In U.S. v. Robertson, decided December 13, 2013, the Fourth Circuit Court of Appeals held that a defendant, who responded to an officer’s request for consent to search by remaining silent and placing his hands over his head, did not consent to the search but rather was submitting to what he perceived as the officer’s command.
A number of officers approached a group of black men at a bus stop, looking for two black men wearing white shirts that may have just been involved in a fight. An officer searched Robertson (who was not wearing a white shirt), found a pistol on him, and charged him with felon in possession in federal court.
The Fourth Amendment prohibits unreasonable searches and seizures. Searches without probable cause are presumptively unreasonable, unless the person consents to the search. The government has the burden of proving consent. The Court outlines factors to consider when determining if consent was given:
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 of his right to decline the search is a “highly relevant” factor. Wilson, 895 F.2d at 172.
Despite the District Court’s characterization of the officer’s testimony as credible and Robertson’s as not, the 4th Circuit reverses and bases their ruling solely on the testimony of the officer. The Court finds that Robertson’s actions were not “voluntary consent to a request,” but rather they were “begrudging submission to a command.” There were numerous officers around the bus shelter where Robertson was approached, including 3 patrol cars and 5 uniformed officers with guns. Robertson watched the other people in the bus shelter “get handled” by the other officers. The officer’s first question was accusatory: “do you have anything illegal on you?”
Robertson remained silent and did not respond, at which point the officer waved him forward and asked to conduct a search. Robertson’s exit was blocked by the officer and the officer did not inform Robertson that he had a right to refuse the search. The Court finds that these circumstances effectively communicated to Robertson that he was not free to leave or to refuse the search – it appeared that his options were 1) submit to the search; or 2) resist the search; and Robertson sensibly chose to submit.
This case is a reminder to take a hard look at the circumstances involving alleged consent to search – particularly if the defendant remained silent and the officer proceeded without a verbal acknowledgement of consent to search. Even when the defendant does give verbal consent, it is worthwhile to take a hard look at the circumstances – consent is not valid if it is not voluntary, and in a situation such as that described in Robertson, the consent arguably would not have been valid even if it was verbal, because, under the circumstances, it was not voluntary.
Another common example of invalid consent is when the officer obtains consent to search on the side of the road during a traffic stop – if there is no reasonable suspicion for a continued detention and the original purpose of the traffic stop has been completed, the officer has launched a second detention (a second “Fourth Amendment event”) and, without reasonable suspicion to further detain the person, the consent is invalid (see, e.g. State v. Williams 351 S.C. 591, 571 S.E.2d 703 (Ct. App. 2002); State v. Pichardo, 367 S.C. 84 (Ct. App. 2005)).