In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3032

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CORY D. MOSBY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 06 CR 10072—Joe Billy McDade, Judge.

____________

ARGUED AUGUST 6, 2008—DECIDED SEPTEMBER 4, 2008

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Before EASTERBROOK, Chief Judge, and KANNE and

WOOD, Circuit Judges.

KANNE, 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 minivan 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. Moments 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 minivan 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 treatment, 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 approached 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 marijuana coming from the minivan.

Sergeant Mushinsky then asked Hunter to exit the

minivan and wait in a nearby patrol car. After she complied, 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 testified 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 consented 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 recovered 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 apparent 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. HernandezRivas, 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 (upholding 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—incorrectly—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 argument (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 concedes 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, including 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 foundation” 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 automobile exception to warrant requirement, police may

search vehicle if they have probable cause to believe

search will uncover contraband).

III. CONCLUSION

Accordingly, we AFFIRM the judgment.

9-4-08