United States v. Janhoi Cole ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2105
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JANHOI COLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:18-cr-30038-RM-TSH-1 — Richard Mills, Judge.
____________________
ARGUED JANUARY 19, 2021 — DECIDED APRIL 16, 2021
____________________
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. In this appeal we deal with a pre-
textual traffic stop for purposes of drug interdiction. Even as-
suming that the stop was permissible at the outset, the record
shows that the officer prolonged the stop by questioning the
driver at length on subjects going well beyond the legal justi-
fication for the stop. Under Rodriguez v. United States, 575 U.S.
2 No. 20-2105
348 (2015), prolonging the stop violated the Fourth Amend-
ment and requires suppression of evidence found much later
as a result of the actions that prolonged the stop.
I. The Traffic Stop and Later Search
On June 25, 2018, Illinois State Trooper Clayton Chapman
was on highway patrol duties and received a message from
Deputy Sheriff Derek Suttles about a car that he found suspi-
cious. A Volkswagen hatchback sedan with California license
plates was headed east toward Trooper Chapman on Inter-
state 72. Deputy Suttles reported that the Volkswagen was
driving roughly 50 to 55 miles per hour where the speed limit
was 70 miles per hour.
Trooper Chapman spotted the Volkswagen, driven by de-
fendant Janhoi Cole, and trailed him with the intent to catch
him in a traffic violation to provide a pretext for a roadside
stop. That opportunity came after Interstate 72 merged with
Interstate 55. In the merging traffic, another car cut off the
Volkswagen. Trooper Chapman believed that the
Volkswagen trailed the car that cut it off at an unreasonably
close distance, in violation of the Illinois Vehicle Code. See 625
ILCS 5/11-710 (“The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and prudent,
having due regard for the speed of such vehicles and the traf-
fic upon and the condition of the highway.”). Trooper Chap-
man pulled Mr. Cole over to the partially unpaved shoulder
lane, requested his driver’s license and vehicle registration,
and ordered him to exit the Volkswagen and sit in the front
seat of the police cruiser.
This initial roadside stop lasted ten minutes. It included
an eight-and-a-half-minute conversation between Trooper
No. 20-2105 3
Chapman and Mr. Cole in the police cruiser. Trooper Chap-
man used about six minutes of that initial conversation to
question Mr. Cole about his state of residence, employment,
travel history, travel plans, vehicle history, and registration
information. Mr. Cole said that he was a traveling chef who
split his time between New York, Los Angeles (where his girl-
friend lived and the car was registered), and Maryland (where
he was presently employed). He claimed to be on a long road
trip from Maryland to Cincinnati to Colorado, and back.
About eight minutes into the stop, Trooper Chapman told Mr.
Cole that he would get off with a warning. But Trooper Chap-
man said that he preferred to go to a nearby gas station to
complete the warning paperwork because he was concerned
for their safety on the unprotected shoulder. That was not en-
tirely true. Trooper Chapman testified later that he had al-
ready decided that he was not going to let Mr. Cole go until
he had somehow managed to search the car for drugs. In re-
sponse, Mr. Cole said he wanted to get on his way as soon as
possible and would go only if he had to. Trooper Chapman
made clear that Mr. Cole had no choice. Each drove in his re-
spective car to the gas station. On the drive over, Trooper
Chapman radioed to request a drug-sniffing dog.
After they arrived at the gas station, Trooper Chapman re-
quested for the first time Mr. Cole’s proof of insurance.
Trooper Chapman then learned over the radio that Mr. Cole
had been arrested for drug crimes fifteen years earlier.
Trooper Chapman continued to interrogate Mr. Cole in a
faux-casual manner, about his car, itinerary, travel plans, and
residence. Mr. Cole’s answers became increasingly contradic-
tory and incoherent. He vacillated about whom he visited in
Colorado, how long he had been on the road, and how he had
the car insured and registered remotely (suggesting he sent
4 No. 20-2105
two different girlfriends to “one of those places” to fill out dif-
ferent parts of the paperwork). Upon finishing the warning,
over thirty minutes after he first pulled Mr. Cole over,
Trooper Chapman informed Mr. Cole that he was not free to
leave because he suspected Mr. Cole was transporting drugs.
The drug-sniffing dog arrived ten minutes later and quickly
alerted to the presence of drugs. Trooper Chapman found
several kilograms of methamphetamine and heroin in a hid-
den compartment and arrested Mr. Cole.
Mr. Cole was indicted on two counts of possessing con-
trolled substances with intent to distribute. He moved to sup-
press the evidence against him on the ground that it was gath-
ered in violation of the Fourth Amendment. He claimed that
Trooper Chapman did not actually observe any traffic viola-
tions so that the stop was unlawful from the beginning. He
also asserted that Trooper Chapman prolonged the stop with-
out justification in violation of Rodriguez v. United States, 575
U.S. 348 (2015).
Trooper Chapman, Deputy Suttles, and Mr. Cole testified
at a suppression hearing about the stop. Trooper Chapman
testified that he saw Mr. Cole follow the car ahead of him too
closely. He also conceded that issuing a warning normally
takes only about 15 minutes and that he delayed part of his
investigation. Even before he stopped Mr. Cole, Trooper
Chapman had his vehicle registration and driver’s license in-
formation, and he knew that insurance information was on
file.
Relying heavily on a recording from Trooper Chapman’s
dashboard camera, the magistrate judge’s written report and
recommendation credited Trooper Chapman’s version of the
No. 20-2105 5
tailgate over Mr. Cole’s and concluded that Trooper Chap-
man had probable cause to stop Mr. Cole for following too
closely. The judge also concluded that by the end of the road-
side interrogation ten minutes into the stop, Trooper Chap-
man had a reasonable suspicion that Mr. Cole was a drug cou-
rier, justifying the further delays until the arrival of the dog
30 minutes later. The magistrate judge did not address di-
rectly the point that we think is decisive under Rodriguez,
whether Trooper Chapman prolonged the stop in those first
ten minutes by using the time to question Mr. Cole on topics
unrelated to the constitutionally permissible, but pretextual,
basis for the stop. After the district judge overruled his objec-
tions to the magistrate judge’s recommendation that the mo-
tion to suppress be denied, Mr. Cole pleaded guilty to two
counts of possessing a controlled substance with intent to dis-
tribute in violation of 21 U.S.C. § 841(a)(1), reserving his right
to appeal the suppression issues. He was sentenced to 74
months in prison.
II. Analysis
This appeal takes us to the niche in Fourth Amendment
law governing pretextual traffic stops. The Fourth Amend-
ment forbids “unreasonable searches and seizures,” and
courts generally must exclude evidence recovered in a search
or seizure that violated the Constitution. United States v. Si-
mon, 937 F.3d 820, 828 (7th Cir. 2019). When faced with the
appeal of a motion to suppress decided after an evidentiary
hearing, we review the district court’s legal conclusions de
novo and findings of fact for clear error. United States v. Wil-
bourn, 799 F.3d 900, 908 (7th Cir. 2015).
Police officers may “seize” (stop and detain) drivers, but
only where such a stop is reasonable under the Fourth
6 No. 20-2105
Amendment. Delaware v. Prouse, 440 U.S. 648, 663 (1979). A
full-blown arrest must be supported by probable cause. See
Martin v. Marinez, 934 F.3d 594, 598 (7th Cir. 2019), citing
Holmes v. Village of Hoffman Estates, 511 F.3d 673, 679 (7th Cir.
2007). A lesser seizure, such as a brief, investigatory stop, may
be based on a mere reasonable suspicion, supported by “spe-
cific and articulable facts,” that the subject is engaged in crim-
inal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968).
Though reasonable suspicion is a lower standard than
probable cause, it must still be reasonable—a Terry stop re-
quires more than curiosity, inchoate suspicion, or a hunch.
United States v. Rodriguez-Escalera, 884 F.3d 661, 668 (7th Cir.
2018); United States v. Paniagua-Garcia, 813 F.3d 1013, 1014 (7th
Cir. 2016) (a “mere possibility” of unlawful activity is not
“enough to create a reasonable suspicion of a criminal act”);
see generally Heien v. North Carolina, 574 U.S. 54, 60 (2014)
(suspicion must be “particularized and objective”). Traffic
stops, due to their relative brevity, are usually analyzed under
the constitutional framework for Terry stops as opposed to
formal arrests. Rodriguez, 575 U.S. at 354, quoting Knowles v.
Iowa, 525 U.S. 113, 117, 119 (1998).
The constitutional reasonableness of traffic stops does not
depend on the real motives of the officers involved. In Whren
v. United States, 517 U.S. 806, 818–19 (1996), the Supreme
Court held that pretextual stops for minor traffic violations do
not run afoul of the Fourth Amendment so long as the officer
has probable cause for the driving violation.
Pretextual traffic stops are common in drug interdiction
efforts, and they seem to be easy to initiate lawfully. As then-
Attorney General Robert Jackson said long ago, “We know
that no local police force can strictly enforce the traffic laws,
No. 20-2105 7
or it would arrest half the driving population on any given
morning.” Robert Jackson, The Federal Prosecutor, Address De-
livered at the Second Annual Conference of United States At-
torneys (April 1, 1940), quoted in Morrison v. Olson, 487 U.S.
654, 727–28 (1988) (Scalia, J., dissenting). Yet there are limits.
One of the most important is imposed by time and the pur-
pose that makes the stop lawful in the first place. A seizure
that is “lawful at its inception” can violate the Fourth Amend-
ment if it is “prolonged beyond the time reasonably required
to complete” the initial mission of the stop. Illinois v. Caballes,
543 U.S. 405, 407 (2005).
Most recently, the Supreme Court explained that a “police
stop exceeding the time needed to handle the matter for
which the stop was made violates the Constitution’s shield
against unreasonable seizures.” Rodriguez, 575 U.S. at 350.
During a traffic stop, the police officer must stick to the “mis-
sion” of the seizure: ensuring road safety, “determining
whether to issue a traffic ticket, … checking the driver’s li-
cense, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registra-
tion and proof of insurance.” Id. at 355. An officer may not
prolong the stop, “absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Id. In determin-
ing whether an officer had reasonable suspicion to justify pro-
longing a traffic stop, we consider “the totality of the circum-
stances” and ask whether the officer can “point to specific and
articulable facts which, taken together with rational infer-
ences from those facts, reasonably warrant th[e] intrusion.”
Rodriguez-Escalera, 884 F.3d at 668 (quotation marks omitted),
quoting United States v. Cortez, 449 U.S. 411, 417 (1981), and
Terry, 392 U.S. at 21.
8 No. 20-2105
A. The Initial Stop
We proceed chronologically, considering first Trooper
Chapman’s initial stop and then the roadside questioning.
Trooper Chapman first seized Mr. Cole by pulling him over
for tailgating. We see no sound basis for overturning the dis-
trict court’s conclusion that Trooper Chapman had probable
cause to do so, thus permitting the pretextual stop at the out-
set. The dashboard camera’s recording of the asserted viola-
tion was taken from a distance, and it is grainy, with a par-
tially obstructed view. The magistrate judge did not clearly
err in crediting Trooper Chapman’s testimony that he saw
what was in his judgment a violation and in treating that
judgment as objectively reasonable. See Simon, 937 F.3d at 829
(“If an officer reasonably thinks he sees a driver commit a traf-
fic infraction, that is a sufficient basis to pull him over without
violating the Constitution.”). Based on the video and the mag-
istrate judge’s credibility determinations, we assume for pur-
poses of this appeal that Trooper Chapman had probable
cause to initiate the traffic stop for tailgating.
B. Interrogation at the Side of the Road
Under Rodriguez and Caballes, however, Trooper Chap-
man’s legal authority to pull Mr. Cole over did not give him
license to detain Mr. Cole for a speculative search or interro-
gation for “evidence of ordinary criminal wrongdoing.” Ro-
driguez, 575 U.S. at 355, quoting Indianapolis v. Edmond, 531
U.S. 32, 40–41 (2000). Police detention, however brief, is not a
“minor inconvenience or petty indignity.” Terry, 392 U.S. at
10, 16. The Supreme Court has “emphatically reject[ed]” the
notion that the Constitution does not strictly regulate an of-
ficer’s actions when he “accosts an individual and restrains
his freedom to walk away.” Id. at 16.
No. 20-2105 9
The implicit or explicit threat of violence hangs over even
routine and constitutionally permissible seizures. “We are
mindful that police, in carrying out their duties, often must
react to potential threats quickly and under difficult and un-
certain circumstances.” United States v. Howell, 958 F.3d 589,
602 (7th Cir. 2020). Thus, during a Terry stop, an officer may
in some cases frisk a suspect to search for weapons. Terry, 392
U.S. at 16–17, 30 (describing “a careful exploration of the outer
surfaces of a person’s clothing all over his or her body” and
condoning a search because it did not reach “under the outer
surface of [defendants’] garments”). The officer may also or-
der a driver out of his car, even if, as here, that requires the
driver to exit near moving traffic. Pennsylvania v. Mimms, 434
U.S. 106, 111 (1977) (per curiam).
If a suspect refuses to submit to any of these orders or an
officer fears for her safety, the officer may use reasonable (and
sometimes even deadly) force to make him submit. E.g., Catlin
v. City of Wheaton, 574 F.3d 361, 365–66 (7th Cir. 2009) (no con-
stitutional violation where police forced wrong person off
road, tossed him to the side of the road, tackled him, and held
his face in the ground while handcuffing him—even though
quick license plate check would have revealed the mistaken
identity); Tom v. Voida, 963 F.2d 952, 954 (7th Cir. 1992) (no
constitutional violation where attempt to make justified Terry
stop escalated until officer fatally shot subject); see also Scott
v. Harris, 550 U.S. 372, 381 (2007) (no constitutional violation
where deadly force was used against fleeing driver where in-
itial purpose of attempted stop was routine traffic violation).
Here, the evidence, including the trooper’s own testi-
mony, shows clearly that Trooper Chapman slow-walked his
work throughout the stop, though the critical constitutional
10 No. 20-2105
violation came in those first ten minutes. Even before stop-
ping Mr. Cole, Trooper Chapman had already ascertained
that the Volkswagen was registered to him and that the car
had insurance on file. Of the eight and a half minutes that
Trooper Chapman had Mr. Cole in his police cruiser on the
side of the road, he spent six minutes questioning Mr. Cole
about topics that he already knew the answers to or went be-
yond the limited topics justified by the traffic stop: “determin-
ing whether to issue a traffic ticket, … checking the driver’s
license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registra-
tion and proof of insurance.” Rodriguez, 575 U.S. at 355.
Next, Trooper Chapman demanded that they drive to a
nearby gas station—he claimed for officer safety, but Mr. Cole
argues that Trooper Chapman wanted a few minutes alone to
call in a drug-sniffing dog. Then, after the warning was com-
plete, Trooper Chapman held Mr. Cole an additional ten
minutes while they waited for a drug-sniffing dog to arrive.
We focus on the initial roadside questioning, which pro-
longed the stop without the reasonable, articulable suspicion
necessary to justify this delay. At the outset of the seizure,
Trooper Chapman had at best only a hunch that Mr. Cole
might be a drug courier. Most of what he knew simply came
from Deputy Suttles’ tip, but a police officer cannot launder
such flimsy speculation into reasonable suspicion through the
mere act of voicing a hunch to another officer. United States v.
Street, 917 F.3d 586, 596–97 (7th Cir. 2019) (“To rely on collec-
tive knowledge to support a stop … the officer providing the
information … must have facts supporting the level of suspi-
cion required.”) (quotation marks and citation omitted); see
also Navarette v. California, 572 U.S. 393, 401 (2014), quoting
No. 20-2105 11
Terry, 392 U.S. at 30 (“Even a reliable tip will justify an inves-
tigative stop only if it creates reasonable suspicion that ‘crim-
inal activity may be afoot.’”).
The government claims that other facts of which Trooper
Chapman was aware at the outset of the stop allowed this
hunch to hobble across the line into the territory of reasonable
suspicion: Mr. Cole was from a large American city, drove
cautiously on a major interstate highway, owned a popular
brand of car, sat with good posture, and had empty fast-food
wrappers in the passenger compartment. Those are perfectly
normal facts that could easily be true of millions of law-abid-
ing Americans. “Without more, a description that applies to
large numbers of people will not justify the seizure of a par-
ticular individual.” Street, 917 F.3d at 594; see also Kansas v.
Glover, 589 U.S. —, —, 140 S. Ct. 1183, 1190 (2020) (traffic stops
do not “allow officers to stop drivers whose conduct is no dif-
ferent from any other driver’s”); United States v. Flores, 798
F.3d 645, 649 (7th Cir. 2015) (“A suspicion so broad that would
permit the police to stop a substantial portion of the lawfully
driving public … is not reasonable.”).
The government also emphasizes the fact that Mr. Cole
was driving below the speed limit. While a violation of a traffic
law may justify a traffic stop, we have rejected the startling
idea that obeying traffic laws may also justify a stop: “The mere
lawful operation of a motor vehicle should not be considered
suspicious activity absent extraordinary circum-
stances.” United States v. Ingrao, 897 F.2d 860, 865 (7th Cir.
12 No. 20-2105
1990) (reversing denial of motion to suppress where arrest
had been based in part on defendant’s cautious driving). 1
So, armed with little more than Deputy Suttles’ guess,
Trooper Chapman had no reasonable suspicion of wrongdo-
ing that could support a seizure, a restraint on Mr. Cole’s lib-
erty. Accordingly, Trooper Chapman’s mission was confined
to executing the traffic stop: determining whether to issue a
traffic ticket, checking Mr. Cole’s authority to drive the
Volkswagen, searching for outstanding warrants, and any
other tasks needed to ensure road safety. See Rodriguez, 575
U.S. at 355. If Trooper Chapman developed grounds for con-
tinued detention while carrying out those permissible tasks, he
could have justified continued detention. That’s the logic for
using constitutionally permissible but pretextual stops in the
first place. But that’s not what happened.
Instead, Trooper Chapman went beyond that permissible
scope almost immediately. Of the first eight and a half
minutes in the cruiser on the side of the road, he spent about
six minutes interrogating Mr. Cole about matters unrelated to
tailgating or road safety. After informing Mr. Cole he had
been following too closely, Trooper Chapman asked where
1 The dissenting opinion asserts that Mr. Cole’s nervous demeanor
throughout the stop contributed to Trooper Chapman’s growing reasona-
ble suspicion. This misunderstands the record. Trooper Chapman testi-
fied, “A lot of people are nervous when they get stopped by the police
until they just realize they’re going to be issued a warning; it won’t be any
fine or court date. And then that nervousness will dissipate. In this case,
the nervousness, if anything, increased and was sustained throughout the
duration of the traffic stop.” Tr. at 71−72. In other words, Mr. Cole’s nerv-
ousness was a perfectly normal response to a police stop at the beginning,
and it did not on its own provide a basis for prolonging the roadside de-
tention for the extended inquiry into Mr. Cole’s itinerary and travel plans.
No. 20-2105 13
Mr. Cole lived, since his car was validly registered in Califor-
nia, though he was validly licensed to drive in Arizona. Mr.
Cole explained that he used to work in Arizona and kept the
license for convenience because the expiration date was still a
long way off. Mr. Cole also explained that he is a travelling
chef who splits his time between New York, Maryland, and
California. Trooper Chapman pressed Mr. Cole repeatedly on
where he was headed (Maryland, for work), where he worked
(Maryland, where he worked as a personal chef), and who his
employer was (a former professional football player). Trooper
Chapman asked again where Mr. Cole was headed, and he
again replied Maryland. Trooper Chapman then asked where
Mr. Cole’s trip had started, and Mr. Cole responded that he
had met up with friends and family in Colorado to visit “the
springs.” Trooper Chapman pressed what the origin of the
trip was, and Mr. Cole explained that he stopped in Cincinnati
on his way out from Maryland to Colorado. Trooper Chap-
man asked how long “this trip” had taken him, and Mr. Cole
responded four days but clarified that he only stopped in Cin-
cinnati because he was passing through. Trooper Chapman
continued to question Mr. Cole about his car, registration, and
residence. 2
These questions did nothing to advance the limited road
and driver safety missions that Trooper Chapman was legally
2 We tally the length of impermissible questioning during this road-
side interrogation slightly differently than the dissenting opinion. But un-
der the dissent’s accounting, Trooper Chapman still prolonged the stop
by several minutes, “even though any delay … is unconstitutional absent
independent reasonable suspicion.” See Simon, 937 F.3d at 833; see also
Rodriguez, 575 U.S. at 356–57 (de minimis delays violate the Constitution);
United States v. Clark, 902 F.3d 404, 410 n.4 (3d Cir. 2018).
14 No. 20-2105
authorized to pursue. Mr. Cole’s profession as a California-
based traveling personal chef employed part-time in Mary-
land to a former professional footballer simply had nothing to
do with whether he was safe to continue driving. And
Trooper Chapman knew that Mr. Cole was authorized to
drive the Volkswagen when he observed that Mr. Cole’s name
matched the registration mere seconds into the ten-minute-
long roadside encounter.
It does not matter here whether, at some later point, Mr.
Cole’s answers became suspicious. The critical point under
Rodriguez is that it was unconstitutional to prolong the stop to
ask those questions to begin with. United States v. Lopez, 907
F.3d 472, 486–87 (7th Cir. 2018) (suppressing evidence gath-
ered following questioning that prolonged seizure); see also
United States v. Childs, 277 F.3d 947, 952 (7th Cir. 2002) (en
banc), citing United States v. Sharpe, 470 U.S. 675, 685 (1985)
(“Questioning that prolongs the detention, yet cannot be jus-
tified by the purpose of such an investigatory stop, is unrea-
sonable under the fourth amendment.”).
This is where the magistrate judge erred. Even if we as-
sume that issuing a warning typically takes 15 minutes, as
Trooper Chapman testified, that does not mean that an officer
has 15 free minutes to investigate other crimes before starting
the substance of the stop in the hope that the questioning will
unearth signs of other wrongdoing to justify still more deten-
tion and more investigation, such as waiting for a busy drug-
sniffing dog to arrive. See United States v. Garcia, 376 F.3d 648,
650 (7th Cir. 2004) (“[T]he reasonableness of a search or sei-
zure depends on what actually happens rather than what
could have happened.”).
No. 20-2105 15
If the video left any doubts that Trooper Chapman pro-
longed the stop and delayed executing his lawful mission to
ask his off-topic questions, he admitted as much at the sup-
pression hearing. Recall that he failed to collect Mr. Cole’s in-
surance information at the outset of the stop, though that is
an integral piece of information about Mr. Cole’s authoriza-
tion to drive. Trooper Chapman even admitted that the insur-
ance information he had received prior to the stop was incom-
plete. In fact, collecting Mr. Cole’s proof of insurance is one of
the few things the Supreme Court has endorsed as within the
mission of a normal traffic stop. Rodriguez, 575 U.S. at 355. 3
3 The dissenting opinion relies in part on the timing of Mr. Cole’s pur-
chase of insurance to justify Trooper Chapman’s drug-trafficking suspi-
cions, well before he collected and verified the insurance information.
There is no evidence that Trooper Chapman had the information about
timing before he asked Mr. Cole for insurance information after arriving
at the gas station. Even if we assume that Trooper Chapman knew earlier
about the allegedly suspicious timing, however, he said at the suppression
hearing that he doubted about the quality of the initial data and could not
rely on it, and that he did not learn the full details of Mr. Cole’s insurance
and its timing until after they had arrived at the gas station. Tr. 68.
Whether the initial summary available to Trooper Chapman before the
stop contributed to his suspicion is doubtful but ultimately irrelevant. We
assume that Trooper Chapman reasonably suspected Mr. Cole was traf-
ficking drugs by the time he ordered Mr. Cole to drive to the gas station.
We therefore need not determine whether the magistrate judge erred in
concluding that the recent insurance registration contributed to Trooper
Chapman’s initial suspicions despite: Trooper Chapman’s testimony (Tr.
68), the court’s acknowledgment that “Trooper Chapman testified that the
computer record about insurance was not reliable” (Dkt. 30 at 4), Trooper
Chapman’s arrest report, which did not mention the insurance as inform-
ing his suspicions (Dkt. 24, Ex. 1 at 1) and did not mention insurance until
reporting the questioning after he had called for a dog (id. at 4), and both
parties’ respective descriptions of the traffic stop in the district court,
where neither side asserted that Trooper Chapman learned anything
16 No. 20-2105
When asked what accounted for that delay, Trooper Chap-
man admitted that he delayed collecting those necessary ma-
terials (for investigating the tailgating and Mr. Cole’s driving)
because he “was trying to piece together Mr. Cole’s story,
which was—as we all heard, was kind of inconsistent.
Changed each time.” Tr. 35.
With respect, that is not how this works. Under the Con-
stitution, drivers do not need “stories” to travel on interstate
highways. Rodriguez made clear that police officers may not
use the implicit threat of state-sanctioned violence to hold
someone against his will to extract details about his personal
life, absent reasonable suspicion of criminal activity. Even if
Mr. Cole’s responses to Trooper Chapman’s later questions
contradicted the answers to the earlier questions, that could
not justify prolonging the stop to ask and re-ask the questions
in the first place.
The government invites us to adopt a different rule, under
which police officers may insist that a driver who is lawfully
stopped for a minor and routine traffic infraction be able to
convince the officer that she is not a criminal. The govern-
ment’s theory is that itinerary questions by definition fall
within the scope of a traffic stop because they are road-re-
lated, so there was no constitutional violation despite the evi-
dence that Trooper Chapman prolonged the stop. For sup-
port, the government cites several out-of-circuit cases approv-
ing of itinerary questions, all but one of which predate Rodri-
guez, and dicta from our decision in United States v. Lewis, 920
F.3d 483 (7th Cir. 2019).
about Mr. Cole’s insurance before they drove to the gas station (Dkt. 24 at
5; Dkt. 29 at 5—6).
No. 20-2105 17
The Supreme Court’s most recent decision on pretextual
traffic stops pointedly declined to categorically permit itiner-
ary questioning as central to traffic stops’ missions. The officer
in Rodriguez had asked the driver and passenger about their
itinerary, 575 U.S. at 351, but the Court left that out of the top-
ics typically permissible because they help ensure that vehi-
cles are “operated safely and responsibly.” Id. at 355.
Courts applying Rodriguez thus must “inquire whether, on
the facts of the particular case, [itinerary] questioning is
within the traffic stop’s mission” and if not, determine if the
questioning impermissibly lengthened the stop. Wayne R.
LaFave, 4 Search & Seizure § 9.3(d) (6th ed 2020); see also
United States v. Gomez-Arzate, 981 F.3d 832, 836, 840 (10th Cir.
2020) (a few minutes of itinerary questioning that prolonged
an already completed stop violated Constitution, but ex-
tended inquiry into car ownership may be permissible where
driver is not listed on registration and cannot say who owns
vehicle; affirming denial of suppression on other grounds);
United States v. Callison, 436 F. Supp. 3d 1218, 1226 (S.D. Iowa
2020) (suppressing evidence; itinerary questions irrelevant
where defendant had been stopped for having an improperly
lit license plate), appeal pending, No. 20-1398 (8th Cir. Feb.
27, 2020); State v. Jimenez, 420 P.3d 464, 475–76, 308 Kan. 315,
328–29 (2018) (affirming suppression where itinerary ques-
tions prolonged stop for following too closely, noting that
courts must guard against “mission creep” in pretextual traf-
fic stops); cf. United States v. Dion, 859 F.3d 114, 125 (1st Cir.
2017) (assuming that pre-Rodriguez case law about itinerary
questioning survived because defendant conceded it); United
18 No. 20-2105
States v. Murillo-Salgado, 854 F.3d 407, 416 (8th Cir. 2017) (de-
clining to consider Rodriguez’s impact on circuit case law be-
cause it did not affect the outcome). 4
Contrary to the government’s contention, our decision in
Lewis did not hold that an officer may prolong a stop indefi-
nitely to ask increasingly invasive and repetitive questions
about a driver’s travels and employer—nor could it have,
given Rodriguez. In fact, Lewis’s holding affirming denial of
suppression is consistent with the outcome here, notwith-
standing similarities between the cases. In Lewis, the defend-
ant was also pulled over for tailgating, 920 F.3d at 487, and the
4 The government’s other out-of-circuit cases all predate Rodriguez. A
close examination of other circuits’ approaches demonstrates that they did
not categorically allow lengthy itinerary questioning even before Rodri-
guez. The Eighth Circuit did not apply consistent tests as to when itinerary
questioning that prolongs a stop is permissible, and in any event Rodriguez
expressly abrogated the Eighth Circuit’s general approach to prolonged
traffic stops. Compare United States v. Bowman, 660 F.3d 338, 343 (8th Cir.
2011) (reasoning that a 14-minute stop during which itinerary questions
were asked was not too long, but granting that a 28-minute stop may vio-
late the Constitution), with United States v. $404,905.00 in United States Cur-
rency, 182 F.3d 643, 647 (8th Cir. 1999), abrogated on other grounds, Rodri-
guez, 575 U.S. 348, (allowing officer to ask about driver’s destination,
route, and purpose only “during th[e] process” of completing “computer-
ized checks of the vehicle’s registration and the driver’s license and crim-
inal history, and the writing up of a citation or warning”). The govern-
ment’s citation from the Third Circuit is hesitant, and that circuit’s current
approach does not help the government’s case. Compare United States v.
Givan, 320 F.3d 452, 459 (3d Cir. 2003) (acknowledging before Rodriguez
that itinerary questions are “ordinarily” part of an officer’s mission), with
United States v. Clark, 902 F.3d 404, 408, 410–11 (3d Cir. 2018) (confirming
that Rodriguez calls for fact-sensitive inquiry as to whether ordinarily per-
missible questions actually advance a stop’s mission when they measura-
bly prolong a stop).
No. 20-2105 19
arresting officer asked itinerary and personal questions. The
critical difference is that he did so while he was also filling out
the necessary paperwork. Id. at 492. The officer in Lewis com-
pleted the written warning and dog sniff within eleven and
twelve minutes, respectively. Id.
We described several possible routes to affirming the dis-
trict court’s denial of Lewis’s suppression motion. We con-
cluded that “the biggest problem with Lewis’s argument”
was that he failed to show that the district court clearly erred
in concluding that the officer’s questioning simply did not
prolong the stop. The video showed the officer filled out pa-
perwork throughout the conversation and did so expedi-
tiously. Id.
In this case, however, the video showed, and Trooper
Chapman admitted, that he delayed commencing important,
permissible parts of his investigation until after questioning
Mr. Cole about his “story” for six minutes, roughly the same
amount of time that the Supreme Court held to be an uncon-
stitutional delay in Rodriguez. 575 U.S. at 352. This critical dif-
ference distinguishes this case from Lewis. Mr. Cole, unlike
Mr. Lewis, has shown that “these exchanges prolonged the
process of issuing the warning.” Lewis, 920 F.3d at 492.
Moreover, Trooper Chapman admitted that the stop took
twice as long as it should have, dragging on to about 30
minutes when it should have taken 15 minutes. Recall that
Trooper Chapman already had Mr. Cole’s license and regis-
tration information even before the stop began. Trooper
Chapman also admitted that he failed to commence key as-
pects of his investigation about Mr. Cole’s legal authority to
drive until 17 minutes after he first pulled Mr. Cole over, well
after the initial roadside encounter at issue here had ended.
20 No. 20-2105
When asked what accounted for this delay, Trooper Chap-
man did not even gesture toward a constitutional justification,
such as investigation of the traffic violation or officer safety.
Instead, he admitted that he had held off completing the sub-
stance of the stop until he had pressed Mr. Cole about his
“story.” See Tr. 35. Simply put, whereas the officer in Lewis
completed the warning within eleven minutes, Trooper Chap-
man had not even collected all of Mr. Cole’s paperwork by
that point, and he did not even attempt to account for that de-
lay in constitutionally permissible terms. 5
To be sure, we were rightly incredulous in Lewis at the pro-
spect that a police officer who opens a traffic stop with a brief
question such as, “How are you doing?” or, “Where are you
going today?” violates the Constitution. That dicta cited two
pre-Rodriguez cases that each concerned the constitutionality
of a seizure when a police officer asked a single, pointed ques-
tion aimed at detecting drug transport; in each case we held
that such brief inquiries did not prolong the respective stops.
See generally Childs, 277 F.3d 947; United States v. Muriel, 418
F.3d 720 (7th Cir. 2005). To use Rodriguez’s language, the sei-
zures in Childs and Muriel remained lawful because the iso-
lated question did not “measurably extend the duration of the
5The government further argues that we should infer from a beeping
noise in the background of the dashboard camera video during the road-
side questioning that Trooper Chapman was doing some kind of permis-
sible investigation or preparation while asking questions. That argument
is refuted by several aspects of Trooper Chapman’s testimony, including
his admissions that he delayed executing his permissible mission and that
issuing a warning generally takes about 15 minutes. See also Lewis, 920
F.3d at 492 (Illinois state trooper completed warning within eleven
minutes while also questioning driver).
No. 20-2105 21
stop.” See Rodriguez, 575 U.S. at 355, quoting Arizona v. John-
son, 555 U.S. 323, 333 (2009). 6
Lewis’s invocation of these decisions in discussing whether
an officer may inquire as to a driver’s destination clarifies that
our dicta referred to a brief context-setting question as op-
posed to a lengthy interrogation such as what happened here.
Under our precedents, we expect it will be almost impossible
for a defendant to demonstrate that one or two broad ques-
tions at the beginning of a traffic stop were irrelevant to an
officer’s constitutional mission and measurably extended the
duration of the stop. See Rodriguez, 575 U.S. at 355; see also,
e.g., Simon, 937 F.3d at 833 (affirming district court’s factual
finding that unrelated inquiry did not measurably prolong
stop at all, but noting that constitutionality of stop would be
in question if suspicionless checks prolonged stop); cf. Clark,
902 F.3d at 409 n.2, 410–11 (affirming suppression of evidence
based on district court’s factual finding that 20 seconds of ir-
relevant questioning after an officer had completed his mission
measurably prolonged stop); United States v. Cone, 868 F.3d
1150, 1155 (10th Cir. 2017) (affirming denial of suppression
because there was no causal connection between brief itiner-
ary questions and discovery of firearm that was visible in car’s
cabin).
6 To the extent that those decisions relied on an alternate cost-benefit
rationale to excuse officers’ de minimis but quantifiable delays in the ser-
vice of drug interdiction, the Supreme Court flatly rejected that reasoning
in Rodriguez. 575 U.S. at 349, 356. Our subsequent cases recognize as much.
E.g., Lopez, 907 F.3d at 486 (“a 15-minute stop would be too long if the
investigation justifying the stop finished at the 14-minute mark”).
22 No. 20-2105
Lewis simply did not pronounce broadly on the permissi-
bility of extended itinerary questioning, even in dicta. We ex-
plicitly avoided making such a conclusion when we noted
that Mr. Lewis’s “biggest” problem was the ambiguous evi-
dence of delay he brought on appeal, not that our precedents
conclusively foreclosed his claim as a matter of law. See Lewis,
920 at 492. And in any event, the government’s argument here
on the itinerary questions ignores the fact that Trooper Chap-
man also dwelled on Mr. Cole’s registration, which he knew
to be in good order, as well as residence, chef jobs, vehicle his-
tory, and so forth. See Gomez-Arzate, 981 F.3d at 836, 840 (pro-
longing a stop to conduct redundant or superfluous checks
violates the Fourth Amendment); Clark, 902 F.3d at 409 n.2,
410–11 (similar); United States v. Gorman, 859 F.3d 706, 715 (9th
Cir. 2017) (half-hour stop violated Fourth Amendment where
most of the duration of the stop occurred after the officer
learned that the driver’s registration was in good order); see
also United States v. Cortez, 965 F.3d 827, 839 (10th Cir. 2020)
(questioning about driver’s profession and where she stays
while traveling was outside the scope of traffic stop; affirming
suppression on other grounds).
To be clear, we are not drawing a line that says itinerary
questions are never permissible. Under the Fourth Amend-
ment and Rodriguez, the question is reasonableness under the
circumstances that made the stop constitutional in the first
place. “An officer, in other words, may conduct certain unre-
lated checks during an otherwise lawful traffic stop. But con-
trary to Justice ALITO’s suggestion … he may not do so in a
way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” 575
U.S. at 355.
No. 20-2105 23
In some situations, basic information about how long a
driver has been on the road and where the driver is headed
can inform an officer’s investigation into whether a traffic vi-
olation such as speeding in fact occurred and a decision to
warn, ticket, or arrest: “Q: What’s the rush, sir? A: My wife is
in labor.” See United States v. Brigham, 382 F.3d 500, 508 & n.6
(5th Cir. 2001) (en banc). It is not hard to imagine instances
where even detailed itinerary questioning could fall squarely
within an officer’s mission in executing a traffic stop. For ex-
ample, in furtherance of road safety, an officer concerned that
a driver is exhibiting signs of fatigue may be permitted to pro-
long a stop to ask questions about how long she had been on
the road. See Jimenez, 420 P.3d at 475, 308 Kan. at 329. We also
do not read Rodriguez as barring an officer from extending a
stop to make conversation with an erratic driver where the
officer is reasonably looking for signs of impairment. Cf.
Navarette, 572 U.S. at 402–03. And nothing stops police officers
from investigating the infraction that actually motivated the
stop.
This circuit’s approach accordingly remains in line with
the other circuits that have addressed the propriety of itiner-
ary questioning after Rodriguez. As we explained in Lewis, po-
lice officers may ask about whatever they want, so long as
they do not prolong the stop with their questioning; that is
what the Supreme Court explained in Caballes and Rodriguez.
See also Childs, 277 F.3d at 950. Officers may “ordinarily” in-
dulge in “some” itinerary questioning, United States v. Garner,
961 F.3d 264, 271 (3d Cir. 2020), but itinerary questions and
the like do not necessarily fall within the scope of a traffic
stop, Rodriguez, 575 U.S. at 355, and ordinarily acceptable
questions may impermissibly prolong a stop based on the
specific facts of a given case. See also Clark, 902 F.3d at 410–
24 No. 20-2105
11. Though introductory context-setting questions about a
driver’s itinerary and registration “rarely offend our Fourth
Amendment jurisprudence,” United States v. Collazo, 818 F.3d
247, 258 (6th Cir. 2016), the interrogation here went well be-
yond the permissible scope of the stop given the clear-cut six-
minute delay, the overall context of an unusually long traffic
stop, and Trooper Chapman’s failure to provide a permissible
justification for the easily observable delays. 7
The reasonableness standard of the Fourth Amendment
permits police officers substantial flexibility in how they per-
form their duties in a traffic stop. Here, however, the undis-
puted evidence shows that Trooper Chapman’s pretext was
paper-thin, and he prolonged the stop for at least six minutes.
This case is ripe for decision without additional fact-finding
because Trooper Chapman admitted that he held off on key
aspects of his investigation and did not provide any constitu-
tional justification for why this stop was so long or why he
7 The dissenting opinion also cites United States v. Cortez, 965 F.3d 827,
839 (10th Cir. 2020), which observed that “an officer may generally inquire
about a driver’s travel plans … because travel plans typically are related
to the purpose of the stop.” (cleaned up). Neither the government nor the
dissent hypothesize how the extended questioning here could have had
anything to do with the infraction and stop—Mr. Cole’s having followed
too closely for several seconds after being cut off, notwithstanding other-
wise proper driving under an extended period of observation. Cortez is
also a problem for the government because it explained that many of
Trooper Chapman’s more invasive questions, including those related to
employment, fall outside the routine bounds of a traffic stop. Id. And as
discussed above, the Tenth Circuit has further clarified that even ordinar-
ily acceptable travel questions can run afoul of the Fourth Amendment
when they are irrelevant to the stop and prolong the detention. Gomez-
Arzate, 981 F.3d at 840.
No. 20-2105 25
delayed during the initial roadside encounter. See United
States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015). 8
We should not be surprised that there is a significant risk
of “mission creep” where the stop is justified constitutionally
by one limited purpose but is actually motivated by a differ-
ent purpose. See Jiminez, 420 P.3d at 476, 308 Kan. at 329. In
such cases, district courts must make the joint legal and fac-
tual determination of how long was reasonably necessary to
execute the stop’s permissible mission and then decide
whether the stop’s duration measurably exceeded that ceiling
or the officer otherwise unreasonably prolonged the stop. Our
8 The dissenting opinion characterizes this as wading into waiver-ad-
jacent territory. To be sure, Mr. Cole’s amended suppression motion was
terse, but the rules against consideration of waived and forfeited argu-
ments are not so narrow as to limit an appellant to his or her initial focus.
Mr. Cole’s suppression motion observed that ten minutes elapsed road-
side, during which time Trooper Chapman asked itinerary questions, and
then the dog sniff did not occur for another 30 minutes yet. Under Rodri-
guez, he asserted, all of these delays were unconstitutional. Dkt. 24 at 3, 9,
11. His argument was broad, and the government interpreted it as such.
The government’s equally terse response devoted valuable space to the
propriety of itinerary questions and Lewis. Dkt. 25 at 8. Mr. Cole in fact
developed a record on this point at the hearing, and the government failed
to repair the damage during its cross-examination. The government’s
post-hearing brief elaborated on Lewis’s applicability. Dkt. 29 at 10. The
magistrate judge likewise addressed the propriety and duration of the in-
itial roadside encounter. Dkt. 30 at 23. The government did not ask us to
resolve this appeal on a weak forfeiture argument. We need not second-
guess its tactical decisions or ignore facts that were developed at the sup-
pression hearing in response to the arguments that the parties made in
their pre-hearing briefs. The evidence of Trooper Chapman’s roadside ac-
tivities is one-sided: the video showing several minutes of off-point inter-
rogation, his admission that he held off parts of his traffic investigation
until he had learned Mr. Cole’s full story, and some beeping noises.
26 No. 20-2105
review of fact-finding is deferential. E.g., Simon, 937 F.3d at
832 (deferring to district court’s credibility determinations as
to whether the officers prolonged a stop); Lewis, 920 F.3d at
492 (similar); see also Rodriguez-Escalera, 884 F.3d at 672 (af-
firming grant of motion to suppress based on factual findings,
including those on credibility).
We need not consider the additional delays that took place
during the gas station detour. The permissible scope and du-
ration of investigations into reasonably suspicious behavior
are highly fact-intensive and fluid, and when considering an
obviously pretextual stop like this one, a court needs to stay
focused in its analysis on the circumstances that make the stop
constitutional in the first place. One of three things must hap-
pen during a Terry stop: “(1) the police gather enough infor-
mation to develop probable cause and allow for continued de-
tention, (2) the suspicions of the police are dispelled and they
release the suspect, or (3) the suspicions of the police are not
dispelled, yet the officers have not developed probable cause
but must release the suspect because the length of the stop is
about to become unreasonable.” United States v. Leo, 792 F.3d
742, 751 (7th Cir. 2015) (internal citations to collected cases
omitted). An officer who reasonably believes a driver is sus-
picious based on some ambiguous or conflicting statements
may not detain the suspect indefinitely, lest the stop turn into
“a de facto arrest that must be based on probable cause.” See
id., quoting United States v. Bullock, 632 F.3d 1004, 1015 (7th
Cir. 2011). Because the initial portion of this stop was uncon-
stitutional and was used to prolong the stop improperly, we
need not address how the stop evolved over the entire hour.
No. 20-2105 27
Trooper Chapman measurably prolonged the stop by six
minutes to investigate possible additional crimes without rea-
sonable suspicion, and those actions led to discovery of the
evidence against Mr. Cole. We REVERSE the denial of Mr.
Cole’s motion to suppress and REMAND the case for further
proceedings where Mr. Cole may withdraw his guilty plea
that was conditioned on the admissibility of the evidence
against him obtained through the unlawful seizure and sub-
sequent searches.
28 No. 20-2105
ST. EVE, Circuit Judge, dissenting. I would affirm the district
court’s denial of Cole’s motion to suppress. Trooper Chap-
man developed reasonable suspicion that Cole was engaged
in criminal activity less than nine minutes into the stop, fol-
lowing a brief and routine conversation about Cole’s license,
registration, and travel plans. That reasonable suspicion al-
lowed Trooper Chapman to prolong the stop for the dog sniff,
which uncovered drugs in Cole’s car. The majority’s holding
to the contrary conflicts with our precedent, creates new lim-
its on what officers can ask during Terry stops, and rests on a
dubious factual finding that the district court never made. I
respectfully dissent.
I.
As the majority recognizes, Trooper Chapman lawfully
stopped Cole on the interstate for following too closely. In-
deed, Cole himself conceded at oral argument that there is no
basis for upsetting the district court’s factual finding that he
followed too closely. The central issue on appeal is whether
the stop became unlawful at any point during the detention
that followed the lawful stop.
A closer look at the factual record puts this issue in con-
text. After stopping Cole, Trooper Chapman approached
Cole’s car and spoke to him for about 30 seconds at the pas-
senger’s side window. He retrieved Cole’s license and regis-
tration and asked if Cole’s license showed his current address.
He then asked Cole to sit in his squad car so he could explain
the purpose of the stop. Trooper Chapman testified that he
asked Cole to sit in his squad car because he was having trou-
ble hearing Cole, and for safety reasons because his body was
exposed to traffic on the highway. He added that he “was
No. 20-2105 29
looking at the California registration, an Arizona driver’s li-
cense, and all the other observations I made prior to that.”
About a minute and a half into the stop, Cole entered the
squad car. Cole asked why Trooper Chapman pulled him
over. Trooper Chapman spent about a minute explaining the
details of how Cole had followed another car too closely.
Trooper Chapman then asked Cole about his Arizona driver’s
license and California license plate. Cole explained that he
worked as a personal chef who traveled around the country
for work. Trooper Chapman asked Cole when he got his li-
cense and what his first name was. These questions (and
Cole’s answers) lasted another minute. At that point (about
four minutes into the stop), Trooper Chapman asked Cole
where he was headed. He followed up with questions about
Cole’s job as a traveling chef and the details of Cole’s trip.
These questions lasted about two and a half minutes. Trooper
Chapman then asked Cole about his car and current resi-
dence, apparently trying to make sense of the discrepancy be-
tween Cole’s license (Arizona), registration (California), and
current residence (Maryland). In Cole’s telling, his job as a
traveling chef explained the discrepancy. Trooper Chapman
also asked Cole why he chose to drive, rather than fly. These
additional questions (and Cole’s answers) lasted two minutes
and 20 seconds.
Less than nine minutes into the stop, Trooper Chapman
told Cole that he was going to issue him a warning. He ex-
plained, though, that they would have to relocate to a gas sta-
tion for safety reasons. Cole exited the car, and they both
drove to the gas station. In total, the initial roadside detention
lasted about ten minutes. Less than five minutes passed be-
tween when Trooper Chapman began asking Cole about his
30 No. 20-2105
travel plans and when he told him he would issue him a warn-
ing.
The district court concluded that Trooper Chapman had
reasonable suspicion of other criminal activity by the time he
decided to relocate the stop, at which point he was “clearly
within the time reasonably needed to complete the traffic
stop.” I agree. It is undisputed in this case that issuing the
warning alone would have taken 15 minutes. As such, the crit-
ical question is whether the traffic stop was “‘prolonged be-
yond the time reasonably required to complete th[e] mission’
of issuing a warning ticket.” Rodriguez v. United States, 575
U.S. 348, 354–55 (2015) (quoting Illinois v. Caballes, 543 U.S.
405, 407 (2005)). 1
Based on the above facts, I would hold that Trooper Chap-
man had reasonable suspicion of other criminal activity when
he told Cole he was going to issue him a warning—less than
nine minutes into the stop. In response to Trooper Chapman’s
questions, Cole, an out-of-state motorist traveling on an inter-
state, told an implausible and evolving travel story about
driving from Maryland to Cincinnati to multiple locations in
Colorado and then to Illinois on his way back to Maryland—
all in just four days. He originally said he spent two of the
four days in Cincinnati alone, but he quickly changed his an-
swer and said he just passed through Cincinnati. His story
about Colorado also seemed to evolve. Initially, he said he
1I agree with the majority that an officer does not have “15 free
minutes to investigate other crimes before starting the substance of the
stop in the hope that the questioning will unearth signs of other wrong-
doing to justify still more detention and more investigation.” As I explain
below, Trooper Chapman’s questioning stayed within the permissible
scope of the traffic stop.
No. 20-2105 31
met friends and family in “the springs.” Then, he said he met
some friends at the Springs and went to Boulder to visit a
buddy. After that, he said he met some buddies in Colorado
because one of them was getting a divorce. Trooper Chapman
also testified that Cole was “extremely nervous.” Cole himself
commented on how nervous he was. 2 Beyond that, Cole’s car
insurance was only a few days old. Trooper Chapman testi-
fied that drug traffickers often insure cars for specific trips,
rather than maintaining permanent insurance. 3 Finally, Cole
offered a vague and confusing explanation for why he had an
Arizona driver’s license, a car registered in California, and a
residence in Maryland.
Taken together and assessing the totality of the circum-
stances known to Trooper Chapman, these facts created rea-
sonable suspicion that Cole was engaged in criminal activity.
See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Our cases
have … recognized that nervous, evasive behavior is a perti-
nent factor in determining reasonable suspicion.”); United
States v. Lewis, 920 F.3d 483, 493 (7th Cir. 2019) (finding rea-
sonable suspicion based on defendant’s “unusually nervous”
behavior, criminal history, and “suspiciously inconsistent”
2 The majority cites a portion of Trooper Chapman’s testimony for the
proposition that Cole’s nervousness was “perfectly normal” at the outset.
But in the quoted testimony Trooper Chapman distinguished Cole’s nerv-
ousness from the level of nervousness that most drivers exhibit when they
are pulled over. Indeed, Trooper Chapman testified earlier in the hearing
that Cole’s level of nervousness was “consistent with other individuals
that I’ve stopped that were involved in criminal activity.”
3 The majority claims that Trooper Chapman did not know about
Cole’s recent insurance purchase before relocating the stop to the gas sta-
tion. But the district court found that he did, and Cole does not challenge
that factual finding on appeal.
32 No. 20-2105
answers); United States v. Ruiz, 785 F.3d 1134, 1144 (7th Cir.
2015) (finding that an officer’s suspicions were reasonably in-
creased by the defendant’s Texas driver’s license and Wiscon-
sin registration). I place no reliance on the many innocuous
factors (e.g., Cole’s compliance with the speed limit and good
driving posture) that the government labels suspicious.
Because Trooper Chapman knew the above facts less than
nine minutes into the stop, he had a lawful basis to prolong
the stop for the dog sniff. See Rodriguez, 575 U.S. at 355 (hold-
ing an officer may not prolong a stop beyond the time reason-
ably required to complete it “absent the reasonable suspicion
ordinarily demanded to justify detaining an individual”).
And because Trooper Chapman had reasonable suspicion to
prolong the stop less than nine minutes in, it does not matter
that he ultimately issued the warning 30 minutes into the
stop. See id.
II.
The majority analyzes the stop differently. In its view, the
stop became unlawful as soon as Trooper Chapman began
asking Cole about his itinerary. In reaching this conclusion,
the majority announces a new legal rule regarding travel-plan
questions during a Terry stop that is at odds with our prece-
dent and hamstrings law enforcement officers. The majority
proclaims that Trooper Chapman’s travel-plan questions “al-
most immediately” became impermissible because they were
“unrelated to tailgating or road safety;” that the questions did
not “advance the limited road and driver safety missions”
that Trooper Chapman could pursue; and that they unreason-
ably “delayed” the “permissible parts of his investigation.”
This broad holding ignores our law on the permissibility of
No. 20-2105 33
travel-plan questions and imposes rigid, unreasonable
boundaries on officers during traffic stops.
If Trooper Chapman’s questioning had veered away from
the traffic stop and into completely unrelated territory, I
might agree with the majority that the stop here was unlaw-
ful. See, e.g., United States v. Gomez, 877 F.3d 76, 91–92 (2d Cir.
2017) (holding that a traffic stop was unlawful because the of-
ficer spent most of it asking questions about heroin traffick-
ing); see also Rodriguez, 575 U.S. at 356 (“On-scene investiga-
tion into other crimes … detours from th[e] mission” of a traf-
fic stop). But that is not what happened. Trooper Chapman
asked Cole about his out-of-state license, out-of-state registra-
tion, and travel plans. These are acceptable inquiries that fall
within the scope of a traffic stop. 4
The Supreme Court has made clear that the Fourth
Amendment permits an officer to inquire into “matters unre-
lated to the justification for the traffic stop” without convert-
ing “the encounter into something other than a lawful seizure,
so long as those inquiries do not measurably extend the dura-
tion of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009).
In Rodriguez, the Court held that “the tolerable duration of po-
lice inquiries in the traffic-stop context is determined by the
seizure’s ‘mission’—to address the traffic violation that war-
ranted the stop and attend to related safety concerns.” Rodri-
guez, 575 U.S. at 354 (quoting Caballes, 543 U.S. at 407). “Be-
yond determining whether to issue a traffic ticket, an officer’s
4 Contrary to the majority’s suggestion, the issue here is not whether
“police officers may insist that a driver who is lawfully stopped for a mi-
nor and routine traffic infraction be able to convince the officer that she is
not a criminal.” The issue is whether basic travel-plan questions fall within
the permissible scope of a traffic stop.
34 No. 20-2105
mission includes ‘ordinary inquiries incident to [the traffic]
stop.’” Id. at 355 (quoting Caballes, 543 U.S. at 408). These or-
dinary inquires typically “involve checking the driver’s li-
cense, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registra-
tion and proof of insurance.” Id. These inquiries “serve the
same objective as enforcement of the traffic code: ensuring
that vehicles on the road are operated safely and responsi-
bly.” Id.
Rodriguez did not address whether travel-plan questions
fall within the “mission” of a traffic stop, but we and other
circuits have held that they normally do. Lewis, 920 F.3d at 492
(rejecting the argument that “Where are we headed to today,
sir?” was “irrelevant to a traffic stop”); see also United States v.
Cortez, 965 F.3d 827, 838 (10th Cir. 2020) (“An officer may …
inquire about the driver’s travel plans and the identity of the
individuals in the vehicle.”); United States v. Garner, 961 F.3d
264, 271 (3d Cir. 2020) (“[S]ome questions relating to a driver’s
travel plans ordinarily fall within the scope of the traffic
stop.”); United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017)
(“[O]ur case law allows an officer carrying out a routine traffic
stop to request identification from the driver and to inquire
into the driver’s itinerary.”); United States v. Collazo, 818 F.3d
247, 258 (6th Cir. 2016) (“Questions relating to travel plans …
are the sorts of classic context-framing questions directed at
the driver’s conduct at the time of the stop that rarely offend
our Fourth Amendment jurisprudence.” (quoting United
States v. Lyons, 687 F.3d 754, 770 (6th Cir. 2012))).
And for good reason. Travel-plan questions comport with
“the public’s expectations” and normally relate to the pur-
pose of a stop. Cortez, 965 F.3d at 839. Here, for example,
No. 20-2105 35
Cole’s itinerary could inform why he was following too
closely. See id. (reasoning that travel-plan questions “could
cast light on why Cortez had been speeding, tying them to the
initial justification for the stop”). Trooper Chapman’s travel-
plan questions were also closely related to his permissible
questions about Cole’s possession of an Arizona license and
California registration while traveling on an Illinois interstate.
See Rodriguez, 575 U.S. at 355. More broadly, the command of
the Fourth Amendment is reasonableness. Our “object in im-
plementing its command of reasonableness is to draw stand-
ards sufficiently clear and simple to be applied with a fair pro-
spect of surviving judicial second-guessing months and years
after an arrest or search is made.” Atwater v. City of Lago Vista,
532 U.S. 318, 347 (2001). Holding that travel-plan questions
ordinarily fall within the scope of a traffic stop gives officers
the flexibility they need to investigate traffic violations and
ensure their own safety without worrying that judges will dis-
sect their routine travel-plan questions months or years after
the stop. Id.
The majority acknowledges that travel-plan questions of-
ten fall within the scope of a traffic stop, but it holds that the
questions here went too far. The majority’s holding on this
point conflicts with our recent decision in Lewis. Lewis is es-
sentially identical to this case. Like Cole, Lewis was pulled
over for following too closely. Lewis, 920 F.3d at 486. Like
Cole, Lewis complained that the officer spent several minutes
“asking about irrelevant travel matters.” Id. at 492. Like
Trooper Chapman, the officer in Lewis began by asking where
the defendant was headed. We dismissed the idea that this
question was unrelated to the traffic stop: “Officers across the
country would be surprised if we countenanced the charac-
terization of this basic, routine question as irrelevant to a
36 No. 20-2105
traffic stop.” Id. Because Lewis’s response to the officer’s first
question was “not entirely forthcoming,” the officer—like
Trooper Chapman—asked several follow-up questions.
Lewis answered these follow-up questions in a similarly eva-
sive manner. We squarely rejected Lewis’s argument that the
officer’s travel-plan questions were impermissible: “The Con-
stitution allows an officer to ask these questions during a traf-
fic stop, especially when the answers objectively seem suspi-
cious.” Id. So too here: The Constitution allowed Trooper
Chapman to ask Cole about his travel plans, especially be-
cause Cole’s “answers objectively seem[ed] suspicious.” Id.
The majority finds Lewis distinguishable on the ground
that the officer there was efficiently pursuing the warning
while simultaneously asking travel-plan questions. I doubt
the constitutional boundary hinges on whether an officer is
asking basic travel-plan questions simultaneously, rather
than immediately before or after, processing the warning.
Even assuming, however, that Trooper Chapman’s travel-
plan questions were outside the scope of the traffic stop—
which they were not—the majority’s distinction rests on a fac-
tual finding that the court below never made, i.e., that Trooper
Chapman was not otherwise furthering the traffic stop while
asking travel-plan questions. We simply do not know if that
is true; the record is not developed on that point. In the district
court, the parties’ evidence and arguments centered on
whether Trooper Chapman had probable cause to pull Cole
over for a traffic offense and whether Trooper Chapman had
reasonable suspicion to prolong the stop. The district court
analyzed the evidence and legal issues accordingly. On ap-
peal, Cole shifts his focus to the lawfulness of Trooper Chap-
man’s travel-plan questions. The government does not assert
waiver, but that does not give us license to roam through the
No. 20-2105 37
record and make factual findings that the district court never
made and on which the parties never focused. Our job is to
review the district court’s factual findings for clear error—not
to make factual findings in the first instance. See United States
v. Jackson, 962 F.3d 353, 357 (7th Cir. 2020).
Further, the majority’s factual finding appears to be incor-
rect. The limited evidence in the record suggests that Trooper
Chapman was double tasking while talking to Cole. Trooper
Chapman testified that he ran Cole’s criminal history after re-
ceiving his driver’s license, and that he got the results back
while talking to Cole on the side of the road. At the very be-
ginning of the traffic stop, Trooper Chapman called in Cole’s
license plate, presumably so that dispatch could run a check
on it. In the video of the stop, it sounds as though Trooper
Chapman is working on something else while talking to Cole.
There are long pauses in the conversation and various beep-
ing noises. I understand the majority’s unwillingness to infer
from the beeping that Trooper Chapman was efficiently pur-
suing the traffic stop while talking to Cole—but there is no
basis for drawing the opposite inference. By all appearances,
Trooper Chapman was doing other things while talking to
Cole on the side of the road. The majority’s contrary finding
goes beyond what the district court found and contradicts the
record. As such, it is an improper basis for distinguishing
Lewis.
More generally, the lack of factual findings on this point
prevents us from drawing any conclusions on appeal about
whether Trooper Chapman’s travel-plan questions “pro-
longed the stop by several minutes,” as the majority con-
cludes. To begin, the travel-plan questions fell within the mis-
sion of the stop, so they could not have prolonged the stop.
38 No. 20-2105
And even if they did not, we lack the factual findings to de-
termine whether Trooper Chapman “detour[ed]” from the
stop to ask them. Rodriguez, 575 U.S. at 356. Contrary to the
majority’s suggestions, Trooper Chapman did not “admit[]”
that he delayed the stop to ask travel-plan questions. To be
sure, he testified that he was “trying to piece together Mr.
Cole’s story” before he asked for Cole’s insurance infor-
mation. But this does not mean he was not performing tasks
related to issuing a warning while asking these questions.
And the district court certainly never made such a factual
finding, given that the parties did not raise this issue below.
There is thus no basis for the majority’s factual conclusion that
Trooper Chapman admitted to delaying the stop.
The majority portrays its holding as in line with Lewis and
the holdings of other circuits. But it does not cite any other
circuit court decision holding a traffic stop unlawful because
an officer asked travel-plan questions. And, for reasons I have
explained, the majority provides no sound basis for distin-
guishing Lewis. 5
Applying Rodriguez and Lewis, I would hold that the stop
here was constitutional and affirm the judgment below. I re-
spectfully dissent from the majority’s decision to the contrary.
5 Because the majority’s holding conflicts with Lewis, I would circulate
this opinion to the full court under Circuit Rule 40(e).