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Thread: 4th Ciircuit Panel: "begrudging submission" to LEO for gun search in NOT consent!

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    4th Ciircuit Panel: "begrudging submission" to LEO for gun search in NOT consent!

    Just because the LEO is a bully and "requests" your gun or a warrantless search does not make it "consent" -- dissent notwithstanding. Good application for OC or CC:

    CA4: Consent not voluntary; situation completely police dominated
    Defendant was in a police dominated place, a bus shelter, where police congregated (i.e. surrounded) looking for a man with a gun. They “handled” the other five there when they got to him, and his consent was merely submission to a claim of authority. The situation was completely police dominated. United States v. Robertson, 2013 U.S. App. LEXIS 24038 (4th Cir. December 3, 2013):

    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. 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).
    Huh!

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    :like:

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    not exactly earth-shaking analysis...but good find.

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    United States v. Robertson and the Voluntariness of Consent to a 4A Search, Orin Kerr

    At trial, Robertson argued that the search was invalid because consent was involuntary. The voluntariness of consent is a question of fact based on a totality of the circumstances that is reviewed for clear error. The district court ruled that the Robertson had voluntarily consented. In today’s decision, the Fourth Circuit ruled that this factual determination was clearly erroneous. From the majority opinion by Judge Gregory, joined by Judge Duncan, with internal citations omitted: [ ... ] It’s a rare published decision from the Fourth Circuit, with a divided vote, and my tentative view is that the dissent is correct.

    http://www.volokh.com/2013/12/04/uni...s-v-robertson/
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    I don't think that the guy took the sensible route at all .... that's why carry should not need the permission of any state ...

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    Quote Originally Posted by Nightmare View Post
    At trial, Robertson argued that the search was invalid because consent was involuntary. The voluntariness of consent is a question of fact based on a totality of the circumstances that is reviewed for clear error. The district court ruled that the Robertson had voluntarily consented. In today’s decision, the Fourth Circuit ruled that this factual determination was clearly erroneous. From the majority opinion by Judge Gregory, joined by Judge Duncan, with internal citations omitted: [ ... ] It’s a rare published decision from the Fourth Circuit, with a divided vote, and my tentative view is that the dissent is correct.

    http://www.volokh.com/2013/12/04/uni...s-v-robertson/
    I read that earlier. I don't agree with Kerr.

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    Quote Originally Posted by Repeater View Post
    I read that earlier. I don't agree with Kerr.
    Kerr never heard of "against the manifest weight of evidence" ... I don't think that there really any new case law here ... the opinion was based on a certain set of facts and examined under prior case law.

    Now I think, guessing, that if the cops only approached the defendant and harrassed him into saying OK then the facts presented at trial would have been much different.

    That's why it is my recommendation that if cops come to your house, don't open the door, don't answer the door (if they have the right to enter, they will, and you'll have proof of a forced entry).

    And in a car, asked to step out, step out and lock the door.
    Last edited by davidmcbeth; 12-04-2013 at 10:09 PM.

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    Quote Originally Posted by Repeater View Post
    I read that earlier. I don't agree with Kerr.
    Kerr is full of it:

    That sounds like it is placing the burden on the government to show consent, instead of placing the burden on the defense to show that the district court’s factual finding of voluntariness was clearly erroneous.
    Yeah, Kerr. You're damn right it does.

    The burden should always rest on the state. Always.

    As an aside, I would argue that it's nearly definitionally impossible for any search which successfully reveals contraband to be a result of "consent", unless you can prove that person wanted to go to jail. So, frankly I don't give a crap when the state claims "consent!". Government shouldn't be in the business of trying to get people to "consent" to give up their rights. But that's just me.
    Last edited by marshaul; 12-04-2013 at 10:23 PM.

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    Quote Originally Posted by Repeater View Post
    I read that earlier. I don't agree with Kerr.
    Kerr never heard of "against the manifest weight of evidence" ... I don't think that there really any new case law here ... the opinion was based on a certain set of facts and examined under prior case law.

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    Quote Originally Posted by marshaul View Post
    SNIP Government shouldn't be in the business of trying to get people to "consent" to give up their rights. But that's just me.
    Me, too.

    Anybody know the case where this consent business got started? Something to do with consent making a search "reasonable" for 4A purposes.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Quote Originally Posted by Citizen View Post
    Me, too.

    Anybody know the case where this consent business got started? Something to do with consent making a search "reasonable" for 4A purposes.
    I seem to remember a recent case where the supreme's ruled that we only have the rights we know of and are willing to demand.--- Oh, yes, and we must VERBALLY state that we are exercising our right to remain silent!
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
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    More from Kerr, "Voluntariness and the Law/Fact Distinction"

    " In the comment threads, a lot of thoughtful comments raised the issue of whether voluntariness is really just a question of fact reviewed for clear error. [ ... ] So that raised the question, is voluntariness really just reviewed for clear error as a fact, or is it a mixed judgment of law and fact, with the “what happened” part reviewed for clear error and the “so does that amount to consent” part reviewed de novo?"

    http://www.volokh.com/2013/12/05/vol...t-distinction/
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    Judge Gregory

    It may help to know that Judge Robert L. Gregory is the author of both opinions below:

    United States v. Black

    United States v. Robertson

    It would therefore appear that we have a jurist who is actually committed to enforcing the broad contours of the Fourth Amendment.
    Gregory was born in Philadelphia but grew up in Petersburg, Virginia. He earned his B.A. degree summa cum laude from Virginia State University in 1975 and his law degree from the University of Michigan Law School in 1978. He worked as an associate for two different law firms from 1978 until 1982. He co-founded the Richmond, Virginia law firm of Wilder & Gregory in 1982 with L. Douglas Wilder, and became the chair of its litigation section in 1985. Gregory is also a member of several fraternal organizations, including Omega Psi Phi fraternity, and Sigma Pi Phi fraternity.

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