                                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     firearm.         Officer

Doug Welch drove to the area in his patrol car.                      After arriving,

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.

        Officer Welch started to walk back to his patrol car.                            It

was then that he noticed a group of six or seven individuals in

a sheltered bus stop.            Three of the individuals were African-

American males wearing white shirts.                 Jamaal Robertson was in

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

already    converged     on     the   scene.        Their       patrol     cars,     like

Officer Welch’s, were nearby.                  While the other officers were

already “dealing with the other subjects at the bus shelter,”

(J.A.    34),     Robertson     was   still      seated    in      the    shelter,       so

Officer Welch decided to focus on Mr. Robertson.                         Officer Welch

stopped about four yards in front of Mr. Robertson, who was

sitting    with    his   back    to    the     shelter’s      back       wall.     Thus,

Mr. Robertson      was   blocked      on   three   sides      by     walls,      faced    a

                                           3
police officer directly in front of him, and had another three

or four police officers nearby who were “dealing with” every

other    individual     in   the    bus    stop.         During          the    suppression

hearing,    Officer     Welch      could       not    recall        if    all    of     these

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

whether     Mr.      Robertson       had        anything        illegal          on        him.

Mr. Robertson       remained     silent.             Officer        Welch      then     waved

Mr. Robertson forward in order to search Mr. Robertson, while

simultaneously asking to conduct the search.                             In response to

Officer Welch’s hand gesture, Mr. Robertson stood up, walked two

yards    towards    Officer     Welch,     turned       around,          and    raised     his

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

search.      Mr.    Robertson      argued      that     when    he       walked       towards

Officer    Welch,    turned     around      and      raised     his       hands,      he   was

obeying    an   order   from     Officer        Welch.         As    such,       he    merely

submitted to a search, rather than validly consenting to one.

The     district    court      denied      the       motion     to        suppress,        and

Mr. Robertson filed a timely appeal.



                                           4
                                             II.

     The        Fourth       Amendment        protects          against        “unreasonable

searches       and    seizures.”           U.S.    Const.       amend.     IV.        Searches

without probable cause are presumptively unreasonable, but if an

individual consents to a search, probable cause is unnecessary.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).                                     We

review for clear error a district court’s determination that a

search is consensual under the Fourth Amendment.                                  See United

States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990).                              We apply a

subjective test to analyze whether consent was given, looking to

the totality of the circumstances.                    Wilson, 895 F.2d at 171–72.

The government has the burden of proving consent.                                 See United

States    v.    Mendenhall,         446     U.S.    544,     557     (1980).          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.

     At    the       outset,     we   emphasize       that       our     ruling       is   based

exclusively          on    the   facts       as    taken        from     Officer       Welch’s

testimony.          In the suppression hearing, there were many factual

discrepancies between the testimony of Mr. Robertson and Officer

Welch,    but       our    reversal    in    this     case      is     based    entirely     on

                                              5
Officer Welch’s version of events.                    We stress this because the

district court credited Officer Welch’s testimony but did not

credit Mr. Robertson’s.                 In general, we apply a “particularly

strong” clear error standard to factual determinations when they

are based on oral testimony.                  See Lattimore, 87 F.3d at 650–51.

This stems from district courts’ ability to observe witnesses’

demeanor firsthand.              Id.     However, because our reversal stems

from      Officer      Welch’s           version         of      events,        credibility

determinations play no part in our ruling.                        Rather, based on the

facts    credited      by    the       district     court,      we   are       compelled    to

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

consent      “cannot        be    discharged        by        showing     no     more     than

acquiescence to a claim of lawful authority”).

       This case turns on the difference between voluntary consent

to a request versus begrudging submission to a command.                                  Here,

Mr. Robertson’s behavior was the latter.                          The area around the

bus shelter was dominated by police officers.                           See Lattimore, 87

F.3d    at   650   (citing       number       of   officers      present       as   a   factor

weighing against consent).                 There were three patrol cars and

five    uniformed    officers          with    holstered        weapons.         Before    the

encounter, Mr. Robertson observed every other individual in the

bus shelter get “handled by” the other police officers.                                  (J.A.

                                               6
46.)    As these individuals were being dealt with, yet another

officer approached the bus shelter and focused on Mr. Robertson.

       The        officer’s      questioning         was      immediately     accusatory:

Officer Welch’s first question was whether Mr. Robertson had

anything illegal on him.                    See Elie, 111 F.3d at 1145 (arguing

that    friendly            conversation      rather    than     accusatory     questions

militates towards consent).                   When Mr. Robertson responded with

silence, the officer waved 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.                     See Lattimore, 87 F.3d at 650

(citing individual’s knowledge of a right to refuse a search as

relevant      to        a    consent    finding).          Officer    Welch’s    initial,

accusatory             question,       combined        with     the   police-dominated

atmostphere, 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.                   See United States v. Albrektsen, 151

F.3d 951 (9th Cir. 1998) (“[Defendant] was forced to move so

that the entering officers would not knock him down.                              Consent

that is not.”) (internal quotations omitted).

       Further, the police interaction in this case lacks factors

that indicate consent.                 In United States v. Elie, involving a

                                                7
search    of     the    defendant’s        hotel      room,       we    found       it    highly

relevant       that    the   defendant      repeatedly          asked        the    police    to

search and secure the items in his hotel room.                               111 F.3d 1135,

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

the   defendant’s        car.        87    F.3d    at      649–50.           In    this     case,

meanwhile, Mr. Robertson never gave verbal or written consent;

he merely surrendered to a police officer’s command.                                     Further,

in both Elie and Lattimore, the interactions between the police

and     the    defendants       occurred         in     broad      daylight         and     were

characterized by relaxed, friendly conversation between the two

sides.        See Elie, 111 F.3d at 1145 (“nothing in the record

indicates an environment that was coercive or intimidating.                                    In

fact,    Elie    engaged     the     officers         in   friendly          conversation”);

Lattimore, 87 F.3d at 651 (“at no time did the officer use force

or a threat of force to coerce Lattimore’s consent.                                  In fact,

the two men engaged in friendly conversation”).                               The situation

here,         meanwhile,        lacks       those          indicia            of         consent.

Officer Welch’s initial question was accusatory and was met with

cold silence.          Officer Welch never received verbal or written

consent.         Mr.    Robertson’s        behavior         was    not       a     clear-eyed,

voluntary       invitation      to    be    searched;         it       was    a    begrudging

surrender to Officer Welch’s order.

                                             8
     In sum, the facts as presented by Officer Welch are not

enough     for   the    government       to    demonstrate     valid    consent.

Surrounded by police officers, Mr. Robertson watched as every

individual in a bus shelter next to him was handled by the

police.     Soon     thereafter,   Mr.       Robertson   was   confronted   by   a

police     officer     who   immediately        sought    to   verify    whether

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.

                                                                        REVERSED




                                         9
WILSON, District Judge, dissenting:

     There     are    now     two     opinions      with    their       own    plausible

findings, one from the district court finding that Mr. Robertson

voluntarily     consented      to   the    search    and     the    other      from    this

court finding the exact opposite.                 Both opinions purport to be

based   upon    all    the    facts     and     circumstances.           The    district

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

of the evidence from the written record.                   I respectfully dissent

because    I    believe       under     the     circumstances           Supreme       Court

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

white   t-shirts      are    chasing      another    man.          According      to    the

caller, a firearm is involved.                It is a known high crime area,

and it is nighttime.            When Officer Doug Welch arrives in the

vicinity, three other officers are speaking with various people.

There   are    more   non-officers        present     than       officers.        Officer

Welch   notices      Mr.    Robertson     and   asks,      “Do    you   have    anything

illegal on you?”           Mr. Robertson does not reply.                The diminutive

officer, who is 5'2" tall, has not drawn his firearm (nor has

                                          10
any other officer) and simply follows up with a gesture and

question, “Do you mind if I search you?”                         Mr. Robertson, who is

much taller than Officer Welch, comes forward, turns, and puts

his   hands       above       his     head.         Officer       Welch       believes       Mr.

Robertson’s actions indicate his consent.                         The resulting search

produces     a    firearm.          The     entire    encounter         is      quite    brief,

lasting seconds.             The conditions, in the words of the district

judge,       “were          neither        coercive        nor        intimidating”          and

“demonstrate[] by a preponderance of the evidence that Robertson

knowingly        and    voluntarily         consented       to    the     search        of   his

person.” (J.A. 88, 93)

      “The       voluntariness        of    consent     to       search      is    a    factual

question,        and    as     a    reviewing       court,       we    must       affirm     the

determination          of    the    district       court     unless       its     finding     is

clearly erroneous.” United States v. Lattimore, 87 F.3d 647, 650

(4th Cir. 1996)(en banc).                  As the Supreme Court has stated 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.



                                              11
Anderson, 470 U.S. at 573-74 (internal citations omitted).

     Here,      the   majority     emphasizes         that    its    ruling    is   based

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

behavior        was   the    latter.”          The    majority      then    lists   those

circumstances it finds compelling in reaching its conclusion.                            I

do   not     dissent    because         I    find    the   majority’s       findings   and

opinion to be illogical or implausible.                      To the contrary, I find

them every bit as logical and plausible as I find the district

court’s findings and opinion.                       But as the Supreme Court has

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

577.       In    my   view   it    is       not.     Consequently,      I   respectfully

dissent.




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