[DO NOT PUBLISH]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 appeals 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 Detective Benjamin Carswell became aware of contraband when he 

smelled marijuana. First, he argues that Detective Carswell’s interaction with him became a Fourth Amendment seizure the moment Detective Carswell parked his police car behind Clark’s already-parked car and activated his emergency lights. Second, he 

argues that Detective Carswell did not have the requisite reasonable 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 recovered as a result of the stop—namely, all the drugs and 

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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 associated with a formal arrest when the officer ordered him to stay in 

his car and thus the subsequent incriminating statements were unlawfully obtained. And he argued that the drugs found in his bookbag 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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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 coming from a readily movable car.

On July 29, 2020, a magistrate judge held a suppression hearing on Clark’s motion, at which the government presented testimony 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 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 

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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 

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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 dashboard 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 warnings; (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 suppress should be denied. The magistrate judge, in making her findings of fact, credited Detective Carswell’s testimony and found 

that, after the silver car parked in an available parking space on Antioch 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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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 Detective 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 reasons for being suspicious of Clark without any match to the burglary 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 supported 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 encounter 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 Detective 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 detain Clark based on the apparent presence of illegal drugs. The 

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magistrate judge thus determined that Detective Carswell’s conversion of the encounter from a police-citizen exchange to an investigatory detention based on the apparent presence of illegal narcotics 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 detected was inside the car, as he smelled it when Clark opened his 

car door. 

Finally, turning to Clark’s argument that his Fifth Amendment right against self-incrimination was violated, the magistrate 

judge determined that the totality of the circumstances did not support 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 during 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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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 contraband.

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 sentence imposed in a case before the Middle District of Georgia, followed by a five-year term of supervised release. This appeal ensued.

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 findings 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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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 denying his motion to suppress when it determined that he was not subject to a Fourth Amendment seizure until Detective Carswell became aware of contraband when he smelled marijuana.1

The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. “Evidence 

obtained in violation of the Fourth Amendment must be suppressed.” 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 citizens, each with varying degrees of Fourth Amendment scrutiny: 

(1) consensual encounter; (2) brief investigatory stops; and (3) fullscale arrests. See United States v. Perez, 443 F.3d 772, 777 (11th 

Cir. 2006). A consensual encounter is a police-citizen exchange 

1Clark does not challenge the district court’s rulings as to the automobile exception and Miranda.

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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 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. 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 reasonable innocent person would feel free to decline the officers’ requests 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 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.), 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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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 defendant, 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 concluded that, despite 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.

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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against the officer and the city, asserting, among other things, a violation 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 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).

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 suppress the evidence. Indeed, a review of the totality of the circumstances 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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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 dashboard 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 Perez, 443 F.3d at 778.

* * * *

Accordingly, we affirm the district court’s denial of Clark’s 

suppression motion.

 AFFIRMED. 

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