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«No. 12-4486 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMAAL ANTONIO ROBERTSON, Defendant - Appellant. Appeal from the United States ...»

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4486

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMAAL ANTONIO ROBERTSON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge; Catherine C. Eagles, District Judge. (1:11-cr- 00296-CCE-1) Argued: September 20, 2013 Decided: December 3, 2013 Before GREGORY and DUNCAN, Circuit Judges, and Samuel G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

Reversed by published opinion. Judge Gregory wrote the majority opinion, in which Judge Duncan joined. Judge Wilson wrote a dissenting opinion.

ARGUED: Ronald Cohen, Wilmington, North Carolina, for Appellant.

Michael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

GREGORY, Circuit Judge:

This appeal stems from an interaction between Jamaal Robertson and Durham Police Officer Doug Welch in a bus shelter. Officer Welch had come to the neighborhood around the bus shelter in response to reports of a foot chase involving a gun. After some initial investigations, Officer Welch and a crew of police officers focused their response on a bus shelter containing six individuals. Among them was Jamaal Robertson.

While several officers engaged the other bus shelter denizens, Officer Welch approached and eventually searched Mr. Robertson, who is a convicted felon and was carrying a firearm.

Mr. Robertson pled guilty to violating 18 U.S.C. § 922(g)(1).

Mr. Robertson argues that he never consented to the police officer’s search, rendering it presumptively unreasonable absent probable cause. We agree with Mr. Robertson. Because we find that in submitting to the search, Mr. Robertson merely obeyed the police officer’s orders without giving valid consent, we reverse.

I.

Because this is a defendant’s appeal from a motion to suppress, we construe the facts in the light most favorable to the government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

2 On April 14, 2011, the Durham Police Department received a call reporting an altercation in MacDougald Terrace. The caller stated that three African-American males in white t-shirts were chasing an individual who was holding a

–  –  –

he approached a group of people who were standing near where the foot chase was reported. The group was apparently uninvolved in the chase, however, and was unable to give Officer Welch any useful information.

–  –  –

the bus shelter but was wearing a dark shirt.

Officer Welch approached the bus shelter to investigate.

By the time he arrived, three or four other police officers had

–  –  –

individuals were searched, explaining that once he approached the bus shelter, he focused entirely on Mr. Robertson.

After approaching Mr. Robertson, Officer Welch first asked

–  –  –

hands. During the search, Officer Welch recovered a firearm from Mr. Robertson.

After being indicted for illegal possession of a firearm, Mr. Robertson moved to suppress all evidence seized during the

–  –  –

conclude that the government has failed to meet its burden of proving consent. See Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968) (ruling that the government’s burden of proving

–  –  –

1145 (4th Cir. 1997). Similarly, in Lattimore, the defendant gave verbal consent and also signed a written consent form after the police officer carefully explained that he wanted to search

–  –  –

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. Accordingly, we reverse the district court’s refusal to suppress evidence.

–  –  –

court’s findings, which include the determination that Officer Welch was credible and that Mr. Robertson was not, follow an evidentiary hearing. This court’s findings follow consideration

–  –  –

precedent requires this court to defer to the district court’s plausible findings.

In a thorough, well-reasoned written opinion, the district court made its findings of fact, which I distill for brevity’s sake. Officers respond to a distress call that three men in

–  –  –

explaining this standard:

If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.

–  –  –

exclusively on the facts as taken from Officer Welch's testimony and, therefore, is not inconsistent with the “clearly erroneous” standard of review. According to the majority, “[t]his case turns on the difference between voluntary consent to a request versus begrudging submission to command,” and “Mr. Robertson’s

–  –  –

cautioned, the question is not whether the court of appeal’s “interpretation of the facts [is] clearly erroneous, but whether the District Court’s finding [is] clearly erroneous.” Id. at

–  –  –

dissent.

12



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