North Carolina: The Fourth Circuit handed down an interesting Fourth Amendment decision in United States v. Robertson, involving a consent search at a bus shelter.
Several officers converged on the bus shelter 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.”
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 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.
We 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.
U.S. v. Jamaal Roberston Ruling:
Police can’t search a motorist just because they’re nervous:
The Georgia Court of Appeals divided 3 to 2 last month on the question of whether police were wrong to search a motorist merely because he appeared nervous and had his license plate decal on the wrong corner of the plate. On July 24, 2009, a patrolman stopped James Heard hoping to issue a ticket for a tag violation when he did not see a 2009 registration sticker. The officer had also been on the lookout for the type of Chevy S-10 truck Heard was driving.
Stopped on the side of the road, Heard explained his registration was up to date and handed over proof, along with his license and insurance card. In the course of the stop, two other officers arrived and surrounded the pickup truck. The patrolman noted that Heard appeared nervous, then checked and confirmed that there was a license decal on the left side of the license plate instead of the right side. At this point, the officer testified in court that his investigation of the traffic violation had ended, but the officer decided to ask consent to search the pickup truck. Heard said no. Heard then understood the officer to order him out of the vehicle, and he was frisked for weapons. He was asked about a search once again, and after he consented the officers found six pieces of crack cocaine.
Heard moved to throw out the evidence obtained by the search on the grounds that the officer was conducting an drug investigation after the legitimate reason for the traffic stop had concluded. The appellate majority agreed that the officer had no right to ask for consent to search in the first place.
“In fact, the officer could lawfully verify the registration, driver’s license and insurance information, and check for outstanding warrants; but any subsequent interrogation or request for consent had to be supported by reasonable suspicion of criminal activity,” Chief Judge Herbert E. Phipps wrote for the majority.
The majority found an unsubstantiated anonymous tip and unease while being surrounded by cops provided no articulable cause to think something criminal was going on.
“Nervousness is not sufficient to justify an investigative detention,” Judge Phipps wrote. “Even when we consider together the lookout information and Heard’s nervousness, we cannot conclude that the officer was aware of circumstances sufficient to create a reasonable suspicion that Heard was involved in criminal activity other than the suspected traffic violation.”
Heard v. Georgia ruling: http://thenewspaper.com/rlc/docs/2013/ga-tag.pdf