Furtive Movements Aren’t Magic Words: United States v. Erving and Protective Vehicle Searches

United States v. Erving

Nos. 23-2828 & 23-2831 (7th Cir. Jan. 20, 2026)

TL;DR

The Seventh Circuit upheld a vehicle protective search under Michigan v. Long where a lone officer, late at night, observed furtive movements suggesting concealment, smelled burnt cannabis, learned the driver was on supervised release for a weapons offense, and reasonably believed the suspect could soon regain access to the vehicle. The court reaffirmed that reasonable suspicion—not probable cause—controls Long searches, and that limited, targeted vehicle searches remain lawful even when the suspect is temporarily outside the car.

Facts

At approximately 2:45 a.m., a Peoria police lieutenant patrolling alone in an unmarked vehicle entered River Front Park—a location known for vice and narcotics activity. The park was closed and unlit.

He observed a red Dodge Durango parked at the far end of the lot. As he illuminated the vehicle, he saw two occupants in the rear seat. One of them—Dazmine Erving—made a sudden, deliberate movement, leaning down toward the floorboard behind the driver’s seat and then quickly sitting upright. The officer testified this movement appeared consistent with hiding an object, not getting dressed.

When the officer approached, he smelled a lingering odor of burnt cannabis. One occupant provided false identifying information. A records check revealed that Erving had been released 12 days earlier to federal supervised release following a prior felon-in-possession conviction.

The officer asked both occupants to step out of the vehicle and allowed them to retrieve personal items. They were not handcuffed. Believing Erving could soon return to the vehicle, the officer leaned inside and looked under the driver’s seat—the location of the earlier movement—where he observed a firearm. Backup was called, the gun was recovered, and Erving admitted ownership.

Erving moved to suppress, arguing the officer lacked reasonable suspicion to conduct a protective search of the vehicle.

Issues

1. Did the officer have reasonable suspicion to believe Erving was armed and dangerous, justifying a protective vehicle search under Michigan v. Long?

2. Was the search invalid because Erving was outside the vehicle at the time?

Holding

No error. The Seventh Circuit affirmed:

• The denial of the suppression motion

• The conviction

• The sentence

The protective search was lawful under Michigan v. Long, and the sentencing court did not rely on impermissible factors.

Reasoning

1. Reasonable Suspicion of Dangerousness

The court emphasized that reasonable suspicion is a commonsense, totality-of-the-circumstances inquiry, not a checklist.

Key factors supporting suspicion:

• Time and location: A lone officer at 2:45 a.m. in a closed, crime-prone park

• Furtive movement: A rapid, targeted motion toward the floorboard consistent with concealment

• Odor of burnt cannabis: Relevant not for probable cause, but for assessing danger

• False identification: Suggesting evasiveness

• Criminal history: Knowledge that Erving was on supervised release for a weapons offense

The court rejected the argument that “furtive movements” are meaningless buzzwords. Here, the officer articulated why the movement suggested concealment and why it was inconsistent with innocent behavior.

Importantly, the presence of a potentially innocent explanation (e.g., getting dressed) does not defeat reasonable suspicion.

2. Immediate Access to a Weapon

Under Long and Seventh Circuit precedent (United States v. Vaccaro), the second requirement is satisfied when:

• The suspect is not under arrest

• The suspect is likely to regain access to the vehicle

Here, Erving had committed no arrestable offense before the gun was found and had already been permitted to retrieve items from the vehicle. That made future access reasonably likely, not speculative.

The court declined to reconsider Vaccaro, noting it merely applies binding Supreme Court precedent.

3. Officer Safety Does Not Require Panic

Erving argued the officer could not have been concerned for safety because he:

• Did not immediately search

• Allowed occupants to retrieve items

• Conducted only a limited search

The court rejected this outright. Fourth Amendment analysis is objective, not dependent on an officer’s emotional state. A targeted, minimal search supports—rather than undermines—the legitimacy of a protective search.

Street Takeaways

• Protective vehicle searches remain alive and well under Michigan v. Long—especially when suspects may soon return to the car.

• Furtive movements matter, but only when officers can articulate what they saw and why it raised safety concerns.

• Cannabis odor still counts for officer-safety analysis, even where legalization limits probable cause.

• Officers do not need to handcuff or conduct full sweeps to justify a protective search.

• Letting a suspect retrieve belongings can actually strengthen the Long rationale.

• Courts will look at the entire sequence, not isolated facts.

Disclaimer

This post is for training and informational purposes only. It does not constitute legal advice. Laws and interpretations vary by jurisdiction and are subject to change.