Silence Not Consent in Bus Station Search, Appeals Court Holds

"On April 14, 2011, the Durham Police Department received a call reporting . . . that three African-American males in white t-shirts were chasing an individual who was holding a firearm. . . . [Upon responding to the scene, an officer] noticed a group of six or seven individuals in a sheltered bus stop. Three of the individuals were African-American males wearing white shirts. [The Defendant] was in the bus shelter but was wearing a dark shirt. [The officer] 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,' . . . [the Defendant] was still seated in the shelter. . . . [The officer] stopped about four yards in front of [the Defendant], who was sitting with his back to the shelter's back wall. Thus [the Defendant] 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. . . . "After approaching [the Defendant], [the officer] first asked whether [the Defendant] had anything illegal on him. [The Defendant] remained silent. [The officer] then waved [the Defendant] forward in order to search [him], while simultaneously asking to conduct the search. In response to [the officer's] hand gesture, [the Defendant] stood up, walked two yards towards [the officer], turned around, and raised his hands. During the search, [the officer] recovered a firearm from [the Defendant]." (U.S. v. Robertson). The Defendant moved to suppress the firearm seized during the search, arguing that he was merely obeying an order, as opposed validly consenting to a search. The Fourth Circuit agreed and suppressed the firearm. The court cited Bumper v. N.C., 391 U.S. 543 (1968), for the proposition that the government's burden of proving consent "cannot be discharged by showing no more than acquiescence to a claim of lawful authority." The court noted that "[t]he area around the bus shelter was dominated by police officers"; [t]he officer's questioning [of the Defendant] was immediately accusatory"; [the Defendant's] exit was blocked by [the officer]"; and the officer "never informed [the Defendant] that he had the right to refuse the search." In combination, these factors "clearly communicated to [the Defendant] that he was not free to leave or to refuse [the officer's] request to conduct a search." Thus, the Defendant's "only options were to submit to the search peacefully or resist violently." The court held that these facts "are not enough for the government to demonstrate valid consent."

* * *

This case provides an updated rubric for analyzing consent issues in search cases. The opinion addresses many additional factors that if present may have changed the outcome---the most important seems to be the officer informing the person that they have the right to refuse to be searched. The opinion is worth reading for any North Carolina criminal lawyer considering filing a motion to suppress in a case involving a claim of consent to search. It is possible that the same logic could apply even if the person had actually given affirmative consent when it seemed to him or her that there was no other option.