This is a follow-up to this morning’s post on United States v. Robertson, the Fourth Circuit’s decision yesterday on the voluntariness of a consent search under the Fourth Amendment. 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. As I noted in the original post, there were two layers of facts: The facts of what happened, and then the “fact” of whether the consent was voluntary. But as some commenters noted, it’s a little weird to think of voluntariness as just a fact. Whether consent is voluntary is a conclusion based on a legal sense of what voluntariness means. It must have at least some legal elements in it. 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?
In the Fourth Circuit, I found, the answer is actually somewhat mixed. If you follow what most of the cases say, it looks like the standard is just clear error all around. That is, when Fourth Circuit opinions discuss the voluntariness standard, they usually just say it is a factual issue and say clear error applies. See, e.g., United States v. Lattimore, 87 F.3d 647 (4th Cir. 1996) (“The voluntariness of consent to search is a factual question, and as a reviewing court, we must affirm the determination of the district court unless its finding is clearly erroneous.”); United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990) (per curiam) (“In reviewing a district court’s determination on consent, an appellate court must uphold the lower court’s finding unless it is “clearly erroneous.””); United States v. Gordon, 895 F.2d at 932, 938 (4th Cir. 1990). (“The voluntariness of a defendant’s consent to a search is a factual question determined in light of the totality of the circumstances and should be upheld unless clearly erroneous.”).
The Robertson opinion recited that standard, and if you take that standard seriously, then I think the majority was wrong and the dissent was right for the reason I explained in my post.
At the same, a closer look at Fourth Circuit caselaw reveals some precedent pointing in the opposite direction. In particular, in United States v. Carter, 300 F.3d 415 (4th Cir. 2002) (per curiam), the panel treats voluntariness as a mixed question of law and fact. Here’s what Carter says:
When the government justifies a warrantless search under the “voluntary consent” exception to the 4th Amendment’s warrant requirement, the district court’s factual determination as to whether consent to the search was actually given is reviewed for clear error. . .
A related, but analytically distinct, issue is whether Ms. McRae’s factual consent to the search was also “voluntary,” as a matter of law. The defendant argues that the police coerced Ms. McRae’s consent by saying: “We want to search your car to make sure Mr. McRae didn’t leave anything in the interior that might get you in trouble.” The defendant argues that, by inducing fear in Ms. McRae, the police effectively intimidated her into consenting to the search.
Because the “voluntariness” of a search is a matter of law, it is reviewed de novo.
Unfortunately, this part of Carter doesn’t cite any caselaw on the latter point, or try to reconcile it with the contrary statements in other decisions. But Carter clearly treats voluntariness as a mixed question of law and fact. (In case you’re wondering, Carter is a per curiam decision with Widener and Hall by designation; Murnaghan was on the original panel but died before the opinion was published.) If you accept Carter‘s standard, then I think the majority in Robertson may very well be correct, and at the very least isn’t guilty of clear judicial overreach.
Anyway, I’m not sure of the lessons to be drawn here. Maybe it’s just that Robertson should have cited Carter and made clear that it was reviewing the ultimate issue de novo, as it seemed to be. Maybe it’s that the Fourth Circuit needs to go en banc and figure out just what standards apply to appellate review of voluntariness determinations of consent searches. Maybe it’s that lawyers litigating consent issues should be aware of the mixed caselaw, and they should use it to their advantage.
Or maybe this is an issue for the Supreme Court to clarify. The Court’s decision in Schneckloth v. Bustamonte leaves the precise nature of voluntariness inquiries somewhat murky, and that has led to considerable uncertainty in the federal court of appeals. I looked quickly through the caselaw of the Seventh Circuit, for example, and I also found Seventh Circuit cases taking both sides of the law/fact issue. Compare United States v. Jones, 614 F.3d 423, 435 (7th Cir. 2010) (“We will reverse a district court’s finding of voluntary consent only if it is clearly erroneous.”) with United States v. Wade, 400 F.3d 1019 (7th Cir. 2005) (“Questions of law—that is, the legal conclusion of whether Wade’s consent was voluntary and whether he was illegally seized—are reviewed de novo.”) So it may be a source of widespread confusion in the circuit courts generally, and therefore is an issue that the Supreme Court would be best situated to clarify.
Finally, this is a great student note topic for any law student readers out there. A note that combed through the law of each of the circuits and figured out the law of each, as well as inconsistencies in the law of each, would be really helpful.