277 F.3d 947 (7th Cir. 2002), 00-3111, United States v. Childs

Docket Nº:00-3111
Citation:277 F.3d 947
Party Name:United States of America, Plaintiff-Appellee, v. Tommie T. Childs, Defendant-Appellant.
Case Date:January 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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277 F.3d 947 (7th Cir. 2002)

United States of America, Plaintiff-Appellee,


Tommie T. Childs, Defendant-Appellant.

No. 00-3111

In the United States Court of Appeals, For the Seventh Circuit

January 18, 2002

Argued November 6, 2001

Appeal from the United States District Court for the Central District of Illinois. No. 00-10004--Michael M. Mihm, Judge.

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[Copyrighted Material Omitted]

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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

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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

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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....

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