United States v. Erving, 2026 WL 146499 (7th Cir. 2026)
In Peoria, Illinois, at about 2:45 a.m., Lieutenant Erin Barisch was working alone in an unmarked vehicle when he saw a Dodge Durango parked at the back of a closed, dark lot. Inside the vehicle were Dazmine Erving and a female companion. Lt. Barisch lit up the SUV. As he approached the rear passenger area, he observed sudden movements, including Erving leaning down toward the floorboard and then back up.
Because of the occupants’ state of partial undress, Lt. Barisch assumed he had interrupted a sexual encounter. He also smelled a “lingering odor of burnt cannabis.” The woman provided a name and birthdate that produced no results in the records check (and turned out to be false). During that same check, Barisch learned Erving had recently been placed on federal supervised release for a weapons offense.
Lt. Barisch confirmed Erving’s supervised-release status, then asked both occupants to exit the vehicle. He allowed Erving to put on his shoes and allowed the woman to retrieve her belongings. Barisch then directed them to the rear of the vehicle (not handcuffed). Leaning into the Durango, he looked under the driver’s seat and discovered a gun. Lieutenant Barisch waited backup to arrive before retrieving the firearm.
“Protective-search reasonable suspicion is a ‘totality of the circumstances’ call for a court.”
Erving was charged with unlawfully possessing a firearm. The U.S. Supreme Court has held a vehicle may be given a quick, cursory inspection for weapons, also known as a “vehicle frisk,” when there is reasonable suspicion there are weapons in the vehicle (Michigan v. Long, 463 U.S. 1032 (1983)). Erving argued Lt. Barisch lacked reasonable suspicion to conduct a protective search of the Durango’s interior.
The appellate court followed the classic Michigan v. Long analysis:
- Was there reasonable suspicion the suspect is dangerous?
- Was there a realistic prospect the suspect may gain immediate control of a weapon?
On the first question, the court emphasized context and accumulation of cues: a lone officer in a secluded, crime-prone location at nearly 3 a.m., observed movements consistent with hiding something, the odor of burnt cannabis, false identifying information from the companion, and knowledge that Erving was a convicted felon on supervised release for a weapons offense. The court described the case as one where “the whole is greater than the sum of its parts.”
The court also rejected the idea that “furtive movements” are a magic phrase. The officer explained why what he saw looked like concealment rather than hurried dressing, and the district court credited that testimony. The court also noted that marijuana legalization does not erase officer-safety relevance. Even where the odor of burnt cannabis may not establish probable cause for evidence of a state offense, the 7th Circuit treated the odor as contributing to reasonable suspicion for safety purposes in this context.
On the second prong — immediate control — the court noted it had previously applied the Long analysis to situations where the suspect is likely to be released or permitted to return to the vehicle. Here, Erving was not under arrest at the moment of the vehicle frisk. He had also been allowed to retrieve items before getting out. The court found the protective search justified under the Fourth Amendment, as Lt. Barisch had reasonable suspicion Erving was dangerous and could gain immediate access to a weapon.
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Lt. Barisch reported what he saw, not just the label “furtive movements.” His articulation mattered because he described the movement, why it looked like concealment, and why the supposed “innocent” explanation did not fit what he observed.
Protective-search reasonable suspicion is a “totality of the circumstances” call for a court. The 7th Circuit held the search fell within Michigan v. Long’s protective-search doctrine and affirmed both the denial of suppression and the sentence.
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