            Case: 18-14604    Date Filed: 09/18/2019   Page: 1 of 5




                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14604
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:17-cr-00549-RDP-JHE-1



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                   versus

DAMON EUGENE ODEN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (September 18, 2019)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      A jury found Damon Eugene Oden guilty of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g), and of possession with intent to

distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §

841. He appeals his convictions, arguing that the district court erred in denying his

motion to suppress because the officers subjected him to a Fourth Amendment

seizure without reasonable suspicion of any criminal activity. We conclude that

Oden’s initial encounter with law enforcement was consensual and did not

implicate the Fourth Amendment and therefore affirm his convictions. We do so

without addressing whether the officers had reasonable articulable suspicion of

criminal activity so as to justify his seizure.

      We review the denial of a motion to suppress as a mixed question of law and

fact; the district court’s factual findings are reviewed for clear error while its

application of the law is reviewed de novo. United States v. Gibbs, 917 F.3d 1289,

1294 (11th Cir. 2019). All facts are construed in the light most favorable to the

prevailing party below. Id. In deciding whether to affirm the district court’s denial

of a motion to suppress, we may consider evidence introduced at the hearing on the

motion and evidence presented at trial. United States v. Villabona-Garnica, 63

F.3d 1051, 1056 (11th Cir. 1995).

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and


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seizures, shall not be violated.” U.S. Const. amend. IV. The general rule is that

warrantless searches and seizures are per se unreasonable. United States v.

Bradley, 644 F.3d 1213, 1262 (11th Cir. 2011). We have identified “three broad

categories of police-citizen encounters for purposes of . . . Fourth Amendment

analysis: (1) police-citizen exchanges involving no coercion or detention; (2) brief

seizures or investigatory detentions; and (3) full-scale arrests.” United States v.

Perez, 443 F.3d 772, 777 (11th Cir. 2006). The first category encompasses

consensual encounters and does not implicate Fourth Amendment scrutiny. Id.

Officers must have reasonable suspicion of criminal activity to briefly detain a

person for an investigatory detention. United States v. Williams, 876 F.2d 1521,

1523 (11th Cir. 1989).

      “Law 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.” United States v. Drayton, 536 U.S. 194, 200 (2002). To determine if an

encounter is consensual, the “crucial test is whether, taking into account all of the

circumstances surrounding the encounter, the police conduct would have

communicated to a reasonable person that he was not at liberty to ignore the police

presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 (1991).




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This test presupposes an innocent person. Id. at 438. Officers may ask questions

of an individual even when they do not suspect criminal activity. Id. at 434–35.

      In order for there to be a sufficient restraint on liberty to elevate an
      interaction between law enforcement and an individual to constitutional
      dimensions that trigger Fourth Amendment protection, the police must
      exert a show of authority that communicates to the individual that his
      liberty is restrained, meaning he is not free to leave.

United States v. Baker, 290 F.3d 1276, 1278 (11th Cir. 2002). Thus, a seizure

occurs when, by means of physical force or a show of authority by law

enforcement, a reasonable person would have believed that he was not free to

leave. United States v. Mendenhall, 446 U.S. 544, 553–54 (1980).

      We consider a non-exhaustive list of factors in determining whether police

questioning constituted a seizure:

      [W]hether a citizen’s path is blocked or impeded; whether
      identification is retained; the suspect’s age, education and intelligence;
      the length of the suspect’s detention and questioning; the number of
      police officers present; the display of weapons; any physical touching
      of the suspect, and the language and tone of voice of the police.

Perez, 443 F.3d at 778 (quotation marks omitted). Officers’ subjective intent is

irrelevant unless conveyed to the defendant. Mendenhall, 446 U.S. at 554 n.6.

“The societal pressure to stop and speak with law enforcement is not a sufficient

restraint of liberty to raise the interaction to a level that requires constitutional

protection.” Baker, 290 F.3d at 1278.




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      Oden’s encounter with law enforcement was consensual and did not

implicate the Fourth Amendment. Examining the Perez factors under the facts

most favorable to the prevailing party, the exchange here has substantial indicia of

permissible, consensual police questioning. Oden’s path as he exited the wooded

area was not blocked or impeded, Oden’s identification was not taken, he was of

suitable age, education, and intelligence, the exchange lasted for two to three

minutes, and the officers did not display their weapons, touch Oden, or use

coercive language or tone of voice. It is also important to note that Oden was

voluntarily approaching the officers. While there were three officers to the one

suspect, that factor alone did not transform this consensual encounter into a Fourth

Amendment seizure. To the extent that Oden relies on testimony indicating the

officers formed a semi-circle around him, other testimony indicates that he had

several routes by which to avoid the officers, and a reasonable innocent person

would have felt free to leave.

      AFFIRMED.




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