United States v. Childs, Tommie T.

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, Peoria Division.

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

Argued February 12, 2001--Decided July 3, 2001

Before Cudahy, Rovner and Williams, Circuit

Judges.

Cudahy, Circuit Judge. This is a direct

appeal of the criminal conviction of

Tommie Childs, who was charged in a one-

count indictment with possession of

cocaine with intent to distribute in

violation of 21 U.S.C. sec. 841(a)(1).

Following a jury trial, Childs was found

guilty and sentenced to 120 months

imprisonment followed by eight years of

supervised release. He now appeals the

district court’s order denying his motion

to suppress.

I.

Peoria police officer James Chiola first

encountered Childs when he responded to a

dispatch call regarding a confrontation

between two men over a hit and run

accident. He arrested Childs on an

outstanding arrest warrant; he also found

marijuana in Childs’ pocket and charged

him with drug possession. At that time,

Chiola noticed that the car Childs was

driving had a broken windshield, and he

told him to get it repaired because he

thought it "materially impaired the

driver’s view" in violation of 625 ILCS

5/12-503(e) of the Illinois Vehicle Code.

Three days later, Chiola spotted the same

car, with the windshield still broken,

and stopped the car for that reason. He

found Childs in the passenger seat and,

while Chiola’s partner questioned the

driver about the cracked windshield,

Chiola proceeded to Childs’ side of the

car. Chiola testified that Childs was

visibly nervous: he would not look at

him, he kept his head down when speaking

and he spoke in a low tone of voice.

Chiola asked Childs whether he had any

marijuana in his possession and later

asked if he could search him. Childs

consented. As Childs stepped out of the

car, he removed a cigarette pack from his

pocket and placed it on the seat. As it

lay there, the pack opened up, revealing

a plastic bag with what appeared to be

crack cocaine inside. Chiola arrested

Childs for possession.

At trial, Childs argued that the

contents of the cigarette pack should be

suppressed. During the suppression

hearing, he testified that Chiola had not

instructed him to fix the windshield when

he arrested him three days earlier, that

no one spoke to the driver after the stop

in question and that he did not leave the

cigarette pack on the car seat when he

stepped out of the car. The court ruled

that the broken windshield provided a

reasonable basis for the stop. The court

further determined that Chiola’s

testimony that Childs removed the

cigarette pack from his pocket was more

credible than Childs’ conflicting

testimony. That ended the matter, because

once Childs consented to the search,

anything he removed from his pocket prior

to the search was fair game.

II.

The sole issue presented for review is

whether the district court erred in

denying Childs’ motion to suppress. When

reviewing the denial of a motion to

suppress, our standard of review for the

district court’s findings of fact is

clear error. See United States v. Faison,

195 F.3d 890, 893 (7th Cir. 1999). Mixed

questions of law and fact will be

reviewed de novo. See Ornelas v. United

States, 517 U.S. 690, 696-97 (1996);

Faison, 195 F.3d at 893. If, in making

factual determinations, the district

court deems the testimony of one witness

more credible than that of another

witness and that testimony is supported

by the record, there can be no clear

error. See id.; United States v. Packer,

15 F.3d 654, 656-57 (7th Cir. 1994).

A.

Childs first challenges the denial of

his motion to suppress on the grounds

that Chiola had insufficient probable

cause to stop the vehicle in the first

place. We review a district court’s

probable cause determination de novo,

while we defer to subsidiary findings of

historical fact unless they are clearly

erroneous. Ornelas, 517 U.S. at 699;

United States v. Cashman, 216 F.3d 582,

586 (7th Cir. 2000). The government bears

the burden of establishing that the

officer had probable cause to stop the

car. See United States v. Pavelski, 789

F.2d 485, 490 (7th Cir. 1986). "[S]o long

as the circumstances confronting a police

officer support the reasonable belief

that a driver has committed even a minor

traffic offense, the officer has probable

cause to stop the driver." Cashman, 216

F.3d at 586 (citing Whren v. United

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

argues that the government failed to meet

this burden, and that therefore the

evidence seized as a result of the

illegal stop should have been suppressed.

If an initial stop and detention violate

the Fourth Amendment, the evidence seized

as a result of the stop is subject to

suppression. See United States v.

Gillepsie, 650 F.2d 127, 129 (7th Cir.

1981); United States v. Eylicio-Montoya,

70 F.3d 1158, 1163-65 (10th Cir. 1995);

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

695 (7th Cir. 1997). We must therefore

determine whether the district court

erred in concluding that Chiola had

probable cause to stop the vehicle.

To support his contention, Childs first

points to the district court’s statements

that the probable cause question was a

close call. Judge Mihm’s comments were in

apparent reaction to the government’s

failure to produce much evidence in

support of Chiola’s probable cause

determination. Thus, Chiola never sat in

the driver’s seat to discern whether the

crack in the windshield actually

obstructed the driver’s view, nor did he

photograph the damaged windshield. The

evidence presented by the prosecution was

indeed scanty, and the district court

concluded that it was "not in a position

to say that [the crack in the windshield]

materially obstructed the driver’s view."

Of course, whether the driver is actually

in violation of a law is irrelevant to a

probable cause determination "so long as

the circumstances confronting a police

officer support the reasonable belief

that a driver has committed even a minor

traffic offense, the officer has probable

cause to stop the driver." Cashman, 216

F.3d at 586. In Cashman, we described how

this standard applies to cracked

windshields:

For the purposes of probable cause

analysis, we are not concerned with the

precise length or position of the crack.

The propriety of the traffic stop does

not depend, in other words, on whether

[the defendant] was actually guilty of

committing a traffic offense by driving a

vehicle with an excessively cracked

windshield. The pertinent question

instead is whether it was reasonable for

[the police officer] to believe that the

windshield was cracked to an

impermissible degree.

Cashman, 216 F.3d at 587. Here, Chiola

testified that he observed the windshield

three days earlier and considered it to

be in violation then, and he therefore

felt justified in stopping the vehicle,

which had the same crack as before.

Childs denies that the windshield was

cracked to an impermissible degree. He

notes that, while Chiola testified that

he told Childs to get the crack fixed

three days earlier (which Childs

disputes), Chiola issued no ticket or

warning about the damage. Further, there

was no independent proof establishing

that the windshield was cracked to an

impermissible extent. Nonetheless, the

district court found Chiola to be a

credible witness, and we see no reason to

reject that finding. This is particularly

so in light of Childs’ testimony that

Officer Chiola’s first question to him

after the stop was why did he not repair

the window. Why would that be Chiola’s

first question, if he hadn’t mentioned

the cracked windshield to Childs three

days before?

Childs notes that in a similar case

photographic evidence revealing the size

and location of the windshield crack was

presented to support a finding that there

was probable cause. See Cashman, 216 F.3d

at 587. While photographic evidence would

have been useful in this case, and

without it Chiola’s testimony is less

supportable, Childs has not induced in us

a firm conviction that the district court

made a mistake. Therefore, the district

court’s finding that the windshield crack

was big enough for the officer to have

had "probable cause that a traffic law

had been violated," see United States v.

Smith, 80 F.3d 215, 219 (7th Cir. 1996),

stands.

B.

Childs next argues that, when Chiola

questioned him about drugs, he exceeded

the scope of the investigation in

violation of the Fourth Amendment.

Because traffic stops are considered

seizures, they are governed by the

principles articulated by the Supreme

Court in Terry v. Ohio, 392 U.S. 1

(1968). Thus, "[i]n addition to being

justified at its inception . . . a

traffic stop also must be ’reasonably

related in scope to the circumstances

which justified the interference in the

first place.’" Valance v. Wisel, 110 F.3d

1269, 1276 (7th Cir. 1997) (quoting

Terry, 392 U.S. at 20). A reasonable

traffic stop can become unreasonable

under the Fourth Amendment if the time,

manner or scope of the investigation

exceeds the proper parameters. See

Valance, 110 F.3d at 1276 (citing United

States v. Finke, 85 F.3d 1275, 1278-79

(7th Cir. 1996)). The government notes

that Childs failed to raise this issue in

the district court, and therefore has

forfeited this argument on appeal. See

United States v. Clarke, 227 F.3d 874,

881 (7th Cir. 2000). Thus, we review this

argument for plain error. See id. Under

this standard, we will only reverse if we

find "’particularly egregious errors’ for

the purpose of preventing a miscarriage

of justice." United States v. Linwood,

142 F.3d 418, 422 (7th Cir. 1998)

(quoting United States v. Whaley, 830

F.2d 1469, 1476 (7th Cir. 1987)).

Childs argues that, because the traffic

stop was for the cracked windshield, and

because the only other obvious violation

was failure to fasten a seatbelt,

questioning Childs about drug possession

was outside the scope of the stop. A

traffic stop must be reasonably related

in scope to the circumstances that

justified the initiation of the stop. See

United States v. Green, 111 F.3d 515, 519

(7th Cir. 1997). Also, the detention must

last no longer than necessary to

effectuate the purpose of the stop. See

Florida v. Royer, 460 U.S. 491, 500

(1983) (plurality) (White, J.,

concurring); Finke, 85 F.3d at 1279. 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. Thus, Childs does not

challenge the length of the detention,

but rather the scope of Chiola’s

investigation.

At the suppression hearing, Chiola

explained his basis for questioning

Childs about drugs, as well as the

reasoning behind his request to search

him. He said he took into account Childs’

nervous demeanor, his failure to make eye

contract and his low tone of voice, as

well as the fact that he knew about

Childs’ prior drug violations--including

one just three days earlier. We hold that

these factors do not rise to the level of

reasonable suspicion.

First, when a police officer questions

someone during a routine traffic stop,

inquiries falling outside the scope of

the detention constitute unlawful

seizure./1 This is because both the

duration and the scope of a seizure (such

as a traffic stop) must be restricted to

that necessary to fulfill the seizure’s

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

500 (1983) (plurality) (White, J.,

concurring); United States v. Robinson,

30 F.3d 774, 784 (7th Cir. 1994).

Further, "the investigative methods

employed should be the least intrusive

means reasonably available to verify or

dispel the officer’s suspicion in a short

period of time." Id. In the Seventh

Circuit, we have indicated that such an

overreaching investigation includes

questioning that falls outside the scope

of the purpose for the seizure. In United

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

1990), we found that questions outside

the scope of investigating the traffic

offenses were acceptable--but only

because they were "brought on by the

trooper’s reasonable suspicions." Id. at

322. The only time questions may exceed

the scope of the purpose of the detention

is when the officer has reasonable

suspicion regarding the issue on which he

is questioning. Reasonable suspicion is

"some objective manifestation that the

person stopped is, or is about to be,

engaged in criminal activity." United

States v. Cortez, 449 U.S. 411, 417

(1981). Reasonable suspicion must be

"supported by articulable facts that

criminal activity is afoot." United

States v. Swift, 220 F.3d 502, 506 (7th

Cir. 2000) (citing Terry, 392 U.S. at

30). The government bears the burden of

establishing that there was reasonable

suspicion. United States v. Longmire, 761

F.2d 411, 417 (7th Cir. 1985). We

conclude that Chiola’s observation of

nervousness and knowledge of Childs’

criminal history do not add up to

reasonable suspicion, and thus the

government failed to meet its burden.

Although we defer to findings of

historical fact and "give due weight to

inferences drawn from those facts by

resident judges and local law enforcement

officers," we review de novo whether the

officer had reasonable suspicion to

detain Childs. Ornelas, 517 U.S. at 699.

A prior criminal record by itself cannot

produce reasonable suspicion. United

States v. Jerez, 108 F.3d 684, 693 (7th

Cir. 1997) (citing United States v.

Davis, 94 F.3d 1465, 1469 (10th Cir.

1996); United States v. Santillanes, 848

F.2d 1103, 1108 (10th Cir. 1988)). But

"[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." United States

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

Cir. 1995) (emphasis in original)

(citations omitted)./2 Likewise,

nervousness alone cannot give rise to

reasonable suspicion. United States v.

Brown, 188 F.3d 860, 865 (7th Cir. 1999).

But, of course, even when each factor

standing alone is insufficient, their

combination can sometimes amount to

reasonable suspicion. See United States

v. Sokolow, 490 U.S. 1, 9 (1989). They do

not do so here.

The reason is that these two factors

alone tell us little about whether

suspicion is reasonable. The defendant’s

criminal record (even, as here, of very

recent vintage) is an aspect of his

status, which is unalterable, whether he

is committing a crime at the time his

vehicle is stopped or not. Whether he

possessed drugs three days ago or one

year ago, or never, cannot reasonably

show that he possesses drugs today--not

unless some other factor related to the

defendant’s circumstances today can

buttress his criminal past. Similarly,

nervousness is a natural reaction that a

seasoned criminal might have every time

he is confronted by a police officer--

particularly when it is the same police

officer who arrested him three days

before. It is true that a criminal record

plus one or two other factors has been

deemed in some cases sufficient for

reasonable suspicion, but the second

factor in those cases has often involved

more tangible evidence, or at least

evidence more related to whether the

criminal is committing a crime at that

particular moment. For example, we have

found that status as a "dangerous"

convicted felon plus the presence of a

gun in view on the floor of the car could

create reasonable suspicion. Valance, 110

F.3d at 1277. A criminal record, nervous

behavior and implausible travel plans

(rental car driver was headed to a

wedding in New York, but car was due back

in California in two days) have been

deemed sufficient to establish reasonable

suspicion. United States v. McRae, 81

F.3d 1528, 1535-36 (10th Cir. 1996).

As our reasoning in Valance

demonstrates, reasonable suspicion

findings are often easier to swallow when

the safety of the officer is at stake. In

that case, a "dangerous" felon possessed

what appeared to be a gun in his car. In

other cases, findings of reasonable

suspicion based on criminal history in

addition to marginal supplementary

evidence appear to be grounded in the

concern for the officers’ safety, and the

analysis more forgiving. For example,

presence in a "high crime corridor" plus

a rental car contract signed by a party

not in the car plus a criminal record

established reasonable suspicion, the

Eleventh Circuit said--or at least

reasonable safety concerns. United States

v. Purcell, 236 F.3d 1274, 1280 (11th

Cir. 2001). There were no safety concerns

in the confrontation between Chiola and

Childs, and the government did not try to

articulate any.

Indeed, in a case in which there were

numerous articulable factors establishing

suspicion, we still qualified our finding

that reasonable suspicion existed

sufficient to conduct a criminal record

inquiry during a traffic stop:

"Significant to our conclusion are the

facts that the request took only five

extra minutes and involved no additional

questioning, no action on the part of the

defendants, and no request or wait for a

canine unit." Finke, 85 F.3d at 1280

(emphasis added). We made such a

qualification despite the presence of

more factors than we have in the case

before us: 1) the status of the car as a

rented vehicle; 2) recent travel plans;

3) fast food wrappers indicating a long

trip without stopping; 4) nervousness of

the driver; and 5) the appearance of the

passenger as "feigning grogginess in an

attempt to avoid answering questions."

Id. Our reasoning in Finke implies that

these factors may not have been enough to

establish sufficient reasonable suspicion

for further questioning. But we need not

make such a determination, because the

factors comprising reasonable suspicion

in the case before us are much fewer and

are less reliable indicators of present

criminal activity than in Finke.

We therefore find that, during the

routine traffic stop, Childs was asked

questions well beyond the scope of an in

vestigation related to the purpose of the

stop.

C.

Childs’ final argument, challenging the

voluntariness of his consent, is of

importance only because we have found

that Chiola exceeded the scope of the

stop when inquiring about drugs. The

government asserts that Childs has also

forfeited the consent argument on appeal,

because he did not raise this argument

before the district court. Indeed, he

conceded consent (though not its

voluntariness) in the district court.

Therefore, we will review this conclusion

of the district court for plain error.

See Clarke, 227 F.3d at 881.

The question whether one’s consent to

search was voluntary must be determined

in light of the "totality of the

circumstances." Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973).

Factors to be considered include:

the age, education, and intelligence of

the individual providing consent; whether

he was advised of his rights; how long he

was detained prior to giving consent;

whether he immediately consented, or

whether the police officers made repeated

requests for consent; the existence or

absence of physical coercion; and whether

the individual was in custody.

Valance, 110 F.3d at 1278 (citing United

States v. LaGrone, 43 F.3d 332, 334 (7th

Cir. 1994); United States v. Kozinski, 16

F.3d 795, 810 (7th Cir. 1994)).

Even if the drug question was

permissible, Childs argues that the

consent was not knowing and voluntary

because Chiola had indicated that he

could conduct a search based on the

seatbelt violation. The exchange between

Childs and Chiola, as recounted in

Childs’ testimony, appears to imply that

possibility:

I said, "What would you search me for?"

He said, "Because you ain’t got no seat

belt on." I said, "No, you ain’t going to

find nothing on me." He said, "Are you

sure of that?" I said, "Yeah. You can

search me. That’s when he asked me to get

out of the car."

This exchange might raise questions

because it may signal Childs’ belief that

the search could have been conducted

without his consent, and this could

undermine the knowing and voluntary

nature of the consent. However--absent

the prior improper questioning--the

district court’s finding that there was

voluntary consent would not rise to the

level of plain error, particularly

considering the fact that Childs

testified in the court below that he

consented. We will reverse for plain

error only in quite exceptional

circumstances. Linwood, 142 F.3d at 422.

But that does not end our inquiry. When,

as here, consent was obtained following

illegal questioning, the inquiry into

voluntariness becomes more searching:

[T]o determine whether the acquisition of

evidence pursuant to consent is purged of

the taint of an antecedent illegal

seizure, we place a "heavy burden" on the

government and look to "(1) the temporal

proximity of the illegal detention [to

the defendants’ consent]; (2) the

presence of intervening factors between

the two events; and (3) the circumstances

surrounding, and the nature of, the

official misconduct."

Jerez, 108 F.3d at 695 (quoting United

States v. Sanchez-Jaramillo, 637 F.2d

1094, 1099 (7th Cir. 1980) (citing Brown

v. Illinois, 422 U.S. 590, 603-04 (1975),

cert. denied, 449 U.S. 862 (1980)). Here,

the consent was obtained immediately

following the Fourth Amendment violation,

and there were no intervening events.

Thus, we are left to determine whether,

as a matter of plain error, the

surrounding circumstances and the nature

of Chiola’s conduct were so egregious as

to negate the apparent voluntariness of

Childs’ consent. This we cannot do

because the district court did not

consider whether Childs’ consent was

knowing and voluntary. Had the court

found that Chiola’s questioning amounted

to an unlawful seizure, it might have

examined more searchingly whether Childs’

consent was in fact voluntary. Thus, we

remand for consideration of this issue.

III.

For the foregoing reasons, we AFFIRM the

judgment of the district court as to

probable cause; we REVERSE the district

court’s conclusion that Chiola’s

questioning did not violate Childs’

Fourth Amendment rights; and we REMAND to

the district court for consideration of

the question whether Childs’ consent was

nonetheless voluntary.

FOOTNOTES

/1 So far as this court can determine, only the

Fifth Circuit disagrees with this proposition.

See United States v. Shabazz, 993 F.2d 431, 436

(5th Cir. 1993) ("[A] police officer’s question-

ing, even on a subject unrelated to the purpose

of the stop, is [not] itself a Fourth Amendment

violation.").

/2 We note that here we have not only criminal

history, but very recent criminal history. None-

theless, we decline to give this factor decisive

weight in the reasonable suspicion analysis. Our

precedent does not appear to demand making a

distinction between recent and more remote histo-

ry of criminal acts. While in Feliciano we indi-

cated that knowledge of recent criminal conduct

was "a permissible component of the articulable

suspicion required for a Terry stop," 45 F.3d at

1074, we did not indicate that the recency of the

activity should give a defendant’s criminal past

any greater weight. Of course, if the activity is

so recent as to merge with the activity under

scrutiny, a different analysis might be called

for.