For no good reason, I neglected to write about a fascinating 4th Circuit opinion yesterday in United States v. Robinson. which wouldn’t have mattered much had Orin Kerr not written about it first.

The facts in Robinson are relatively ordinary.

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 some preliminary investigation, Welch saw some people standing in a sheltered bus stop. For reasons that will be clear later, I quote the material facts at length:

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. While the other officers were already “dealing with the other subjects at the bus shelter,” 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 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.

The opinion, by Judge Roger Gregory, emphasizes that these facts come solely from the testimony of Officer Welch, which is critical as the court, on appeal, must view the facts in the light most favorable to the government, the district court having concluded that the search was voluntary and denied suppression.

To this pedestrian statement of fact, the 4th Circuit offered a rather astounding ruling:

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.

In his analysis of the decision, Orin hangs up on the standard of review, clear error, for issues of fact, noting that in the 4th Circuit, voluntariness has been held to be a question of fact rather than law, which would be reviewed de novo.

As far as it goes, Orin is correct, despite the cognitive difficulty in understanding how an issue that seems to clearly be a legal conclusion of voluntariness can be a fact question. Then again, if the 4th Circuit was making such a shift, Judge Gregory didn’t say so and should have. Orin does so, however, on an abbreviated description of the “totality of the circumstances,” which is why I provide the court’s lengthier description.

Had the focus of the inquiry begun and ended with Welch’s seemingly polite question, “Do you mind if I search you?” as most courts would do to dispense with the issue, it would have been an easy affirmance. Perhaps it was said with a threatening tone, as so often happens, where a polite question is backed up with the alternative of violence, but there is no basis for the 4th Circuit to reach such a conclusion.

Rather, Judge Gregory parses the real world surrounding the search, as testified by Officer Welch, all of which go into Robinson’s conduct subsequent to the polite question. He didn’t verbalize consent. He was already made aware that he was being treated like a suspect, even though Welch had no reason to suspect him of anything (remember, different color shirt). And he lived in the real world where questions from police, no matter how politely phrased, are commands.

Was the reversal based on a clearly erroneous finding of fact of voluntariness? Judge Gregory appears to rely heavily on the fact that Robinson, without saying a word and knowing that he was in possession of a weapon, assumed the position. This speaks volumes.

The dissent doesn’t disagree with the majority’s conclusion that Robinson’s conduct was not consent, but that it failed to meet the clearly erroneous standard of review. That, in itself, is significant, as this is the sort of pedestrian street encounter that district judges typically blow off in denying suppression. The cop asked. The defendant didn’t refuse. Consent. Move along.

But Judge Gregory’s thorough and careful parsing of the facts, even given the troubling standard of review and deference to the government and the district court, is grounded in something that seems invisible to those not attuned to the reality of police encounters. This is where the majority got the point.

Based upon Officer Welch’s testimony alone, Robinson’s silent acquiescence to authority is the only possible understanding of what happened in that bus shelter. The district court’s finding of voluntariness was, indeed, clear error in that there is no voluntariness, none, in Robinson’s submission to the search when viewed through the prism of reality. Only in the fiction of polite society, where the choice of consent isn’t a facile mirage, can any other conclusion seem possible.

Mr. Robertson’s behavior was not a clear-eyed, voluntary invitation to be searched; it was a begrudging surrender to Officer Welch’s order.

The reason Orin struggles to find clear error is that we have pretended for so long to find consent, to manufacture scenarios where young black men have actual choices when confronted with overwhelming police force, that we’ve completely lost touch with their reality.

It is indeed a question of fact whether Robinson made a voluntary decision to submit to a search. And there is no question that his choice was limited to begrudging submission or worse. The fact is that declining a search was no more an option than walking away as if he could have exercised his right to be left alone without consequences.