Wednesday, December 04, 2013

Consent Not Valid In Bus Shelter Encounter

US v. Robertson: Robertson was sitting in a bus shelter in Durham, NC, along with several other people, when police approached.  They were responding to reports of three man chasing another who was carrying a gun.  While other officers approached three men who matched the description of the chasers, another officer approached Robertson, who was sitting with his back to the shelter's back wall and was therefore "blocked on three sides."  The officer asked Robertson if he had anything illegal.  Robertson did not answer.  The officer "waved [him] forward" and asked for consent to search.  Robertson said nothing, but stood up, turned around, and raised his hands.  A search uncovered a firearm.  Robertson was charged with being a felon in possession and was convicted after the district court denied his motion to suppress, finding that Robertson consented to the search.

On appeal, the Fourth Circuit reversed, 2-1.  Making it very clear that its holding was based only on the officer's testimony (credited by the district court) and not Robertson's (discredited), the court concluded that Robertson's silent actions were a "begrudging submission to a command."  It noted the presence of multiple police officers and squad cars on the scene, that other officers were "handling" others at the bus shelter, and that the officer's questioning of Robertson was immediately accusatory.  As a result, the district court concluded that the Government had not met its burden of showing consent was given.

District Judge Wilson dissented, not based on a disagreement with the majority's view of the facts, but on the ground that it was not sufficiently deferential to the district court's contrary conclusion.  That conclusion was not clearly erroneous, even if the facts are susceptible to both interpretations.

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