Objective Vehicle Protective Searches Under Long: Furtive Movements, Cannabis Odor, and Weapons-Related Supervision Support Reasonable Suspicion; Post-Sentence Family Remarks Require “Reliance” to Create Constitutional Error

I. Introduction

In United States v. Dazmine Erving, the Seventh Circuit addressed two recurring fault lines in federal criminal practice: (1) when an officer may conduct a warrantless, weapon-focused search of a vehicle’s interior under the Fourth Amendment’s protective-search doctrine; and (2) how appellate courts distinguish between constitutionally impermissible sentencing factors and stray—albeit troubling—judicial remarks that do not actually drive the sentencing decision.

The case began when Lieutenant Erin Barisch, patrolling Peoria’s River Front Park at roughly 2:45 a.m., approached a parked Dodge Durango. He observed what he described as a quick “leaning down” movement by the male occupant (Erving) consistent with hiding something, smelled “burnt cannabis,” and received false identifying information from the female companion. After running information, the officer learned Erving was on federal supervised release for a weapons offense. The officer then directed both occupants out, allowed them to retrieve belongings, and conducted a limited look under the driver’s seat where he suspected something had been hidden. He saw and later retrieved a handgun. Erving moved to suppress, lost, pleaded guilty while preserving appeal, and received an upper-range sentence plus a consecutive revocation term.

The central suppression question was whether the officer had reasonable suspicion to believe Erving was (1) dangerous and (2) could gain immediate control of a weapon, as required by Michigan v. Long. The sentencing questions were whether the district judge procedurally speculated when rejecting a criminal-history-overstatement argument, and whether the judge unconstitutionally “penalized” Erving’s fundamental right to have children.

II. Summary of the Opinion

III. Analysis

A. Precedents Cited

1. Fourth Amendment framework: warrants, exceptions, and protective searches

• Arizona v. Gant and Katz v. United States: The court invoked the baseline that warrantless searches are generally unreasonable absent a “well-delineated” exception. These citations locate the case in mainstream Fourth Amendment doctrine: the government must fit the search within an exception, not merely show the search was useful.
• Terry v. Ohio: The opinion traces the protective-search exception to Terry, emphasizing the requirement of “specific and articulable facts” supporting a belief that the person may be “armed and presently dangerous.” This anchors the analysis in a suspicion-based, safety-driven doctrine, not an evidence-gathering doctrine.
• Michigan v. Long: The controlling precedent. Long extends Terry to vehicle interiors and requires reasonable suspicion that (1) the suspect is dangerous and (2) may gain immediate control of weapons. The Seventh Circuit treated Long as dispositive both on the legal standard and on why the “immediate control” element may be satisfied when a suspect is likely to return to the vehicle.
• Minnesota v. Dickerson: Cited for the limitation principle: protective searches must be “strictly limited” to discovering weapons. This supports the panel’s acceptance of a narrow, under-seat search as consistent with the doctrine’s scope.

2. Reasonable suspicion: totality, context, and inference

• Illinois v. Wardlow: Used for two related propositions: reasonable suspicion turns on commonsense judgments and inferences about human behavior, and officers may act to “confirm or dispel” suspicion. This bolstered the court’s acceptance of the officer’s inference that a quick lean-down suggested concealment rather than dressing.
• United States v. Richmond: Quoted for the “more than a hunch but less than probable cause” definition and for the totality-of-circumstances approach. The panel used Richmond to frame the analysis as cumulative rather than factor-by-factor determinism.
• United States v. Ford and United States v. Brown: These cases support the proposition that nighttime stops in crime-affected areas are “more fraught with potential danger.” The court treated the time (2:45 a.m.) and location (a park with vice/narcotics activity) as contextual amplifiers of risk.
• United States v. Vaccaro: A key Seventh Circuit decision used twice: (i) that suspected intoxication (including odor) can contribute to reasonable suspicion of danger, and (ii) that “immediate control” can be satisfied where the suspect is likely to be released and regain access to the vehicle. The panel also used Vaccaro to reject Erving’s request to revisit the doctrine, noting Vaccaro implements Long.
• United States v. Arnold and United States v. Wimbush: Cited for the long-standing relevance of furtive movements and access-to-weapon concerns in vehicle encounters. These cases function as pattern recognition: movements suggesting concealment have repeatedly been treated as meaningful inputs.
• United States v. Paniagua-Garcia: The court accepted the defense’s general proposition—reasonable suspicion does not arise from conduct merely “consistent” with lawful behavior— but emphasized (through other precedents) that a plausible innocent explanation does not automatically negate suspicion.
• United States v. Colbert: Cited to support the inference that intoxication increases danger, connecting the odor of burnt cannabis to officer-safety concerns.

3. Credibility and appellate review of suppression decisions

• United States v. Walker, United States v. Williams, United States v. Olson, and United States v. Wendt: These authorities frame the standard of review—legal conclusions de novo, factual findings for clear error, and deference to credibility determinations. They matter here because Erving implicitly challenged whether the officer truly smelled burnt cannabis; the panel treated that as a credibility matter.
• United States v. Biggs: Reinforces that district courts may credit even uncorroborated testimony about smells; the appellate court will not second-guess absent clear error.

4. The “subjective intent doesn’t control” principle

• Brigham City v. Stuart: The court invoked Brigham City to emphasize Fourth Amendment analysis is objective; an officer’s subjective calmness or bravery does not negate otherwise sufficient objective justification. This directly answered Erving’s “the officer didn’t seem scared” fallback.
• United States v. Rodgers (11th Cir. 1991) and Maryland v. Buie: Erving used Rodgers to argue pretext—i.e., that the search was really for contraband. The Seventh Circuit distinguished the context (home/trailer protective sweep) and treated Rodgers as inapposite, returning to the objective nature of the inquiry and the legitimacy of a limited, weapon-focused search.

5. Cannabis odor and evolving state law

• People v. Redmond: The opinion noted that the Illinois Supreme Court later held “odor of burnt cannabis alone does not provide probable cause” to search a vehicle. The Seventh Circuit did not need to decide probable cause (and expressly declined to reach the automobile exception), but it treated the odor as relevant to reasonable suspicion for a protective search. Practically, this preserves a role for odor evidence even where probable cause has been curtailed.

6. Sentencing procedure, due process, and impermissible factors

• Gall v. United States and United States v. Wilcher: Establish the procedural obligation to “adequately explain” a sentence and the preservation rule applied here (no post-sentence objection required where the defendant was not given a chance to object).
• United States v. Williams (887 F.3d 326): Requires addressing principal mitigation arguments; the court used it to frame the inquiry but found the criminal-history argument was addressed.
• United States v. Oliver, United States v. Helding, and United States v. Newton: These articulate the due process right to be sentenced on accurate, reliable information and the prohibition on speculation. The panel’s key move was to read the “probably made before” comment as non-dispositive in light of the judge’s primary rationale (recidivism).
• United States v. Coe and United States v. Gary: Together support the “read the record fairly and as a whole” approach and the requirement that the court relied on an improper factor to warrant reversal.
• United States v. Donelli and United States v. Nelson: Used to support affirmance where the district court’s reasoning is adequately grounded and not speculative.
• Pepper v. United States: Cited for the broad information courts may consider at sentencing, while emphasizing constitutional boundaries.
• United States v. Trujillo-Castillon and Oliver v. United States (951 F.3d 841): Reinforce that certain characteristics (like race or gender) are constitutionally out of bounds, and that reversal requires a showing of reliance.
• Familial rights cases—Troxel v. Granville, Skinner v. Oklahoma ex rel. Williamson, Meyer v. Nebraska, Moore v. City of East Cleveland, Brokaw v. Mercer County, and Wisconsin v. Yoder: These establish that family formation and childrearing occupy a protected constitutional status. The panel used these not to dilute the right, but to frame the claimed error and then ask the doctrinal question: did the sentencing court punish the exercise of that right?
• The “no punishment for exercising a right” line—Bordendkircher v. Hayes, Mitchell v. United States, North Carolina v. Pearce, United States v. Peskin, United States v. Singletary, United States v. Barahona-Montenegro: These cases supply the normative boundary: sentencing cannot be used to penalize constitutionally protected choices. The Seventh Circuit invoked them to emphasize agreement with the principle, while distinguishing the facts (no reliance).
• United States v. Reed: Cited to explain that family ties can sometimes support mitigation (in extraordinary cases) and that courts may respond when defendants raise family responsibilities.
• Tuduj v. Newbold: Used to find waiver of mitigation arguments first meaningfully pressed at oral argument (mental health, gang withdrawal).

B. Legal Reasoning

1. The protective-search doctrine applied as a cumulative, objective inquiry

The opinion’s Fourth Amendment reasoning proceeds in the orthodox Terry/Long sequence: (1) identify the exception (protective search), (2) state its two prerequisites (dangerousness and immediate control), and (3) apply the totality of the circumstances objectively.

On dangerousness, the court treated each fact as incrementally meaningful, but insisted the “whole is greater than the sum of its parts”: late hour, secluded/crime-prone location, furtive concealment-like movement, smell of burnt cannabis (as a marker of possible intoxication), false identifying information from the companion (suggesting evasiveness), and knowledge that Erving was on supervised release for a weapons offense (tethering the encounter to weapon risk rather than mere disorder).

The panel’s response to the “innocent explanation” argument is significant in emphasis if not in novelty: even if a lawful explanation exists, reasonable suspicion does not require “absolute certainty.” What mattered was the officer’s articulated basis for distinguishing “hiding something” from “getting dressed,” credited by the district court.

On immediate control, the court treated Long as closing the debate: if the suspect is not under arrest and may return to the vehicle, the officer may secure the car’s weapon-accessible areas. The panel relied on United States v. Vaccaro as a faithful application of Long, declining to revisit circuit law.

2. A targeted under-seat look was treated as constitutionally “better,” not worse

Erving’s fallback argument—that the officer’s behavior showed he was not truly worried—forced the court to clarify two points. First, per Brigham City v. Stuart, Fourth Amendment reasonableness is objective, not dependent on an officer’s subjective fear. Second, per Terry v. Ohio and Minnesota v. Dickerson, a limited search may be less intrusive and more consistent with the exception’s purpose. The court reframed the officer’s “only under the seat” action not as evidence of pretext, but as proof of tailoring.

3. Sentencing: distinguishing bad remarks from unconstitutional reliance

On the criminal-history argument, the panel acknowledged the “probably made before” phrase could look like speculation in isolation. But it read the transcript “fairly and as a whole” (per United States v. Coe and United States v. Gary), finding that the district court’s real rationale was straightforward: Erving committed the same kind of gun offense within 12 days of beginning supervised release. Thus, the record showed a reasoned rejection of overstatement rather than a guess about prior arguments.

On the family-comments claim, the panel expressly disapproved of the judge’s insinuation that Erving’s children might be “better off without him” and the suggestion that having a child was a “poor decision” akin to criminal conduct. Even so, the court applied a reliance requirement: constitutional error arises when an impermissible factor actually influences the sentence. Because the comments came after the sentence was announced and did not reveal a new sentencing rationale, the panel found no reversible constitutional error.

C. Impact

1. Vehicle protective searches in the Seventh Circuit: stronger insulation against “subjective fear” attacks

The decision fortifies the proposition that an officer’s demeanor or tactical choices (e.g., not immediately handcuffing, allowing retrieval of shoes) do not defeat a protective search that is objectively justified. Defendants challenging Long searches will face a sharpened uphill battle when the search is narrow and tied to a specific observed concealment movement.

2. Cannabis legalization does not erase “odor” as a safety-relevant fact

Although the court did not decide probable cause (and noted People v. Redmond for the proposition that burnt cannabis odor alone is not probable cause in Illinois), it reaffirmed that odor can still contribute to reasonable suspicion of danger for Terry/Long purposes. This matters in legalization-era litigation: the same sensory fact may be insufficient for evidentiary-search probable cause yet still relevant to officer-safety suspicion.

3. Sentencing appeals: “reliance” remains the gatekeeper

The sentencing portion underscores a practical appellate lesson: even highly problematic judicial commentary will not compel reversal absent record support that the sentence was based “in part” on the impermissible consideration. This maintains a high threshold for constitutional-factor claims—focused on causation, not mere appearance.

IV. Complex Concepts Simplified

• Reasonable suspicion vs. probable cause: Reasonable suspicion is a lower standard than probable cause. It requires specific, articulable facts suggesting danger or criminal activity, but not enough proof to justify an arrest or full evidentiary search.
• Protective search (Terry/Long): A limited search for weapons to protect officer safety. Under Michigan v. Long, it can include areas of a vehicle where a weapon could be hidden, if the suspect may be dangerous and could regain access to the weapon.
• “Immediate control” in a vehicle context: A suspect can have “immediate control” even when outside the car if officers are likely to let the suspect return to it (e.g., if no arrestable offense exists yet).
• Procedural vs. constitutional sentencing error: Procedural error concerns the method—failure to address arguments, explain reasoning, or reliance on speculation. Constitutional error concerns using forbidden factors (like race, gender, or punishing protected rights) to increase a sentence.
• “Reliance” requirement: Appellate courts typically require a showing that the judge’s improper remark actually influenced the sentence, not merely that it was said.

V. Conclusion

United States v. Dazmine Erving affirms a targeted vehicle protective search where multiple objective indicators—furtive concealment-like movement, late-night setting in a crime-prone area, odor of burnt cannabis, evasive/false information, and a weapons-related supervision status—combined to support reasonable suspicion that the suspect was dangerous and might regain access to a weapon. It also reinforces that sentencing reversals based on impermissible considerations require proof of reliance—even when a judge’s remarks about family and children are ill-chosen and inappropriate.