United States v. Childs, Tommie T.

Court Case Details
  • Case Name: United States v. Childs, Tommie T.
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: January 18, 2002
  • Precedential Status: Published
  • Docket #: 00-3111
  • Judges: Per Curiam
  • Nature: criminal
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3111

United States of America,

Plaintiff-Appellee,

v.

Tommie T. Childs,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 00-10004--Michael M. Mihm, Judge.

Argued November 6, 2001--Decided January 18, 2002

Before Flaum, Chief Judge, and Cudahy,

Posner, Coffey, Easterbrook, Ripple, Manion,

Kanne, Rovner, Diane P. Wood, Evans, and

Williams, Circuit Judges.

Easterbrook, Circuit Judge. We took this

case en banc to decide whether

questioning during the course of lawful

custody must be related to the reason for

that custody. The panel stated that

"inquiries falling outside the scope of

the detention constitute unlawful

seizure." United States v. Childs, 256

F.3d 559, 564 (7th Cir. 2001). The full

court holds that, because questions are

neither searches nor seizures, police

need not demonstrate justification for

each inquiry. Questions asked during

detention may affect the reasonableness

of that detention (which is a seizure) to

the extent that they prolong custody, but

questions that do not increase the length

of detention (or that extend it by only a

brief time) do not make the custody

itself unreasonable or require

suppression of evidence found as a result

of the answers.

In response to a dispatch arising out of

a hit-and-run accident, James Chiola, an

officer of the Peoria Police Department,

stopped a car driven by Tommie Childs. A

check revealed that Childs was wanted on

an outstanding warrant; his possession of

marijuana added a drug offense to that

preexisting charge. Officer Chiola did

not bother to issue a citation for a

third offense: the car’s windshield had a

spider web of cracks that may have

obstructed the driver’s vision, in

violation of 625 ILCS sec.5/12-503(e).

Chiola told Childs to get the windshield

fixed. Three days later officer Chiola

saw the same car on the road, with the

windshield still cracked. Again he

stopped the car, this time on the traffic

offense alone. Childs, who had been

released on bail, was in the passenger’s

seat. Chiola began to talk with him while

his partner dealt with the car’s driver.

Because he was only a passenger, Childs

had not violated sec.5/12-503(e) this

time, but his failure to wear a seat belt

violated sec.5/12-603.1(a)--and, as a

passenger in a car stopped for a traffic

offense, Childs was at all events subject

to the officers’ control and direction

until their safety could be assured. See

Maryland v. Wilson, 519 U.S. 408 (1997).

While his partner was performing license

and warrant checks on the driver, Chiola

asked Childs a few questions: first why

Childs had not fixed the windshield

(Childs replied that it was not his car),

second whether he was carrying any

marijuana this time (Childs said no), and

third whether he would consent to a

search (Childs agreed). During the search

Chiola found crack cocaine, which led to

the current prosecution for possessing

that drug with intent to distribute it,

and to a sentence of 120 months’

imprisonment. The panel held that the

second question effected an

unconstitutional seizure of Childs,

because the traffic stop was unrelated to

drugs and Chiola lacked any reason to

think that Childs was again carrying

drugs. It remanded for an inquiry whether

this unconstitutional seizure tainted the

consent given in response to the third

question.

Under the fourth amendment, every search

or seizure must be "reasonable," which

normally entails some person-specific

basis for suspicion. See Indianapolis v.

Edmond, 531 U.S. 32 (2000). But the

Supreme Court has held repeatedly that

police may approach persons and ask ques

tions or seek their permission to search,

provided that the officers do not imply

that answers or consent are obligatory.

See, e.g., Florida v. Rodriguez, 469 U.S.

1, 5-6 (1984); INS v. Delgado, 466 U.S.

210 (1984); Florida v. Royer, 460 U.S.

491, 501 (1983) (plurality opinion);

United States v. Mendenhall, 446 U.S.

544, 552-58 (1980). These requests are

proper without regard to the absence of

reasonable suspicion, the Court made

clear in Florida v. Bostick, 501 U.S.

429, 434 (1991), because "mere police

questioning does not constitute a

seizure." As a result, "law enforcement

officers do not violate the Fourth

Amendment by merely approaching an

individual on the street or in another

public place, by asking him if he is

willing to answer some questions, [or] by

putting questions to him if the person is

willing to listen." Ibid., quoting from

Royer, 460 U.S. at 497. See also

California v. Hodari D., 499 U.S. 621,

624 (1991) (defining "seizure" as "taking

possession," a category that does not

comprise questioning); Graham v. Connor,

490 U.S. 386, 395 n.10 (1989) ("A

’seizure’ triggering the Fourth

Amendment’s protections occurs only when

government actors have, ’by means of

physical force or show of authority, . .

. in some way restrained the liberty of a

citizen’") (quoting from Terry v. Ohio,

392 U.S. 1, 19 n.16 (1968)).

Most of these decisions concern

questions asked of persons not under

arrest (though often as a practical

matter not free to walk away, see Bostick

and Delgado). Are things different when

the suspect is in formal custody? It is

difficult to see why custody should turn

an inquiry into a "seizure." Posing a

question still does not meet the Supreme

Court’s definition of a seizure. Officer

Chiola did not restrain Childs’s liberty

(or increase the severity of the existing

restraint) by asking something that

Childs could refuse to answer. Indeed, as

a logical proposition, a view that

custody transmutes questions into

"seizures" is backward. Approaching a

person on the street (or at work, or on

a bus) to ask a question causes him to

stop for at least the time needed to hear

the question and answer (or refuse to

answer); that delay could be called a

"seizure," though it has not been. But a

question asked of someone already in

custody causes no delay and thus can’t be

a seizure. Given opinions such as

Bostick, which dealt with questions asked

of passengers on busses, there can be no

doubt that an officer on an airplane in

mid-air may strike up a conversation with

a person in the next seat, even though

that fellow passenger could not leave the

plane. Similarly an officer may

interrogate a person in prison on one

offense about the possibility that the

inmate committed another. This is normal

and, as far as we can tell, of

unquestioned propriety as far as the

fourth amendment is concerned, whether or

not the officer has probable cause to

believe that the inmate committed any

other crime. The prisoner has rights

under the fifth amendment and perhaps the

sixth. He can refuse to answer

incriminating questions and may be

entitled to counsel. See Texas v. Cobb,

532 U.S. 162 (2001); Davis v. United

States, 512 U.S. 452 (1994); McNeil v.

Wisconsin, 501 U.S. 171 (1991); Michigan

v. Mosley, 423 U.S. 96 (1975). But the

idea that the police could violate a

prisoner’s fourth amendment rights by

asking questions in search of information

about other offenses has no basis in the

language of that amendment or the Supreme

Court’s cases.

If the police may ask (without

suspicion) questions of persons who are

in no custody (e.g., walking down the

street), people who are in practical but

not legal custody (e.g., passengers on

busses and airplanes), and people who are

in formal custody pending trial or

following conviction (e.g., prisoners

such as Cobb, a pretrial detainee), then

why would the police need probable cause

or reasonable suspicion to direct

questions to persons such as Childs who

are in legal custody but likely to be

released soon? To say that questions

asked of free persons and questions asked

of prisoners are not "seizures" but that

questions asked of suspects under arrest

are seizures would have neither the text

of the Constitution behind it nor any

logical basis under it. This is not to

say that Childs cannot cite a case or two

in his support. Both the eighth and the

ninth circuits have held, as our panel

did, that questions are seizures

requiring either some relation to the

basis for the custody or an independent

source of reasonable suspicion. See

United States v. Murillo, 255 F.3d 1169,

1174 (9th Cir. 2001); United States v.

Ramos, 42 F.3d 1160 (8th Cir. 1994).

These courts reached this conclusion

indirectly. Their background is

revealing. Ramos traces the eighth

circuit’s position to United States v.

Cummins, 920 F.2d 498, 502 (8th Cir.

1990). The panel in Cummins observed

that, because the questions were related

to the purpose of the stop, the suspect

had no claim. Later panels then read that

statement as meaning that officers may

ask questions only if they are related to

the stop, a logical error. The

proposition "X defeats the defendant’s

constitutional contention" differs from

"X is the only way to defeat the

defendant’s constitutional contention."

Just the other day the Supreme Court

branded as fallacious the view "that an

opinion upholding the constitutionality

of a particular search implicitly holds

unconstitutional any search that is not

like it". United States v. Knights, 122

S. Ct. 587, 590 (2001).

Developments in our circuit parallel

those in the eighth. United States v.

Rivera, 906 F.2d 319 (7th Cir. 1990),

remarks that the questions asked of the

suspect there were supported by

reasonable suspicion, and the panel in

Childs’s case took this as establishing

the rule that questions must be so

supported. That is both logically

unsound, see Knights, and a poor reading

of the decision--especially when many

other decisions see no problem in

questions asked without suspicion. See,

e.g., United States v. Williams, 209 F.3d

940 (7th Cir. 2000); United States v.

Baker, 78 F.3d 1241 (7th Cir. 1996).

Neither the eighth nor the ninth circuit

discussed the significance of Bostick and

similar decisions of the Supreme Court.

We thus prefer the analysis of United

States v. Shabazz, 993 F.2d 431 (5th Cir.

1993), which, though brief, found the

right reference points in the Supreme

Court’s ouevre. Shabazz holds, and we

agree, that questions asked of persons

involved in traffic stops are not

"seizures" and thus do not require

probable cause or reasonable suspicion.

This does not end the analysis. Childs

was placed in custody by the stop of the

car in which he was a passenger. That

custody’s nature and duration must be

"reasonable" under the fourth amendment,

so we must consider the possibility, not

that each question is a "seizure," but

that questioning may render the physical

detention unreasonable. The best case for

such a possibility would be events

similar to those in United States v.

Holt, 264 F.3d 1215 (10th Cir. 2001) (en

banc): A car is stopped at a checkpoint

for a routine license-and-registration

inquiry, a sort of seizure proper under

Michigan Department of State Police v.

Sitz, 496 U.S. 444 (1990), and the

occupants are then detained for extra

time while the police ask additional

questions unrelated to the purpose of the

stop. Questioning that prolongs the

detention, yet cannot be justified by the

purpose of such an investigatory stop, is

unreasonable under the fourth amendment.

See United States v. Sharpe, 470 U.S.

675, 685 (1985). A majority in Holt

thought that questions designed to ensure

the officers’ safety while the license

and registration checks occur are

"reasonable" within the Constitution’s

meaning; it is hard to disagree with that

conclusion. See New York v. Quarles, 467

U.S. 649 (1984). Cf. United States v.

Davis, 270 F.3d 977 (D.C. Cir. 2001). A

different majority in Holt added that no

other question may be asked during a

traffic stop--even when the stop rests on

probable cause to believe that the

suspect has committed a crime. 264 F.3d

at 1228-30. This was dictum, for Holt had

not been stopped on probable cause or

even reasonable suspicion. He had been

stopped at a checkpoint without any

person-specific suspicion. Our case, by

contrast, does entail a stop based on

probable cause to believe that an offense

was ongoing, and after the car came to a

halt the officers acquired probable cause

to believe that Childs personally had

committed an offense (failure to wear a

seat belt).

Holt stated that all "routine auto

stops" should be treated as Terry stops,

which must be limited in time and scope.

See Terry, 392 U.S. at 20; United States

v. Brignoni-Ponce, 422 U.S. 873, 881-82

(1975) (same principle for a checkpoint

stop not based on suspicion). Handling

all traffic stops identically is at once

too demanding and too lax. Treating

checkpoint stops as if they were Terry

stops supported by reasonable suspicion

gives the officers too much discretion

over drivers who arrive at roadblocks or

security screening points. Treating

arrests on probable cause as if they,

too, were Terry stops gives the officers

too little discretion. A person stopped

on reasonable suspicion must be released

as soon as the officers have assured

themselves that no skullduggery is afoot.

Probable cause, by contrast, justifies a

custodial arrest and prosecution, and

arrests are fundamentally different from

Terry stops. Persons who are arrested may

be taken to the station house for

booking, even if the only penalty for the

offense is a fine (as it is for failure

to wear a seat belt). See Atwater v. Lago

Vista, 532 U.S. 318 (2001). In other

words, arrested persons (unlike those

stopped at checkpoints, or on reasonable

suspicion) need not be released as

quickly as possible. What is more, a

person stopped on probable cause may be

searched fully, while a person stopped on

reasonable suspicion may be patted down

but not searched. See United States v.

Robinson, 414 U.S. 218 (1973); United

States v. Edwards, 415 U.S. 800 (1974).

The tenth circuit observed in Holt that

"a typical traffic stop resembles in

character the investigative stop governed

by Terry more closely than it does a

custodial arrest." 264 F.3d at 1230. We

grant this as a factual matter, but it

does not follow that the Constitution

requires all traffic stops to be treated

as if they were unsupported by probable

cause. What is "typical" often differs

from the constitutional minimum. Atwater

makes this clear. A person arrested for

an offense punishable only by a fine

typically is given a citation (a

"ticket") and released, but Atwater holds

that the Constitution allows the police

to place the person in custody and take

him to be booked. Thus although traffic

stops usually proceed like Terry stops,

the Constitution does not require this

equation. Probable cause makes all the

difference--and as Whren v. United

States, 517 U.S. 806 (1996), shows,

traffic stops supported by probable cause

are arrests, with all the implications

that follow from probable cause to

believe that an offense has been

committed. See also, e.g., Dunaway v. New

York, 442 U.S. 200 (1979); Beck v. Ohio,

379 U.S. 89, 96-97 (1964). A footnote in

Berkemer v. McCarty, 468 U.S. 420, 439

n.29 (1984), anticipated this point: "We

of course do not suggest that a traffic

stop supported by probable cause may not

exceed the bounds set by the Fourth

Amendment on the scope of a Terry stop."

Holt declined to be guided by this

language because it was not essential to

the judgment in Berkemer. 264 F.3d at

1230. But the footnote in Berkemer is

hardly the last word, as Whren shows in

equating traffic stops on probable cause

to other arrests, and as Atwater shows in

allowing extended custody for the purpose

of booking and arraignment following an

arrest for a fine-only offense. Cf.

Riverside County v. McLaughlin, 500 U.S.

44 (1991). The police had proba-ble cause

to believe that the car’s driver, and

Childs himself, had committed traffic

offenses. That justified arrests, which

make it unnecessary for us to decide

whether and if so how the "scope"

limitation for Terry stops differs from

the "duration" limitation.

Because probable cause supported this

stop, neither the driver nor Childs had a

right to be released the instant the

steps to check license, registration, and

outstanding warrants, and to write a

ticket, had been completed. It is

therefore not necessary to determine

whether the officers’ conduct added a

minute or so to the minimum time in which

these steps could have been accomplished.

The panel stated: "It is undisputed that

the stop was not prolonged for Chiola to

question Childs; the questioning occurred

while the other police officer was

processing the driver of the vehicle."

256 F.3d at 564. Before the court en

banc, Childs proceeded to dispute just

this on the ground that the other officer

briefly came around to the passenger’s

side to speak with Chiola and watch what

was happening, a step that might have

delayed the license and warrant checks.

Childs may have forfeited this point by

not raising it in the suppression hearing

and his opening brief on appeal, but this

we need not decide. The extra time, if

any, was short-- not nearly enough to

make the seizure "unreasonable."

Our point is not that, because Chiola

could have taken Childs to a police

station for booking, any less time-

consuming steps are proper. The

reasonableness of a seizure depends on

what the police do, not on what they

might have done. The point, rather, is

that cases such as Atwater and McLaughlin

show that the fourth amendment does not

require the release of a person arrested

on probable cause at the earliest moment

that step can be accomplished. What the

Constitution requires is that the entire

process remain reasonable. Questions that

hold potential for detecting crime, yet

create little or no inconvenience, do not

turn reasonable detention into

unreasonable detention. They do not

signal or facilitate oppressive police

tactics that may burden the public--for

all suspects (even the guilty ones) may

protect themselves fully by declining to

answer. Nor do the questions forcibly

invade any privacy interest or extract

information without the suspects’

consent.

Any doubt about this understanding of

questions during traffic stops is

dispelled by Ohio v. Robinette, 519 U.S.

33 (1996). A deputy sheriff stopped

Robinette for speeding. After performing

the necessary administrative steps and

returning Robinette’s license, the deputy

asked Robinette whether he was carrying

any drugs. That question prolonged the

custody, if only for a short time. The

Supreme Court of Ohio held that the

question was unconstitutional, and that

matters unrelated to the purpose of a

stop may not be raised until the officer

had told the driver that he is free to

go. But the Supreme Court reversed,

holding that the fourth amendment does

not require this advice. Robinette thus

approves exactly what Childs says may not

occur: Questions during a routine traffic

stop that do not concern the purpose of

the stop (and are not supported by any

other suspicion), yet extend the stop’s

duration. The Supreme Court of Ohio

thought that the Constitution requires

advice; Childs, by contrast, contends

that the questions are absolutely

forbidden, advice or no. By rejecting the

position of the state court in Robinette,

the Supreme Court of the United States

necessarily rejected the broader

contention that unrelated questions may

not be asked at all.

By asking one question about marijuana,

officer Chiola did not make the custody

of Childs an "unreasonable" seizure. What

happened here must occur thousands of

times daily across the nation: Officers

ask persons stopped for traffic offenses

whether they are committing any other

crimes. That is not an unreasonable law-

enforcement strategy, either in a given

case or in gross; persons who do not like

the question can decline to answer.

Unlike many other methods of enforcing

the criminal law, this respects

everyone’s privacy. There is therefore no

reason to doubt the validity of Childs’s

consent, which the district judge already

found to be voluntary in the course of

denying Childs’s motion to suppress. The

conviction and sentence therefore are

affirmed.

Cudahy, Circuit Judge, concurring in the

judgment. The majority has covered a

wide variety of police questioning

situations in which, for an assortment of

reasons, the Fourth Amendment may not

impose a limitation on the scope of those

police investigations. Conspicuously,

however, the majority has declined to

follow the course of judicial restraint

and to answer, or even pose, the question

that would likely make the rest of its

discussion superfluous. Did Officer

Chiola have grounds for reasonable

suspicion that Childs possessed

marijuana? For, if Officer Chiola had

such grounds, he could certainly ask

questions about drugs, and there would be

no need to search for a broader basis for

justification. The majority refuses to

ask or answer this simple question based

on articulable suspicion of marijuana

possession even though (or is it

because?) the answer would reduce the

rest of its speculations to dictum.

Certainly, this is not the path of

judicial restraint.

The original panel did ask the question

about reasonable suspicion of marijuana

possession, (which was clearly raised as

an issue by the parties) and answered it

in the negative--opening the floodgates

for the major revision of Fourth

Amendment law represented by the majority

opinion. After hearing the case reargued

en banc, I think that the panel opinion

may have been incorrect about this issue.

Only three days before the traffic stop

under scrutiny here, Officer Chiola had

apprehended Childs with marijuana, and

the officer was struck by the palpable

nervousness of Childs during the second

stop as contrasted with his sang-froid on

the earlier occasion. The panel treated

these circumstances as presenting a

"record" or criminal history of drug

activity by Childs, which is ordinarily

not sufficient grounds for articulable

suspicion. And, no doubt, Officer

Chiola’s recollection of what happened

three days before is a sort of "record."

The question is a close one, but the cir

cumstances may have given Officer Chiola

a green light to ask about marijuana.

After all, the only intrusion based on

this arguably reasonable suspicion was

the marijuana question. See United States

v. Feliciano, 45 F.3d 1070, 1074 (7th

Cir. 1995) ("[K]nowledge of . . . recent

relevant criminal conduct while of

doubtful evidentiary value in view of the

strictures against proving guilt by

association or by a predisposition based

on past criminal acts, is a permissible

component of the articulable suspicion

required for a Terry stop." (emphasis in

original) (citations omitted)). In view

of the very recent occurrence of the

earlier stop, where marijuana was found,

and the changed demeanor of the suspect,

it would seem natural to the officer to

ask the question and it may be arbitrary

to deny him the authority to do so.

Therefore, at least for purposes of this

opinion, I will treat the question about

marijuana as properly based on

articulable suspicion aroused by the

earlier stop. This would provide a

perfectly adequate and more limited basis

for affirming the district court than the

course followed by the majority.

To find reasonable suspicion of

marijuana possession here distinguishes

these circumstances from questioning

about bank robberies in the area or

unsolved home invasions, as to which

there would have been no articulable

suspicion. There would be no basis for

suspecting Childs of these crimes and

they are clearly outside the scope of a

detention for a cracked windshield, an

unlatched seat belt, or marijuana

possession. Simply on a common-sense

basis, questions about bank robberies or

home invasions would probably strike even

a police officer as out of line in these

circumstances. "Scope" is the key word

here since both in Terry v. Ohio, 392

U.S. 1 (1968), and in numerous cases

since that decision, the Supreme Court

has prescribed "scope" as a limitation on

investigations conducted during a

temporary detention. The restriction

based on "scope" has also been applied by

the courts of appeals in innumerable

temporary detention cases since Terry--

most recently in the Tenth Circuit’s

authoritative en banc decision in United

States v. Holt, 264 F.3d 1215 (10th Cir.

2001). The majority’s effort to demean

the conclusions of Holt as dictum, is,

with all respect, a little like the pot

calling the kettle black, for the

majority’s reliance on the broadest

ground for the present decision, although

not really productive of dictum, is no

more essential to the result here than

were the Tenth Circuit’s comments in

Holt.

Holt concludes that both the length and

the scope of a traffic stop provide

Fourth Amendment limitations on the

detention. Id. at 1230. In reaching this

conclusion, the majority in Holt

comprehensively analyzed the Fourth

Amendment, Supreme Court precedent and

Tenth Circuit precedent, as well as cases

from other circuits. Holt makes a clear

and compelling case for its conclusion,

and I entirely agree with its reasoning

and result.

The Fourth Amendment, of course,

protects against unreasonable searches

and seizures. A temporary detention of an

individual during the stop of an

automobile by the police, even if only

for a brief period and for a limited

purpose, constitutes a "seizure" of a

"person" within the meaning of the Fourth

Amendment. Whren v. United States, 517

U.S. 806, 809 (1996). Thus, temporary

detentions for traffic violations must

not be "unreasonable" under the

circumstances. Id. For a detention to be

reasonable, it must be limited in

duration and scope. This was made clear

by the Court in Florida v. Royer, 460

U.S. 491, 500 (1983) (plurality), where

the Court said

The Fourth Amendment’s prohibition

against unreasonable searches and

seizures has always been interpreted to

prevent a search that is not limited to

the particularly described "place to be

searched, and the persons or things to be

seized," U.S. Const., Amend. IV, even if

the search was made pursuant to a warrant

and based upon probable cause. The

Amendment’s protection is not diluted in

those situations where it has been

determined that legitimate law

enforcement interests justify a

warrantless search: the search must be

limited in scope to that which is

justified by the particular purposes

served by the exception. . . . Terry v.

Ohio . . . also embodies this principle:

"The scope of the search must be strictly

tied to and be justified by the

circumstances which rendered its

initiation permissible."

Id. at 500 (plurality) (internal

quotations and citation omitted). That

this discussion applies equally to

seizures and to searches clearly follows

since the Fourth Amendment applies with

the same force to seizures as it does

searches. See also United States v.

Rivera, 906 F.2d 319, 322 (7th Cir. 1990)

("Moreover, the constitution restricts

the scope of the seizure to that which is

necessary to fulfill the seizure’s

purpose.").

"[V]irtually, all thoughtful, civilized

persons not overly steeped to the point

of confusion in the mysteries of . . .

Fourth Amendment jurisprudence," Royer,

460 U.S. at 520 (Rehnquist, J.,

dissenting), would agree that the scope

of a search or seizure must be part of

the reasonableness inquiry. For if a man

were stopped for speeding in Utah, it

would not be reasonable for a police

officer to ask whether he were practicing

polygamy. There would be nothing in the

circumstances to suggest any basis for

such an inquiry even if the duration of

the stop was not lengthened. The question

itself would be an invasion of privacy.

This is a good illustration why the

duration of a traffic stop cannot be the

only dimension of reasonableness. The

subject-matter (or scope) dimension

provides limits that are just as binding

as the time (or duration) dimension.

Drawing upon the common-sense notion

that reasonableness includes both a scope

and a duration dimension, this circuit

had held that police officers may not ask

questions unrelated to the purpose of a

traffic stop, unless there is an

independent source of reasonable

suspicion. See, e.g., United States v.

Finke, 85 F.3d 1275, 1280 (7th Cir. 1996)

(A police officer had sufficient

reasonable and articulable suspicions of

drug courier activity to justify a

speedy, unintrusive criminal record

inquiry after a traffic stop.); United

States v. Rivera, 906 F.2d 319, 322 (7th

Cir. 1990) (Certain of the questions

asked by a trooper of an individual

during a traffic stop were casual banter

or were justified by the trooper’s

reasonable suspicion.). This circuit has

not been alone in its interpretation of

the Fourth Amendment. The Eighth, Ninth,

and Tenth Circuits are wholly in

agreement. See, e.g., Holt, 264 F.3d at

1230 (concluding that both the length and

scope of a traffic stop are relevant

factors in deciding whether the stop

comports with the Fourth Amendment);

United States v. Murillo, 255 F.3d 1169,

1174 (9th Cir. 2001) ("During a traffic

stop, a police officer is allowed to ask

questions that are reasonably related in

scope to the justification for his

initiation of contact. In order to

broaden the scope of questioning, he must

articulate suspicious factors that are

particularized and objective." (internal

citations omitted)); United States v.

Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994)

(holding that a police officer did not

have reasonable suspicion to ask

questions not reasonably related to the

stop, but finding the subsequent consent

nevertheless to be voluntary). Only the

Fifth Circuit apparently has narrowed the

scope requirement to coincide with the

duration requirement. See United States

v. Shabazz, 993 F.2d 431, 437 (5th Cir.

1993).

The majority criticizes Ramos and

Murillo for failing to address Florida v.

Bostick, 501 U.S. 429 (1991), and similar

decisions by the Supreme Court. Slip

Opinion, at 6. In those decisions, the

Supreme Court approved police questioning

of citizens when no detention was

involved. The majority quotes Bostick for

the proposition that "mere police

questioning is not a seizure." Slip

Opinion, at 3. But that quotation was

taken out of context to support the

argument that questioning can never be a

seizure. For in Bostick, a bus was making

a regular stopover and the case merely

held that police officers could question

people on board the bus about drugs. In

reaching this conclusion, the Supreme

Court stated in dictum that "[s]ince

Terry, we have repeatedly held that mere

police questioning does not constitute a

seizure." See 501 U.S. at 434. The Court

discussed Florida v. Royer, 460 U.S. 491

(1983), Florida v. Rodriguez, 469 U.S. 1

(1984), and INS v. Delgado, 466 U.S. 210

(1984), as cases supporting this

proposition. Royer involved police

questioning of undetained people on the

street or in other public places.

Rodriguez concerned police questioning of

an individual in an airport concourse.

Delgado involved questioning of workers

at a factory. Significantly, the Court

found the police encounters in these

cases to be "the sort of consensual

encounter[s] that implicat[e] no Fourth

Amendment interest." Bostick, 501 U.S. at

434 (internal quotations and citations

omitted.). Neither Terry nor any of the

cases relied upon by the Court in Bostick

stands for the proposition that police

questioning, when the person being

questioned is being detained (and the

encounter is thus nonconsensual), is not

a seizure.

The majority also finds fault with the

panel decision here as well as with Ramos

for making the "logical error" of

equating "X defeats the defendant’s

constitutional claim" with "X is the only

way to defeat the defendant’s

constitutional claim." Slip Opinion, at

5. Thus, the majority argues that United

States v. Cummins, 920 F.2d 498 (8th Cir.

1990), merely held that the questions

asked were authorized since they were

related to the purpose of the stop, and

Ramos extended Cummins to hold that

questions could be asked only if they

were related to the purpose of the stop.

Similarly, Rivera held that the questions

at issue were based on reasonable

suspicion, and the panel here extended

Rivera to hold that only questions that

are based upon reasonable suspicion could

be asked by an officer during a police

stop.

But Ramos and the panel opinion are not

as "illogical" as the majority suggests.

First, both Ramos and the panel allowed

questions to be asked that related to the

purpose (or scope) of the stop or that

were based upon reasonable suspicion

arising independently. For example, if

the officer making the traffic stop sees

drugs in plain view or smells drugs, the

officer can ask questions about drugs.

Questions that are related to officer

safety can also be asked. See Holt, 264

F.3d at 1222-23 (allowing officers to ask

about firearms even if they had no

reasonable suspicion of firearm

possession). Second, the facts in Cummins

and Rivera led to the limited holdings in

those cases. In Cummins, the initial

question was related to the purpose of

the stop. 920 F.2d at 502. The driver’s

inconsistent answer justified additional

questioning. See id. In Rivera, the

officer had reasonable suspicion, on

which the questions were based. 906 F.2d

at 322. There was no need in either case

to reach the broader holding that

questions could be asked only if related

to the purpose of the stop or based upon

articulable suspicion. Because the facts

in Childs suggested that the question

about drugs was not related to the

purpose of the stop (which was for a

cracked windshield) nor (as the panel

initially concluded) justified by

reasonable suspicion of drug possession,

the panel had to reach a holding that was

broader than the holding in Rivera.

Finally, the majority commits its own

logical error by, in effect, arguing that

"scope" is merely a proxy for duration.

At least the panel incorporated Rivera’s

approach to analyzing what questions

could be asked during a traffic stop,

while the majority renders Rivera’s

approach moot.

The majority further opines that the

panel opinion conflicts with certain

decisions in this circuit that ostensibly

approve of questioning about subjects as

to which there is no suspicion. See

United States v. Williams, 209 F.3d 940

(7th Cir. 2000); United States v. Baker,

78 F.3d 1241 (7th Cir. 1996). However, in

neither of those cases did this court

address the issue of whether questioning

outside the scope of a traffic stop is a

Fourth Amendment violation. Further, even

though the issue was not briefed, there

appears to have been articulable

suspicion to justify the questions. In

Williams, the police officer asked the

defendant if he had anything on him that

he shouldn’t. 209 F.3d at 942. But the

officer had been informed by a fellow

officer that the passenger in the car had

recently been the victim of a shooting

and was known to carry weapons. Id. at

941. That information combined with the

officer’s observations would probably

have been sufficient to raise articulable

suspicion of a weapons offense. Likewise,

in Baker, the officer asked if there were

any drugs or weapons in the car. 78 F.3d

at 1244. This question was asked only

after the officer received inconsistent

and suspicious answers to permissible

questions about where Baker was going

that night. Id. at 1244. The suspicious

and inconsistent answers together with

the officer’s observations and knowledge

about the area would likely support an

articulable suspicion of drug activity.

The majority attempts unsuccessfully to

deal with the eminently sensible

observation in Holt that "a typical traf

fic stop resembles in character the

investigative stop governed by Terry more

closely than it does a custodial arrest."

264 F.3d at 1230. Based on its belief

that Officer Chiola had probable cause

(as opposed to reasonable suspicion) to

stop the car for a presumed cracked

windshield or seat belt violation, the

majority concludes that the restrictions

of Terry no longer apply. (Of course as

to marijuana possession, Officer Chiola

had only, at best, reasonable suspicion.)

One problem with the probable cause

analysis is that Childs was not the

driver, so it is highly dubious that he

could be placed under custodial arrest

for the condition of the windshield. Even

with respect to the seat belt violation,

although Officer Chiola might have

constitutionally taken Childs to the

station house for booking, he did not do

so. What he did (and facts should be

controlling here) in the language of

Holt, "resemble[d] in character the

investigative stop governed by Terry more

closely than it [did] a custodial

arrest." What the majority seems to be

saying is that, because Officer Chiola

could have gone on to a custodial arrest,

he may instead (and without subjecting

Childs to custodial arrest) elect to

inquire into crimes for which there is

neither probable cause nor

reasonablesuspicion. Under the factual

circumstances that actually exist here,

the restrictions of Terry ought

reasonably to apply even though in theory

this might be changed by proceeding to a

custodial arrest with its particular

legal regime.

This conclusion is fortified by the fact

that this circuit has applied the Terry

standard to cases in which the officer

had probable cause to arrest the

defendant for a traffic violation. See,

e.g., United States v. Brown, 188 F.3d

860, 864 (7th Cir. 1999) (applying Terry

where officer pulled vehicle over for

following other cars too closely);

Valance v. Wisel, 110 F.3d 1269, 1276

(7th Cir. 1997) (applying Terry where

officer pulled over vehicle for crossing

center line twice); Finke, 85 F.3d at

1278-79 (applying Terry where officer

pulled a vehicle over for speeding). Even

the Fifth Circuit’s ruling in Shabazz, on

which the majority relies, applied the

Terry standard in reaching its conclusion

that the duration of the stop is the only

Fourth Amendment limitation on traffic

stops. See 993 F.2d at 434-35.

The footnote in Berkemer v. McCarty, 468

U.S. 420, 439 n.29 (1984), besides being

dictum, sheds little light on the present

problem because the footnote appears in

the context of a discussion whether

Miranda warnings need to be administered

to a detainee at a traffic stop. The

Court concluded that Miranda warnings are

not required because of the

"nonthreatening" character of traffic

stops. None of this suggests the

possibility of interrogation on subjects

other than the one for which the stop was

made. In Berkemer, the defendant was

stopped for suspicion of drunken driving

and was asked questions about drinking

alcohol and using marijuana (mentioned in

response to earlier questions about

intoxicants). In no way do these

questions exceed the scope of the stop

for drinking while intoxicated. The

appearance of the word "scope" in the

footnote therefore has no reference to

interrogations about crimes outside the

purpose of the stop.

The majority’s reliance on Ohio v.

Robinette, 519 U.S. 33 (1996), is also

misplaced. In support of its elimination

of the scope requirement from traffic

stops, the majority says "[b]y rejecting

the position of the state court in

Robinette, the Supreme Court necessarily

rejected the broader contention that

unrelated questions may not be asked."

Slip Opinion, at 10. This is not a

logical, let alone a necessary,

conclusion from Robinette. In Robinette,

a police officer had stopped the

defendant for speeding. 519 U.S. at 35.

After issuing a verbal warning and

returning Robinette’s license, the

officer asked Robinette whether he was

"carrying any illegal contraband" in his

car. Id. at 35-36. Robinette answered no,

but he consented to have his car

searched. Id. Drugs were found, and

Robinette was convicted for possession of

a controlled substance. Id. The Supreme

Court of Ohio overturned the conviction,

and the United States Supreme Court

reversed. Id. The Supreme Court of Ohio

held that the police questioning was

unconstitutional because it concerned

matters unrelated to the purposes of the

stop. However, in addition, the Supreme

Court of Ohio established a bright-line

rule for consensual interrogation under

these circumstances. Id. It required the

police officer to advise the driver that

he was free to leave before such

questions could be asked. Id. The United

States Supreme Court reversed, holding

that the police officer did not have to

advise the driver of his freedom to leave

in order for the encounter to become a

consensual encounter. Id. at 421.

However, both courts were proceeding on

the assumption that the encounter was

consensual once the traffic citation had

been issued, but the Ohio court sought to

formalize this transition by requiring

the police officer to advise the driver

that he was free to leave. By contrast,

in the case before us, the encounter had

not become consensual because the

questions were asked during the

processing of the traffic offense, not

after the ticket had been issued.

Robinette never addressed, let alone

approved, questions asked during a

routine traffic stop that do not concern

the purpose of the stop or were not based

upon reasonable suspicion. In Robinette,

the stop had ended once the license was

returned.

In attempting to equate questioning

without detention with questioning in the

course of detention, the majority

conveniently ignores the fact that

detention involves official coercion and

therefore concerns quite a

differentrelationship of the police

officer to the person questioned. Anyone

who has been pulled over for a traffic

offense faces the police officer as one

currently exercising authority over the

motorist to keep him or her in place.

This exercise of official coercion is the

reason the Supreme Court has limited

questioning to matters within the scope

of the stop. The majority does not

explain why exceeding the scope of the

stop is somehow less burdensome to the

detainee’s Fourth Amendment rights than

exceeding a reasonable duration for the

stop. To explore bank robberies or

polygamy, as to which there is no

reasonable suspicion, with Childs would

be to abuse the rationale for the stop

based on other matters and would be just

as abusive as extending a ten-minute stop

to an hour.

The majority comments blithely that the

detainee can refuse to answer the

questions posed by the police officer.

How many times have you refused to answer

questions asked by a police officer who

has pulled your car over for a traffic

offense? On the other hand, in a

conversation between passengers seated on

an airplane, where neither is exercising

authority over the other, there would be

nothing unusual about changing the

subject if an embarrassing question were

asked. There is simply all the difference

in the world in the nature of the

relationship between a police officer

detaining someone for questioning and a

police officer striking up a conversation

on the bus. If the questions strayed far

afield, one situation would present an

invasion of privacy and the other would

not.

The majority has sought to equate

physical constraint (as of passengers in

a bus or plane) with legal constraint (as

of a passenger in an automobile stopped

for a windshield violation). But the

Fourth Amendment places limits only on

the exercise of official authority which

restrains movement or invades privacy.

Physical obstacles to movement or escape,

on the other hand implicate no

constitutional right. As I have pointed

out, however, an airline passenger can

deal more light-heartedly with a seatmate

than can a motorist pulled over for

speeding. In any event, I should think we

would want to avoid providing any

incentives to the police to lure

suspicious characters onto airplanes

where they can perform acts of terrorism

as well as be free to answer questions.

Based on the assumption that Officer

Chiola had grounds for articulable

suspicion of a marijuana violation by

Childs because of their earlier encounter

and Childs’s changed demeanor, the

conviction may be affirmed. Officer

Chiola could not ask any question that

came to mind even though unsupported by

reasonable suspicion. This broader ratio

nale is not only incorrect but is

unnecessary to the decision.

ROVNER, Circuit Judge, with whom DIANE P.

WOOD and WILLIAMS, Circuit Judges, join,

dissenting. Like Judge Cudahy, I believe

that the Fourth Amendment limits the

scope as well as the duration of a

traffic stop, so that it was improper for

Officer Chiola to ask Childs whether he

had any drugs on his person unless the

officer had a reasonable, articulable

basis for believing that he might. To

that extent, I join Judge Cudahy’s

concurrence.

Unlike my colleague, however, I do not

believe that Officer Chiola had the

requisite reasonable suspicion that would

have enabled him to ask Childs about

narcotics. Only three circumstances

suggested to Chiola that Childs might be

up to something illegal: (1) marijuana

had been discovered in Childs’ possession

three days earlier, when Chiola arrested

him; (2) Childs appeared nervous to

Chiola; and (3) during the prior

encounter, Childs had not seemed nervous

to Chiola. These facts certainly

supported a hunch that Childs might again

have marijuana in his possession, and as

it turned out, Chiola’s intuition was

dead-on accurate. But even an inspired

hunch will not justify an investigatory

detention--or here, expanding the scope

of a traffic stop beyond its original

purpose. See United States v. Feliciano,

45 F.3d 1070, 1072 (7th Cir.), cert.

denied, 516 U.S. 853, 116 S. Ct. 153

(1995). Rather, the articulable facts

must support an objectively reasonable

suspicion that the individual whom the

officer wishes to question has just

committed, is committing, or is about to

commit a crime. See Terry v. Ohio, 392

U.S. 1, 21-22, 88 S. Ct. 1868, 1879-80

(1968).

Although an individual’s prior criminal

acts and nervous demeanor are certainly

factors that may contribute to reasonable

suspicion, they do not alone establish

such suspicion. A history of committing a

particular type of crime no doubt

suggests a willingness and ability to

commit that act and perhaps--for

investigatory if not evidentiary purposes

(see Fed. R. Evid. 404(b))--a

predisposition to do so again. Feliciano,

45 F.3d at 1074. But without additional

facts suggesting that a crime actually

has been, or is about to be committed, a

criminal record alone cannot justify

detaining an individual for questioning.

United States v. Jerez, 108 F.3d 684, 693

(7th Cir. 1997).

If the law were otherwise, any person

with any sort of criminal record--or even

worse, a person with arrests but no

convictions--could be subjected to a

Terry-type investigative stop by a law

enforcement officer at any time without

the need for any other justification at

all. Any such rule would clearly run

counter to the requirement of a

reasonable suspicion, and of the need

that such stops be justified in light of

a balancing of the competing interests at

stake. . . .

United States v. Sandoval, 29 F.3d 537,

543 (10th Cir. 1994) (emphasis in

original). A nervous demeanor arguably is

more telling than one’s criminal history

of what he is up to at present. Cf.

Illinois v. Wardlow, 528 U.S. 119, 124,

120 S. Ct. 673, 676 (2000). But because

many law-abiding persons are anxious and

fidgety when stopped by the police, see

United States v. Salzano, 158 F.3d 1107,

1113 (10th Cir. 1998), apparent

nervousness likewise does not, without

more, give rise to a reasonable suspicion

that a crime may be in progress. E.g.,

United States v. Brown, 188 F.3d 860, 865

(7th Cir. 1999); see also United States v.

Chavez-Valenzuela, 268 F.3d 719, 725-26

(9th Cir. 2001). Together, these

circumstances--a previous crime and a

present nervousness--can color the

interpretation of the other facts

confronting an officer; but without more

they do not reasonably suggest that

someone is involved in criminal activity.

Compare United States v. McRae, 81 F.3d

1528, 1535-36 (10th Cir. 1996)

(defendant’s criminal record and

unusually intense demeanor while watching

officer, coupled with answers to

questions concerning the return of his

rental car that were vague and

inconsistent with rental agreement

itself, supported reasonable suspicion),

with United States v. Sprinkle, 106 F.3d

613, 617-18 (4th Cir. 1997) (defendant’s

criminal history and evasive behavior--

raising his hand to hide his face as if

to conceal identity from passing police

officers and immediately driving away--

did not give rise to reasonable

suspicion, even when coupled with

presence in neighborhood known for

narcotics trafficking and officers’

observation of him huddled with another

individual toward center console of car

with their hands close together), and

United States v. Davis, 94 F.3d 1465,

1469-70 (10th Cir. 1996) (defendant’s

criminal history and evasive attitude--

walking away from police, dropping eye

contact, and keeping hands in pockets--

did not, even when coupled with presence

in high-crime neighborhood, give rise

toreasonable suspicion).

Like Officer Chiola, Judge Cudahy finds

it noteworthy that in contrast to Childs’

calm demeanor on the occasion of his

prior arrest, he was visibly nervous when

confronted by Chiola for the second time.

Some of the cases addressing nervousness

note that unless an officer knows how an

individual normally acts when confronted

by the police, his anxiety on a given

occasion is not particularly probative

because, as already noted, it would not

be unusual for a law-abiding citizen to

display anxiety when stopped and

questioned by a law enforcement official.

See Chavez-Valenzuela, 268 F.3d at 725,

quoting Salzano, 158 F.3d at 1113; United

States v. Bloom, 975 F.2d 1447, 1458 (10th

Cir. 1992), overruled in part on other

grounds by United States v. Little, 18

F.3d 1499 (10th Cir. 1994) (en banc). Thus

the significance of Childs’ change in

demeanor: having been cool as a cucumber

during his first encounter with Chiola,

the thinking goes, Childs would not have

been nervous on the subsequent encounter

unless he had something to hide.

But I think it is overstating the

relevance of Childs’ newfound

apprehension to say that it was enough to

make the difference between a mere hunch

and a reasonable suspicion that Childs

might have drugs on his person. Chiola’s

previous encounter with Childs had, after

all, culminated in an arrest. It does not

strike me at all unusual or suspicious

that an individual arrested by a

policeman only three days earlier would

be demonstrably uncomfortable when again

stopped and questioned by that officer.

The arrest alone--irrespective of the

reason for it or what transpired during

that arrest--arguably would account for

one’s nervousness when confronted on a

later occasion by the same officer.

Other than the prior discovery of

marijuana in Childs’ possession and the

dissipation of his sangfroid, Chiola was

confronted with no other circumstance

that pointed to criminal activity. No

furtive gestures had been observed; he

had not been seen transacting business

with a known drug dealer; his appearance

did not suggest recent drug use. See

Sprinkle, 106 F.3d at 617; Davis, 94 F.3d

at 1470. Such facts, coupled with his

previous arrest and his nervous demeanor,

might have supplied an objective basis on

which to believe that he was carrying

drugs once again. As it was, Officer

Chiola had nothing more than a hunch that

Childs might be hiding drugs; and that

was not enough to permit him to expand

the scope of the traffic stop by asking

Childs whether he had any drugs in his

possession.

To say that these very limited

circumstances permitted Officer Chiola to

expand the scope of the traffic stop and

to question him about narcotics activity

would, I fear, accord lesser Fourth

Amendment protection to those with

criminal records. See Sandoval, 29 F.3d

at 543. Many people who have been

arrested and/or who have spent time in

jail will naturally be skittish when

stopped and questioned by the police on

subsequent occasions, even if they are

doing nothing wrong. The Fourth Amendment

demands that an investigatory detention

be supported by facts that objectively

point to current criminal activity. A

recent arrest and a nervous demeanor fall

well short of that showing.

I respectfully dissent.

Referenced Cases

  1. United States v. Davis, Mark Stephen
  2. United States v. Jose Trinidad Chavez-Valenzuela
  3. United States v. Mariano Murillo
  4. United States v. Mateen Yusuf Shabazz
  5. United States v. Salvador Ramos v. Servando Ramos
  6. United States v. Jacinto Rivera
  7. United States v. Arriel S. Williams
  8. United States v. Nikolaos B. Baker
  9. United States v. Tommie T. Childs
  10. United States v. Lenin M. Jerez and Carlos M. Solis
  11. United States v. Juan M. Feliciano
  12. United States v. Ronald D. Brown, Jr.
  13. United States v. Terry Allen Finke
  14. Valance v. Gaylon Wisel, Mike Reneau, Ed Pearce
  15. United States v. Davis
  16. United States v. Dennis Dayton Holt
  17. United States v. McRae
  18. United States v. Michael Bloom
  19. United States v. Bonnie Kaye Little
  20. United States v. Robert Salzano
  21. United States v. Miguel Sandoval
  22. Countyof Riverside v. McLaughlin
  23. United States v. Edwards
  24. Illinois v. Wardlow
  25. Florida v. Rodriguez
  26. Michigan Dept. of State Police v. Sitz
  27. INS v. Delgado
  28. United States v. Robinson
  29. Graham v. Connor
  30. Indianapolis v. Edmond
  31. Whren v. United States
  32. Michigan v. Mosley
  33. Florida v. Royer
  34. Atwater v. Lago Vista
  35. Dunaway v. New York
  36. Beck v. Ohio
  37. Texas v. Cobb
  38. Terry v. Ohio
  39. California v. Hodari D.
  40. United States v. Mendenhall
  41. United States v. Brignoni-Ponce
  42. United States v. Sharpe
  43. Davis v. United States
  44. Berkemer v. McCarty
  45. McNeil v. Wisconsin
  46. New York v. Quarles
  47. United States v. Knights
  48. Florida v. Bostick
  49. Ohio v. Robinette
  50. Maryland v. Wilson
  51. United States v. Carl Sprinkle