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 [...]