S.D.Ohio: Asking about marijuana converted consent to a stop, but it was with RS

The officer did not have reasonable suspicion to approach and talk to defendant in a parking lot known for drug sales. The conversation was by consent. “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.” By then the officer had reasonable suspicion. United States v. Parker, 2012 U.S. Dist. LEXIS 1385 (S.D. Ohio January 5, 2012).*

Defendant’s turning around and coming back when officer called for him was consent. A second request did not escalate it to an order. United States v. Brown, 447 Fed. Appx. 706 (6th Cir. 2012)*:

We may reasonably infer from Brown’s decision to turn his car around and drive toward Officer Pesa that Brown consented to stopping to oblige an officer’s request. See Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984) (“While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”). Although Officer Pesa followed up his request to “come here” with a request to stop, nothing in the record suggests that Brown stopped because of Officer Pesa’s later instruction. Rather, Officer Pesa’s request came after Brown already turned his car around, evincing an intent to stop. Officer Pesa’s second request is best interpreted as a continuation or renewal of the initial request, rather than as an escalating, coercive order. See Florida v. Rodriguez, 469 U.S. 1, 4 (1984) (holding that consensual interaction occurred when officer first asked defendant to talk with him, defendant consented, and officer then asked defendant to step fifteen feet aside to talk). Brown’s behavior in advance of Officer Pesa’s request to stop suggests that Brown stopped and engaged in a conversation with Officer Pesa voluntarily.