The cases from the 4th circuit that we win are few and far between. By ‘we’ I mean to take credit for those defense lawyers that take up and throw down the appellate gauntlet in our hallowed federal circuit courts. This circuit in which I sit isn’t known for it’s kindness to criminal defendants, and yet there have been some very good decisions coming from them of late. I wonder how much of this is simply because they’ve been so lax for so long, that the liberties taken by law enforcement and the prosecutors just seem like, you know, COME ON.
In December of 2013 in the year of your lord, the 4th circuit handed down a great decision on consent. And it said there actually has to be consent for it to be consent. Not a grudging acquiensence to the will of the law.
The facts are as follows:
Some black guys in white shirts were chasing another guy. The other guy had a gun. I guess the police were looking for the black guys with white shirts. Jamaal Robertson was in a bus shelter with about 6 other black guys who had on shirts, some of them white. His was dark. There were about 5 police officers at this bus shelter and they were all questioning these black guys. This one officer,Welch, went towards Mr. Robertson who had his back to the wall of the shelter, a police officer in front of him, and four other officers around him and searched Mr. Robertson.
Unfortunately for Mr. Robertson, he did happen to have a gun on him. And a prior felony conviction. Which is a federal crime. So he had a suppression hearing saying there was no probable cause to search him, and without probable cause there needed to be consent. And well, there wasn’t any consent because what else was he supposed to do? The 4th Circuit agreed and said since there was no probable cause there needed to be consent, and there was no consent because:
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 waived 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.
What? Did the Circuit actually acknowledge what we’ve been saying all along? That our clients don’t actually, really, honestly have a choice when ‘asked’ to submit to a search? Could this be for real? When I ask clients why they consent to searches they inevitably give the same answer ‘what else was I going to do? Say no? We know what would happen then.” And we do know. The search will take place with or without the grudging submission by our clients. There is no saying no. I’ve never had a client say “I didn’t give consent and they didn’t search so they came back with a warrant like they said they would.”
I try to put myself in the position of the client. If I was asked to submit to a search, would I do it? Would I have the balls to say no you can’t search my car, my house, my body? I know better. I am fairly familiar with the law and I don’t know if I would say no. I may be too afraid of the consequences.
So thank you, oh kind circuit, for this case. And thank you, police officer for not adding things to make there be probable cause for the detention of Mr. Robertson. And thank you, appellate lawyer, for winning.
