On June 24, 2022, the Eleventh Circuit Court of Appeals decided the United States v. Clark[i], in which the court considered whether an officer who stopped behind but did not block, a parked car while activating his emergency lights was a consensual encounter or an investigative detention. The relevant facts of Clark are as follows:
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 wearing 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 been linked to the subject that was seen fleeing the area by the burglary 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 police car. Clark was the driver of the silver car, and there was a female 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 marijuana, 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 marijuana. He radioed in code 1077—the code for drugs—to other police 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 marijuana was not consistent with the small amount of marijuana that Clark had given him. He opened the bookbag and immediately 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.[ii]
Clark was ultimately charged under federal law with possession with intent to distribute 50 grams or more of methamphetamine. Clark filed a motion to suppress and argued that, when the officer stopped behind his parked vehicle and activated his emergency lights, the encounter became an investigatory detention that was not supported by reasonable suspicion. As such, he argued that the discovery of the drugs was the product of a detention that violated the Fourth Amendment, and the evidence should be suppressed. The district court disagreed and held that the initial encounter was consensual and, once the officer smelled the odor of marijuana, it became a detention that was supported by probable cause. Clark pleaded guilty with the right to appeal the denial of his motion to suppress. He then appealed to the Eleventh Circuit Court of Appeals.
The issue on appeal was whether the district court erred in denying the motion to suppress when it held that the initial encounter with Clark was consensual and did not become a seizure under the Fourth Amendment until the officer smelled the odor of marijuana.
The court of appeals noted several important legal principles that are relevant to this issue. The principles were as follows:
- 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.” (quoting Terry, 392 U.S. at 19 n.16).[iii]
- There are three categories of police encounters with citizens, 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).[iv]
- A consensual encounter is a police-citizen exchange involving no coercion or detention, and it does not implicate the Fourth Amendment. To determine whether an encounter was consensual, a district court considers, among other factors: (1) whether the individual’s path was blocked; (2) whether identification was retained; (3) the individual’s age, education, and intelligence; (4) the length of the detention and questioning; (5) the number 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.[v]
- 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, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). If a reasonable innocent person would feel free to decline the officers’ requests or terminate the encounter, then it is consensual. at 202.[vi]
- In contrast, a brief investigatory stop constitutes a seizure under the Fourth Amendment, and police officers must have legal grounds to initiate the stop.[vii]
- We determine 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.), denied, 142 S. Ct. 506 (2021).[viii]
- 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 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)).[ix]
The court also examined precedent from the Eleventh Circuit that was relevant to the issue in Clark’s case. First, the court examined the United States v. De La Rosa.[x] In this case, an officer, driving an unmarked police vehicle, followed the defendant, who drove to his apartment complex, parked, exited his vehicle and began walking toward his apartment. The officer parked his police vehicle behind the defendant’s vehicle, blocking it, approached the defendant, and asked if the defendant would speak with him. The defendant agreed to talk to the officer. The officer obtained consent to search the defendant’s car and apartment, which led to the discovery of evidence related to drug sales. The Eleventh Circuit held
[D]espite police blocking the defendant’s car, the initial encounter did not implicate the Fourth Amendment because, under 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.[xi]
The court also examined Miller v. Harget.[xii] In Miller, an officer parked directly behind Miller’s already parked car, blocking him, activated his emergency lights, chirped his siren, and then approached Miller’s car on foot. This ultimately led to evidence and Miller’s arrest. Miller was acquitted of the criminal charges and he filed suit in federal court, alleging that the initial encounter violated his rights under the Fourth Amendment. The Eleventh Circuit granted summary judgment for the officer and held
[T]his Court has decided 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 activated his lights and approached a stranded motorist to offer assistance. Id. at 1258. We thus concluded that because the officer did not make a “show of authority that communicated to the individual that his liberty was restrained,” it was not an investigatory stop. Id. (alterations adopted) (quoting Perez, 443 F.3d at 778).
The court of appeals then examined the facts of Clark’s case in light of the legal principles and precedent examined. The court determined that the district court did not err in concluding that (1) Clark voluntarily stopped his car in a parking space, (2) the officer did not activate his lights or sirens to compel Clark to stop, (3) the officer did not block Clark’s vehicle, (4) nor did the officer do any act or say anything to compel Clark’s compliance prior to smelling the odor of marijuana. As such, the court held that the initial encounter was consensual and did not implicate the Fourth Amendment.
Therefore, they affirmed the decision of the district court.
[i] No. 21-12331 (11th Cir. Decided June 24, 2022 Unpublished)
[ii] Id. at 4-6
[iii] Id. at 12 (emphasis added)
[iv] Id. (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at 12-13 (emphasis added)
[vii] Id. at 13 (emphasis added)
[viii] Id. (emphasis added)
[ix] Id. (emphasis added)
[x] 922 F.2d 675 (11th Cir. 1991)
[xi] Clark at 14 (citing De La Rosa, 922 F.2d at 678)
[xii] 458 F.3d 1251 (11th Cir. 2006)