00-3111 U.S. v. Childs

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“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. … There were no safety concerns in the confrontation between Chiola and Childs, and the government did not try to articulate any.”

“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.”

“We remand to the district court for consideration of the question whether Childs’ consent was nonetheless voluntary.”

Affirmed in part, reversed in part, and remanded.

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Cudahy, J.