Dec. 16, 2013

Court Reminds Police to Request Consent to Search
By Jeremy M. Lazarus

Special to the Trice Edney News Wire from the Richmond Free Press

(TriceEdneyWire.com) The U.S. 4th Circuit Court of Appeals, which covers federal appeals cases from Maryland, Virginia, West Virginia, North Carolina, South Carolina and federal administrative agencies, just issued a stern reminder to police that they must have consent to search people who are minding their own business.

A panel of the Richmond-based court provided that reminder Dec. 3 in throwing out the conviction of a felon found in illegal possession of a gun. In a 2-1 opinion written by Judge Roger L. Gregory, a Petersburg native, the court overturned the lower court’s conviction, ruling the search that led to finding the gun violated the 4th Amendment’s ban on illegal searches.

Judge Gregory wrote that the search was illegal because the officer had no probable cause to believe the person had committed a crime and never received “verbal or written consent” before conducting a pat down.

Instead, the officer who conducted the search only gained the man’s “begrudging surrender to an order,” Judge

Gregory wrote. The case arose from Durham, N.C., but applies to Richmond, Baltimore and other localities that fall under the court’s domain. In this case, police were responding to a call that three men in white shirts were chasing a man and that the man being chased had a gun, according to information in the decision. When police arrived, Judge Gregory wrote, they found a group of men, mostly in white T-shirts, in a bus shelter, among them Jamaal Robertson.

While other officers “handled the other men,” he wrote, one officer approached Mr. Robertson and asked “whether he had anything illegal on him.”

When Mr. Robertson did not respond, Judge Gregory wrote, the officer then waved Mr. Robertson to step forward to be searched, while asking Mr. Robertson for permission. However, Judge Gregory noted the officer did not inform Robertson he had a right to refuse the search and that Robertson’s submission did not rise to voluntary consent. At the time, the man was surrounded either by the walls of the shelter or police officers and could not have believed he was free to leave, the judge wrote.

Robertson, instead, kept silent, turned around and put his hands up. During the search, the officer found the gun on Robertson, subjecting him to an arrest, which Judge Gregory found was impermissible. Fellow Appeals Court Judge Allyson K. Duncan joined in the opinion, but the third judge, District Judge Samuel Wilson, who sat by appointment, dissented.

Judge Wilson wrote that his colleagues should not have overturned the finding of the lower court that Robertson had given consent by his actions. According to Judge Wilson, the appeals court needed to find that the district court’s decision was “clearly erroneous” to reject it. Instead, Judge Wilson wrote, that the majority wrongly substituted its reading of the evidence for that of the lower court.