United States v. Tamichale Paige , 870 F.3d 693 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-4128
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TAMICHALE L. PAIGE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cr-00041-JPS-1 — J.P. Stadtmueller, Judge.
____________________
ARGUED MAY 30, 2017 — DECIDED SEPTEMBER 1, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
RIPPLE, Circuit Judge. A grand jury indicted
Tamichale Paige with one count of possession of a firearm by
a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
one count of possession with intent to distribute crack cocaine
and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). Mr. Paige moved to suppress the firearm and the
drugs; he claimed that the police officer who conducted the
2 No. 16-4128
search, Officer Tiara Sheets-Walker, had no lawful basis to pat
him down or to search his vehicle. After an evidentiary hear-
ing before a magistrate judge, the district court denied
Mr. Paige’s motion. Mr. Paige then entered a conditional plea
of guilty to both counts, reserving his right to appeal the de-
nial of his motion to suppress. Mr. Paige was sentenced to
twenty-eight months’ imprisonment and four years of super-
vised release.
Mr. Paige now submits that the district court erred in
holding that Officer Sheets-Walker had probable cause to ar-
rest him. He contends, therefore, that the search of his person
and vehicle cannot be justified as incident to a lawful arrest.
We cannot accept this argument. The district court correctly
denied the motion to suppress; Officer Sheets-Walker had
probable cause to arrest Mr. Paige for possessing marijuana 1
and for operating a vehicle while impaired. 2 She also had
probable cause to believe that Mr. Paige’s vehicle contained
evidence of criminal activity. We therefore affirm the district
court’s judgment.
I
BACKGROUND
A.
After midnight on January 2, 2016, an employee of a
McDonald’s restaurant in Milwaukee called 911 and in-
formed the 911 operator that a vehicle had been sitting in the
1 Wis. Stat. § 961.41(3g)(e).
2 Id. § 346.63(1)(a).
No. 16-4128 3
business’s drive-through lane for approximately an hour and
expressed concern that the driver might be sick or injured.
Fire and police units responded to the call. When Milwaukee
Police Officer Tiara Sheets-Walker arrived at the scene, she
observed a man, later identified as Mr. Paige, standing out-
side the open driver’s door of his vehicle. He was speaking
with Captain Hornick of the Milwaukee Fire Department,
who had arrived a minute earlier with two other firefighters.
As Officer Sheets-Walker approached Mr. Paige and Cap-
tain Hornick, she detected a strong odor of fresh marijuana
coming from Mr. Paige. Captain Hornick explained to Of-
ficer Sheets-Walker that he had found Mr. Paige asleep in the
driver’s seat of the vehicle, which was still parked in the
drive-through lane of the open McDonald’s. The Captain had
awakened Mr. Paige by knocking on the car window.
Mr. Paige told the captain that he had just fallen asleep and
was “ok.” 3 After briefing Officer Sheets-Walker, Cap-
tain Hornick and the other firefighters began to leave the
scene. As they left, one of the firefighters signaled to Of-
ficer Sheets-Walker by making a gesture that she understood
to indicate that Mr. Paige had been drinking.
Officer Sheets-Walker spoke with Mr. Paige to obtain gen-
eral information, such as his name and address, and walked
with him toward her police wagon. Officer Sheets-Walker tes-
tified that Mr. Paige appeared sleepy, keeping his eyes low
and walking slowly. She also testified that Mr. Paige’s version
of events (that he had just fallen asleep) seemed suspicious to
her because Mr. Paige had been asleep in a drive-through lane
3 R.9-1 at 5.
4 No. 16-4128
for about an hour. As they spoke, Officer Sheets-Walker con-
tinued to smell “a strong odor of fresh marijuana” coming
from Mr. Paige. 4
Officer Sheets-Walker planned to detain Mr. Paige tempo-
rarily in her police wagon before continuing to investigate.
She suspected, however, that Mr. Paige might be in posses-
sion of marijuana or a firearm because, in her experience,
“drugs and guns are typically associated together.” 5 In addi-
tion, police department policy dictated that an officer should
ensure that a person does not have drugs or a weapon before
placing him in a police vehicle. Officer Sheets-Walker there-
fore patted Mr. Paige down to ensure he “did not have any
illegal contraband or weapons on him.” 6 During the pat
down, Officer Sheets-Walker discovered that Mr. Paige had
tucked a firearm in the rear waistband of his pants. The fire-
arm was a Glock, model 22, .40 caliber semi-automatic hand-
gun with one bullet in the chamber and twelve bullets in the
magazine. Because Mr. Paige lacked a permit to carry a con-
cealed weapon, Officer Sheets-Walker arrested him and
placed him in the back of her police vehicle.
Officer Sheets-Walker then returned to Mr. Paige’s vehi-
cle, which still was parked in the McDonald’s drive-through.
Although the doors and windows of the vehicle were closed,
Officer Sheets-Walker was able to observe a bottle of alcohol
on the driver’s seat. Additionally, even without any door or
window open, Officer Sheets-Walker smelled a strong odor of
4 R.48 at 53.
5 R.9-2 at 1.
6 Id.
No. 16-4128 5
fresh marijuana coming from the vehicle. She searched the ve-
hicle and found a digital scale and clear sandwich bags con-
taining 10.42 grams of crack cocaine and 9.24 grams of mari-
juana inside the car’s middle console.
B.
On March 8, 2016, a grand jury returned a two-count in-
dictment charging Mr. Paige with one count of possession of
a firearm by a felon and one count of possession with intent
to distribute crack cocaine and marijuana. Mr. Paige filed a
motion to suppress the fruits of Officer Sheets-Walker’s
search, claiming that she had no lawful basis to pat him down
because she had lacked reasonable suspicion that he was
armed or dangerous. In response, the Government submitted
that the search was lawful because the officer had probable
cause to arrest Mr. Paige for marijuana possession and for op-
erating a vehicle under the influence of a controlled sub-
stance. Therefore, continued the Government, the search of
Mr. Paige’s person and his vehicle were permissible as inci-
dent to that lawful arrest. Alternatively, the Government ar-
gued, the search was lawful either because the officer had rea-
sonable suspicion to conduct a pat down to ensure her safety
or because the officer would have inevitably discovered the
evidence due to the strong odor of marijuana emanating from
the vehicle.
On April 22, 2016, the magistrate judge recommended that
Mr. Paige’s motion be denied. The magistrate judge observed
that “Officer Sheets-Walker encountered an individual who
had apparently fallen asleep in the McDonald’s drive-
through, and apparently remained asleep long enough for
6 No. 16-4128
emergency personnel to be contacted, dispatched, and arrive
on the scene to find Paige still asleep in his car.” 7 The judge
also observed that “this recently-awoken person smelled
strongly of fresh marijuana.” 8 The magistrate judge reasoned
that this behavior gave the officer probable cause to arrest
Mr. Paige “for possession of marijuana, Wis. Stat.
§ 961.41(3g)(e), or operating a vehicle under the influence of a
controlled substance, Wis. Stat. § 346.63(1)(a), (am).” 9 “Inci-
dent to that arrest,” the judge continued, “Officer Sheets-
Walker was permitted to search Paige.” 10 The judge also
noted, parenthetically, that Officer Sheets-Walker’s subjective
purpose in conducting the search—ensuring her safety—
“d[id] not undermine the reasonableness of the search.” 11
Before the district court, Mr. Paige objected to the magis-
trate judge’s report and recommendation, maintaining his po-
sition that Officer Sheets-Walker lacked probable cause to ar-
rest him for either offense. He also requested that the district
court order an evidentiary hearing. On May 26, 2016, the dis-
trict court found “that Paige’s extremely unusual behavior,
combined with the strong smell of marijuana, adequately sup-
port[ed]” the magistrate judge’s conclusion that the officer
7 R.13 at 4.
8 Id.9 Id.10 Id. at 5.
11 Id. (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)).
No. 16-4128 7
had probable cause to arrest Mr. Paige for “marijuana posses-
sion.” 12 The district court nonetheless granted Mr. Paige’s re-
quest for an evidentiary hearing because the issue of whether
Officer Sheets-Walker smelled marijuana was “material” to
the magistrate judge’s probable cause finding, as well as the
alternative bases for upholding the search. 13 As the court ex-
plained, “[m]arijuana odor is an important fact, among oth-
ers, which could support the officer’s reasonable suspicion of
danger,” and it “could also provide support for probable
cause to search Paige’s vehicle, thus establishing that the evi-
dence in the car would have inevitably been discovered.” 14
After an evidentiary hearing at which Officer Sheets-
Walker testified, the magistrate judge again recommended
that Mr. Paige’s motion be denied on June 23, 2016. The mag-
istrate judge found Officer Sheets-Walker to be credible and
concluded that she “did smell fresh marijuana coming from
Paige and his vehicle.” 15 The magistrate judge noted that Of-
ficer Sheets-Walker “was familiar with the smell of both fresh
and burnt marijuana from prior exposure in her personal life,
previous professional experience, her training in the Milwau-
12 R.19 at 2–3.
13 Id. at 4.
14 Id. Prior to the evidentiary hearing, the parties had stipulated that “[t]he
McDonald’s drive-through service was open when the Milwaukee Fire
Department Captain encountered Paige in his vehicle” and that “[w]hen
the officer approached Paige’s vehicle, having placed him in her wagon,
the doors and windows of his vehicle were closed.” R.10 at 1–2.
15 R.22 at 3–4.
8 No. 16-4128
kee Police Academy, and from prior experiences as a Milwau-
kee police officer.” 16 Based on this credibility determination,
the magistrate judge recommended that Mr. Paige’s motion
be denied for the reasons set forth in his April 22, 2016 report
and recommendation, namely, that the officer had probable
cause to arrest Mr. Paige for possessing marijuana or operat-
ing the vehicle while impaired.
After receiving no objections to the magistrate judge’s sec-
ond report and recommendation, the district court adopted it
on July 14, 2016. Mr. Paige then pleaded guilty to both counts,
reserving his right to appeal the district court’s denial of his
motion to suppress. On December 1, 2016, the district court
sentenced Mr. Paige to twenty-eight months’ imprisonment
and four years of supervised release.
Mr. Paige timely appeals. 17
II
DISCUSSION
Mr. Paige maintains that the district court erred in deny-
ing his motion to suppress because Officer Sheets-Walker
lacked probable cause to arrest him for either marijuana pos-
session, Wis. Stat. § 961.41(3g)(e), or for operating a vehicle
under the influence of a controlled substance, Wis. Stat.
§ 346.63(1)(a). He contends that because he was arrested with-
16 Id. at 4.
17 The district court had jurisdiction under 18 U.S.C. § 3231. We have ju-
risdiction to decide this appeal under 28 U.S.C. § 1291.
No. 16-4128 9
out probable cause, the searches of his person and of his vehi-
cle violated the Fourth Amendment. Specifically, Mr. Paige
contends that “[m]arijuana’s common use and evolving legal
status makes the odor less probative of criminal posses-
sion.” 18 Additionally, he contends that falling asleep behind
the wheel of a vehicle does not create probable cause to arrest
for operating while under the influence. The Government
counters that the odor of fresh marijuana, in addition to
Mr. Paige’s behavior that evening, gave Officer Sheets-
Walker probable cause to arrest for both offenses. “We review
the district court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Thompson, 842 F.3d
1002, 1006 (7th Cir. 2016) (emphasis removed).
A.
We first address whether the search of Mr. Paige’s person
can be justified as a search incident to arrest. The standards
governing our review are well established. “A warrantless ar-
rest is constitutionally permissible if supported by probable
cause.” United States v. Sands, 815 F.3d 1057, 1061–62 (7th Cir.
2015). Probable cause for an arrest exists if the totality of the
“facts and circumstances within the officer’s knowledge …
are sufficient to warrant a prudent person, or one of reasona-
ble caution, [to] believ[e], in the circumstances shown, that the
suspect has committed, is committing, or is about to commit
an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
We agree with our sister circuits that the odor of mariju-
ana, if sufficiently localized to a specific person, provides
18 Appellant’s Br. 7.
10 No. 16-4128
probable cause to arrest that person for the crime of marijuana
possession. United States v. Perdoma, 621 F.3d 745, 749 (8th Cir.
2010); United States v. Humphries, 372 F.3d 653, 659–60 (4th Cir.
2004). Notably, although the odor of marijuana “can provide
probable cause to believe that marijuana is present in a par-
ticular place,” Humphries, 372 F.3d at 658, localizing an odor
in such a way does not necessarily permit an officer to arrest
all persons in that particular place. To arrest a particular per-
son, the officer must have probable cause to believe that a par-
ticular person is committing or has committed an offense.
Therefore, as the Fourth Circuit has explained, “some addi-
tional factors” generally have to be present in order to support
the inference that a particular suspect possesses or has pos-
sessed the contraband. Id. at 659. This concern for adequate
particularity is satisfied when “an officer smells the odor of
marijuana in circumstances where the officer can localize its
source to a person.” Id. When the odor is that localized, the
officer also has probable cause to arrest because he has reason
“to believe that the person has committed or is committing
the crime of possession of marijuana.” Id.If an officer has probable cause to arrest, she also may con-
duct a search incident to that lawful arrest without any addi-
tional justification. United States v. Robinson, 414 U.S. 218, 235
(1973). As the Supreme Court has explained, searching a per-
son incident to arrest “enables officers to safeguard evidence,
and, most critically, to ensure their safety during ‘the ex-
tended exposure which follows the taking of a suspect into
custody and transporting him to the police station.’” Virginia
v. Moore, 553 U.S. 164, 177 (2008) (quoting Robinson, 414 U.S.
at 234–35).
No. 16-4128 11
The record before us establishes firmly that Officer Sheets-
Walker had probable cause to arrest Mr. Paige for marijuana
possession. Despite Mr. Paige’s focus on marijuana’s evolv-
ing legal status, it is undisputed that marijuana possession re-
mains a crime in Wisconsin. See Wis. Stat. § 961.41(3g)(e). 19
Moreover, after an evidentiary hearing, the magistrate judge
found that Officer Sheets-Walker was credible when she tes-
tified that she smelled marijuana coming from Mr. Paige’s per-
son. Specifically, Officer Sheets-Walker testified that upon
first approaching Mr. Paige, she “could smell this strong
skunky smell coming from off of his person.” 20 She associated
the smell with “fresh marijuana” and continued to “smell this
fresh marijuana emanating off of his body” as she walked him
to her police wagon. 21 No other people were in the parking lot
at the time of their interaction, and only three cars were
parked in the lot. Based on these circumstances and the mag-
istrate judge’s credibility determination, we agree with the
district court’s conclusion that Officer Sheets-Walker had
probable cause to arrest Mr. Paige for marijuana possession.
Additionally, Officer Sheets-Walker had probable cause to
arrest Mr. Paige for operating a vehicle while under the influ-
19Because marijuana possession remains a crime in Wisconsin, we have
no need to reach, and do not reach, the questions that might arise in a state
that permits medical marijuana, or a state that has legalized marijuana
possession across-the-board. Our discussion of probable cause should be
understood to relate only to the facts and legal background presented by
the case before us.
20 R.48 at 19.
21 Id.12 No. 16-4128
ence of an intoxicant, Wis. Stat. § 346.63(1)(a). Mr. Paige at-
tempts to minimize the officer’s perception of marijuana by
asserting that “[f]resh, as opposed to burnt, marijuana is not
probative of consumption because marijuana typically needs
to be burned when consumed.” 22 He suggests that more in-
vestigation, such as field sobriety tests, should have been per-
formed before probable cause to arrest could be found.
Mr. Paige relies on a Massachusetts case, Commonwealth v.
Craan, 13 N.E.3d 569 (Mass. 2014), to support his assertion. In
that case, however, the Supreme Judicial Court of Massachu-
setts relied on the fact that the driver of the vehicle was not
arrested for driving under the influence and instead was per-
mitted to drive away, without being asked to submit to any field
sobriety tests, following a checkpoint encounter. Indeed, “[a]t
the conclusion of the [vehicle] search,” the officer only “issued
summonses for criminal offenses and released” the occupants
of the vehicle, including the driver. Id. at 573. Even if the of-
ficer had arrested the driver for driving under the influence,
the court noted that the arrest would not be supported by
probable cause because “[t]here was no evidence [in the rec-
ord] that the defendant bore any of the classic indicia of im-
pairment.” Id. at 575.
Here, by contrast, Officer Sheets-Walker knew that
Mr. Paige’s car had been stopped in the drive-through lane
for so long that a McDonald’s employee called 911 and ex-
pressed concern about a potential sick or injured person.
Combined with Mr. Paige’s continued drowsiness and her be-
lief that Mr. Paige was not answering her questions truth-
fully, Officer Sheets-Walker had reason to believe that
22 Appellant’s Br. 10.
No. 16-4128 13
Mr. Paige was impaired. We therefore conclude that Officer
Sheets-Walker had probable cause to arrest him for operating
a vehicle under the influence of a controlled substance.
Because Officer Sheets-Walker had probable cause to ar-
rest for both offenses, her subsequent pat down of Mr. Paige
was permissible incident to that arrest. See Moore, 553 U.S. at176–77. This result is unaffected by Officer Sheets-Walker’s
decision to conduct the search before arresting Mr. Paige. As
the Supreme Court explained in Rawlings v. Kentucky,
“[w]here the formal arrest follow[s] quickly on the heels of the
challenged search,” it is not “particularly important that the
search preceded the arrest rather than vice versa.” 448 U.S. 98,
111 (1980). We therefore cannot agree with Mr. Paige’s con-
tention that the district court should have suppressed the fire-
arm found on his person as fruit of the poisonous tree.
B.
Mr. Paige also contends that the warrantless search of his
vehicle violated the Fourth Amendment. In assessing this
submission, we start with the fundamental, and important,
principle that warrantless searches “are per se unreasonable
under the Fourth Amendment—subject only to a few specifi-
cally established and well-delineated exceptions.” Arizona v.
Gant, 556 U.S. 332, 338 (2009) (internal quotation marks omit-
ted) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). It
falls on us, therefore, to examine whether the “established
14 No. 16-4128
and well-delineated” exceptions to the warrant requirement
might justify this particular warrantless search of a vehicle. 23
We first examine, in the context of motor vehicles, the ex-
ception for a “search incident to arrest.” Here, the Supreme
Court’s decision in Gant provides clear guidance. Gant holds
that an officer may search a vehicle incident to an arrest “if
the arrestee is within reaching distance of the passenger com-
partment at the time of the search.” Gant, 556 U.S. at 351. The
same decision also makes clear that an officer may search the
vehicle if “it is reasonable to believe the vehicle contains evi-
dence of the offense of arrest.” Id. In addition to the “search
incident to arrest” exception, other well-established authority
makes clear that, under the “automobile exception,” an officer
may search a vehicle when the officer has probable cause to
believe that the vehicle contains evidence of criminal activity.
Maryland v. Dyson, 527 U.S. 465, 467 (1999) (per curiam); Car-
roll v. United States, 267 U.S. 132, 153 (1925).
As we explained in United States v. Edwards, the searches
predicated on the “search incident to arrest” theory and those
predicated on the “automobile exception” “are interrelated,
23 We address here only those exceptions that appear somewhat germane
to the facts of the case and the arguments of the parties. We do not mean
to imply that these exceptions are the only ones applicable to motor vehi-
cle searches. See, e.g., Michigan v. Long, 463 U.S. 1032, 1049 (1983) (noting
that an officer may search a vehicle’s passenger compartment when an
officer has reasonable suspicion to believe that an individual, whether or
not an arrestee, is dangerous and might access the vehicle and obtain con-
trol of weapons); United States v. Cherry, 436 F.3d 769, 772 (7th Cir. 2006)
(explaining the justification for and the requirements of an inventory
search of automobiles).
No. 16-4128 15
but not identical.” 769 F.3d 509, 514 (7th Cir. 2014). “The sus-
picion required for a vehicle search incident to arrest … is
keyed to the offense of arrest; the automobile exception is not
tied to an arrest.” Id. Under Gant, a search of a vehicle incident
to an arrest is permitted when “it is reasonable to believe the
vehicle contains evidence of the offense of arrest.” 556 U.S. at
346, 351 (emphasis added). The automobile exception (the last
of the exceptions noted above), by contrast, clearly requires
probable cause that the vehicle contains evidence of criminal
activity. Edwards, 769 F.3d at 514. With this background, we
examine in turn each of these exceptions to determine
whether it is applicable.
With respect to the “search incident to arrest” exception,
the first prong is inapplicable because Mr. Paige was not in
the vehicle. However, the second prong of the exception
clearly applies. Although Officer Sheets-Walker already had
placed Mr. Paige in the back of the police wagon when she
searched his vehicle, she certainly had a reasonable basis for
believing that the vehicle contained evidence of the offenses
of arrest, marijuana possession and impaired driving. As she
approached the car, she could smell the strong odor of mari-
juana emanating from the interior.
The exception for the search of a vehicle when there is
probable cause to believe that evidence of criminal activity is
present also is a solid basis upon which to predicate the
search. Certainly, given the strong odor that she smelled in
the proximity of the vehicle, the officer had probable cause to
believe that the vehicle contained more of the substance that
had so impaired Mr. Paige as to induce him into a sound sleep
or stupor. See, e.g., United States v. Peters, 743 F.3d 1113, 1118
(7th Cir. 2014) (concluding that “a police officer ‘who smells
16 No. 16-4128
marijuana coming from a car has probable cause to search that
car’” (quoting United States v. Franklin, 547 F.3d 726, 733 (7th
Cir. 2008))); United States v. Wimbush, 337 F.3d 947, 951 (7th
Cir. 2003) (explaining that an officer smelling marijuana justi-
fied search of the vehicle); United States v. Taylor, 162 F.3d 12,
21 (1st Cir. 1998) (concluding that marijuana smell emanating
from car justified search for drugs).
Conclusion
Officer Sheets-Walker had probable cause to arrest
Mr. Paige for both marijuana possession and operating a ve-
hicle while under the influence because she smelled fresh ma-
rijuana on Mr. Paige’s person, knew that Mr. Paige had been
sleeping in his car for approximately an hour in an open
McDonald’s drive-through, and believed that Mr. Paige was
not answering her questions truthfully. Incident to that arrest,
Officer Sheets-Walker was permitted to search Mr. Paige. The
vehicle’s search was permissible because, given the localized
smell, Officer Sheets-Walker could believe reasonably that the
vehicle contained evidence of the offense of arrest.
Indeed, the officer also had probable cause to search the
vehicle under the automobile exception, given the strong
odor of marijuana in its proximity. The district court therefore
was on solid ground in denying the motion to suppress. We
therefore affirm the judgment of the district court.
AFFIRMED