IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, : 

 : 

 Plaintiff, : Case No. 11-CR-165 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

CLINTON PARKER, : Magistrate Judge Elizabeth 

 : Preston Deavers 

 : 

 Defendant. : 

OPINION & ORDER

I. INTRODUCTION 

 This matter is before the Court on Defendant Clinton Parker’s Motion to Suppress 

Physical Evidence and Statements and Request for Evidentiary Hearing (“Motion to Suppress”). 

This Court held a suppression hearing on November 9, 2011. For the reasons set forth herein, 

the Motion to Suppress is DENIED. 

II. BACKGROUND 

A. Factual History 

 On Saturday March 20, 2010, Columbus Division of Police Officers Jeremy Sampson 

and Joe Burkey were nearing the intersection of Old Courtright Road and Westpoint Drive in 

Columbus, Ohio when they noticed a vehicle bearing Indiana license plates parked in the lot of 

an apartment building located at 3780 Westpoint Drive. Officer Sampson observed that the 

vehicle was parked in a spot away from the entrance of the apartment building, even though 

there were a number of closer spots available. At the suppression hearing, however, counsel for 

the Defendant presented evidence that the parking lot of the apartment building had reserved 

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spaces for the residents and that there was a sign at the entrance of the lot so indicating. Officer 

Sampson also observed that two men, one who would later be identified as Defendant Clinton 

Parker (“Defendant” or “Parker”), were sitting in the front seats of the vehicle, and that the 

windows of the vehicle were rolled down.1

 Officer Sampson had made narcotics arrests at the 

same apartment building in the past. 

 Officers Sampson and Burkey contacted Officer Jeremy Phalen who was working in 

plain clothes capacity in an unmarked police vehicle that night and explained to Officer Phalen 

that they believed a narcotics transaction might be taking place in the parking lot of the 

apartment building. Officer Phalen arrived at the lot, “got into position and aired the activity 

from the vehicle.” (Doc. 33.) From his vehicle, Officer Phalen observed the following series of 

events: (1) a woman got out of the vehicle and walked into the apartment; (2) the same woman 

returned to the vehicle and got into the back seat; (3) everyone in the vehicle huddled toward the 

middle and appeared to be looking at something; and (4) the vehicle pulled a few feet forward as 

if it was leaving, but stopped, and was positioned halfway out of the parking spot. 

 There was conflicting testimony and evidence presented at the suppression hearing 

regarding the duration of Officer Phalen’s observations. Officer Phalen testified that his 

surveillance lasted approximately five minutes, and then he advised Officers Sampson and 

Burkey to enter the parking lot and investigate because he suspected the people in the vehicle 

were smoking marijuana. Officer Sampson testified that Officer Phalen’s observations lasted 

several minutes. Defendant presented evidence, however, that the CAD report and dispatch 

recordings from that night indicated that Officer Phalen arrived at the scene and initiated his 

                                                           

1

 At the suppression hearing, Officer Burkey testified that the passenger’s side window was down, but 

that he could not recall if the driver’s side window was also down. Parker was sitting in the passenger 

seat of the vehicle. 

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observation at approximately 7:41 p.m., but that at 7:43:15 p.m., there was a request for two 

additional police cruisers to come to the scene as back-up. (Doc. 40.) There was also a voice 

recording at 7:43:15 p.m. in which one of the Officers stated: “We want to get them separated, 

we’ve got a bunch of cash.” (Id.) 

 After speaking to Officer Phalen, Officer Burkey pulled into the lot and parked the police 

cruiser on the left side of the parking lot entrance, perpendicular to Parker’s vehicle, but in a 

manner that did not block the vehicle’s egress.2 Officer Burkey exited the police cruiser and 

approached the passenger’s side of the vehicle, where Defendant was sitting, and Officer 

Sampson approached the driver’s side. As he got closer to the passenger’s side of the vehicle, 

Officer Burkey smelled the odor of freshly burnt marijuana. He asked Defendant about the 

smell, and Defendant denied having been smoking marijuana, but said that some men had been 

smoking marijuana outside of the vehicle at an earlier time. 

 Officer Burkey asked Defendant to exit the vehicle, but Defendant attempted to remove a 

sweatshirt he was wearing. Officer Burkey instructed Defendant, several times, to leave his 

sweatshirt on prior to stepping out of the vehicle because he noticed a large bulge in the 

sweatshirt pocket. In response, Defendant stated, “This isn’t even my jacket.” (Doc. 33.) Once 

Defendant stepped out of the vehicle, Officer Burkey searched Defendant’s person for 

contraband, found a freshly burnt marijuana blunt, and put Defendant into the rear of the police 

cruiser. 

 Officer Sampson questioned Pack who was sitting on the driver’s side of the vehicle. 

Office Sampson asked Pack for identification, which Pack provided, but the Officers eventually 

                                                           

2

 There was conflicting testimony at the suppression hearing as to exactly where the police cruiser was 

parked in relation to Parker’s vehicle, but it was clear that the cruiser was not parked directly behind the 

vehicle or in a manner that would have prevented the vehicle from exiting the parking lot. 

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discovered the identification was inaccurate. Officer Sampson observed that Pack’s heart was 

beating fast and his hands were sweaty and shaking. He asked Pack if there were any guns in the 

vehicle, and Pack replied, “This isn’t my car, it is his.” (Doc. 33.) Officer Sampson discovered 

a large roll of money in Pack’s front left pant pocket. 

 After both Parker and Pack were put into police cruisers, Officer Burkey picked up the 

sweatshirt Defendant had been wearing and found a plastic bag inside that contained $9,880.00 

in counterfeit United States currency. The Officers then searched the vehicle and recovered 

approximately two ounces (58 grams packed weight) of powder cocaine from the vehicle’s 

unlocked glove box and a duffle bag in the trunk of the vehicle, which contained a computer 

printer, paper, and prescription bottle with Defendant’s name on it. 

 Defendant was transported to Columbus Police Department headquarters where he signed 

a Miranda waiver and made incriminating statements. Defendant was thereafter indicted under 

18 U.S.C. § 472, which prohibits, inter alia, possession or concealment of “any falsely made, 

forged, counterfeited, or altered obligation or other security of the United States.” 

B. Procedural History

 Defendant filed his Motion to Suppress on October 4, 2011. (Doc. 33.) The suppression 

hearing took place on November 9, 2011, and after the conclusion of the hearing, this Court 

entered a scheduling order setting deadlines for supplemental briefing. (Doc. 38.) Briefs have 

been submitted and this motion is now ripe for decision. 

III. LAW & ANALYSIS 

 Defendant makes a two-part argument in support of his Motion to Suppress. First, 

Defendant argues that an illegal seizure occurred because the officers had no reasonable 

suspicion of criminal wrongdoing when the seizure occurred. Specifically, Defendant argues 

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that a Terry stop occurred prior to the time Officer Burkey smelled freshly burnt marijuana. 

Next, Defendant contends that all evidence obtained as a result of the subsequent search of 

Defendant’s person and vehicle must be suppressed under the exclusionary rule. This Court 

needs to address the second part of Parker’s argument only if it finds that an illegal seizure did, 

in fact, occur. Because this Court holds than an illegal seizure did not take place, it is 

unnecessary to address Defendant’s arguments related to the exclusionary rule. 

A. Law on Illegal Seizure 

 The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. 

amend. IV. The Sixth Circuit has articulated three types of permissible encounters between 

police and citizens: “(1) the consensual encounter, which may be initiated without any objective 

level of suspicion; (2) the investigative detention, which, if nonconsensual, must be supported by 

a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported 

by probable cause.” United States v. Gross, 662 F.3d 393, 398 (6th Cir. 2011) (quoting United 

States v. Waldon, 206 F.3d 597, 602 (6th Cir. 2008)). 

 A police officer does not violate the Fourth Amendment’s prohibition against 

unreasonable seizures when he or she approaches an individual in a public place and asks 

questions, as long as reasonable person would feel free to disregard the police officer and go 

about his or her business. Florida v. Bostick, 501 U.S. 429, 434 (1991); see United States v. 

Drayton, 536 U.S. 194, 200–01 (2002) (explaining that “[l]aw enforcement officers do not 

violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching 

individuals on the street or in other public places and putting questions to them if they are willing 

to listen,” and “[i]f a reasonable person would feel free to terminate the encounter, then he or she 

has not been seized”); United States v. Peters, 194 F.3d 692, 698 (6th Cir. 1999) (“Absent 

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coercive or intimidating behavior which negates the reasonable belief that compliance is not 

compelled, the [officer’s] request for additional identification and voluntarily given information 

from the defendant does not constitute a seizure under the Fourth Amendment.”). 

 A consensual encounter becomes a seizure when “in view of all of the circumstances 

surrounding the incident, a reasonable person would have believed that he was not free to leave.” 

United States v. Mendenhall, 446 U.S. 544, 554 (1980). Examples of circumstances indicating a 

seizure has occurred include “the threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of the person of the citizen, or the use of language 

or tone of voice indicating the compliance with the officer’s request might be compelled.” Id. at 

554–55. 

 Once it is determined that a consensual encounter has turned into a seizure, the Sixth 

Circuit engages in a two-part analysis to evaluate the constitutionality of the Terry stop. United 

States v. Davis, 514 F.3d 596, 608 (6th Cir. 2008). First, to justify a short, investigative, Terry 

stop, an officer must point to specific, articulable facts that gave rise to a reasonable suspicion 

that the suspect was engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968). “A 

reasonable suspicion exists when, based on the totality of the circumstances, a police officer has 

‘a particularized and objective basis for suspecting the particular person stopped of criminal 

activity.’” United States v. Baldwin, 114 F. App’x 675, 679 (6th Cir. 2004) (quoting United 

States v. Cortez, 449 U.S. 411, 417–18 (1981)). More than just an officer’s “inchoate and 

unparticularized suspicion or ‘hunch’” is required. United States v. Sokolow, 490 U.S. 1, 7 

(1989) (citing Terry, 392 U.S. at 30)). Second, the Court must consider “whether the degree of 

intrusion was reasonably related in scope to the situation at hand, which is judged by examining 

the reasonableness of the [officers’] conduct given their suspicions and the surrounding 

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circumstances.” Davis, 514 F.3d at 608 (citing United States v. Davis, 430 F.3d 345, 354 (6th 

Cir. 2005)). The detention must be “sufficiently limited in time” and the investigative means 

used “the least intrusive means reasonably available.” Id. 

 In United States v. Koger, the Sixth Circuit affirmed the district court’s denial of a 

motion to suppress where, as here, the initial encounter was consensual. 152 F. App’x 429, 431 

(6th Cir. 2005). The deputies in Koger had observed a vehicle stopped illegally on a highway, 

with the motor running and partially blocking the road. Id. at 429–30. The appellant appeared to 

be asleep or unconscious in the driver’s seat. Id. at 430. When the deputies approached the 

vehicle, the appellant rolled down the window and the deputies immediately noticed a strong 

odor of marijuana. Id. Deputies learned appellant’s license was suspended, asked appellant if 

there were any drugs or weapons in the vehicle, and the appellant eventually admitted there was 

a small bag of marijuana in the front of the vehicle. Id. Upon searching the vehicle, the deputies 

found the small bag of marijuana and a briefcase containing twelve additional bags and other 

incriminating evidence. Id. The Sixth Circuit affirmed the district court’s denial of the motion 

to suppress in all respects, and agreed with the district court that the “initial approach to the car 

was lawful,” the “deputies had probable cause to approach the vehicle and investigate,” and “the 

strong smell of marijuana emanating from the vehicle provided both reasonable suspicion for 

further investigation and probable cause to search the car, and therefore that the search and 

discovery of evidence did not violate the Fourth Amendment.” Id. at 431–32. 

 More recently, in United States v. Dingess, this Circuit affirmed the denial of a 

Defendant’s motion to suppress holding that the evidence suggested that the officers had initiated 

a consensual encounter first, rather than a Terry stop, and that the officers had developed 

probable cause before the encounter ripened into a Terry stop or an arrest. 411 F. App’x 853, 

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855 (6th Cir. 2011). Two officers had been patrolling a high-crime area when they observed two 

men in a blue Buick parked in a common driveway of a duplex. Id. at 854. Prior to making 

these observations, the officers had heard that a man was selling drugs in a blue Buick at that 

address, and when the officers ran a check on the license plates, they discovered the driver had 

an arrest record including multiple narcotics, weapons, and resisting arrest charges. Id.

 The officers conducted an unrelated traffic stop and about 20 minutes later, observed that 

the Buick was still parked in the driveway and decided to investigate. Id. They parked the 

cruiser on the street, which left the driveway entrance to the duplex clear, and each officer 

approached a side of the vehicle. Id. When they approached, they smelled burning marijuana, 

and as they moved closer, observed that the defendant was holding a blunt. Id. The defendant, 

without being asked, said that he was not doing anything and demanded the officers to move 

away from the vehicle, to which one officer replied that he smelled marijuana and saw the blunt. 

Id. An officer then instructed the defendant to get out the vehicle, a struggle ensued, and the 

officers observed a firearm. Id. at 854–55. The defendant was handcuffed and arrested. Id. A 

search of the defendant’s person revealed a nine-millimeter pistol, and the defendant was later 

indicted for possession of a firearm by a convicted felon. Id. at 855. 

 On appeal, the defendant argued that the officers had engaged in a Terry stop without 

reasonable, articulable suspicion, but the Dingess Court disagreed. Id. 855–56. The officers’ 

initial encounter was consensual because a reasonable person would have believed he or she was 

free to leave where the vehicle’s egress was not blocked. Id. at 856. Furthermore, “because the 

officers smelled burnt marijuana emanating from [the defendant’s] car and saw the defendant 

holding marijuana—establishing probable cause—before this encounter ripened into a seizure, 

the district court properly denied the motion to suppress.” Id. (emphasis in the original); but see 

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Gross, 662 F.3d at 396401 (holding that an unlawful seizure occurred when an officer blocked 

an appellant’s legally parked vehicle into a parking spot when the officer had no particularized or 

objective basis for suspecting the appellant was engaging in criminal activity); United States v. 

See, 574 F.3d 309, 313 (6th Cir. 2009) (“We agree with the district court’s finding that the 

blocking of [the appellant’s car] to determine the identity of the occupants and maintain the 

status quo while obtaining this information was a warrantless Terry seizure.”) (internal 

quotations and citations omitted). 

B. Application of the Law on Illegal Seizure to the Facts of This Case 

 This Court must determine, therefore, when a Terry stop began, and then whether Officer 

Burkey had developed reasonable suspicion that Parker was engaged in criminal activity at that 

time. 

 Before the Officers approached Parker’s vehicle, Officer Phalen observed a series of 

events that, taken together, appeared suspicious, and he relayed his suspicions to Officers Burkey 

and Sampson. A woman exited and re-entered the vehicle, but the vehicle did not leave the lot. 

Instead, the people in the vehicle huddled toward the middle and then pulled the vehicle a few 

feet forward, halfway out of the parking spot. The Officers also knew that prior narcotics arrests 

had occurred in the same parking lot. Yet even when Officer Phalen instructed Officers Burkey 

and Sampson to investigate further, the Officers suspicion had not yet rose to the requisite level 

of reasonable suspicion of criminal activity to conduct a Terry stop. Therefore, when the 

Officers parked the vehicle in the lot, they had not yet developed reasonable suspicion—but nor 

had a seizure occurred. 

 As a threshold matter, this Court finds, as in Dingess, that the Officers’ initial encounter 

was consensual. The Officers did not attempt to hinder Plaintiff’s ingress or egress. They 

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parked their police cruiser in a manner that did not block Parker’s vehicle. See Dingess, 411 F. 

App’x at 856. Furthermore, while approaching the vehicle, the Officers took no action to compel 

compliance. They refrained from displaying their weapons in a threatening manner or using 

tones of voice that would indicate compliance might be compelled. Mendenhall, 446 U.S. at 

554–55. 

 A seizure began when Officer Burkey stood at the passenger’s side of Parker’s vehicle 

(while Officer Sampson stood on the other side), after smelling marijuana, and asked Parker if he 

was smoking marijuana. A reasonable person would not feel as though he or she could leave 

when two police officers were standing on either side of his or her vehicle inquiring as to 

whether any illegal activity was occurring. 

 When the encounter ripened into a seizure, however, Officer Burkey had “a particularized 

and objective basis” for suspecting Defendant was engaged in criminal activity. See Baldwin, 

144 F. App’x at 679; Dingess, 411 F. App’x at 856 (explaining that the officers had probable 

cause once they “smelled burnt marijuana emanating from Dingess’s car and saw the defendant 

holding marijuana”). Officer Burkey’s suspicions became heightened when he observed a bulge 

in Defendant’s sweatshirt and Defendant attempted to remove that sweatshirt several times 

before exiting the vehicle, claiming, “[t]his isn’t even my jacket.” (Doc. 33.) A reasonable 

officer could have suspected the bulge was a weapon, which would provide probable cause to 

search Defendant’s person. Officer Burkey also used a reasonable “degree of intrusion” given 

“the situation at hand.” See Davis, 514 F.3d at 608 (citing Davis, 430 F.3d at 354). Defendant 

does not, however, contest this point and “would concede that, once Burkey detected the order of 

marijuana, officers had probable cause to detain and search the vehicle.” (Doc. 40.) 

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 In his supplemental briefing, Defendant first argues that the Officers’ testimony is 

unconvincing because “[c]learly at [7:43:15 p.m., when two additional cruisers were called and 

there was a recording that the Officers had found cash], Parker had already been removed from 

the vehicle and his jacket had been searched.” (Id.) While it is true that the CAD report and 

dispatch recording evidence conflicts with the Officers’ testimony and creates doubt as to 

whether Officer Phalen observed the parked vehicle for approximately five minutes before 

directing the other Officers to investigate further, the evidence does not undermine that fact that 

when the Officers parked their cruiser and made their initial approach toward the vehicle, the 

encounter was consensual. The evidence also does not undercut the fact that once Officer 

Burkey got close to the car and smelled the odor of freshly burnt marijuana, he then had 

reasonable suspicion that Defendant was engaged in criminal activity. Importantly, Defendant 

concedes that once Officer Burkey smelled marijuana he had probable cause to detain Defendant 

and search the vehicle, and this Court finds that an illegal seizure did not occur prior to that 

point. 

 The Defendant also contends, without much elaboration, that Officer Phalen’s vehicle 

was parked 125 feet from Defendant’s car and that he could tell the passengers were black but 

that he could not make out their “ages, clothing (with the exception of [the female’s] yellow 

shirt), facial hair, eye wear, etc.” (Id.) Defendant does not contest, however, that Officer Phalen 

was able to observe the female exit and re-enter the vehicle, that once she returned the 

passengers in the vehicle huddle toward the middle, or that the vehicle pull a few feet forward 

and stop. The latter are the observations upon which the Officers began to develop reasonable 

suspicion. Therefore, this Court finds unpersuasive the Defendant’s argument related to the 

difficulty Officer Phalen had identifying the physical traits of the passengers. 

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 Finally, Defendant argues that the Dingess case is distinguishable because in that case, 

the officers were parked on the street so as not to block the defendant’s egress and this was the 

determining factor in the Circuit Court’s analysis and conclusion that the defendant was seized 

legally. Parker argues that here, “although the officers did not physically block the vehicle’s 

egress, they hindered it by parking on the wrong side of the road within a short distance from the 

front of the [car] and angling it toward the [car].” Parker argues that to leave the lot, Pack would 

have had to drive on the wrong side of the road in view of the Officers, and that combined with 

the simultaneous approach of the two Officers towards Parker’s vehicle, a seizure occurred prior 

to the time Officer Burkey smelled marijuana. The Government argues “[t]his is a distinction 

without a difference as in both circumstances there is no evidence before the Court that the 

officers blocked the defendant’s vehicle.” (Doc. 43.) 

 This Court finds Defendant’s arguments unpersuasive. The Officers did not block the 

vehicle’s egress, and although Pack would have had to drive around the police cruiser to exit the 

lot, the photographic evidence presented at the suppression hearing demonstrated that there was 

sufficient room to do so given the width of the parking lot entrance. Parker’s argument that the 

vehicle would have had to drive on the wrong side of the road is unconvincing, as these events 

took place in a private parking lot. The facts in Dingess are similar to the facts in this case, and 

support this Court’s conclusion that a seizure did not occur until after Officer Burkey had 

developed reasonable suspicion. 

IV. CONCLUSION 

 This Court finds Defendant’s argument that all physical evidence and statements should 

be suppressed unpersuasive because no illegal seizure occurred. For the reasons set forth in this 

Opinion, Defendant’s Motion to Suppress is DENIED. 

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 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: January 5, 2012 

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