United States v. Childs, Tommie T. ( 2002 )

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.