United States of America, Plaintiff-Appellee, v. Tommie T. Childs, Defendant-Appellant.
No. 00-3111
United States Court of Appeals For the Seventh Circuit
Argued February 12, 2001--Decided July 3, 2001
Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 00-CR-10004--Michael M. Mihm, Judge.
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
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
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
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
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
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
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
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
We therefore find that, during the routine traffic stop, Childs was asked questions well beyond the scope of an investigation 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
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))). 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