United States v. Mosby, Cory D. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3032
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ORY D. M OSBY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 10072—Joe Billy McDade, Judge.
____________
A RGUED A UGUST 6, 2008—D ECIDED S EPTEMBER 4, 2008
____________
Before E ASTERBROOK, Chief Judge, and K ANNE and
W OOD , Circuit Judges.
K ANNE, Circuit Judge. Police officers arrested Cory
Mosby after stopping and searching the minivan in
which he was a passenger and finding drugs (some
apparently in plain view) and a gun. Police later found
another gun in his apartment. The district court denied
his motion to suppress all of this evidence, and a jury then
found him guilty of all charged offenses. On appeal Mosby
2 No. 07-3032
challenges only the denial of his motion to suppress.
Because the police had probable cause to stop the mini-
van and the driver then consented to a search, which was
in any case justified by probable cause, we affirm.
I. HISTORY
Mosby was indicted for possessing cocaine base with
intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(A),
possessing a firearm in furtherance of drug trafficking, see
id. § 924(C), and possessing another firearm as a felon, see
id. § 922(g)(1). He filed a motion to suppress, claiming
that all of the government’s evidence was traceable to
what he said was the unlawful search of the minivan. At
the resulting evidentiary hearing, two police officers
described the events leading up to the search. Officer
Marion told the court that on August 23, 2006, the
Peoria Police Department was conducting a narcotics
surveillance of Mosby’s apartment. As they watched, at
about 3:45 p.m., Mosby and his girlfriend, Ashley Hunter,
came outside apparently arguing, and Mosby got into a
car parked in the parking lot and sat there briefly. He
then went back inside the apartment with Hunter. Mo-
ments later, Hunter exited the apartment with a knife and
began slicing at the tires of the car in which Mosby had
been sitting. Several minutes passed before Mosby came
out of the apartment carrying a white plastic garbage bag
and walked toward a nearby street with Hunter trailing
behind him. As they stood at a corner, a black minivan
driven by a third person arrived, and both got in.
No. 07-3032 3
The police followed the minivan across town. The driver
got out, and Hunter took the wheel and drove to a hospital
emergency room. At the hospital Mosby exited the mini-
van and started walking along a nearby street with his
garbage bag, while Hunter went inside the hospital. A few
minutes later, however, she returned to the minivan
and picked up Mosby.
Officer Marion went into the hospital after Hunter had
departed and asked a nurse about her visit. The nurse
said that Hunter had cut her finger and required treat-
ment, and she expressed surprise when Marion told her
that Hunter had left. Marion passed that information
along to Sergeant Mushinsky and asked him to stop the
minivan to check on Hunter’s injury. Marion warned
Mushinsky that officers had seen Hunter slashing car
tires after an apparent domestic dispute, and he added
that her passenger in the minivan had been carrying a
white plastic bag. Marion testified that he believed there
was probable cause to arrest Hunter for committing the
state-law offense of criminal damage to property because
he had witnessed her slashing a car’s tires.
Sergeant Mushinsky, the other police witness, testified
that he and Officer Gray stopped the minivan at about
5:00 p.m. On cross-examination, he acknowledged that at
the time he did not know when Hunter had slashed the
tires, and he conceded that the only reason he stopped the
minivan was because he had been directed to do so.
Mushinsky related that after he got out of his car, he
had yelled to Gray because he saw Mosby reach into a
bag between the seats as the officers approached the
4 No. 07-3032
minivan. Gray, Mushinsky said, handcuffed Mosby as
Mosby got out of the minivan, while Mushinsky ap-
proached Hunter. Mushinsky saw that Hunter had a
napkin wrapped around her finger as she gave him her
driver’s license. He asked her about the napkin, and she
said she had cut her finger slashing her boyfriend’s tires
but denied that she had the knife with her. She told
Mushinsky that the officers could check the minivan. As
he spoke with Hunter, Mushinsky said, he smelled mari-
juana coming from the minivan.
Sergeant Mushinsky then asked Hunter to exit the
minivan and wait in a nearby patrol car. After she com-
plied, he searched the vehicle, starting with Mosby’s white
garbage bag. On top of that bag was what appeared to
be a “fairly large” bag of marijuana, and another smaller
bag of marijuana sat on the passenger seat. Inside the
white plastic bag, he found a pair of shorts and a “large
amount of crack cocaine.” Mushinsky then transported
Mosby and Hunter to the police station while other
officers continued the search. Police found a gun under
the passenger seat of the minivan. At the police station,
Hunter consented to a search of Mosby’s apartment,
which she shared. That search uncovered another gun.
Hunter, who was not arrested or charged with any
offense, also testified at the hearing. Though her story
differed slightly from the testimony of the police officers,
she generally confirmed the order and details of the
events up to and including the traffic stop. But she testi-
fied that she did not remember Sergeant Mushinsky
asking her during the stop whether she had a knife or
No. 07-3032 5
telling him that he could look for it in the van. She instead
recalled that he had focused almost entirely on whether
she had been injured during the domestic dispute.
The district court found that “the police had probable
cause” to stop the minivan and arrest Hunter “because
they had probable cause to believe she had committed a
crime.” The court questioned whether that alone was
enough to “authorize them to search the vehicle,” and so
the court examined instead whether Hunter had con-
sented to the search. The court found Hunter’s testimony
less credible than Sergeant Mushinsky’s because it made
sense that he would have asked her about the knife for
the officers’ safety. Thus, the court found that Hunter
had consented to allow police to search the van and
denied Mosby’s motion to suppress the evidence re-
covered from the van and the apartment.
Mosby proceeded to a jury trial, and the jury then found
him guilty on all counts. The district court sentenced him
to a total of 262 months’ imprisonment on the drug and
§ 922(g)(1) counts, plus a consecutive term of 60 months
on the § 924(C) count.
II. ANALYSIS
Mosby concedes that the police had probable cause to
stop and arrest Hunter, but he argues that they lacked
probable cause to search his bag and that the officers
acted unreasonably in waiting until he was back inside
the minivan with his bag before executing the stop.
Ergo, he contends, the search was unreasonable, and the
district court should have suppressed its fruits.
6 No. 07-3032
When reviewing the denial of a motion to suppress
obtained during a warrantless search, we review legal
questions de novo and factual findings for clear error.
United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008);
United States v. McIntire, 516 F.3d 576, 578-79 (7th Cir.
2008). The Fourth Amendment prohibits unreasonable
searches or seizures, and courts exclude evidence
obtained through an unreasonable search or seizure. See
Phelan v. Vill. of Lyons, 531 F.3d 484, 488 (7th Cir. 2008);
United States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir.
2003). Nonetheless, police may reasonably arrest (seize) an
individual when they have probable cause to believe that
the person committed a crime. Maryland v. Pringle, 540 U.S.
366, 370 (2003); United States v. Moore, 375 F.3d 580, 583 (7th
Cir. 2004) (noting that police may stop vehicle when they
have probable cause to believe driver committed traffic
violation, even when passenger is inside). And police may
reasonably search without a warrant when a person with
authority voluntarily consents to the search, Groves, 530
F.3d at 509; Moore, 375 F.3d at 584, though a lack of ap-
parent authority would invalidate the search, Groves,
530 F.3d at 509.
In this case, Mosby concedes, as he must, that the police
had probable cause to believe Hunter had committed a
criminal offense, i.e., that the circumstances known to
the officers would justify a prudent police officer’s belief
that Hunter had committed a crime. See United States v.
Tipton, 3 F.3d 1119, 1124 (7th Cir. 1993). After all, police
officers had witnessed her destroy another’s property (car
tires) in violation of 720 ILCS 5/21-1(1)(a), a misdemeanor
offense, id. 5/21-1(2). The police therefore had probable
No. 07-3032 7
cause to seize Hunter. See, e.g., United States v. Hernandez-
Rivas, 513 F.3d 753, 758-59 (7th Cir. 2008) (noting that
police may pull over a vehicle if they have probable cause
to believe driver committed traffic violation); Moore,
375 F.3d at 583 (same).
Mosby, however, seems to suggest that the police must
have probable cause extending not only to the driver
but also to each passenger to justify stopping the driver
while others are in the car. Not only would this be an
unwieldy rule, but it is contrary to precedent. See Moore,
375 F.3d at 583 (“Once the officers (legally) stopped the
cab, Moore, as a passenger in the vehicle, became subject
to the officers’ custody and control ‘until their safety could
be assured.’ ”). Nor were the officers, as Mosby contends,
required to arrest Hunter the moment they had probable
cause to do so, see Hoffa v. United States, 385 U.S. 293, 310
(1966); United States v. Limares, 269 F.3d 794, 798-99 (7th
Cir. 2001), even though they could have arrested Hunter
while she was alone, see Limares, 269 F.3d at 798-99 (up-
holding denial of motion to suppress over defendant’s
argument that police should have arrested co-defendant
before co-defendant reached defendant, the moment
they had probable cause). Moreover, though Mosby
suggests that the officers’ real motivation for stopping
Hunter was to search his bag, rather than to arrest her, the
officers’ subjective motivation is irrelevant as long as they
had probable cause to justify the seizure. See Whren v.
United States, 517 U.S. 806, 812-13 (1996); Hernandez-Rivas,
513 F.3d at 758 n.2; Moore, 375 F.3d at 583 n.1.
Because the stop of the minivan was lawful, Mosby is left
to argue that the police lacked probable cause to search
8 No. 07-3032
the van or his garbage bag. But he presses no argument
about the district court’s finding that Hunter consented
to the search of the van other than to say—incor-
rectly—that the consent was tainted by an illegal stop. He
does not contend that Hunter’s consent was invalid
independent of the stop, nor does he develop an argu-
ment (mentioned in only one sentence) that she did not
have authority to consent to the search of the entire van
and its contents, including the bag. Mosby instead con-
cedes that in the district court he might have argued (but
did not) that Hunter lacked apparent authority to give
the police permission to search a garbage bag they knew
was Mosby’s. See Groves, 530 F.3d at 509. His concession
ends the case.
Nevertheless, whether Hunter consented really is
irrelevant because Sergeant Mushinsky not only
smelled marijuana as he stood next to the minivan, but
also, as Mosby concedes in his brief, saw marijuana in
clear view on top of the garbage bag and on Mosby’s seat
inside the minivan. The smell alone was enough to give
rise to probable cause to search the entire vehicle, includ-
ing closed containers like the garbage bag. See United
States v. Cherry, 436 F.3d 769, 772 (7th Cir. 2006) (noting
that smell of marijuana is “simple and compelling founda-
tion” for searching entire car); United States v. Wimbush, 337
F.3d 947, 950-51 (7th Cir. 2003) (noting that search of car
was justified after officer saw open container of alcohol
and smelled marijuana); United States v. Mazzone, 782 F.2d
757, 761 (7th Cir. 1986) (noting that odor of marijuana
provides probable cause to search vehicle at least until
likely source of odor is found); United States v. Neumann,
No. 07-3032 9
183 F.3d 753, 756 (8th Cir. 1999) (holding that alcohol
odor provided probable cause to search vehicle for open
container and smell of burnt marijuana justified search
of entire vehicle for drugs); see also United States v. Hines,
449 F.3d 808, 814 (7th Cir. 2006) (noting that, under auto-
mobile exception to warrant requirement, police may
search vehicle if they have probable cause to believe
search will uncover contraband).
III. CONCLUSION
Accordingly, we A FFIRM the judgment.
9-4-08