Objective “Long” Vehicle Protective Searches: Cannabis Odor, Furtive Movements, and Officer Demeanor

I. Introduction

United States v. Dazmine Erving (7th Cir. Jan. 20, 2026) addresses two recurring federal issues: (1) when an officer may conduct a warrantless protective search of a vehicle for weapons under the Fourth Amendment, and (2) what constitutes reversible procedural or constitutional error at sentencing.

The case arose after Peoria Police Lieutenant Erin Barisch approached a parked SUV in a closed, dark lot at about 2:45 a.m. He observed sudden movements by the rear-seat male (Erving), detected a “lingering odor of burnt cannabis,” learned Erving was on federal supervised release for a weapons offense, and learned the female companion had provided false identifying information. After asking both occupants to exit (and allowing them to retrieve belongings), the lieutenant briefly looked under the driver’s seat—where he believed Erving had hidden something—and saw a handgun.

Erving moved to suppress the firearm, arguing the officer lacked reasonable suspicion for a Michigan v. Long protective search. After the motion was denied, Erving pleaded guilty (preserving the suppression issue) and received a top-of-range sentence plus a consecutive revocation sentence. On appeal, he challenged both the suppression ruling and the sentencing process, including comments the judge made about Erving’s children.

II. Summary of the Opinion

The Seventh Circuit affirmed. It held that the officer’s brief search under the driver’s seat fell within the Fourth Amendment’s protective-search exception (Michigan v. Long), because the totality of circumstances gave rise to reasonable suspicion that Erving was dangerous and might regain access to a weapon. The court also rejected Erving’s sentencing challenges, finding no speculation-based procedural error and no constitutional violation where the judge’s ill-advised remarks about children were made after the sentence was announced and did not appear to have been relied upon in selecting the sentence.

III. Analysis

A. Precedents Cited

1. Fourth Amendment framework and protective searches

Arizona v. Gant and Katz v. United States: The court restated the baseline rule that warrantless searches are generally unreasonable unless a “well-delineated” exception applies.
Terry v. Ohio: The foundation for limited, safety-driven searches based on “specific and articulable facts” supporting reasonable suspicion that a person may be armed and dangerous.
Michigan v. Long: The controlling extension of Terry to the vehicle context—authorizing a limited search of areas where a weapon may be hidden if the officer reasonably suspects the suspect is dangerous and may gain immediate control of weapons.
Minnesota v. Dickerson: Used to emphasize scope limits: a protective search must be “strictly limited” to discovering weapons.
Seventh Circuit vehicle-protective-search decisions: United States v. Richmond (area searches in limited circumstances), United States v. Vaccaro, United States v. Arnold, and United States v. Wimbush (applying Long’s two-part test and treating access-to-vehicle considerations as central).
Totality and inference principles: Illinois v. Wardlow (commonsense inferences; confirm-or-dispel rationale) and United States v. Ford/United States v. Brown (late-night stops in crime-prone areas heighten danger assessment).
Suspicious-but-possibly-innocent conduct: United States v. Paniagua-Garcia (mere lawful-consistent acts do not necessarily create suspicion) contrasted with United States v. Vaccaro (innocent explanations do not automatically dissipate reasonable suspicion).
Intoxicants and danger: United States v. Vaccaro, United States v. Ford, and United States v. Colbert supported the proposition that the smell of intoxicants can contribute to safety-based suspicion.
Objective versus subjective motivation: Brigham City v. Stuart anchored the court’s refusal to treat officer demeanor or subjective fear as dispositive.
Credibility and appellate deference: United States v. Olson, United States v. Wendt, and United States v. Biggs were used to justify deference to the district court’s acceptance of the officer’s testimony (including the claimed odor).
Defendant’s reliance on a non-circuit case: United States v. Rodgers (11th Cir.) (protective sweep rationale) and Maryland v. Buie. The Seventh Circuit distinguished Rodgers as involving a home entry aimed at contraband, not an objectively justified, limited vehicle weapons check.

2. Cannabis odor: probable cause versus reasonable suspicion

People v. Redmond: The opinion noted that Illinois has since held that the odor of burnt cannabis alone does not supply probable cause to search a vehicle. The Seventh Circuit did not need to decide the automobile-exception question (it affirmed under Long), but it treated odor as relevant to reasonable suspicion of danger for a protective search.

3. Sentencing procedure and constitutional limits

Standards of review and preservation: United States v. Shaw (de novo review for these claims) and United States v. Wilcher (no forfeiture where the defendant lacked an opportunity to object).
Explanation and response to mitigation: Gall v. United States and United States v. Williams (887 F.3d 326) (courts must explain and address principal arguments).
Due process and reliable information: United States v. Oliver, United States v. Helding, and United States v. Newton (no sentencing based on inaccurate or speculative information).
Contextual reading of transcripts: United States v. Coe and United States v. Gary (evaluate remarks in context; require reliance for reversal).
Rejecting the “speculation” theory here: United States v. Donelli and United States v. Nelson (per curiam) supported affirmance where the record shows a reasoned basis.
Waiver doctrine: Tuduj v. Newbold for the rule that arguments not raised in the opening brief are waived.
Fundamental rights and impermissible sentencing factors: Troxel v. Granville, Skinner v. Oklahoma ex rel. Williamson, Meyer v. Nebraska, Moore v. City of East Cleveland, Wisconsin v. Yoder, and Brokaw v. Mercer County (family/parenting rights as fundamental). Pepper v. United States (only permissible factors may be used). Oliver v. United States and United States v. Trujillo-Castillon (race/sex and similar forbidden considerations; plus Guidelines policy).
Punishment for exercising rights is forbidden: Bordenkircher v. Hayes, Mitchell v. United States, North Carolina v. Pearce (partially overruled by Alabama v. Smith), United States v. Peskin, United States v. Singletary (citing United States v. Archie), and United States v. Barahona-Montenegro (reversals where sentencing punished constitutionally protected choices).
Family considerations as mitigation: United States v. Reed (family ties may justify leniency only in “truly extraordinary” cases).

B. Legal Reasoning

1. The protective-search holding (Fourth Amendment)

The court adhered to Michigan v. Long’s two requirements: (1) reasonable suspicion the suspect is dangerous, and (2) reasonable suspicion the suspect may gain immediate control of weapons. The panel’s key contribution is not a new doctrinal test but a clarifying application: the reasonableness inquiry is objective, and a measured, targeted search (and the officer’s calmness) does not undermine Long when the totality supports danger and access.

Dangerousness (Long prong one). The panel treated the case as a “whole is greater than the sum of its parts” analysis:

Setting and timing: a lone officer at ~2:45 a.m. in a park described as crime-prone, supporting heightened safety concern (drawing on United States v. Ford and United States v. Brown).
Furtive movement explained, not incanted: the court credited the officer’s detailed account that Erving’s movement looked like hiding something, not hurried dressing. The panel emphasized it was not relying on the label “furtive” as a talisman (echoing Long’s rejection of blanket search authority), but on the articulated observation and inference (consistent with United States v. Vaccaro and United States v. Arnold).
Odor of burnt cannabis as a safety factor: regardless of Illinois probable-cause doctrine post-legalization, the smell contributed to suspicion that occupants might be under the influence, which the court linked to danger risk (citing United States v. Vaccaro, United States v. Ford, and United States v. Colbert).
False identifying information by the companion: treated as additional suspicious context.
Knowledge of weapons-related supervised release: the officer learned Erving was on supervised release for a weapons offense, and the panel reaffirmed that knowledge of prior criminal activity can contribute to reasonable suspicion (citing United States v. Vaccaro).

Importantly, the court accepted the district court’s credibility findings about the cannabis odor and the officer’s observations (invoking deference principles from United States v. Olson, United States v. Wendt, and United States v. Biggs).

Immediate control (Long prong two). The panel relied on United States v. Vaccaro and the Supreme Court’s own language in Michigan v. Long: even if the suspect is outside the car during the stop, the second prong is satisfied when the suspect is not under arrest and may be permitted to return to the vehicle. Here, both sides agreed Erving had committed no arrestable offense before the gun was found, making release and renewed access likely. Erving’s attempt to attack Vaccaro failed because Long itself foreclosed it.

Rejecting the “officer didn’t act scared” argument. Erving’s fallback reliance on United States v. Rodgers was rejected for two reasons:

Objective test controls: under Brigham City v. Stuart, subjective motivations (or apparent calmness) generally do not control Fourth Amendment reasonableness.
Tailoring supports, not defeats, constitutionality: a limited check confined to the suspected hiding place is less intrusive and consistent with Terry/Long’s purpose and scope limits (reinforced by Terry v. Ohio and Minnesota v. Dickerson).

The search thus fit Long: it was justified by specific facts and confined to an area where a weapon could be hidden. Because this exception applied, the panel declined to reach the alternative automobile-exception theory (and noted that it need not resolve it).

2. Sentencing holdings

Procedural challenge (criminal history “probably” remark). The panel read the transcript “fairly and as a whole” (United States v. Coe) and concluded the district court did not reject mitigation based on speculation. The “probably made” comment was not the court’s basis for decision; the operative rationale was recidivism—Erving reoffended within 12 days of supervised release for a similar firearm crime. Because the record showed an actual, non-speculative reasoning process, there was no procedural error.

Constitutional challenge (comments about children). The panel acknowledged the constitutional right to familial relations (Meyer v. Nebraska, Moore v. City of East Cleveland, Brokaw v. Mercer County) and reaffirmed the broader principle that courts may not punish defendants for exercising fundamental rights (citing Bordenkircher v. Hayes, Mitchell v. United States, and related cases).

Nevertheless, it found no reversible constitutional error because the judge’s troubling remarks were delivered after the sentence had already been imposed, and the transcript did not show the sentence was selected because of childbearing or parenting choices. Under Seventh Circuit law, reversal requires a showing of reliance on an impermissible factor (United States v. Coe; United States v. Trujillo-Castillon). The panel characterized the remarks as a “poorly worded personal entreaty,” not a sentencing rationale.

C. Impact

1. Fourth Amendment: legalization-era cannabis odor and officer-safety searches

The decision is likely to be cited for two practical propositions in Seventh Circuit suppression litigation:

Cannabis odor remains relevant to officer safety even where it may not establish probable cause for evidence of a crime under state law. The panel treated the odor as part of the totality supporting reasonable suspicion of danger (not as an independent criminal-law trigger). This creates a pathway for the government to defend limited weapons searches even when People v. Redmond forecloses “odor alone” probable cause arguments.
Officer demeanor and minimalism do not negate Long: a calm, methodical officer who performs a targeted check is not disqualified from relying on the protective-search exception. This discourages after-the-fact arguments that “if you were really scared you would have done X,” and reinforces that the governing inquiry is objective.

2. Sentencing: reliance requirement and “after-the-sentence” remarks

The opinion reinforces that appellate courts look for actual reliance on improper considerations rather than merely the presence of regrettable language in the transcript. At the same time, the panel’s express disapproval signals risk: had the comments been tied to the selection of the term, the analysis could have shifted toward reversal (as in cases like United States v. Barahona-Montenegro).

IV. Complex Concepts Simplified

Reasonable suspicion: a fact-based, commonsense level of suspicion that is more than a hunch but less than probable cause. Courts evaluate it under the “totality of the circumstances,” not by isolating each fact.
Protective search (Terry/Long): a limited search aimed at finding weapons to protect officer safety, not to gather evidence. For vehicles, Michigan v. Long permits checking areas where a weapon could be hidden if the suspect is dangerous and may regain access.
Objective versus subjective analysis: Fourth Amendment validity typically turns on what a reasonable officer could infer from the facts, not on whether this particular officer looked fearful, brave, or had mixed motives (Brigham City v. Stuart).
Procedural sentencing error: mistakes in how the sentence was reached (e.g., failing to address key arguments, using speculation, or inadequate explanation), distinct from disagreement with the length of the sentence.
Reliance on an impermissible factor: a defendant generally must show the sentencing judge used a forbidden consideration as a reason for the chosen sentence, not merely that the judge made an unfortunate comment.

V. Conclusion

United States v. Dazmine Erving confirms a robust, objective application of Michigan v. Long in the Seventh Circuit: a limited vehicle weapons search is permissible where the totality—late-night conditions, detailed furtive movements, cannabis odor as a safety signal, deceptive conduct by an occupant, and knowledge of a weapons-related supervision status—creates reasonable suspicion of danger and likely renewed access to the car. On sentencing, the case underscores that appellate reversal for improper considerations requires a demonstrable link between the challenged remarks and the sentence imposed, while cautioning district courts against rhetoric that can suggest punishment for constitutionally protected family choices.