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Criminal Practice – Bus Shelter Search ‘Consent’ Not Valid

U.S. v. Robertson (Lawyers Weekly No. 13-01-1198, 12 pp.) (Gregory, J.) No. 12-4486, Dec. 3, 2013; USDC at Greensboro, N.C. (Schroeder, J.) 4th Cir.

Holding: A man at a city bus shelter who was searched by a police officer responding to a report of a foot chase in the area involving a gun, did not give his valid consent to the search but merely obeyed the police officer’s order, and the 4th Circuit reverses denial of his motion to suppress the gun found on him.

Our ruling is based exclusively on the facts as taken from the officer’s testimony. This case turns on the difference between voluntary consent to a request versus begrudging submission to a command. Here, defendant’s behavior was the latter. The area around the bus shelter was dominated by police officers. There were three patrol cars and five unformed officers with holstered weapons. Before the encounter, defendant 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 defendant.

The officer’s questioning was immediately accusatory: the officer’s first question was whether defendant had anything illegal on him. When defendant responded with silence, the officer waved him forward and asked to conduct a search. Defendant’s exit was blocked by the officer, who never informed defendant he had the right to refuse the search. The initial accusatory question, combined with the police-dominated atmosphere, clearly communicated to defendant that he was not free to leave or to refuse the request to search. Defendant’s only options were to submit to the search peacefully or to resist violently.

The facts as presented by the officer are not enough for the government to demonstrate voluntary consent. We reverse the refusal to suppress the evidence.



Wilson, D.J.: The district court’s findings, which include the determination that the officer was credible and defendant was not, follow an evidentiary hearing. This court’s findings follow consideration of the evidence from the written record. I respectfully dissent because I believe under the circumstances Supreme Court precedent requires this court to defer to the district court’s plausible findings.

I do not dissent because I find the majority’s findings and opinion to be illogical or implausible. 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 appeals’ interpretation of the facts is clearly erroneous, but whether the district court’s finding is clearly erroneous. In my view it is not. Consequently, I respectfully dissent.

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