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.
