NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2013
Decided April 1, 2013
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12‐3183
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 12‐CR‐10
BERTRAND EDWARDS,
Defendant‐Appellant. Barbara B. Crabb,
Judge.
O R D E R
Bertrand Edwards appeals the denial of his motion to suppress evidence discovered
during a warrantless search of his vehicle incident to arrest. He had been arrested for
operating a vehicle under the influence of marijuana, see WIS. STAT. § 346.63(1)(a), but the
subsequent search of the car uncovered evidence of counterfeiting—a scanner, a straight‐
edge paper cutter, household chemical solvents, a pen used to detect counterfeit currency,
and counterfeit twenty‐dollar bills. He ultimately pleaded guilty to passing counterfeit
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currency. See 18 U.S.C. § 472. Because the officer had probable cause to arrest Edwards—for
either operating a vehicle while under the influence of marijuana, or possession of
marijuana, see WIS. STAT. § 961.41(3g)(e)—we affirm the judgment.
Background
Around 4:00 a.m. on October 5, 2011, the Dunn County Sheriff’s Department
received information from the Jackson County Sheriff’s Department that around an hour
earlier an individual in a green Chevrolet Blazer drove off without paying for gas in Black
River Falls, Wisconsin. The information included the Blazer’s license plate number and the
suspect’s description—a black man with dreadlocks. Within minutes Deputy Chad Pollock
located the Blazer parked askew between two spots in a rest area off I‐94 near Menomonie,
Wisconsin (about 75 miles from Black River Falls).
When Deputy Pollock approached the Blazer, he saw Edwards—who matched the
reported description—sleeping behind the wheel; Pollock also noted that the vehicle’s hood
was still warm. He woke Edwards, who told him that he had pulled off the highway only
about ten minutes earlier. Deputy Pollock observed that Edwards’s eyes were bloodshot, his
pupils dilated, his speech slow and mumbled, and his responses to questions delayed. He
also wrote in his police report that he detected the “odor of stale marijuana coming from the
vehicle.”
Deputy Pollock asked Edwards to get out of the Blazer and then noticed an opened
bottle of beer and fresh ash spread across the floorboard, center console, and seats. On the
floorboards he also saw what he considered “shake” (small leafy bits of marijuana that
gather at the bottom of the plastic bags in which that drug is often sold,
see http://en.wiktionary.org/wiki/shake). Deputy Pollock noted that Edwards’s coordination
was poor as he exited the Blazer, though he denied having used any illegal drugs and said
he had consumed only a few drinks earlier that evening. Suspecting that Edwards was
intoxicated, Deputy Pollock administered a series of field‐sobriety tests. During all these
tests, Edwards swayed, failed to follow directions, and was uncoordinated. Edwards’s
preliminary breath test, however, showed zero percent blood alcohol content. Based on the
field‐sobriety tests, the marijuana odor in the vehicle, and the shake on the Blazer’s floor,
Deputy Pollock arrested Edwards for operating a vehicle under the influence of marijuana.
Deputy Pollock then began a search of the Blazer, as he put it in his police report,
“for evidence supporting the arrest for Operating Under the Influence of Drugs.” During
the search Deputy Pollock noted that Edwards appeared nervous and repeatedly told him
that the car did not belong to him and that he did not know what was in it. Deputy Pollock
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found white sheets of paper with U.S. currency printed on one side, as well as counterfeit
bills—some of which were damp (from having been recently printed, Deputy Pollock
suspected). He also discovered a straight‐edge paper cutter, household chemical solvents,
and a pen used to detect counterfeit currency. Finally, in the back seat under a blanket, he
uncovered an inkjet printer/scanner. Under the scanner’s lid was a “real” twenty‐dollar bill
bearing the same serial number as several of the counterfeit bills. Another counterfeit bill
with this same serial number had been passed off the previous day at a convenience store;
store employees reported that an individual, later identified in a surveillance video as
Edwards, had used the bill to buy cigarettes. That same day Edwards also used bills with
the same serial number at a restaurant.
Edwards was charged with one count of making counterfeit currency, see 18 U.S.C.
§ 471, and two counts of passing counterfeit currency, see id. § 472. He moved to quash his
arrest and suppress the evidence discovered during the search. The parties did not dispute
the facts surrounding the arrest or search and so agreed to proceed without an evidentiary
hearing.
Edwards’s motion to suppress was denied by the district judge, who adopted the
magistrate judge’s report and recommendation. The magistrate judge concluded that
Deputy Pollock had probable cause to arrest Edwards for operating a vehicle under the
influence of marijuana, and alternatively, could have arrested him for possession of
marijuana. The district judge agreed, concluding that the signs of impairment Edwards
exhibited, the marijuana odor, Edwards’s poor performance on field‐sobriety tests, and the
shake on the vehicle’s floorboards provided probable cause for Deputy Pollock to arrest
Edwards for either crime. Incident to arresting Edwards, Deputy Pollock was entitled to
search the vehicle for further evidence of marijuana or other drugs.
Edwards then pleaded guilty to one count of passing counterfeit currency, but
reserved in his plea agreement the right to appeal his motion to suppress. The district judge
accepted Edwards’s plea and sentenced him to 24 months’ imprisonment.
Analysis
On appeal Edwards argues that Deputy Pollock lacked probable cause to arrest him
either (1) for operating a vehicle under the influence of marijuana or (2) for possessing
marijuana, and thus could not lawfully search the Blazer under the exception to the Fourth
Amendment’s warrant requirement for searches incident to arrest. See Arizona v. Gant, 556
U.S. 332, 343–44 (2009); see also United States v. Slone, 636 F.3d 845, 851–52 (7th Cir. 2011);
United States v. Stotler, 591 F.3d 935, 939 (7th Cir. 2010). Responding to the former charge, he
contends that Deputy Pollock did not have probable cause to arrest him for operating a
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vehicle under the influence of marijuana because Pollock had no reason to believe that he
was under the influence of any substance (rather than simply being groggy from taking a
nap).
The district judge, however, was right that the signs of impairment exhibited by
Edwards coupled with the signs of marijuana use were sufficient to establish probable cause
that Edwards had operated a vehicle under the influence. Indeed the general signs of
intoxication Edwards exhibited (his slow speech, delayed responses, bloodshot eyes, and
poor performance on field‐sobriety tests) could alone have justified Deputy Pollock’s
decision to arrest him. See Smith v. Ball State Univ., 295 F.3d 763, 766, 770 (7th Cir. 2002);
Qian v. Kautz, 168 F.3d 949, 954 (7th Cir. 1999); Tatum v. City and Cnty. of San Francisco, 441
F.3d 1090, 1095 (9th Cir. 2006). And though Edwards’s grogginess may also have produced
these symptoms, “the possibility of an innocent explanation does not vitiate properly
established probable cause.” United States v. Booker, 612 F.3d 596, 601 (7th Cir. 2010); United
States v. Funches, 327 F.3d 582, 586–87 (7th Cir. 2003). Moreover, Deputy Pollock had even
more evidence specific to marijuana use (the odor of marijuana in the Blazer and the
presence of ash and shake) that further justified his arrest of Edwards. See Padula v.
Leimbach, 656 F.3d 595, 601 (7th Cir. 2011); United States v. Chavez, 660 F.3d 1215, 1224–25
(10th Cir. 2011).
Edwards raises a second challenge to the arrest for operating a vehicle under the
influence, namely that Deputy Pollock lacked probable cause to conclude that he was ever
impaired while operating the Blazer. But it does not matter that Deputy Pollock did not
actually see Edwards drive the Blazer or even put the keys in the ignition (operation of a
vehicle requires, at a minimum, physically manipulating or activating the controls of a
motor vehicle, for example by leaving the motor running while a car is parked, see WIS.
STAT. § 346.63(3)(b); Milwaukee Cnty. v. Proegler, 291 N.W.2d 608, 613 (Wis. Ct. App. 1980);
State v. Mertes, 762 N.W.2d 813, 817–18 (Wis. Ct. App. 2008)). Even if it were conceivable (as
Edwards suggests) that he did not ingest marijuana till after he stopped at the rest area and
turned off his vehicle, see C. Heather Ashton, Pharmacology and Effects of Cannabis: A Brief
Review, 178 BRIT. J. PSYCHIATRY 101, 102 (2001) (marijuana’s “effects are perceptible within
seconds and fully apparent within a few minutes”), Deputy Pollock could reasonably rely
on circumstantial evidence (the Blazer’s warm hood and Edwards’s admission that he had
pulled into the rest area only ten minutes earlier) to conclude that Edwards recently
operated the vehicle while under the influence of marijuana. See Burg ex rel. Weichert v.
Cincinnati Cas. Ins. Co., 645 N.W.2d 880, 886 n.8 (Wis. 2002); Mertes, 762 N.W.2d at 817–18.
That reasonable belief, rather than certainty, is all that probable cause requires. See United
States v. Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003); see also Purvis v. Oest, 614 F.3d 713,
722–23 (7th Cir. 2010).
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Edwards next contests the district judge’s alternative finding that Deputy Pollock
could also lawfully have arrested him for possession of marijuana. He maintains that he
denied having smoked marijuana, and argues that Deputy Pollock should have asked him
about the leafy bits and remains on the floorboards before concluding that they were shake.
But, though Deputy Pollock was required to “pursue reasonable avenues of
investigation” and could not ignore evidence that might clarify whether what he saw was
marijuana, he was entitled to end any investigation once he established probable cause.
McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009); see also Sow v. Fortville Police Dep’t, 636
F.3d 293, 302 (7th Cir. 2011). Deputy Pollock—who had 7 years’ law enforcement field
experience and specialized training on topics related to drug recognition, narcotics, and
impaired driving—could reasonably have believed that what he observed on the
floorboards of the Blazer was shake (rather than tobacco for example) based on his training,
the marijuana odor, and Edwards’s appearance and behavior (which were consistent with
marijuana use). See United States v. Burge, 683 F.3d 829, 832 (7th Cir. 2012) (probable cause to
support search warrant where officers were able to identify marijuana plants based on
training and experience); United States v. Mosby, 541 F.3d 764, 768 (7th Cir. 2008) (probable
cause to search passenger compartment of car based on marijuana odor alone); Warlick v.
Cross, 969 F.2d 303, 309–10 (7th Cir. 1992) (probable cause for arrest based on presence of
hand‐rolled cigarettes combined with corroborating evidence like odor of marijuana). He
therefore could lawfully have arrested Edwards for possession without investigating
further.
Because Deputy Pollock had probable cause to arrest Edwards, we AFFIRM the
judgment of the district court.
