Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Paige

United States Court of Appeals, Seventh Circuit

September 1, 2017

United States of America, Plaintiff-Appellee,
v.
Tamichale L. Paige, Defendant-Appellant.

          Argued May 30, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cr-00041-JPS-l - J.P. Stadtmueller, Judge.

          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 search, Officer Tiara Sheets-Walker, had no lawful basis to pat him down or to search his vehicle. After an evidentiary hearing 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 denial of his motion to suppress. Mr. Paige was sentenced to twenty-eight months' imprisonment and four years of supervised release.

         Mr. Paige now submits that the district court erred in holding that Officer Sheets-Walker had probable cause to arrest 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 informed the 911 operator that a vehicle had been sitting in the 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 outside 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 Captain Hornick, she detected a strong odor of fresh marijuana coming from Mr. Paige. Captain Hornick explained to Officer 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, Captain Hornick and the other firefighters began to leave the scene. As they left, one of the firefighters signaled to Officer 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 general information, such as his name and address, and walked with him toward her police wagon. Officer Sheets-Walker testified 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 for about an hour. As they spoke, Officer Sheets-Walker continued to smell "a strong odor of fresh marijuana" coming from Mr. Paige.[4]

         Officer Sheets-Walker planned to detain Mr. Paige temporarily in her police wagon before continuing to investigate. She suspected, however, that Mr. Paige might be in possession of marijuana or a firearm because, in her experience, "drugs and guns are typically associated together."[5] In addition, 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 therefore 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 firearm was a Glock, model 22, .40 caliber semi-automatic handgun with one bullet in the chamber and twelve bullets in the magazine. Because Mr. Paige lacked a permit to carry a concealed 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 vehicle, 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 fresh marijuana coming from the vehicle. She searched the vehicle and found a digital scale and clear sandwich bags containing 10.42 grams of crack cocaine and 9.24 grams of marijuana inside the car's middle console.

         B.

         On March 8, 2016, a grand jury returned a two-count indictment 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 operating a vehicle under the influence of a controlled substance. Therefore, continued the Government, the search of Mr. Paige's person and his vehicle were permissible as incident to that lawful arrest. Alternatively, the Government argued, the search was lawful either because the officer had reasonable 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 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] "Incident 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 magistrate judge's report and recommendation, maintaining his position that Officer Sheets-Walker lacked probable cause to arrest him for either offense. He also requested that the district court order an evidentiary hearing. On May 26, 2016, the district court found "that Paige's extremely unusual behavior, combined with the strong smell of marijuana, adequately supported]" the magistrate judge's conclusion that the officer had probable cause to arrest Mr. Paige for "marijuana possession."[12] The district court nonetheless granted Mr. Paige's request 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 explained, "[m]arijuana odor is an important fact, among others, 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 evidence 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 magistrate 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 Officer 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- kee Police Academy, and from prior experiences as a Milwaukee 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 operating the vehicle while impaired.

         After receiving no objections to the magistrate judge's second 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.