Court Rules to Suppress|Gun Found on Felon

(CN) - A gun found on a convicted felon should have been suppressed as evidence, a divided 4th Circuit ruled, because the man "merely responded to a police officer's command" and never consented to the search.

The panel in Richmond, Va., voted 2-1 to reverse the lower court's denial of Jamaal Robertson's motion to suppress the gun as evidence following his arrest at a bus stop on April 14, 2011.

The Durham Police Department had received a 911 call reporting an altercation in Macdougald Terrace, a 360-apartment complex run by the Durham Housing Authority.

In recent years, the complex has been the scene of several shootings and is in a community in which child abuse, domestic violence and drug abuse are rampant, according to a study published by Duke University's Kenan Institute For Ethics.

The caller said three black men in white t-shirts were chasing someone who was holding a gun. Doug Welch, the first police officer to arrive at the scene, noticed Robertson in a group of six or seven others, three of whom matched the caller's description.

Though Robertson was wearing a dark shirt, Welch approached him and asked whether he had anything illegal on him. Robertson remained silent. Welch then motioned for Robertson to stand and move forward, while asking to conduct a search.

Robertson stood, walked toward the officer, then turned around and raised his hands. Welch recovered the firearm during the subsequent search, and Robertson was indicted for illegal possession of a firearm.

In his motion to suppress all evidence seized during the search, Robertson argued that when he stood, turned and raised his hands following Welch's gesture, he was merely obeying an order from a police officer, not validly consenting to a search.

The 4th Circuit agreed and reversed the district court's denial of Robertson's motion, saying "begrudging submission to a command" does not amount to 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," Judge Roger Gregory wrote for the majority.

"Officer Welch's initial, accusatory question, combined with the police-dominated atmosphere, 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," he added.

"Mr. Robertson's behavior was not a clear-eyed, voluntary invitation to be searched; it was a begrudging surrender to Officer Welch's order," Gregory concluded.

Judge Kenneth Wilson dissented, saying he believed "under the circumstances, Supreme Court precedent requires this court to defer to the district court's plausible findings."

Wilson noted that the district court found nothing coercive or intimidating in the interaction between the 5-foot 2-inch Welch and the much taller Robertson.

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