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).
