The “Begrudging Submission” Rule and Street Reality

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.

5 comments on “The “Begrudging Submission” Rule and Street Reality

  1. Nigel Declan

    So to establish “clear error”, does the Court of Appeals have to find that the finding was patently unsupported by the evidence (as if a case where the judge finds A despite all evidence pointing towards not A) or is it sufficient for a CA to find that the evidence provided, even in the best light vis-a-vis the government’s case, is simply insufficient to satisfy the heavy burden of proof? Or is it somewhat unclear exactly how the standard or review should be or is applied to such matters? Reading both Orin Kerr’s post and yours suggest that the two of you differ in your perceptions of where the goalposts are/were in this case or where they should be, though I may be mistaken on this point.

    1. SHG Post author

      I think you’re right, that Orin and I differ in exactly what we mean by clear error. Orin is using the definition that no reasonable judge could possibly reach that finding, while I’m using the definition that the finding is clearly wrong. While he doesn’t quite disclaim the fantasy of the defendant’s choice here, he concludes it clearly isn’t impossible and thus unreasonable. I stop at the point where it relies on a fantasy for its viability and, since I reject the fantasy as being unreasonable, conclude that it is not reasonable and is therefore clearly error.

      My bottom line is that I reject reliance on a legal fiction as the foundation for a finding. Having done so, the conclusion that it’s clear error becomes, well, clear.

      1. Nigel Declan

        In any event, it is refreshing to see that some justices are willing to acknowledge that the choice between getting searched and getting shot then searched is not the same as voluntarily giving or withholding consent to be searched. More refreshing than it should be, since such decisions are far too rare, but refreshing nonetheless.

        1. SHG Post author

          The concept of voluntariness has long been lost. It’s effective definition has been the absence of overt refusal. It’s utter nonsense.

  2. Ken Bellone

    Only the boldest, or foolish, depending on perspective, have the option to disobey a “command”, whether stated or implied. Welch’s gesture would be perceived by most as a non-optional command, and certainly not a suggestion. The comment that “perhaps it was said with a threatening tone” was telling. Tone is part of LE’s toolbox, and using it in the prescribed fashion most often yields the “correct” outcome.

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