Appeal from the United States District Court for the Central District of Illinois. No. 00-10004--Michael M. Mihm, Judge.
Before Flaum, Chief Judge, and Cudahy, Posner, Coffey, Easterbrook, Ripple,
Manion, Kanne, Rovner, Diane P. Wood, Evans, and Williams, Circuit Judges.
The opinion of the court was delivered by: 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 pre-existing 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 ...