robertson’s only options were to submit to the search peacefully or resist violently. Mr. Robertson chose the sensible route.

As the majority later puts it, “Mr. Robertson’s behavior was not a clear-eyed, voluntary invitation to be searched; it was a begrudging surrender to Officer Welch’s order.”

District Judge Wilson, sitting by designation, dissented. Wilson contends that both the district court’s and the circuit court’s sense of the facts are equally plausible. If both are equally plausible, he notes, then the district court’s version of the facts are not clearly erroneous and the appellate court must affirm. The majority doesn’t directly respond to Judge Wilson’s dissent, although it seems to have implicitly done so in this section:

[W]e emphasize that our ruling is based exclusively on the facts as taken from Officer Welch’s testimony. In the suppression hearing, there were many factual discrepancies between the testimony of Mr. Robertson and Officer Welch, but our reversal in this 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. Id. However, because our reversal stems from Officer Welch’s version of events, credibility determinations play no part in our ruling. Rather, based on the facts credited by the district court, we are compelled to conclude that the government has failed to meet its burden of proving consent.

In other words, there are two layers of facts here: The facts as to who did what, and the ultimate fact as to whether Robertson’s consent was voluntary. The majority plainly applies a clear error standard to the first layer, who did what, crediting the district court’s findings on that. But it’s not at all certain to me that the majority actually applied a clear error standard to the factual finding of voluntariness. To be sure, the majority said that that a clear error standard applied. (“We review for clear error a district court’s determination that a search is consensual under the Fourth Amendment.”) But the court’s analysis instead put the burden on the government. Consider how the majority summarizes its view near the end of its opinion:

[T]he 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 thereafter, Mr. Robertson was confronted by a police officer who immediately sought to verify 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.

That sounds like it is placing the burden on the government to show consent, instead of placing the burden on the defense to show that the district court’s factual finding of voluntariness was clearly erroneous.

As a matter of law, then, my sense is that the dissent is correct. I realize that relatively few readers are appellate nerds with passionate views about standards of review, but I’m curious if others who are see the case the same way as I tentatively do.

Thanks to FourthAmendment.com for the link.