United States v. Robertson, No. 12-4486

Decided: December 3, 2013

The Fourth Circuit held that the government did not meet its burden of proving Jamaal Robertson (Robertson) consented to a search conducted by Durham Police Officer Doug Welch (Officer Welch).  The Fourth Circuit therefore reversed the United States District Court for the Middle District of North Carolina’s refusal to suppress evidence seized during the search.

On April 14, 2011, Officer Welch responded to a call reporting an altercation involving three African-American males in white t-shirts.  While responding to the call, Officer Welch noticed a group of people in a sheltered bus stop, three of whom were African-American males in white shirts.  Robertson, who was wearing a dark shirt, was also in the bus shelter.  While other police officers were “dealing with the other subjects at the bus shelter,” Officer Welch focused on Robertson.  Robertson was sitting with his back to the bus shelter’s back wall so that he was blocked by walls on three sides when Officer Welch approached him.  Officer Welch stopped about four yards in front of Robertson and asked Robertson if he had anything illegal on him; Robertson remained silent.  Officer Welch then asked to conduct a search while simultaneously waving Robertson forward to search him.  Robertson stood up, walked toward officer Welch, turned around, and put his hands up.  Officer Welch then recovered a firearm from Robertson.  Because Robertson was a convicted felon, he was indicted for illegal possession of a firearm.  Robertson moved to suppress the evidence seized during the search, arguing that, rather than validly consenting to a search, he submitted to a search to obey an order from Officer Welch.  The district court denied Robertson’s motion to suppress, and Robertson appealed.

Basing its ruling exclusively on the facts garnered from Officer Welch’s testimony, the Fourth Circuit noted the circumstances of the search: around the bus shelter, there were three patrol cars and five armed, uniformed police officers; Robertson saw the other individuals in the bus shelter get “handled by” police officers prior to his interactions with Officer Welch; Officer Welch’s line of questioning was immediately accusatory; Officer Welch—who was blocking Robertson’s only exit—never told Robertson that he had the right to refuse to be searched; and Robertson never gave Officer Welch verbal or written consent.  Therefore, the Court determined that the government did not meet its burden of proving that Robertson consented to the search and reversed the decision of the district court below.

Full Opinion

– Stephen Sutherland

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