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-cr00296-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.
2

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).
3

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 AfricanAmerican 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 
4

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.
5

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 
6

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. 
7

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 
8

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.
9

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
10

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 
11

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.
12

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.