U.S.A. v. Childs, 00-3111

• Decision Date: 03 July 2001
• Docket Number: No. 00-3111,00-3111
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Tommie T. Childs, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 559

256 F.3d 559 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Tommie T. Childs, Defendant-Appellant.

No. 00-3111

In the 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. [Copyrighted Material Omitted] 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...