USCA11 Case: 21-12331 Date Filed: 06/24/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12331
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIS DUANE CLARK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 3:18-cr-00408-RAH-JTA-1
____________________
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2 Opinion of the Court 21-12331
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
After a conditional guilty plea, Demetris Duane Clark ap-
peals the district court’s denial of his motion to suppress illegally
seized evidence. Clark contends that the district court erred by
denying his motion to suppress when it determined that he was not
subject to a Fourth Amendment seizure until Opelika Police De-
tective Benjamin Carswell became aware of contraband when he
smelled marijuana. First, he argues that Detective Carswell’s in-
teraction with him became a Fourth Amendment seizure the mo-
ment Detective Carswell parked his police car behind Clark’s al-
ready-parked car and activated his emergency lights. Second, he
argues that Detective Carswell did not have the requisite reasona-
ble suspicion to warrant a Terry v. Ohio, 392 U.S. 1 (1968), stop
because Detective Carswell did not smell marijuana until after the
moment of the seizure. For the reasons stated below, we affirm.
I.
On September 26, 2018, a federal grand jury charged Clark
via indictment on one count of possession with intent to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), based on events occurring on February 7, 2017, which
we discuss below.
Clark then filed a motion to suppress all of the evidence re-
covered as a result of the stop—namely, all the drugs and
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21-12331 Opinion of the Court 3
contraband seized and the self-incriminating statements he made
to a police officer and made during jail telephone recordings. Clark
argued that Detective Carswell did not have probable cause nor
reasonable suspicion to justify a traffic stop because there was no
evidence of a traffic violation or criminal activity. He asserted that
no reasonable citizen in the same situation would have believed he
had a choice to leave when the officer verbally commanded him to
return to his car after parking behind him in a manner consistent
with displaying his authority as a police officer. Clark also argued
that his incriminating statement that he had marijuana in the car
should have been excluded because the police officer questioned
him without advising him of his rights under Miranda v. Arizona,
384 U.S. 436 (1966). He contended that, under the circumstances,
a reasonable person would have felt restrained to the degree asso-
ciated with a formal arrest when the officer ordered him to stay in
his car and thus the subsequent incriminating statements were un-
lawfully obtained. And he argued that the drugs found in his book-
bag were illegally seized because he did not consent to the search
of the bag, stating that the officer ordered him to hand over the bag
and immediately searched it without seeking consent. In support
of his motion, Clark filed the dashboard camera video recording,
the incident report, a Miranda waiver form signed by Clark, and his
post-arrest statement.
The government opposed Clark’s motion, arguing that
there was no traffic stop because Clark pulled into a parking spot
of his own volition without the police officer activating his
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4 Opinion of the Court 21-12331
emergency lights or siren. The government also argued that the
officer had reasonable suspicion to detain Clark because Clark’s
out-of-state license plate raised suspicion due to his presence in an
area near the interstate, but without stores or gas stations, where
police were searching for a burglary suspect, and because he was
driving in a suspicious manner. The government further argued
that it was irrelevant whether Clark had consented to the officer’s
search of the bookbag because the officer had probable cause to
search the car and its contents due to his smelling marijuana com-
ing from a readily movable car.
On July 29, 2020, a magistrate judge held a suppression hear-
ing on Clark’s motion, at which the government presented testi-
mony from Detective Carswell, who was a narcotics investigator
and canine handler with the City of Opelika Police Department at
the time of the incident. Detective Carswell testified as follows.
An officer broadcasted over the main police radio channel that,
while investigating a burglary, he had observed a black male wear-
ing a black hat, black shirt, and gray pants flee at the sight of the
officer and run across I-85 on foot toward the housing authority
area. Another officer radioed that he had observed a black male
driving a silver car with a Georgia license plate heading from a
dead-end street toward W. E. Morton Avenue. Detective Carswell
went to that area to try to locate the car, saw a car that matched
the description, pulled behind the car, and observed that it had a
Georgia license plate. The car turned right onto Antioch Circle and
pulled into a parking space. He suspected that the car could have
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21-12331 Opinion of the Court 5
been linked to the subject that was seen fleeing the area by the bur-
glary location because of the Georgia license plate, the absence of
a nearby interstate exit that provided access to the area, and the fact
that it was seen coming from the general area where the suspect
on foot was last seen. He was also suspicious because the car made
several turns in dead-end streets, and he suspected that the driver
was possibly trying to avoid police.
Detective Carswell then pulled up at an angle less than four
feet behind the silver car without blocking it in, activated his lights,
and approached the car. Although he was driving an unmarked
police car, it had a wraparound brush guard, warning lights, radio
antennas, and license plate readers that would indicate it was a po-
lice car. Clark was the driver of the silver car, and there was a fe-
male passenger with him. Clark got out of his vehicle of his own
freewill, and Detective Carswell immediately smelled a strong
odor of marijuana when Clark opened his car door. He told Clark
to get back inside his car because, due to the strong odor of mari-
juana, he was going to investigate whether Clark had marijuana in
the car. He asked Clark if there was any marijuana in the car, and
Clark told him that there was and handed him a small bag of mari-
juana. He radioed in code 1077—the code for drugs—to other po-
lice units. Detective Carswell then observed a bookbag in the
backseat and asked Clark to hand him it so that he could see if there
were any weapons or contraband inside, as the strong odor of ma-
rijuana was not consistent with the small amount of marijuana that
Clark had given him. He opened the bookbag and immediately
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6 Opinion of the Court 21-12331
saw a large amount of marijuana. At that point, Detective Carswell
put the bag on top of the car, placed Clark in handcuffs, and placed
Clark in custody. The magistrate judge then admitted the dash-
board camera video of the incident as a government exhibit, which
Detective Carswell narrated as the video played.
On cross-examination, Detective Carswell testified that: (1)
he did not observe Clark violating any traffic laws, and the stop was
just an investigatory stop; (2) Clark did not match the description
of the burglary suspect other than being a black male; (3) Clark was
detained as soon as Detective Carswell smelled the marijuana and
was not permitted to leave the scene; (4) once Clark was in custody,
he began to question Clark without reading him the Miranda warn-
ings; (5) he had already decided to search the car once he smelled
the marijuana; and (6) Clark did not give him consent to search the
bookbag.
On September 4, 2020, the magistrate judge issued a report
and recommendation (“R&R”), concluding that the motion to sup-
press should be denied. The magistrate judge, in making her find-
ings of fact, credited Detective Carswell’s testimony and found
that, after the silver car parked in an available parking space on An-
tioch Circle, Detective Carswell “parked his vehicle close to the
rear of the silver car, without blocking it, and activated his vehicle
lights.” (emphasis added). Analyzing Clark’s Fourth Amendment
claims, the magistrate judge determined that the seizure was based
on a reasonable suspicion to investigate illegal activity. The judge
found that the encounter began as a police-citizen exchange
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21-12331 Opinion of the Court 7
involving no coercion or detention, not a traffic stop, because Clark
had not violated any traffic laws and voluntarily stopped and
parked his car without Detective Carswell effectuating a traffic stop
by employing his lights or a siren. The magistrate judge noted De-
tective Carswell’s testimony that he did not activate his vehicle
lights until after Clark had pulled his car into the parking space.
The magistrate judge stated that Detective Carswell’s stated rea-
sons for being suspicious of Clark without any match to the bur-
glary suspect beyond being a black male “may not support a finding
of reasonable, articulable suspicion for an investigatory stop if the
government fully placed reliance thereon.” But the magistrate
judge found that Detective Carswell was acting within the law
when he approached Clark for a consensual encounter and that the
police-citizen exchange became an investigatory detention sup-
ported by reasonable, articulable suspicion that criminal activity
was afoot when Detective Carswell smelled the marijuana and told
Clark to get back into his car.
The magistrate judge rejected Clark’s argument that the en-
counter was a seizure from the start, noting Clark had conceded
that Detective Carswell did not block his car. The magistrate judge
found that Detective Carswell had not used his emergency lights
to initiate a stop, Clark parked his car of his own volition, and De-
tective Carswell had not blocked Clark’s exit from the parking
space. She also found that the smell of marijuana altered Detective
Carswell’s investigatory goals and provided him the ability to de-
tain Clark based on the apparent presence of illegal drugs. The
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8 Opinion of the Court 21-12331
magistrate judge thus determined that Detective Carswell’s con-
version of the encounter from a police-citizen exchange to an in-
vestigatory detention based on the apparent presence of illegal nar-
cotics did not violate the Fourth Amendment.
Next, the magistrate judge determined that the search of
Clark’s car was permissible under the automobile exception to the
Fourth Amendment warrant requirement. The judge explained
that the exception applied because Clark’s car was readily mobile
and because Detective Carswell had probable cause to believe a
quantity of marijuana capable of producing the strong odor he de-
tected was inside the car, as he smelled it when Clark opened his
car door.
Finally, turning to Clark’s argument that his Fifth Amend-
ment right against self-incrimination was violated, the magistrate
judge determined that the totality of the circumstances did not sup-
port a finding of custody within the context of Miranda. The judge
found that a reasonable person in Clark’s position would not have
believed that his freedom of movement had been curtailed to the
degree associated with a formal arrest. The magistrate judge also
found that, regardless of Detective Carswell’s subjective belief that
he could file criminal charges against Clark if he had departed dur-
ing the stop, under the objective standard, a reasonable innocent
person would not have felt that he was at the mercy of the police
such that he must confess to a crime.
Clark objected to the magistrate judge’s R&R. The district
court overruled his objections, adopted the R&R, and denied
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21-12331 Opinion of the Court 9
Clark’s motion to suppress. The district court specifically agreed
with the magistrate judge’s finding that Detective Carswell had not
blocked Clark’s path of exit with his police car, finding that, after
viewing the video footage, there was enough room for Clark to exit
the parking space. Thus, the district court concluded that the
Fourth Amendment was not implicated at the moment the police
vehicle came to rest or before the officer became aware of any con-
traband.
Clark then pled guilty, but he reserved his right to challenge
the order denying his suppression motion. After Clark pled guilty,
the district court sentenced him to 120 months’ imprisonment to
run concurrent with two Georgia state court sentences and a sen-
tence imposed in a case before the Middle District of Georgia, fol-
lowed by a five-year term of supervised release. This appeal en-
sued.
II.
“A motion to suppress evidence presents a mixed question
of law and fact.” United States v. Lewis, 674 F.3d 1298, 1302 (11th
Cir. 2012). “Because rulings on motions to suppress involve mixed
questions of fact and law, we review the district court's factual find-
ings for clear error, and its application of the law to the facts de
novo.” Id. at 1302–03. When considering a ruling on a motion to
suppress, we construe all facts in the light most favorable to the
prevailing party and afford substantial deference to the factfinder’s
credibility determinations. Id. A finding is not clearly erroneous
unless we are left with a definite and firm conviction that a mistake
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10 Opinion of the Court 21-12331
has been committed. United States v. Smith, 821 F.3d 1293, 1302
(11th Cir. 2016).
III.
On appeal, Clark argues that the district court erred by deny-
ing his motion to suppress when it determined that he was not sub-
ject to a Fourth Amendment seizure until Detective Carswell be-
came aware of contraband when he smelled marijuana.1
The Fourth Amendment protects individuals from “unrea-
sonable searches and seizures.” U.S. Const. amend. IV. “Evidence
obtained in violation of the Fourth Amendment must be sup-
pressed.” United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.
2011). However, not all interactions between law enforcement and
citizens implicate the Fourth Amendment. Id. “Only when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may [a court] conclude
that a ‘seizure’ has occurred.” Id. (quoting Terry, 392 U.S. at 19
n.16).
There are three categories of police encounters with citi-
zens, each with varying degrees of Fourth Amendment scrutiny:
(1) consensual encounter; (2) brief investigatory stops; and (3) full-
scale arrests. See United States v. Perez, 443 F.3d 772, 777 (11th
Cir. 2006). A consensual encounter is a police-citizen exchange
1 Clarkdoes not challenge the district court’s rulings as to the automobile ex-
ception and Miranda.
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21-12331 Opinion of the Court 11
involving no coercion or detention, and it does not implicate the
Fourth Amendment. Id. To determine whether an encounter was
consensual, a district court considers, among other factors:
(1) whether the individual’s path was blocked; (2) whether identifi-
cation was retained; (3) the individual’s age, education, and intelli-
gence; (4) the length of the detention and questioning; (5) the num-
ber of police officers present; (6) whether weapons were displayed,
(7) any physical touching of the suspect; and (8) the language and
tone of the officers. Id. at 778. As long as officers do not coerce an
individual to cooperate, officers may approach individuals in public
places and pose questions, ask for identification, or request consent
to search, even if there is no basis for suspecting that individual.
United States v. Drayton, 536 U.S. 194, 200–01 (2002). If a reason-
able innocent person would feel free to decline the officers’ re-
quests or terminate the encounter, then it is consensual. Id. at 202.
In contrast, a brief investigatory stop constitutes a seizure
under the Fourth Amendment, and police officers must have legal
grounds to initiate the stop. See Terry, 392 U.S. at 22. We deter-
mine whether an investigatory stop was legal under the Fourth
Amendment by ascertaining (1) whether the stop was justified at
its inception, and (2) whether the stop was reasonably related in
scope to the circumstances that justified the stop. United States v.
Gonzalez-Zea, 995 F.3d 1297, 1302 (11th Cir.), cert. denied, 142 S.
Ct. 506 (2021). An investigatory stop is justified at its inception if,
based on the “totality of the circumstances,” the officer conducting
the stop had “a reasonable, articulable suspicion based on the
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12 Opinion of the Court 21-12331
objective facts that the person has engaged in, or is about to engage
in, criminal activity.” United States v. Lindsey, 482 F.3d 1285, 1290
(11th Cir. 2007) (quoting United States v. Powell, 222 F.3d 913, 917
(11th Cir. 2000)).
For example, in United States v. De La Rosa, 922 F.2d 675
(11th Cir. 1991), an unmarked police car followed the defendant’s
car into his apartment complex, where the defendant parked and
began walking to his apartment. Id. at 677. The officer positioned
his car directly behind the defendant’s car, approached the defend-
ant, identified himself as a police officer, and asked the defendant if
he could speak with him. Id. The defendant agreed and consented
to a search of his car and apartment, which led to the seizure of
records and currency related to drug transactions. Id. We con-
cluded that, despite police blocking the defendant’s car, the initial
encounter did not implicate the Fourth Amendment because, un-
der the totality of the circumstances, a reasonable person would
have believed he was free to walk home without conversing with
police where he had returned home for the evening with no intent
to use his car in the immediate future. Id. at 678.
Additionally, in Miller v. Harget, 458 F.3d 1251 (11th Cir.
2006), an officer pulled into a parking lot, parked directly behind
Miller’s already parked car—blocking him from driving away—
flashed his window lights, beeped his siren to let Miller know he
was there, and approached Miller’s car on foot. See id. at 1253.
This encounter eventually led to Miller’s arrest. Id. Following his
acquittal, Miller filled a 42 U.S.C. § 1983 action in federal court
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21-12331 Opinion of the Court 13
against the officer and the city, asserting, among other things, a vi-
olation of the Fourth Amendment arising from an encounter with
the officer that led to his arrest. See id. The district court granted
summary judgment for the defendants, and we affirmed. Id. at
1255, 1261. Of relevance here, we noted that “[t]his Court has de-
cided on several occasions that a police officer does not seize an
individual merely by approaching a person in a parked car.” Id. at
1257. Turning to the facts at hand, we reasoned that, when the
officer approached Miller’s car, he “did not do anything that would
appear coercive to a reasonable person,” i.e., “he did not draw his
gun, give any directions to Mr. Miller, or activate his roof
lights.” Id. at 1257. We also reasoned that the officer initiated his
“window lights” to alert Miller of his presence and that nothing
would differentiate the encounter from one where an officer acti-
vated his lights and approached a stranded motorist to offer assis-
tance. Id. at 1258. We thus concluded that because the officer did
not make a “show of authority that communicated to the individ-
ual that his liberty was restrained,” it was not an investigatory
stop. Id. (alterations adopted) (quoting Perez, 443 F.3d at 778).
We find that De La Rosa and Miller are instructive here such
that the district court did not err in denying Clark’s motion to sup-
press the evidence. Indeed, a review of the totality of the circum-
stances shows that the initial encounter by Detective Carswell with
Clark was consensual, which does not implicate the Fourth
Amendment. The district court did not clearly err in its factual
findings that Clark voluntarily stopped and parked his car, that
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14 Opinion of the Court 21-12331
Detective Carswell did not activate his police car’s lights or sirens
when approaching Clark’s car, and that Detective Carswell did not
block Clark’s vehicle into the spot where it was parked, as these
findings were supported by the officer’s testimony and the dash-
board camera video. Finally, we note that, during the encounter,
Detective Carswell did not ask for identification from Clark, did
not say Clark was not free to leave, did not brandish his weapon,
did not touch Clark, and did not otherwise coerce his cooperation.
These facts also support that the initial encounter was consensual,
which, again, does not implicate the Fourth Amendment. See Pe-
rez, 443 F.3d at 778.
****
Accordingly, we affirm the district court’s denial of Clark’s
suppression motion.
AFFIRMED.