United States of America v. Prentiss Jackson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-1708 & 23-1721
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
PRENTISS JACKSON ,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 2:10-cr-20043-JES-JEH-1 — James E. Shadid, Judge, and
No. 2:22-cr-20044-CSB-EIL-1 — Colin S. Bruce, Judge.
____________________
A RGUED M ARCH 28, 2024 — DECIDED J UNE 4, 2024
____________________
Before BRENNAN , S CUDDER , and LEE, Circuit Judges.
BRENNAN , Circuit Judge. An Urbana, Illinois, police officer
pulled over a car just after midnight because its head and tail-
lights were not lit. During the traffic stop, the officer smelled
unburnt marijuana. He asked the driver, Prentiss Jackson, to
exit the car and told Jackson he would search him and the

-- 1 of 13 --

2 Nos. 23-1708 & 23-1721
vehicle. Soon after leaving the car, Jackson ran. While fleeing,
a gun fell from his waistband.
Jackson was indicted for possessing a firearm as a felon.
He moved to suppress evidence of the gun, arguing it was the
product of an unlawful search. The district court denied Jack-
son’s motion. He conditionally pleaded guilty, was convicted,
and now appeals the denial of his motion to suppress. We af-
firm.
I
The facts below come from testimony taken and the officer
bodycam video presented at the evidentiary hearing held on
Jackson’s motion to suppress.
Shortly after midnight on June 11, 2022, Prentiss Jackson
and a passenger drove through Urbana, Illinois, with unlit
head and taillights. As a result, an Urbana police officer con-
ducted a traffic stop. The officer asked for Jackson’s driver’s
license and registration. Jackson did not have his license but
produced another form of identification.
The officer smelled the odor of unburnt marijuana ema-
nating from the car. He knew the odor came from inside the
car, as he had not smelled it before he approached the vehicle.
During their conversation about the license and registration,
the officer told Jackson he smelled “a little bit of weed” and
asked if Jackson and the passenger had been smoking. Jack-
son said he had, but that was earlier in the day, and he had
not smoked inside the car.
Through the officer’s training, he knew the most common
signs of impairment for driving under the influence were the
odor of marijuana or alcohol and speech issues. He was also
taught to look for traffic violations. Concerned that Jackson

-- 2 of 13 --

Nos. 23-1708 & 23-1721 3
might be driving under the influence because of the head and
taillight violation, the odor of marijuana, and Jackson’s ad-
mission that he had smoked earlier, the officer asked Jackson
whether he was “safe to drive home.” Jackson said he was.
His speech was not slurred during the interaction, and his re-
sponses were appropriate.
After questioning Jackson about the marijuana smell, the
officer asked Jackson to wait for a moment so he could write
a warning, to turn the car off, and to hand over the keys. Jack-
son complied. The officer said he would search Jackson and
the car. He asked if there were “guns, knives, drugs, [or]
bombs” in the car and told Jackson he could “cut breaks and
warnings” if Jackson and the passenger were “honest with
[him] up front.” Jackson told him none of those items were in
the car. The officer then asked Jackson to get out and walk to
the back of the car, cautioning Jackson not to reach for his
waistband.
Before Jackson exited the car, the passenger asked why the
officer planned to search the car. The officer told her he could
smell marijuana and explained the potential violation of Illi-
nois law. He was ready to write up a warning for the mariju-
ana violation, the officer told them, but he also said he was
prepared to make an arrest if Jackson and the passenger were
uncooperative and refused to get out of the car and permit a
“probable cause” search.
In response to this line of conversation, Jackson acknowl-
edged he had some “weed” and handed the officer a tied-off
plastic baggie that appeared to contain about two grams of
unburnt marijuana. The officer explained “having weed like
th[at was] illegal inside the confines of a vehicle” under Illi-
nois law.

-- 3 of 13 --

4 Nos. 23-1708 & 23-1721
The officer again asked Jackson to step out of the car. Jack-
son complied and walked calmly to the back of the car. The
officer intended to pat Jackson down and conduct a field so-
briety test. Jackson placed his hands on the trunk. The officer
turned to put his flashlight in its holster, and Jackson ran. A
few seconds into his flight, Jackson tripped, and a gun fell
from his waistband. The officer caught up with Jackson, re-
strained him so Jackson could not reach the firearm, and ar-
rested him.
Jackson moved to suppress evidence of the gun, arguing
it was the product of an unlawful search and seizure. The dis-
trict court held a suppression hearing at which the officer tes-
tified as the only witness, and the government presented his
bodycam video. The facts and testimony at the hearing
tracked the video evidence.
The district court denied Jackson’s motion. After the
court’s decision, Jackson entered a conditional guilty plea in
case no. 23-1721, reserving his right to appeal the district
court’s denial of his motion to suppress. See F ED. R. C RIM . P.
11(b). The district court sentenced Jackson to 72 months’ im-
prisonment. In case no. 23-1708, the district court revoked
Jackson’s supervised release for, among other things, unlaw-
fully possessing a firearm.
II
Jackson now appeals the denial of his motion to suppress
the gun. We review the district court’s factual findings “for
clear error, while legal conclusions and mixed questions of
law and fact are reviewed de novo.” United States v. Yang, 39
F.4th 893, 899 (7th Cir. 2022). “A factual finding is clearly er-
roneous only if, after considering all the evidence, [the court]

-- 4 of 13 --

Nos. 23-1708 & 23-1721 5
cannot avoid or ignore a definite and firm conviction that a
mistake has been made.” Id. (cleaned up).
This court gives “special deference to credibility determi-
nations and will uphold them unless completely without
foundation in the record.” United States v. Norton, 893 F.3d
464, 467 (7th Cir. 2018) (cleaned up). That is in part because
the factual determinations underlying a district court’s credi-
bility determinations are uniquely within the district court’s
competence, and this court reviews those findings for clear
error. See United States v. Eymann, 962 F.3d 273, 281 (7th Cir.
2020).
When applying the Fourth Amendment to law enforce-
ment action, the Supreme Court has repeatedly confirmed
that “the ultimate touchstone of the Fourth Amendment” in
evaluating law enforcement action is “reasonableness.”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “‘Reasonable-
ness, in turn, is measured in objective terms by examining the
totality of the circumstances.’” United States v. Cole, 21 F.4th
421, 427 (7th Cir. 2021) (quoting Ohio v. Robinette, 519 U.S. 33,
39 (1996)).
Jackson contends that evidence of the firearm should have
been suppressed because the officer did not have probable
cause to search him or the car. He argues that the officer relied
on the smell of unburnt marijuana, which he contends does
not provide probable cause to search a vehicle under Illinois
law.
“Warrantless searches are per se unreasonable under the
Fourth Amendment, subject to only certain exceptions.”
United States v. Kizart, 967 F.3d 693, 695 (7th Cir. 2020) (citing
Arizona v. Gant, 556 U.S. 332, 338 (2009)). Relevant here is the

-- 5 of 13 --

6 Nos. 23-1708 & 23-1721
automobile exception, which allows authorities to search a car
without a warrant if they have probable cause. See Collins v.
Virginia, 584 U.S. 586, 592 (2018); United States v. Ross, 456 U.S.
798, 807–09 (1982); Carroll v. United States, 267 U.S. 132, 149,
153–56 (1925); United States v. Ostrum, 99 F.4th 999, 1005–06
(7th Cir. 2024). “Probable cause to search a vehicle exists
when, based on the totality of the circumstances, ‘there is a
fair probability that contraband or evidence of a crime will be
found in a particular place.’” United States v. Sands, 815 F.3d
1057, 1063 (7th Cir. 2015) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)); see Kizart, 967 F.3d at 695.
The district court correctly ruled that evidence of the fire-
arm should not have been suppressed. The officer had proba-
ble cause to search Jackson and the vehicle, whether based on
the totality of the circumstances or because of the smell of un-
burnt marijuana alone.
A
Jackson is incorrect that the only evidence in support of
probable cause when the officer announced an intent to
search and ordered him out of the vehicle was the odor of un-
burnt marijuana. The totality of the circumstances provided
probable cause to search Jackson and the vehicle.
Consider the circumstances of the traffic stop. The officer
pulled Jackson over because he had been driving in the dark
with unlit head and taillights, a state law violation, see 625 I LL.
C OMP . STAT. A NN . 5/12-201. After pulling over the car, the of-
ficer asked for license and registration. But Jackson did not
have his license, another state law violation. See id. at 5/6-101
(prohibiting driving without a valid license in Illinois).

-- 6 of 13 --

Nos. 23-1708 & 23-1721 7
At any point after this lawful stop, the officer could have
ordered Jackson out of the vehicle, even if the officer “ha[d]
no reason to suspect foul play.” Pennsylvania v. Mimms, 434
U.S. 106, 111 (1977). But the officer did suspect further is-
sues—he smelled the odor of unburnt marijuana coming from
the car. Although possession of marijuana in certain amounts
is legal in Illinois, the smell of unburnt marijuana coming
from the car signaled that Jackson had marijuana in the car in
an improper container, another violation of Illinois’s law. See
id. at 5/11-502.15(b), (c).
The circumstances also could suggest that Jackson was
driving while impaired. See id. at 5/11-501. When questioned
about the smell, Jackson admitted to smoking marijuana ear-
lier. And although Jackson responded to questions and did
not seem impaired to the officer, that officer knew that failure
to follow the simplest of traffic laws—like turning on your
lights just after midnight—could indicate driving under the
influence. Cf. United States v. Cade, 93 F.4th 1056, 1062 (7th Cir.
2024) (citing United States v. McGuire, 957 F.2d 310, 314 (7th
Cir. 1992)) (holding where a driver admits to drinking alcohol
and an officer sees an open alcohol container in the car, the
officer had probable cause to search the driver and car). Thus,
a search of Jackson and the car was warranted as possibly
providing further evidence of criminal conduct.
Jackson responds that the officer’s credibility should be
questioned because he failed to conduct field sobriety tests or
note any suspicion of impairment in his police report. But
Jackson’s speculation does not overcome the officer’s credible
testimony that he intended to perform such a test. See, e.g.,
United States v. Hendrix, 509 F.3d 362, 373 (7th Cir. 2007) (“Be-
cause the resolution of a motion to suppress is a fact-specific

-- 7 of 13 --

8 Nos. 23-1708 & 23-1721
inquiry, we give deference to credibility determinations of the
district court, who had the opportunity to listen to testimony
and observe the witnesses at the suppression hearing.”). In
any event, the officer’s subjective intent does not control the
analysis. See, e.g., Robinette, 519 U.S. at 38 (“As we made clear
in Whren, ‘the fact that [an] officer does not have the state of
mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate
the action taken as long as the circumstances, viewed objec-
tively, justify that action.’”) (quoting Whren v. United States,
517 U.S. 806, 813 (1996)); see also Cole, 21 F.4th at 428 n.1.
Jackson further argues it was impossible for the officer to
smell two grams of unburnt marijuana. But Jackson provides
no evidence that the officer lied about smelling the marijuana.
To rebut the officer’s testimony and the district court’s
credibility finding, Jackson must show that the district court
clearly erred in determining that the officer smelled unburnt
marijuana and was able to differentiate that odor from burnt
marijuana. Yang, 39 F.4th at 899. And he must explain why
the district court’s implicit determination that the officer’s tes-
timony was credible—a determination this court upholds
“unless completely without foundation in the record”—
should be reversed. Norton, 893 F.3d at 467. Jackson has done
neither. The officer’s testimony is supported by Jackson turn-
ing over a baggie of unburnt marijuana during the traffic stop.
Under the totality of these circumstances, the officer had
probable cause to search Jackson and the car.
Jackson offers other arguments, but they are not persua-
sive. He says a similarity between the odors of unburnt mari-
juana and legal hemp undercuts the finding of probable
cause. This argument was not raised below and is thus

-- 8 of 13 --

Nos. 23-1708 & 23-1721 9
waived. See G&S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534,
538 (7th Cir. 2012); see also United States v. Payne, 102 F.3d 289,
293 (7th Cir. 1996) (“‘We have repeatedly held that a party
that fails to press an argument before the district court waives
the right to present that argument on appeal.’” (citing United
States v. Gonzalez, 933 F.2d 417, 448 (7th Cir. 1991))).
He also offers additional scenarios that he says might
cause a car to emit an odor of unburnt marijuana. Yet, law
enforcement does not need to rule out every innocent expla-
nation for probable cause to be established. As the Supreme
Court has explained, “probable cause requires only a proba-
bility or substantial chance of criminal activity, not an actual
showing of such activity.” Gates, 462 U.S. at 245 n.13 (internal
citations omitted). “By hypothesis, therefore, innocent behav-
ior frequently will provide the basis for a showing of probable
cause; to require otherwise would be to sub silentio impose a
drastically more rigorous definition of probable cause than
the security of our citizens demands.” Id.
B
Irrespective of the totality of the circumstances, Jackson
argues that only the smell of unburnt marijuana supported
the probable cause determination. Because Illinois has legal-
ized marijuana for adult recreational use, he contends that
smell alone cannot provide probable cause for a search or sei-
zure. We consider this argument in the context of current law.
The smell of marijuana alone justifies a Fourth Amend-
ment search or seizure. See Kizart, 967 F.3d at 695 (noting the
smell of “burnt marijuana” provides probable cause to search
an entire vehicle during a traffic stop); see also United States v.
Paige, 870 F.3d 693, 700 (7th Cir. 2017) (holding the smell of
“fresh marijuana” coming off a person supports probable

-- 9 of 13 --

10 Nos. 23-1708 & 23-1721
cause to arrest that person); United States v. Franklin, 547 F.3d
726, 733 (7th Cir. 2008) (“A police officer who smells mariju-
ana coming from a car has probable cause to search that car.”
(citing United States v. Wimbush, 337 F.3d 947, 951 (7th Cir.
2003))). Further, the possession of marijuana is illegal under
federal law. See 21 U.S.C. §§ 812 (c)(10), 844. Jackson responds
that the government failed to raise that point in the district
court and thus waived it. The federal marijuana prohibition
was mentioned twice below: (1) the district court and defense
counsel referenced a potential difference between the state
and federal regulations on marijuana in conversation, and (2)
the prosecutor noted in argument on the suppression motion
the court’s point that marijuana “remains something that can
give rise to probable cause.”
Even if we conclude that the government waived this
point, Jackson’s case is not impacted by it. The officer still had
probable cause to search Jackson and the car. While Illinois
has legalized marijuana for recreational use in some circum-
stances, as the officer said to Jackson and the passenger dur-
ing the traffic stop, the state retains laws restricting the pack-
aging of and use of marijuana. See, e.g., 625 ILL. C OMP . STAT.
A NN . 5/11-501 (prohibiting using marijuana to the point of in-
toxication before or while driving, i.e., driving under the in-
fluence); id. at 5/11-502.15(b), (c) (prohibiting transporting
marijuana in certain containers in a vehicle).1 Jackson did not
comply with that requirement, so the smell of unburnt mari-
juana provides probable cause for a violation of that state law.
1 Illinois statutes and cases use the term “cannabis,” the equivalent of
“marijuana” under federal law. This opinion uses the term “marijuana”
throughout, except when quoting Illinois cases.

-- 10 of 13 --

Nos. 23-1708 & 23-1721 11
Interpretation of those state laws by Illinois courts sup-
ports this reading. In People v. Molina, the Fourth District of
the Illinois Appellate Court held that “an officer who smells
cannabis in a vehicle he has just stopped is almost certain to
discover a violation of the [Illinois] Vehicle Code because the
law clearly states that when cannabis is transported in a pri-
vate vehicle, the cannabis must be stored in a sealed, odor-proof
container—in other words, the cannabis should be undetect-
able by smell by a police officer.” 208 N.E.3d 579, 588–89 (Ill.
App. Ct. 2022) (emphasis in original). The “smell of raw can-
nabis, without any corroborating factors, is [thus] sufficient to
establish probable cause to search a person’s vehicle” under
state law. Id.; see also People v. Hall, 225 N.E.3d 673, 678 (Ill.
App. Ct. 2023), appeal pending (May Term 2023) (holding that
the odor of unburnt cannabis constituted probable cause for
search of vehicle, as reasonable person in officer’s position
would believe “someone in the vehicle was at least transport-
ing cannabis in a manner violating the Vehicle Code”); People
v. Mallery, 228 N.E.3d 856, 869 (Ill. App. Ct. 2023) (stating
there was sufficient probable cause for vehicle search based
on police-trained canine’s positive alert, where canine trained
to alert to drugs including marijuana).2
The Second District of the Illinois Appellate Court has ar-
rived at a similar conclusion. E.g., People v. Harris, __ N.E.3d
__, __, 2023 IL App (2d) 210697, ¶ 32 (Ill. App. 2d 2023) (“the
smell of cannabis in a car still forms the basis for probable
cause” post-legalization); People v. Sims, 207 N.E.3d 238, 260
(Ill. App. Ct. 2022), reh’g denied (May 4, 2022), appeal denied, 199
N.E.3d 1188 (Ill. 2022) (“the odor of raw cannabis emanating
2 This opinion uses the term “unburnt” to refer to “raw” marijuana.
We read the terms to mean the same thing.

-- 11 of 13 --

12 Nos. 23-1708 & 23-1721
from the vehicle when [the officer] first approached gave rise
to probable cause to search the vehicle”).
One Illinois case, heavily relied on by Jackson, is not in ac-
cord with other Illinois decisions. People v. Stribling, 228
N.E.3d 766, 773 (Ill. App. Ct. 2022). In Stribling, the Third Dis-
trict of the Illinois Appellate Court held that “the smell
of … burnt cannabis, without any corroborating factors, is not
enough to establish probable cause to search the vehicle.” Id.
Stribling stated that Illinois’s legalization of marijuana invali-
dated the Illinois Supreme Court’s decision in People v. Stout,
477 N.E.2d 498 (Ill. 1985). See Stribling, 228 N.E.3d at 772. In
Stout, the Illinois Supreme Court held that “distinctive odors”
like burning marijuana “can be persuasive evidence of prob-
able cause” without additional corroborating evidence. 477
N.E.2d at 502.
Even if Stribling is credited—notwithstanding Molina and
Harris—it would not compel the conclusion that there was no
probable cause here. Stribling is distinguishable, and we do
not defer to Illinois courts on what constitutes probable cause
under the Fourth Amendment. The conclusion in Stribling
that probable cause did not exist was limited to the officer
smelling burnt marijuana. The defendant in Stribling told law
enforcement that “someone (he did not state that it was him-
self) had smoked in the vehicle ‘a long time ago[.]’” 228
N.E.3d at 773. “There was no reason for the officer to think
that the defendant was currently smoking cannabis in the
car.” Id. And “the smell of burnt cannabis may have lingered
in the defendant’s car or on his clothing.” Id. The Third Dis-
trict’s similar decision in People v. Redmond, also centered on
the smell of burnt marijuana. 207 N.E.3d 1175, 1177 (Ill. 2023),
appeal allowed, 210 N.E.3d 786 (Ill. 2023). And in Redmond, the

-- 12 of 13 --

Nos. 23-1708 & 23-1721 13
court stated, “there was no odor of raw cannabis nor any
other factor indicative of improperly packaged cannabis or an
unlawful amount of it in the vehicle.” Id. at 1181.
The smell of unburnt marijuana outside a sealed container
independently supplied probable cause and thus supported
the direction for Jackson to step out of the car for the search.
III
The central issue in this case is the legality of the officer
ordering Jackson out of the car for a search. Mimms tells us
that after a lawful stop, an officer can order occupants out of
a car, see 434 U.S. at 111, and the totality of circumstances here
supported probable cause for a search. In any event, the smell
of unburnt marijuana provided probable cause. After exiting
the vehicle, Jackson chose to run, where a firearm fell from his
pants. The district court correctly concluded that evidence of
the gun need not be suppressed.
For these reasons, we A FFIRM the district court’s denial of
Jackson’s motion to suppress.

-- 13 of 13 --