United States v. Janhoi Cole

                                 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 — Richard Mills, Judge.
                        ____________________

 ARGUED SEPTEMBER 30, 2021 — DECIDED DECEMBER 17, 2021
                ____________________

   Before SYKES, Chief Judge, and EASTERBROOK, KANNE,
ROVNER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE, and
KIRSCH, Circuit Judges. *




    * Circuit Judge  Jackson-Akiwumi did not participate in the considera-
tion or decision of this case.
2                                                  No. 20-2105

    ST. EVE, Circuit Judge. An Illinois state trooper stopped
Janhoi Cole for following too closely behind another car. At
the time, Cole was traveling on an Illinois interstate with an
Arizona driver’s license and a California registration. During
the brief roadside detention that followed, the trooper ques-
tioned Cole about his license, registration, and travel plans.
Cole’s answers struck the trooper as evasive, inconsistent, and
improbable. Many of the trooper’s questions were follow-up
questions to Cole’s answers and volunteered information.
Combined with other factors, they led the trooper to suspect
that Cole was trafficking drugs. To investigate his suspicions,
the trooper called for a K-9 unit to meet him and Cole at a
nearby gas station. The dog alerted, and officers found large
quantities of methamphetamine and heroin in Cole’s car.
    Facing federal charges, Cole moved to suppress the drugs
as well as his statements during the stop. He argued that the
trooper unlawfully initiated the stop and unreasonably pro-
longed it without reasonable suspicion of other criminal ac-
tivity. The district court denied the motion, but a divided
panel of this Court reversed on the basis that the trooper’s in-
itial roadside questioning unreasonably prolonged the traffic
stop. We reheard the case en banc to resolve an apparent con-
flict between the panel’s decision and United States v. Lewis,

 (7th Cir. 2019), as to whether travel-plan ques-
tions are part of the “mission” of a traffic stop under Rodriguez
v. United States, 

 (2015).
   In keeping with Lewis and the consensus of other circuits,
we hold that travel-plan questions ordinarily fall within the
mission of a traffic stop. Travel-plan questions, however, like
other police inquiries during a traffic stop, must be reasonable
under the circumstances. And here they were. The trooper
No. 20-2105                                                    3

inquired about the basic details of Cole’s travel, and his fol-
low-up questions were justified given Cole’s less-than-forth-
right answers. The stop itself was lawfully initiated, and the
trooper developed reasonable suspicion of other criminal ac-
tivity before moving the initial stop to the gas station for the
dog sniff. We therefore affirm the district court’s denial of
Cole’s motion to suppress.
                               I.
    A magistrate judge held a hearing on Cole’s motion to
suppress. Evidence at the hearing included the trooper’s po-
lice report and dash camera video as well as testimony from
Cole, the trooper, and another officer involved in the stop. Af-
ter the hearing, the magistrate judge entered a report and rec-
ommendation with extensive factual findings, which the dis-
trict court adopted. Absent clear error, we defer to the district
court’s factual findings. United States v. Bacon, 

 (7th Cir. 2021).
                               A.
    Sheriff’s Deputy Derek Suttles was on criminal interdic-
tion patrol in central Illinois when he spotted a silver
Volkswagen hatchback traveling east on the interstate. The
car caught his attention because it was travelling 10 to 15 miles
below the posted speed limit. Deputy Suttles also noticed a
covering over the car’s rear cargo area. He messaged Illinois
State Police Trooper Clayton Chapman, who was doing crim-
inal interdiction patrol further east on the interstate, and told
him to look out for the Volkswagen. Trooper Chapman had
about 250 hours of training, mostly related to drug interdic-
tion and other crime interdiction on roadways.
4                                                 No. 20-2105

   Deputy Suttles relayed the information that he considered
to be suspicious, along with the results of a license plate
check. The check revealed that the Volkswagen had been sold
and registered three weeks earlier to Janhoi Cole, with an ad-
dress in Los Angeles, California. It had been insured only four
days earlier.
    Trooper Chapman spotted the Volkswagen, whose driver
was leaned far back in the seat with his arms fully extended,
obscuring his face, and began following the vehicle. Shortly
thereafter, Trooper Chapman saw another car merge in front
of the Volkswagen from the far-left lane. When the other car
merged, the Volkswagen did not move into the right lane, but
instead followed closely behind the merged car. From his van-
tage point—about a football field behind the Volkswagen—
Trooper Chapman determined that the Volkswagen was two
car lengths or less behind the merged car.
   Trooper Chapman stopped the Volkswagen for following
too closely, in violation of Illinois law. See 625 ILCS 5/11-
710(a). After calling in the license plate and confirming that
the plate matched the car, Trooper Chapman approached the
Volkswagen and asked the driver (Cole) for his license and
registration. Cole produced his Arizona driver’s license and
California registration. In response to Trooper Chapman’s
questions, Cole confirmed that his license showed his current
address and that he owned the Volkswagen. Trooper Chap-
man then asked Cole to sit in his squad car so he could explain
the purpose of the stop in a quieter and safer setting. While
standing by Cole’s car, Trooper Chapman saw numerous
drinks and snacks in the car, which led him to believe that
Cole had been traveling long distances. He observed, though,
that the only luggage in the car was a small backpack.
No. 20-2105                                                  5

   In the squad car, Trooper Chapman spent about a minute
explaining the details of how Cole had followed the other car
too closely. He then asked Cole about his Arizona driver’s li-
cense and California license plate. Cole offered, “I’m a chef. I
spend most of my time between Los Angeles and Maryland
and New York at work. But I genuinely had a job in Arizona.
And I genuinely keep this driver’s license because of the ex-
piration date.”
    About four minutes into the stop, Trooper Chapman be-
gan inquiring into Cole’s travel plans. He first asked where
Cole was headed. Cole answered, Maryland, because his boss
resided in Maryland. Following up, the trooper asked where
Cole worked and for whom. Cole responded that he was a
personal chef for two former professional football players
and, in between, an ordinary chef. After confirming Cole’s
destination (Maryland), the trooper asked Cole where his trip
began. Cole did not answer the question initially. Instead, he
offered that he had met up with some friends and family in
Colorado Springs. The trooper asked again where the trip be-
gan. Cole clarified that his trip started in Maryland. From
there, he went to Cincinnati, before heading to Colorado
Springs, then Boulder, and was going back home to Maryland
when the trooper stopped him. The trooper asked Cole when
he left on the trip. Cole said about four to five days earlier.
    The trooper then moved on to the vehicle’s information.
He questioned Cole as to how long he had owned the
Volkswagen. Cole said six months, adding that he just had the
paperwork transferred. He explained that the car was a recent
purchase. He had been driving with his friend’s paperwork
and had only recently acquired the insurance and registra-
tion. Looking at Cole’s paperwork, the trooper noted that the
6                                                    No. 20-2105

car had been registered on June 4, 2018. Cole verified that was
correct; his girlfriend had registered the car then.
    Trooper Chapman next inquired where Cole was living.
Cole said he spent most of his time in Los Angeles, adding
that he had a child in both Los Angeles and Florida and was
planning to move to Florida. The trooper wondered, “So,
you’ve got an Arizona driver’s license that says Tucson … I’m
just trying to … And you said you’ve been traveling from
Maryland, so have you been staying recently in Maryland?”
Cole replied, “Yes. I have family in Maryland. My boss is in
Maryland. When I work in Maryland, I stay by my uncle. But
this driver’s license, I genuinely keep it just because of the ex-
piration. I haven’t been in Arizona in a long time.” The
trooper followed up, “So your primary address, or your cur-
rent address, is in California. But recently you’ve been staying
in ….” Before he could finish, Cole interjected, “Yeah, cause
I’m a chef. I travel.” The trooper asked, “Back and forth?”
Cole said yes, explaining that he went wherever he got jobs.
The trooper concluded by asking Cole why he did not fly.
Cole responded, “Fly? I have a car. And I travel with pots
sometimes. I’m a chef. Occasionally I travel with a bicycle.”
   Trooper Chapman thought that Cole’s travel details
sounded vague and made up. Cole appeared extremely nerv-
ous during the stop. Among other physical symptoms, he was
breathing heavily, and his neck was sweaty.
    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 nearby
gas station for safety reasons. Cole returned to his own car,
and they drove separately to the gas station. At the gas station,
Trooper Chapman called for a K-9 unit. While waiting,
No. 20-2105                                                    7

Trooper Chapman continued questioning Cole about his
travel plans. He regarded Cole’s answers as increasingly sus-
picious. He also learned from dispatch that Cole had been ar-
rested three times on drug trafficking charges. About 45
minutes after the stop began, the K-9 unit alerted on Cole’s
car. Officers searched the car and found large quantities of
methamphetamine and heroin.
                               B.
    A federal grand jury charged Cole with possession with
intent to distribute 500 grams or more of methamphetamine
(Count 1) and heroin (Count 2). Cole moved to suppress the
drugs found in his car and his statements during the stop. The
magistrate judge recommended denying the motion. The dis-
trict court accepted the recommendation and denied the mo-
tion. Cole conditionally pleaded guilty to both counts, while
reserving his right to appeal the denial of his motion to sup-
press. A divided panel of this Court reversed, but we vacated
that opinion and voted to rehear the case en banc.
                               II.
    Cole maintains that Trooper Chapman violated his Fourth
Amendment rights by stopping him without reasonable sus-
picion of a traffic violation and by unreasonably prolonging
the stop to inquire into his travel plans. We review the district
court’s legal conclusions de novo, Bacon, 

, and
its factual findings for clear error, United States v. Gholston,

 (7th Cir. 2021).
    The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. Time and again, the
8                                                        No. 20-2105

Supreme Court has held that “the ultimate touchstone of the
Fourth Amendment is reasonableness.” Lange v. California,

, 2017 (2021) (quoting Brigham City v. Stuart, 

 (2006)). “Reasonableness, in turn, is measured in
objective terms by examining the totality of the circum-
stances.” Ohio v. Robinette, 

 (1996).
    Traffic stops are seizures, so they must be reasonable un-
der the circumstances. Whren v. United States, 

(1996). To be reasonable, a traffic stop must be “justified at its
inception, and reasonably related in scope to the circum-
stances which justified the interference in the first place.”
Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty., 

 (2004). Because traffic stops are typically brief deten-
tions, more akin to Terry stops than formal arrests, they re-
quire only reasonable suspicion of a traffic violation—not
probable cause. Rodriguez, 

; Navarette v. Califor-
nia, 

, 396–97 (2014); see also Terry v. Ohio, 

 (1968). By the same token, though, traffic stops must remain
limited in scope: “A seizure for a traffic violation justifies a
police investigation of that violation.” Rodriguez, 

. Police may not “detour[]” from that “mission” to investi-
gate other criminal activity. 

 at 356–57. A detour that “pro-
longs the stop” violates the Fourth Amendment unless the of-
ficer has reasonable suspicion of other criminal activity to in-
dependently justify prolonging the stop. 

.
                                  A.
   The first issue we address is whether Trooper Chapman
had a lawful basis to initiate the stop.1 We have little trouble


    1 We, of course, do not consider Trooper Chapman’s subjective moti-
vations for deciding to conduct a traffic stop. As the Supreme Court has
No. 20-2105                                                               9

concluding that he did. Under Illinois law, “[t]he 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 traffic upon and the condition
of the highway.” 625 ILCS 5/11-710(a). Trooper Chapman tes-
tified that Cole was less than two car lengths behind the car in
front of him. The magistrate judge credited that testimony
and made an express factual finding that Cole was following
too closely behind the other car. Cole does not challenge that
factual finding on appeal. Instead, he argues that the district
court failed to consider the statutory factors (speed of other
cars, traffic, and road conditions) when determining that
there was reasonable suspicion of a traffic violation. The ques-
tion, however, is whether Trooper Chapman reasonably be-
lieved that he saw a traffic violation, not whether Cole actu-
ally violated the statute. United States v. Muriel, 

 (7th Cir. 2005); see also United States v. Simon, 

 (7th Cir. 2019) (“If an officer reasonably thinks he sees a
driver commit a traffic infraction, that is a sufficient basis to
pull him over without violating the Constitution.”). As in
Muriel, the trooper’s “estimation” of a short following dis-
tance justified the stop. Muriel, 

; accord Lewis,

.




unequivocally held, “[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.” Whren, 

. To
the extent that the dissent opposes the objective test established by Whren,
or suggests that police discretion informs how courts should approach
Fourth Amendment law more generally, that is an issue for the Supreme
Court, not us.
10                                                   No. 20-2105

                               B.
   The more substantial issue is whether Trooper Chapman
unlawfully prolonged the traffic stop by inquiring about
Cole’s itinerary.
                                1.
    To answer this question, we start with Rodriguez. There,
the Supreme Court held that “the tolerable duration of police
inquiries in the traffic-stop context is determined by the sei-
zure’s ‘mission.’” Rodriguez, 

 (quoting Illinois v.
Caballes, 

 (2005)). The mission of a traffic stop,
in turn, is “to address the traffic violation that warranted the
stop and attend to related safety concerns.” 

 (citations omit-
ted). Tasks within that mission include “determining whether
to issue a traffic ticket” and pursuing “‘ordinary inquiries in-
cident to [the traffic] stop.’” 

 at 355 (quoting Caballes, 

). Typically, the ordinary inquiries incident to a
traffic stop “involve checking the driver’s license, determin-
ing whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof
of insurance.” 

 Such inquiries fall within the mission of a
stop because they “serve the same objective as enforcement of
the traffic code: ensuring that vehicles on the road are oper-
ated safely and responsibly.” 

 Rodriguez distinguished
those ordinary inquiries from measures aimed at investigat-
ing other criminal activity, such as a dog sniff for drugs. 

   As part of making these ordinary inquiries, no one dis-
putes that an officer may ask questions unrelated to the stop,
and even conduct a dog sniff, if doing so does not prolong the
traffic stop. As the Supreme Court explained in Arizona v.
Johnson, 

 (2009), “[a]n officer’s inquiries into
No. 20-2105                                                     11

matters unrelated to the justification for the traffic stop … do
not convert the encounter into something other than a lawful
seizure, so long as those inquiries do not measurably extend
the duration of the stop.” 

; see Rodriguez, 575 U.S. at
354–55; Caballes, 

 (dog sniff). This recognition
does not resolve this appeal because the record is undevel-
oped as to whether Trooper Chapman’s travel-plan questions
prolonged the stop. If they did not, then they would have
been permissible even if they exceeded the mission of the
stop. See Lewis, 

; United States v. Walton, 

 (7th Cir. 2016). But because the district court never
made such a factual finding, we put this issue aside and ask
whether Trooper Chapman’s travel-plan questions fell within
the mission of the stop, such that they could not have pro-
longed it in the first place.
    Rodriguez did not list travel-plan questions among the or-
dinary inquiries of a traffic stop. See Rodriguez, 

.
From this, Cole infers that the Supreme Court must have
meant to exclude them. Judicial opinions are not statutes,
however, and we decline to extrapolate a holding about
travel-plan questions from the Supreme Court’s silence on
them in a case where they were not at issue. See United States
v. Skoien, 

 (7th Cir. 2010) (en banc). The ques-
tion presented in Rodriguez was “whether the Fourth Amend-
ment tolerates a dog sniff conducted after completion of a
traffic stop.” Rodriguez, 

. The Court had no oc-
casion to reach—and did not reach—the propriety and per-
missible scope of travel-plan questions. We decline to read Ro-
driguez as creating an exhaustive list of mission-related in-
quiries. See United States v. Gholston, 

 (7th Cir.
2021) (noting that “[a] stop may call for a variety of measures
beyond” the ordinary inquiries listed in Rodriguez).
12                                                    No. 20-2105

    Though Rodriguez did not address whether travel-plan
questions fall within the mission of a traffic stop, it supplied
an analytical framework for answering that question.
Namely, we must ask whether, in the totality of circum-
stances, reasonable travel-plan questions, like the other ordi-
nary inquiries of a stop, are justified by the traffic violation
itself or by the “related” concerns of “[h]ighway and officer
safety.” Rodriguez, 

, 356–57. Our sister circuits
have followed this approach in deciding whether other un-
listed inquiries fall within the mission of a traffic stop. See, e.g.,
United States v. Buzzard, 

, 203–04 (4th Cir. 2021);
United States v. Clark, 

, 410–11 (3d Cir. 2018);
United States v. Evans, 

, 786–87 (9th Cir. 2015).
    Applying the Rodriguez framework, we hold that travel-
plan questions ordinarily fall within the mission of a traffic
stop. To begin, travel-plan questions supply important con-
text for the violation at hand. If, for example, “a given driver
was speeding in order to get his pregnant wife to the hospi-
tal,” then perhaps this “extenuating circumstance” might per-
suade the officer to issue a warning or simply release the
driver. United States v. Brigham, 

, 508 & n.6 (5th
Cir. 2004) (en banc); accord United States v. Cortez, 

 (10th Cir. 2020) (reasoning that officer’s travel-plan ques-
tions “could cast light on why Cortez had been speeding, ty-
ing them to the initial justification for the stop”). In other cir-
cumstances, the context of a stop might counsel in favor of a
ticket or arrest. See Brigham, 

 & n.6.
    A driver’s travel plans may also inform an officer’s assess-
ment of roadway safety concerns beyond the immediate vio-
lation. An officer investigating a broken taillight, for example,
has a legitimate interest in knowing whether the driver is two
No. 20-2105                                                      13

miles from home or halfway through a cross-country trip. Cf.
United States v. Ellis, 

, 613–14 (6th Cir. 2007) (hold-
ing that officer who stopped car for weaving “was justified in
asking the occupants general questions of who, what, where,
and why regarding their 3:23 a.m. travel,” as such questions
could help “determine the driver’s ability to safely operate the
vehicle”).
    At a more general level, “[t]ravel plans typically are re-
lated to the purpose of a traffic stop because the motorist is
traveling at the time of the stop.” United States v. Holt, 

 (10th Cir. 2001) (en banc), abrogated on other grounds
as recognized in Cortez, 

; see also United States v.
Collazo, 

 (6th Cir. 2016) (describing travel-
plan questions as “classic context-framing questions directed
at the driver’s conduct at the time of the stop” (quoting United
States v. Lyons, 

 (6th Cir. 2012))). In that sense,
travel-plan questions comport with the “public’s expectations
regarding ordinary inquiries incidental to traffic stops.” Cor-
tez, 

.
    In short, travel-plan questions are routine inquiries that
reasonably relate to the underlying traffic violation and road-
way safety. As a result, we hold that such questions ordinarily
fall within the mission of a traffic stop. This does not mean,
however, that officers have a free pass to ask travel-plan ques-
tions until they are subjectively satisfied with the answers. An
officer’s travel-plan questions, like the officer’s other actions
during the stop, must remain reasonable, and reasonableness
is an objective standard based on all the circumstances. Robi-
nette, 

.
   We are not alone in holding that travel-plan questions or-
dinarily fall within the mission of a traffic stop. In fact, every
14                                                    No. 20-2105

circuit to address the issue post-Rodriguez has reached the
same conclusion. Most recently, the Eleventh Circuit rejected
a defendant’s argument that an officer’s travel-plan questions
went beyond the mission of a stop, holding that “[g]enerally,
questions related to an individual’s traffic plans or itinerary
are ordinary inquires related to a traffic stop.” United States v.
Braddy, 

 (11th Cir. 2021). Five other circuits
agree. Cortez, 

 (“An officer may … inquire about
the driver’s travel plans.”); United States v. Garner, 

 (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. Smith, 

, 647 (5th Cir. 2020)
(observing that an officer “may … ask about the purpose and
itinerary of the occupants’ trip” (quoting Brigham, 

)); United States v. Dion, 

 (1st Cir. 2017)
(“[O]ur case law allows an officer carrying out a routine traffic
stop to … inquire into the driver’s itinerary.”); Collazo, 

 (“Questions relating to travel plans … rarely of-
fend our Fourth Amendment jurisprudence.” (quoting Lyons,

)); see also United States v. Callison, 

,
1131 n.2 (8th Cir. 2021) (noting that “[i]n some post-Rodriguez
cases we have at least suggested that travel-related questions
remain a ‘permissible’ part of routine traffic stops in the
Eighth Circuit.” (citing United States v. Murillo-Salgado, 

 (8th Cir. 2017))).
    The dissent claims that the Tenth Circuit has taken a more
nuanced approach to travel-related questions in United States
v. Gomez-Arzate. 

 (10th Cir. 2020). In Gomez-Arzate,
however, the officers’ travel-plan questions came after the traf-
fic stop was completed, in contrast to the questions from
Trooper Chapman that occurred during the traffic stop. 

 at
840 n.3 (“Here, though, the traffic stop had effectively been
No. 20-2105                                                            15

completed before the VIN search and questioning about
travel plans.”).
    We, too, have approved of travel-plan questions post-Ro-
driguez. In Lewis, the defendant complained that an officer
spent several minutes “asking about irrelevant travel matters”
during a traffic stop, thereby prolonging the stop in violation
of the rule announced in Rodriguez. 

. We re-
jected the argument. To begin, we dismissed the idea that the
officer’s first question—“Where are we headed to today,
sir?”—was unrelated to the stop, remarking that “[o]fficers
across the country would be surprised if we countenanced the
characterization of this basic, routine question as irrelevant to
a traffic stop.” 

 Lewis’s response to the officer’s first ques-
tion was “not entirely forthcoming,” and prompted the officer
to ask several follow-up questions. Lewis answered these
questions in a similarly evasive manner. Again, adhering to
the rule announced in Rodriguez, we squarely rejected Lewis’s
argument that the officer’s travel-plan questions were imper-
missible: “The Constitution allows an officer to ask these
questions during a traffic stop, especially when the answers
objectively seem suspicious.” 2 

    Lewis reinforces an important corollary of our holding: Of-
ficers asking travel-plan questions may also ask reasonable
follow-up questions based on a driver’s responses. Travel-
plan questions are not mere formalities; they serve important


    2 The dissent attempts to recast Lewis, asserting that “the most im-
portant reason [we] had for affirming denial of the motion to suppress
there was that the defendant had simply failed as a matter of fact to show
that the questioning had actually prolonged the stop.” But that reading
contradicts the opinion’s unambiguous language. Lewis, 

.
16                                                 No. 20-2105

law-enforcement purposes, and therefore an officer has an in-
terest not only in asking such questions but also in receiving
truthful answers to them. If a driver’s responses are evasive,
inconsistent, or improbable, the officer need not accept them
at face value and move on. To the contrary, the officer may
ask reasonable follow-up questions to clarify the answers.
This was our point in Lewis, when we said the Fourth Amend-
ment permits travel-plan questions during traffic stops “espe-
cially when the answers objectively seem suspicious.” Id.; see
also Murillo-Salgado, 

 (holding that an officer
may take the time to respond to “legitimate complications”
that arise during the “routine tasks” of a traffic stop); Dion,
859 F.3d at 124–25 (explaining that a Terry stop is not a “snap-
shot of events frozen in time and place” and that an officer’s
“actions must be fairly responsive to the emerging tableau”
(internal quotation and citation omitted)). It is only when an
officer’s follow-up questions go too far and become unreason-
able that a stop risks becoming prolonged.
                               2.
   Applying these principles here, we hold that Trooper
Chapman’s travel-plan questions during the initial roadside
detention fell within the mission of the traffic stop and did not
unlawfully prolong the traffic stop.
    At the outset, it is important to recall the sequence of
events here. Trooper Chapman asked his travel-plan ques-
tions following Cole’s elusive and confusing account. These
travel-plan questions related closely to his questions about
Cole’s Arizona license and California registration. See Braddy,

 (holding that the officer’s questions about li-
cense, registration, and travel plans were within the mission
of stop). Before inquiring into Cole’s travel, Trooper
No. 20-2105                                                    17

Chapman asked Cole about the discrepancy between his Ari-
zona license and California registration. Cole’s response ref-
erenced three other states beyond Arizona and California. He
explained that he was a chef who split his time between Los
Angeles, Maryland, and New York, adding that he kept his
Arizona license because of the expiration date and that he
might be moving to Florida soon. When Trooper Chapman
began generally inquiring about Cole’s travel details, Cole
added two more states into the mix: He said he had stopped
in Cincinnati on his way from Maryland to Colorado. By this
point, Cole had mentioned seven different states—none of
which was Illinois—in response to Trooper Chapman’s ques-
tions about his license, registration, and basic trip details. See

 (holding that the officer’s travel-plan questions were “or-
dinary inquiries related to the traffic stop, especially given the
fact that Braddy was driving a vehicle on Alabama roads with
an obstructed Florida license plate that was not registered to
him”).
    Understandably, Trooper Chapman had follow-up ques-
tions. Cole evaded some of these follow-up questions. After
Cole volunteered that he worked as a chef, for example,
Trooper Chapman asked where he worked. Cole replied with
his occupation, saying he was a personal chef. Trooper Chap-
man tried asking the same question another way: “Who do
you work for?” This time, Cole responded that he worked for
two former professional football players and that “in be-
tween” he was a chef. Cole similarly evaded Trooper Chap-
man’s question about where he began his trip, prompting
Trooper Chapman to repeat the question. Cole’s explanation
for where he was currently living was also hard to pin down.
Initially, he said he spent most of his time in Los Angeles,
while noting that he might be moving to Florida. When
18                                                    No. 20-2105

Trooper Chapman followed up, however, Cole seemed to
agree that he was currently living in Maryland. In addition to
evading questions, Cole gave confusing and improbable an-
swers that prompted other reasonable follow-up questions.
See Dion, 859 F.3d at 125–26 (where driver with Colorado
plates produced an Arizona license and “described his travel
itinerary as a return trip from a cross-country road trip to visit
a CPA in Pennsylvania,” an officer’s follow-up questions on
the same subject were “both prompted and warranted” by
that “odd answer to a concededly appropriate question about
travel itinerary”).
    Under these circumstances, Trooper Chapman’s travel-
plan questions were reasonable. Trooper Chapman ques-
tioned Cole about the basic details of his travel—which were
relevant to the traffic violation and roadway safety—and
asked reasonable follow-up questions based on Cole’s elusive
answers. See Lewis, 

. As Trooper Chapman tes-
tified, his questions were aimed at “piec[ing] together” Cole’s
“inconsistent” answers to basic travel-plan questions. He was
not, as Cole suggests, conducting a “fishing expedition” for
information that might generate reasonable suspicion to pro-
long the stop. Dion, 

 n.12 (citing United States v.
Pruitt, 

 (11th Cir. 1999)); cf. Cortez, 

 (holding that “repetitive” and “in depth” questions
about travel details were unrelated to traffic stop because
such questions “neither helped investigate the original infrac-
tion—speeding—nor could they reasonably be characterized
as relating to officer safety”); United States v. Macias, 

 (5th Cir. 2011) (holding that officer’s detailed ques-
tions about driver’s mother, children, and past encounters
with law enforcement went beyond mission of stop because
they bore no relation to driver’s failure to wear a seatbelt).
No. 20-2105                                                   19

    Cole complains that Trooper Chapman’s questions went
beyond the details of his travel and into unrelated matters,
such as his occupation. But Cole initially volunteered his oc-
cupation almost three minutes into the stop in response to a
question about his license and registration and repeatedly re-
turned to it when explaining his travel and living situation, so
it was reasonable for Trooper Chapman to ask a few follow-
up questions about it. Cole also complains about the length of
Trooper Chapman’s travel-plan questions (just under five
minutes). But “we repeatedly have declined to adopt even a
rule of thumb that relies on the number of minutes any given
stop lasts.” Gholston, 

 n.4. Reasonableness is the
touchstone, and what is reasonable depends on the circum-
stances of a case. Lange, 141 S. Ct. at 2017. Here, Trooper Chap-
man’s questioning stayed within reasonable limits given
Cole’s responses.
   Because Trooper Chapman’s questioning was reasonable,
we need not speculate about scenarios in which travel-plan
questions might go too far. For now, it is enough to say that
travel-plan questions go too far when they are no longer rea-
sonably related to the stop itself (and related safety concerns)
but rather reflect an independent investigation of other crim-
inal activity. See Rodriguez, 575 U.S. at 356–57.
                               3.
    We do not address whether Trooper Chapman’s addi-
tional questions at the gas station stayed within the mission
of the stop because he developed reasonable suspicion of
other criminal activity less than nine minutes into the stop,
before he told Cole he would issue him a warning and before
they drove to the gas station.
20                                                  No. 20-2105

    Reasonable suspicion exists when, considering the totality
of the circumstances, an officer has “a particularized and ob-
jective basis for suspecting the particular person stopped of
criminal activity.” Navarette, 572 U.S. at 396–97 (quoting
United States v. Cortez, 

, 417–18 (1981)). A hunch is
not enough, but “the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls con-
siderably short of satisfying a preponderance of the evidence
standard.” United States v. Arvizu, 

 (2002). The
standard “allows officers to draw on their own experience
and specialized training to make inferences from and deduc-
tions about the cumulative information available to them that
‘might well elude an untrained person.’” 

 at 273 (quoting
Cortez, 

).
     This standard was met here. Cole was driving on an Illi-
nois interstate with an Arizona driver’s license and a Califor-
nia registration, and his explanation for this discrepancy was
confusing at best. According to Cole, he was a traveling per-
sonal chef who split his time between California, Maryland,
and New York, traveling to each destination by car so that he
could bring his pots and bicycle with him. He claimed to have
had a job at one point in Arizona, and he added that he might
be moving to Florida soon, again for job-related reasons. Even
if this story was not inconceivable, Trooper Chapman reason-
ably suspected that it was false. See Walton, 827 F.3d at 688–89
(finding reasonable suspicion based in part on defendant’s
“implausible” answers).
   The details of Cole’s current trip were equally dubious and
seemed to evolve throughout the conversation. In Cole’s tell-
ing, he had driven from Maryland to Cincinnati to multiple
locations in Colorado and then to Illinois on his way back to
No. 20-2105                                                  21

Maryland—all in just four or five days. He originally said he
spent two of the four days in Cincinnati for work, but he
quickly changed his answer and said he just passed through
Cincinnati. His story about Colorado also seemed to evolve.
Initially, he said he 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
friends in Colorado because one of them was getting a di-
vorce. Cole’s improbable and inconsistent answers about his
trip details reasonably increased Trooper Chapman’s suspi-
cions. See Lewis, 

 (finding reasonable suspicion
based in part on defendant’s “suspiciously inconsistent” an-
swers).
    Cole’s extreme nervousness reinforced the suspicion. See
United States v. Rodriguez-Escalera, 

 (7th Cir.
2018) (“[N]ervousness is certainly a factor that can support
reasonable suspicion.”). Trooper Chapman testified that Cole
was “extremely nervous” throughout the stop, adding that
his neck was sweaty and that he was breathing heavily. Cole
suggests that the dash camera video refutes this testimony,
but the dash camera was not pointed at Cole during the con-
versation. Moreover, the dash camera records Cole himself
commenting on how nervous he was, so if anything, it sup-
ports Trooper Chapman’s testimony. Cole cannot show that
the district court’s finding of extreme nervousness was clearly
erroneous. See 

 (holding that the district court did not have
to credit officer’s testimony that defendant was nervous
“when the court’s own review of the traffic stop footage led it
to the opposite conclusion”).
    Additional factors further supported Trooper Chapman’s
belief that Cole was engaged in criminal activity. Cole’s car
22                                                     No. 20-2105

was newly registered and insured. Trooper Chapman found
this suspicious because he knew that drug traffickers often
traded and reregistered cars and purchased insurance for spe-
cific trips rather than maintaining permanent insurance. Cole
disputes the district court’s finding that Trooper Chapman
possessed this knowledge. But Deputy Suttles’s message to
Trooper Chapman provided the car’s most recent registration
date, and Cole, himself, told Trooper Chapman that he re-
cently acquired the “insurance, registration, and all that
stuff.” So here too, Cole has not shown clear error. In addition
to the recent registration and insurance purchase, Trooper
Chapman knew from Deputy Suttles that Cole had a covering
over his rear cargo area, which was common among persons
engaged in criminal activity. Finally, Trooper Chapman no-
ticed that Cole had limited luggage in his car—one small
backpack—which was hard to square with Cole’s cross-coun-
try road trip.
    Taken together and assessing the totality of the circum-
stances known to Trooper Chapman, these factors created
reasonable suspicion that Cole was engaged in criminal activ-
ity. We need not consider the other factors that the govern-
ment relies on—e.g., the make of Cole’s car (a Volkswagen),
Cole’s origin in Los Angeles (a supposed drug source loca-
tion), his travel on Interstate-55 (a supposed drug corridor),
and his slow speed and rigid driving posture—though we re-
mind the government to refrain from using criteria so broad
as to subject “a very large category of presumably innocent
travelers” to “virtually random seizures.” Reid v. Georgia, 

 (1980); see also United States v. Street, 

 (7th Cir. 2019) (“Without more, a description that applies
to large numbers of people will not justify the seizure of a par-
ticular individual.”).
No. 20-2105                                               23

   Because Trooper Chapman developed reasonable suspi-
cion less than nine minutes into the stop, during the initial
roadside detention, he had a lawful basis for prolonging the
stop to conduct a dog sniff at the gas station, where Cole’s
increasingly incoherent answers and criminal history further
increased his suspicions. See Rodriguez, 

.
                            III.
  The trooper’s actions in this case complied with the Fourth
Amendment, so we AFFIRM the district court’s denial of Cole’s
motion to suppress.
24                                                     No. 20-2105

    HAMILTON, Circuit Judge, joined by ROVNER and WOOD,
Circuit Judges, dissenting. A broken taillight, a too-sudden
lane change, or tailgating for a few seconds allows a police
officer to carry out a traffic stop even if the officer’s real pur-
pose is to investigate other possible crimes. In such stops, no
one sees a problem with an officer’s question or two about
where the driver is coming from or going. Answers to those
questions may help the officer understand the situation and
assess the driver’s attitude and potential threats. The major-
ity’s decision today errs, however, by going much further.
Under the majority opinion, the officer may also subject a
driver and passengers to repetitive and detailed questioning
about where they are coming from and where they are going
until the officer is satisfied that the answers are truthful. Ante at
15–16. Given the low “hit rate” of police searches of vehicles
for drugs, this decision will enable police officers to harass
and humiliate civilians far more often than they actually turn
up significant quantities of drugs.
     The scope of permissible police activity in pretextual traf-
fic stops is important. By adopting a general presumption al-
lowing such detailed interrogation as occurred in this case,
the majority enables police officers to subject almost any mo-
torist to similar interrogation, delay, and even humiliation, for
little gain in terms of law enforcement. See Jeannine Bell, The
Violence of Nosy Questions, 

 (2020) (criticiz-
ing wide discretion for officers to ask “nosy” questions on
fishing expeditions that humiliate and anger drivers stopped
for minor traffic infractions).
    This case presents a pretextual traffic stop based on a po-
lice officer’s hunch that the car was carrying drugs. The video
recording and the officer’s later testimony show that, almost
No. 20-2105                                                    25

from the very outset, the officer prolonged the stop by ques-
tioning the driver at length and in detail on subjects beyond
the legal justification for the stop. Under Rodriguez v. United
States, 

 (2015), the officer’s prolonging of this stop
violated the Fourth Amendment. We should order suppres-
sion of evidence found later in the stop.
   To be sure, in some traffic stops, some questions about
travel plans will be relevant. For example, an officer who has
reason to believe the driver is impaired by fatigue will want
to know how long the driver has been on the road. In such
cases, an officer should have little difficulty explaining his
questioning in terms of the lawful purpose of the stop. This
stop for tailgating was not such a stop, and the officer offered
no such lawful explanation. I respectfully dissent.
    To explain my conclusion, Part I of this opinion outlines
the legal doctrines allowing pretextual stops and their well-
known consequences. Part II lays out important limits the Su-
preme Court has imposed on such pretextual traffic stops, in
terms of both time and the activities an officer may engage in
unless and until he develops at least reasonable suspicion of
some criminal activity. Part III explains why the traffic stop of
defendant Janhoi Cole was prolonged in violation of the
Fourth Amendment. Part IV identifies further problems in the
majority’s decision. Part V concludes with some suggestions
for going forward in similar cases.
I. Pretextual Traffic Stops and Their Effects
   In Whren v. United States, 

 (1996), the Supreme
Court held that the reasonableness of a traffic stop under the
Fourth Amendment must be decided using an objective
standard, not the officer’s actual purposes. Whren thus gave
26                                                    No. 20-2105

police officers wide latitude to stop vehicles for reasons hav-
ing nothing to do with the traffic laws that provide lawful pre-
texts for the stops.
    Many of those traffic laws also give an officer considerable
room for judgment and discretion in applying them. In this
case, for example, the stop was justified based on a perceived
violation of this law: “The driver of a motor vehicle shall not
follow another vehicle more closely than is reasonable and pru-
dent, having due regard for the speed of such vehicles and the
traffic upon and the condition of the highway.” 625 ILCS 5/11-
710(a) (emphasis added). Extending that discretion even fur-
ther, courts will uphold a traffic stop based on not only the
actual facts and law but even an officer’s reasonable mistake
of fact or law. Heien v. North Carolina, 

, 61 (2014).
     The combination of the objective test under Whren, the
number and detail of traffic laws, and the discretion inherent
in applying those laws gives police officers the power to stop
nearly any vehicle if they watch it for more than a few
minutes. See David A. Harris, “Driving While Black” and All
Other Traffic Offenses: The Supreme Court and Pretextual Traffic
Stops, 

, 545, 558–59 (1997) (“In
the most literal sense, no driver can avoid violating some traf-
fic law during a short drive, even with the most careful atten-
tion;” “with the traffic code in hand, any officer can stop any
driver any time”); Barbara C. Salken, The General Warrant of
the Twentieth Century? A Fourth Amendment Solution to Un-
checked Discretion to Arrest for Traffic Offenses, 

, 223 (1989) (“The innumerable rules and regulations gov-
erning vehicular travel make it difficult not to violate one of
them at one time or another.”). As then-Attorney General
Robert Jackson said long ago, “We know that no local police
No. 20-2105                                                     27

force can strictly enforce the traffic laws, or it would arrest
half the driving population on any given morning.” Robert
Jackson, The Federal Prosecutor, Address Delivered at the Second
Annual Conference of United States Attorneys (April 1, 1940),
quoted in Morrison v. Olson, 

, 727–28 (1988)
(Scalia, J., dissenting).
    The phrase “Driving While Black” reflects long recogni-
tion of how Whren enables racially discriminatory stops and
searches. See, e.g., Tracey Maclin, Cops and Cars: How the Au-
tomobile Drove Fourth Amendment Law, 

,
2347–49 (2019); David A. Harris, Profiles in Injustice: Why Ra-
cial Profiling Cannot Work 30 (2002); David A. Sklansky, Traffic
Stops, Minority Motorists, and the Future of the Fourth Amend-
ment, 

, 308–16.
    These police tactics subject large numbers of innocent
drivers to this sort of harassment and humiliation for minimal
gains in drug interdiction. For judges who see these tactics
primarily in criminal prosecutions in the rare cases where
dealer quantities of drugs were found, it’s easy to lose sight of
this reality. Empirical studies based on millions of traffic stops
show: (1) that police departments have exploited Whren to
carry out pretextual stops on a massive scale; (2) that Black
and Hispanic drivers are subjected to such stops and ensuing
searches at substantially higher rates than white drivers; and
(3) that pretextual stops rarely find drugs, let alone dealer
quantities of drugs. The empirical studies have used statistical
methods to control for variables other than racial profiling,
and the disparities remain dramatic. E.g., Emma Pierson et al.,
A Large-Scale Analysis of Racial Disparities in Police Stops Across
the United States, 4 Nature Human Behavior 736 (2020) (based
on data from nearly 100 million stops nationwide); Stephen
28                                                    No. 20-2105

Rushin & Griffin Edwards, An Empirical Assessment of Pre-
textual Stops and Racial Profiling, 

 (2021)
(based on data from over 8 million stops in Washington state);
Frank R. Baumgartner, Derek A. Epp & Kelsey Shoub, Suspect
Citizens 215 (2018) (based on 18 years of data in North Caro-
lina); Samuel R. Gross & Katherine Y. Barnes, Road Work: Ra-
cial Profiling and Drug Interdiction on the Highway, 

, 666–67 (2002) (based on three years of data from
Maryland State Police). The Department of Justice’s own data
has long supported the conclusion that Black and Hispanic
drivers are significantly more likely than white drivers to be
searched during a traffic stop. Patrick A. Langan et al., Bureau
of Justice Statistics, Contacts Between Police and the Public, at
18 (2001).
    For example, the North Carolina study found that, on av-
erage, Black drivers were twice as likely to be searched as
white drivers, with some police forces having much higher
rates of racial disparity. The empirical work also shows that
when police use traffic stops to search for drugs, a small frac-
tion of searches turn up any drugs, and the proportion finding
dealer quantities of drugs is much lower still. The North Car-
olina study looked at data from more than 20 million traffic
stops. Searches were carried out in a small fraction, about
690,000, or 3.36%. Baumgartner et al., Suspect Citizens 59.
Drugs were found—in any quantity—in 96,841 of those stops,
or 14% of all searches. Id. at 62. Typically, dealer quantities are
found in a small fraction of those. See Gross & Barnes, 101
Mich. L. Rev. at 695–97 (88.8% of Maryland State Police vehi-
cle searches in drug corridor did not locate dealer quantities
of drugs). In other words, these intrusive and humiliating po-
lice tactics are used disproportionately on Black and Hispanic
drivers, the vast majority of whom are not trafficking drugs,
No. 20-2105                                                              29

and thus whose cases do not wind up in criminal courts to
shape Fourth Amendment jurisprudence. 1
II. Limits on Pretextual Stops
    While pretextual traffic stops are easy to initiate, the Su-
preme Court has tried to impose some legal limits on them.
Most important, such a stop is limited 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,

 (2005).
    The Supreme Court took an important step to make this
limit effective in Rodriguez v. United States, 

 (2015),
which established the governing law for this appeal. In Rodri-
guez, a police officer had carried out a traffic stop for a car that
had driven onto the shoulder of the highway. After the officer
had issued and explained a written warning to the driver, he
insisted that the driver could not leave until another officer
arrived some minutes later with a drug-sniffing dog, which
led to a search that found drugs in the car.
    The district court in Rodriguez denied a motion to sup-
press, applying circuit precedent holding that dog sniffs that
occur shortly after completion of the traffic stop did not vio-
late the Fourth Amendment if the intrusion on the driver’s lib-
erty was “de minimis.” 

. Rodriguez rejected that




    1For interested readers, the articles cited in the text cite in turn nu-
merous other sources on the doctrinal questions and empirical effects of
Whren’s pretextual stops.
30                                                 No. 20-2105

“de minimis” exception. The Court vacated the denial of the
motion to suppress and remanded.
    Establishing guidance that applies here, Rodriguez ex-
plained that “a police stop exceeding the time needed to han-
dle the matter for which the stop was made violates the Con-
stitution’s shield against unreasonable seizures.” 

. During a traffic stop, the police officer must stick to the
“mission” of the seizure: ensuring road safety and determin-
ing whether to issue a traffic ticket. “Typically such inquiries
involve checking the driver’s license, determining whether
there are outstanding warrants against the driver, and in-
specting the automobile’s registration and proof of insur-
ance.” 

. An officer may not prolong the stop, “absent
the reasonable suspicion ordinarily demanded to justify de-
taining an individual.” 

 The latter qualification creates an
opportunity for exploiting pretextual stops. The question for
the officer is whether he can see, hear, or smell anything that
provides reasonable suspicion for expanding the scope of the
pretextual traffic stop.
III. Prolonging the Stop in This Case
   One way to prolong a pretextual stop is to question drivers
and passengers about topics beyond the mission authorized
by the supposed ground for the stop. That’s what happened
here, for all to see in Trooper Chapman’s video recording of
the stop.
   The trooper’s tailgating rationale for stopping Janhoi Cole
was obviously pretextual. The trooper had received the tip
from Deputy Suttles, who suspected the car was transporting
No. 20-2105                                                                  31

drugs. 2 The trooper began following Cole’s car, looking for a
reason to stop him. Cole was driving so carefully that it took
a while. (The most startling fact in this case is that Cole was
driving so carefully that Deputy Suttles never managed to
identify even a pretext for stopping him.) Trooper Chapman
also found no basis for a stop until, finally, Cole entered a con-
struction zone where interstate highway lanes had to merge.
The trooper saw another vehicle cut off Cole’s car. The trooper
did not stop the other vehicle for its dangerous maneuver. In-
stead, he stopped Cole on the ground that he had followed
that other car too closely for a few seconds.
    Following too closely was enough, based on the district
court’s factual findings, to permit the stop under Whren. But
the supposed infraction of following too closely also set limits
on the trooper’s powers over Cole and his vehicle, unless and




    2 The tip from Deputy Suttles fell well short of reasonable suspicion.
He observed that Cole was driving below the speed limit on an interstate
highway in a car with California plates. He sat with an erect posture that
Suttles thought was unusual, and he had empty fast-food wrappers in the
car. Suttles also apparently thought that two contradictory observations
added to the suspicion: that the only luggage he could see was a small
backpack and that the cargo area of the car was covered. See generally
Kansas v. Glover, 589 U.S. ––, ––, 

 (2020) (traffic stops
do not “allow officers to stop drivers whose conduct is no different from
any other driver’s”); United States v. Flores, 

 (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.”); United States
v. Ingrao, 

 (7th Cir. 1990) (reversing denial of motion to
suppress where arrest was based in part on defendant’s cautious driving:
“The mere lawful operation of a motor vehicle should not be considered
suspicious activity absent extraordinary contemporaneous events.”).
32                                                    No. 20-2105

until the trooper developed reasonable suspicion for further
investigation.
    Under Rodriguez and Caballes, the trooper’s authority to
pull Cole over did not give him license to detain Cole for a
speculative search or interrogation for “evidence of ordinary
criminal wrongdoing.” Rodriguez, 

, quoting City
of Indianapolis v. Edmond, 

 (2000). Police deten-
tion, however brief, is not a “minor inconvenience and petty
indignity.” Terry v. Ohio, 

, 16–17 (1968) (citation
omitted). The Supreme Court has “emphatically reject[ed]”
the notion that the Constitution does not regulate an officer’s
actions when he “accosts an individual and restrains his free-
dom to walk away.” 

.
    In pretextual traffic stops, courts should expect just the
sort of “mission creep” that we see in this case. See State v.
Jimenez, 

, 

, 329–30 (2018) (follow-
ing Rodriguez to affirm suppression of evidence from stop pro-
longed by questions about travel plans unrelated to grounds
for stop). After all, if a stop is actually motivated by a different
purpose, we should expect officers to behave consistently
with their actual purposes, not with the legal fiction that
Whren tolerates.
    That’s what happened here, as the record makes obvious.
Even before stopping Cole, the trooper had already obtained
most of the information that Rodriguez treats as routinely
within the scope of a traffic stop: “determining whether to is-
sue a traffic ticket, … checking the driver’s license, determin-
ing whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof
of insurance.” 

. The trooper already had ob-
tained the registration information for the car showing Cole
No. 20-2105                                                                33

as the owner. He also had Cole’s license information. (As for
the last Rodriguez item, insurance, the trooper already knew
that insurance information was on file, though he did not yet
have details. He did nothing more about insurance infor-
mation until nearly twenty minutes into the stop, well after he
had improperly prolonged the stop by interrogating Cole on
other topics.)
    Instead of focusing on the tailgating and the routine topics
of license, registration, and insurance, the trooper almost im-
mediately focused on a different topic: detailed, repetitive,
and intrusive questioning about Cole’s travel itinerary. The
questioning went far beyond a quick and routine “where are
you headed?” or “where are you coming from?” In the ten
minutes of the stop while the trooper kept Cole in the police
car at the side of the highway, about six minutes consisted of
questioning about Cole’s itinerary and the related topic of his
work.3
    We now know that Cole’s confusing answers on those top-
ics were not true. And as a person who was transporting a
substantial quantity of illegal drugs, Cole elicits little sympa-
thy. Yet the stakes here are more important than this one drug

    3 The majority suggests that its essay on travel plan questions results
from the record being “undeveloped” on whether the trooper’s question-
ing actually prolonged the stop. Ante at 11. The record is more than suffi-
cient to say that it did. We have the video recording of the stop. We also
know that the trooper already had license and registration information at
the outset, and that he did not seek more insurance information until
much later in the stop. The government has not tried to show that the
trooper was actually making any progress on the subject of the traffic stop
while he interrogated Cole about his travel plans. Cf. United States v. Lewis,

 (7th Cir. 2019) (video and testimony showed that officer
worked on warning while questioning driver about itinerary).
34                                                           No. 20-2105

courier. The evidence is clear that police use these tactics to
stop, search, and even humiliate large numbers of innocent
drivers, and that these tactics are used disproportionately on
Blacks and Hispanics.
    Rodriguez makes clear that a traffic stop’s mission is “to
address the traffic violation that warranted the stop and at-
tend to related safety concerns.” 

 (internal cita-
tion omitted); United States v. Clark, 

 (3d Cir.
2018) (affirming suppression of evidence obtained by pro-
longing traffic stop by questioning driver about his criminal
history). Hence the Rodriguez endorsement of the usual litany:
license, registration, and insurance, and an opportunity to
check for outstanding warrants. 

.
    Courts need to guard against unjustified expansion and
prolonging of pretextual stops by questioning on other topics.
As the Third Circuit explained in Clark: “Not all inquiries dur-
ing a traffic stop qualify as ordinarily incident to the stop’s
mission. In particular, those ‘measure[s] aimed at detect[ing]
evidence of ordinary criminal wrongdoing’ do not pass mus-
ter.” 

 (alterations in original), quoting Rodri-
guez, 

. Since detecting evidence of ordinary
criminal wrongdoing is often the officer’s real purpose, we
should not be surprised when an officer devotes his time to
pursuing his real aims rather than the pretext.4


     4 Whren established that whether a stop is constitutionally permissible

depends on objective grounds, not the officer’s subjective purpose,
whether pretextual or not. Contrary to the majority’s footnote, however,
that rule about the legality of the initial stop does not mean that courts
must or may close their eyes to what was really going on. Cf. ante at 8 n.1.
When considering factual issues that govern whether the officer has gone
No. 20-2105                                                                 35

    Where should we draw the lines on how an officer may
spend his time in such a stop? We start with the Rodriguez list
of the activities typically part of the mission of the traffic stop:
checking license, registration, and insurance information, and
the opportunity to check for outstanding warrants. 

. Those actions are designed to protect highway safety by
determining whether the vehicle and driver are authorized to
be on the road at all, and whether they might pose a particular
danger to others on the road. Rodriguez also recognized that
traffic stops can be dangerous for police officers, 

, so
that measures to protect an officer’s safety can also be author-
ized. Beyond the listed topics, however, which activities are
permissible quickly becomes a very case-specific problem. It
defies general rules like the majority’s presumption here.
    Courts applying Rodriguez must consider whether an of-
ficer spent time on matters apart from those safety-based mat-
ters authorized by the lawful but pretextual basis for the stop,
at least unless and until the officer developed reasonable sus-
picion to pursue other matters. See, e.g., United States v. Cortez,

, 839–40 (10th Cir. 2020) (assuming without de-
ciding that thirteen minutes of repetitive questioning about
how long driver and passenger had been in town where jour-
ney started was not justified by traffic stop, but officer already

beyond the boundaries permitted by the traffic stop, courts should pay
attention to reality rather than legal fiction. Rodriguez itself makes that
much clear. It directs lower federal courts to consider actual facts in eval-
uating whether a stop has been extended impermissibly. 

(“The reasonableness of a seizure, however, depends on what the police
in fact do. See Knowles [v. Iowa, 

, 115–17 (1998).] In this regard,
the Government acknowledges that ‘an officer always has to be reasona-
bly diligent.’ Tr. of Oral Arg. 49. How could diligence be gauged other
than by noting what the officer actually did and how he did it?”).
36                                                    No. 20-2105

had independent reasonable suspicion of human smuggling
before beginning those questions); Clark, 902 F.3d at 410–11
(stop improperly prolonged to question driver about his crim-
inal history); United States v. Evans, 

 (9th Cir.
2015) (stop improperly prolonged to see if driver had
properly registered in Nevada registry of ex-felons).
    Turning to questions about travel plans, courts must “in-
quire whether, on the facts of the particular case, [itinerary]
questioning is within the traffic stop’s mission” and if not,
must determine whether the questioning impermissibly
lengthened the stop. 4 Wayne R. LaFave, Search & Seizure
§ 9.3(d) (6th ed. 2020). There has never been a problem with a
brief question or two about travel like, “Where are you
headed today?” or “Where are you coming from?” As the ar-
resting officer in Cortez testified, innocuous background ques-
tions can help an officer assess a driver’s stress and possible
evasion, and they may help an officer gauge how cautious he
needs to be in the stop. 

.
    Similarly, if an officer has reason to suspect that a driver
may be impaired by fatigue, alcohol, or drugs, questioning
about how long the driver has been on the road and where he
is headed might help the officer assess the driver’s condition
and any dangers that might be posed. Jimenez, 420 P.3d at 475–
76, 308 Kan. at 329; see also Navarette v. California, 

,
402–03 (2014) (report that truck had forced another vehicle off
road gave officer reasonable suspicion that driver was im-
paired, permitting stop to investigate). In other cases, infor-
mation about travel plans might help an officer decide
whether to issue a ticket or a warning, or perhaps even to hop
back in the police car and lead a speeding car to a hospital so
No. 20-2105                                                  37

the passenger can safely give birth. See United States v.
Brigham, 

, 508 & n.6 (5th Cir. 2004) (en banc).
    This case, however, is not about such brief, routine, and
easily justifiable questions. This case is about whether an of-
ficer may start with those questions and then prolong the stop
while continuing to probe the answers, looking for evasion
and contradiction by asking more questions, by repeating the
questions, by asking others the same questions, and by check-
ing answers against other information that might be available
with in-car computers. As Professor LaFave has explained in
his treatise, the controversy is over
      multi-question extended inquiries of vehicle oc-
      cupants into the most minute details regarding
      the parts of the journey completed and lying
      ahead. The officers are “trained to subtly ask
      questions about * * * their destination, their itin-
      erary, the purpose of their visit, the names and
      addresses of whomever they are going to see,
      etc.,” “to make this conversation appear as nat-
      ural and routine a part of the collection of infor-
      mation incident to a citation or warning,” and
      “to interrogate the passengers separately, so
      their stories can be compared.” The objective is
      not to gain some insight into the traffic infrac-
      tion providing the legal basis for the stop, but to
      uncover inconsistent, evasive or false assertions
      that can contribute to reasonable suspicion or
      probable cause regarding drugs.
38                                                             No. 20-2105

4 LaFave, Search & Seizure § 9.3(d) (footnotes omitted), quot-
ing Gross & Barnes, 101 Mich. L. Rev. at 685. 5
    Cases after Rodriguez from around the country illustrate
the wide, almost kaleidoscopic variations in the ways these
questions can arise and play out. Several circuits have taken
the route the majority does here, which I believe is contrary to
Rodriguez, writing that questions about a driver’s travel plans
are ordinarily within the scope of a traffic stop, and that an
officer may prolong a stop to ask follow-up questions to con-
firm or check those answers. United States v. Braddy, 

 (11th Cir. 2021) (following pre-Rodriguez case law
on itinerary questions, at least where driver’s license had in-
correct address and ownership of vehicle was not clear);
United States v. Dion, 

, 125–26 & n.7 (1st Cir. 2017)
(defendant conceded that pre-Rodriguez case law allowed itin-
erary questions); United States v. Collazo, 

 (6th
Cir. 2016) (allowing questions to follow up on conflicting an-
swers from driver and passenger). But see United States v.
Callison, 

, 1131–32 & n.2 (8th Cir. 2021) (holding
that itinerary questions were permissible because the officer,
as a matter of fact, was still “handl[ing] the matter for which
the stop was made,” but declining to reach the question of
“the extent to which officers may ask travel-related questions


     5 The majority asserts that this stop was not a “fishing expedition,” see

ante at 18, and implies that it was Cole’s answers to the travel plan ques-
tions that led the trooper to suspect that he was transporting drugs. Ante
at 2. The record contradicts both the assertion and the implication. The
trooper was always acting on Deputy Suttles’ hunch that Cole was trans-
porting drugs. He was looking for a way to justify a longer stop that would
lead to a search. And as the trooper later testified, he simply was not going
to let Cole go, no matter what, until a dog could sniff the car for drugs.
No. 20-2105                                                   39

during a routine traffic stop after Rodriguez.”) (alteration in
original), quoting Rodriguez, 

.
    The majority’s summary of other courts’ decisions, how-
ever, glosses over substantial variety among the approaches.
Other courts have wisely taken more nuanced and fact-spe-
cific approaches to the problem, recognizing that not all traffic
stops justify prolonged and close interrogation about travel
plans. See, e.g., United States v. Gomez-Arzate, 

, 840–44 (10th Cir. 2020) (finding that a few minutes of itin-
erary questioning that prolonged an already completed stop
violated Constitution, but noting extended inquiry into car
ownership may be permissible where driver is not listed on
registration and cannot say who owns vehicle); United States
v. Garner, 

, 271–72 (3d Cir. 2020) (some itinerary
questions were permissible; some follow-up on employment,
family, criminal history, and unrelated conduct was not, but
officer’s reasonable suspicion of criminal activity permitted
the additional questioning); Jimenez, 

, 475–77,
308 Kan. at 318, 328–30 (affirming suppression where itiner-
ary questions prolonged stop for following too closely, and
noting that courts must guard against “mission creep” in pre-
textual traffic stops); see also Cortez, 965 F.3d at 839–40 (some
itinerary questions were permissible, but later follow-up
questioning fell outside bounds permitted by original reason
for stop).
    Disagreeing with the majority’s rule in this case, Professor
LaFave’s treatise has this to say about travel-plan questioning
as it is actually carried out by officers who are looking for
drugs:
       The objective is not to gain some insight into the
       traffic infraction providing the legal basis for
40                                                   No. 20-2105

       the stop, but to uncover inconsistent, evasive or
       false assertions that can contribute to reasonable
       suspicion or probable cause regarding drugs.
       Thus, “[n]ot only are questions about travel
       plans investigatory rather than merely conver-
       sational, the ordinary traveler cannot reasona-
       bly be expected to decline to answer such ques-
       tions, particularly if they are posed while an of-
       ficer is holding the driver’s license and other es-
       sential documents.”
4 LaFave, Search & Seizure § 9.3(d) (alteration in original)
(footnote and citation omitted).
    In this case, the trooper’s questions did nothing to advance
the limited road- and driver-safety missions that he was le-
gally authorized to pursue. Cole’s claim to be a California-
based traveling personal chef employed part-time in Mary-
land had nothing to do with whether he was safe to continue
driving. And Trooper Chapman knew that Cole was author-
ized to drive the Volkswagen when he saw that his name
matched the registration mere seconds into the initial ten-mi-
nute stop at the roadside.
    It should not matter here whether, at some later point,
Cole’s answers became suspicious. The critical point under
Rodriguez is that it was unconstitutional to prolong the stop,
the restraint on liberty, to ask those questions to begin with.
United States v. Lopez, 

, 486–87 (7th Cir. 2018) (sup-
pressing evidence gathered following questioning that pro-
longed seizure); see also Garner, 961 F.3d at 270–71 (looking
for “Rodriguez moment” when officer began pursuing off-mis-
sion tasks); United States v. Childs, 

 (7th Cir.
2002) (en banc) (“Questioning that prolongs the detention, yet
No. 20-2105                                                   41

cannot be justified by the purpose of such an investigatory
stop, is unreasonable under the fourth amendment.”), citing
United States v. Sharpe, 

 (1985).
   When asked to explain his actions, Trooper Chapman ad-
mitted that he delayed collecting the last of the authorized in-
formation (for investigating the tailgating and 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 is supposed to work. Un-
der the Constitution, people do not need “stories” to travel on
interstate highways—even if they have a broken taillight,
don’t signal a lane change, or briefly tailgate another vehicle.
Unless an officer efficiently processing the legitimate purpose
of the stop sees, hears, or smells something new that gives him
reasonable suspicion of other criminal activity, he needs to let
the driver go with a ticket or warning when the legitimate
tasks are done. This rule applies even if the officer still has a
hunch the driver is up to no good.
    We have explained that during a Terry stop, one of three
things must happen:
       (1) the police gather enough information to de-
       velop probable cause and allow for continued
       detention; (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.
42                                                  No. 20-2105

United States v. Leo, 

 (7th Cir. 2015) (internal
citations omitted). An officer who reasonably believes a
driver is suspicious 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 proba-
ble cause.” See 

 quoting United States v. Bullock, 

 (7th Cir. 2011).
IV. Other Problems with the Majority Holding
    The majority here adopts a different rule, at least “ordinar-
ily.” Ante at 12 (“[W]e hold that travel-plan questions ordi-
narily fall within the mission of a traffic stop.”). The majority
does not hint at what might not be ordinary. It offers instead
what is supposed to be a reassuring limit: “This does not
mean, however, that officers have a free pass to ask travel-
plan questions until they are subjectively satisfied with the
answers. [Such questions] must remain reasonable, and rea-
sonableness is an objective standard based on all the circum-
stances.” Ante at 13. If the officer’s questions “go too far and
become unreasonable,” the stop may no longer be permissi-
ble. Ante at 16.
    Despite that assurance, the majority’s approach invites un-
reasonable restraints on liberty. The majority adds that an of-
ficer asking travel-plan questions may ask “reasonable fol-
low-up questions,” especially if the answers are “evasive, in-
consistent, or improbable.” Ante at 16. That’s the critical door
that enables further abuse of pretextual traffic stops, prolong-
ing those stops as the officer uses the coercive power of the
state and the authority to use force to subject drivers and their
passengers to close questioning in search of other criminal ac-
tivity. That is exactly what Rodriguez rejected. 575 U.S. at 355–
56. All the other questions that Rodriguez treats as part of the
No. 20-2105                                                   43

mission of every stop should quickly produce a clear answer
rather than inviting discretionary interrogation. A driver’s li-
cense can be valid or not, but it is unlikely to call for follow-
up questions.
    In Rodriguez, the Supreme Court pointedly declined to cat-
egorically permit questioning about travel plans as central—
even “ordinarily” central—to traffic stops’ missions. The of-
ficer in Rodriguez had asked the driver and passenger about
their itinerary, 

, but the Court left travel plans
out of the topics typically permissible because they help en-
sure that vehicles are “operated safely and responsibly,” 

. The majority responds to this omission by noting that ju-
dicial opinions are not statutes and that the travel-plan ques-
tions were not directly at issue in Rodriguez, so we should in-
fer nothing from the omission of travel-plan questions from
the Rodriguez list. Ante at 11.
    That is an unduly narrow understanding of the opinion.
The Court knew it was providing important and practical
guidance for police officers and motorists all over the nation,
especially with that key passage about what is “typically”
within the scope of a traffic stop. No one suggests that the list
is universal and complete for all cases. As noted above, for
some traffic stops travel plans will be relevant. But those cases
should be evaluated based on their specific facts, not using a
general rule that allows such persistent, repetitive, and close
questioning in a stop legally justified as merely a routine traf-
fic stop. At a minimum, courts should expect an officer who
engages in such questioning to be able to explain how, specif-
ically, the questioning was based on the legal justification for
the stop. As Professor LaFave has explained:
44                                                  No. 20-2105

       [G]iven the Supreme Court’s Rodriguez decision,
       … the contention ”that unrestrained travel plan
       questioning is routine and always within a traffic
       stop’s mission” must be rejected out of hand, and …
       instead courts must inquire whether, on the
       facts of the particular case, such questioning is
       within the traffic stop’s mission.
4 LaFave, Search & Seizure § 9.3(d) (emphasis added) (foot-
note and citation omitted).
    The extraordinary nature of this en banc rehearing also
should not be passed by in silence. After the panel issued its
decision, the government chose not to seek en banc review. It
also informed this court that it did not oppose Cole’s motion
for immediate release from prison. No litigant is better able to
protect its interests in the federal courts than the federal gov-
ernment. This court chose, however, to act sua sponte to re-
hear the case en banc. That is an extraordinary step that this
court has taken very rarely.
    The majority suggests that en banc review was needed to
resolve an apparent conflict between the panel decision here
and another post-Rodriguez decision, United States v. Lewis,

 (7th Cir. 2019). The supposed conflict was illu-
sory. Lewis did not hold that an officer may prolong a stop
indefinitely to ask increasingly invasive and repetitive ques-
tions about a driver’s travels and employer—nor could it
have, given Rodriguez. As Lewis explained, the most important
reason it had for affirming denial of the motion to suppress
there was that the defendant had simply failed as a matter of
fact to show that the questioning had actually prolonged the
stop. 

. Careful analysis of Lewis shows that the case
is distinguishable on that fact, which is decisive under
No. 20-2105                                                   45

Rodriguez. See United States v. Cole, 

, 855–57 (7th
Cir. 2021) (panel decision here).
V. Moving Forward
    Having explained why I view the majority’s general pre-
sumption in favor of allowing questions about travel plans in
pretextual traffic stops as unwise and contrary to Rodriguez, it
is still necessary to look toward future cases.
    District courts should be alert for unconstitutional “mis-
sion creep” where the stop is justified constitutionally by one
limited purpose but is actually motivated by a different pur-
pose. See Jimenez, 

, 308 Kan. at 329–30. In such
cases, district courts must make the joint legal and factual de-
termination of how long was reasonably necessary to execute
the stop’s permissible mission, and must then decide whether
the stop’s duration exceeded that limit or the officer otherwise
unreasonably prolonged the stop. Extensive itinerary ques-
tions posed to a motorist stopped for a broken taillight or tail-
gating, for example, should not pass muster.
    Courts deciding motions to suppress often give officers
substantial leeway in evaluating their actions and credibility.
An obviously pretextual stop, however, calls for more skepti-
cism. We should expect officers to behave in ways that serve
their real purpose, without necessarily working from the pre-
textual basis for the stop. When officers do so, district courts
should make the appropriate factual findings, and our review
of their fact-finding should be deferential. E.g., United States
v. Simon, 

, 832–33 (7th Cir. 2019) (deferring to dis-
trict court’s credibility determinations as to whether the offic-
ers prolonged a stop); Lewis, 

 (similar); see also
United States v. Rodriguez-Escalera, 

 (7th Cir.
46                                               No. 20-2105

2018) (affirming grant of motion to suppress based on factual
findings, including those on credibility).
   We should reverse this judgment, suppress the evidence
obtained by improperly prolonging this traffic stop, and re-
mand to allow Cole to withdraw his guilty plea.