United States v. Robert Pennington, Jr.

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 23-3315 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT L. PENNINGTON, JR., Defendant-Appellant. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 2:18-cr-20021 — Sara Darrow, Judge. ____________________ ARGUED JANUARY 17, 2025 — DECIDED SEPTEMBER 4, 2026 ____________________ Before SYKES, HAMILTON, and PRYOR, Circuit Judges. PRYOR, Circuit Judge. While driving on Interstate 57, Robert Pennington, Jr. was stopped twice in less than two hours for minor traffic violations. He was allowed to leave the first stop with only a warning and without a search of his vehicle. Sus- pecting Pennington had drugs in his vehicle, however, the po- lice officer notified a canine officer positioned up the highway of his suspicions. The canine officer identified Pennington’s vehicle, observed Pennington commit another traffic 2 No. 23-3315 infraction, and pulled him over. That second traffic stop even- tually culminated in a dog sniff, leading to the discovery of drugs in Pennington’s car. Pennington moved to suppress those drugs, which the district court denied after a hearing. Pennington then moved to dismiss the indictment filed against him based on claims of vindictive prosecution and se- lective enforcement, which was also denied without a hear- ing. On appeal, Pennington challenges the denial of both mo- tions. For the reasons provided below, we affirm. I. BACKGROUND A. Factual Background 1. First Traffic Stop On January 23, 2018, Illinois State Police Master Sergeant Mark Flack observed Pennington driving eight miles per hour over the speed limit on Interstate 57 near Effingham, Illinois. Sergeant Flack stopped Pennington’s vehicle and approached the passenger side window.1 Sergeant Flack explained that he had stopped Pennington for speeding, and requested his driver’s license and registra- tion. After Pennington could not readily locate his insurance information, Sergeant Flack indicated that he would review it when he returned from his police vehicle. Before leaving, Ser- geant Flack also told Pennington that he would issue only a warning if everything checked out. Sergeant Flack then went back to his squad car with Pennington’s Kentucky driver’s li- cense. 1 District Court Dkt. 17-1, Flack Video at 1:03. No. 23-3315 3 While running Pennington’s information, Sergeant Flack received a caution message. He contacted dispatch, who ad- vised him that Pennington was possibly affiliated with a street gang, had an unspecified criminal history, and had sur- rendered his license in 2008. Sergeant Flack then questioned dispatch whether it had received a response yet from Ken- tucky regarding whether Pennington’s driver’s license was valid, and dispatch responded that it had not. Immediately, Sergeant Flack returned to the car Penning- ton was driving, accepted the insurance information that Pen- nington produced, and requested Pennington to join him in the front of his squad car so they did not have to shout over traffic to communicate. Still waiting for a response from Kentucky on Penning- ton’s license, Sergeant Flack, once inside the squad car, asked Pennington about his travel plans and employment. While Pennington sat beside Sergeant Flack, the dispatcher advised over the radio that she had received Pennington’s criminal history, including a 2009 conviction involving 50 pounds of marijuana and a 2001 conviction for driving with a suspended license. The dispatcher also noted that she had about 20 more pages of information which she was reviewing regarding Pennington’s criminal history. Meanwhile, Pennington ex- plained that about a year ago he had gotten back his previ- ously suspended license. The dispatcher then reported that Pennington had drug trafficking convictions from 2005 and 2011. A short while later, the dispatcher advised that she had received Pennington’s driver’s license status from Kentucky and that the license was valid. At that point, Sergeant Flack questioned whether Pen- nington had anything in his car like the drugs from his 4 No. 23-3315 previous drug charges or whether a dog would alert to any- thing in the car he was driving, to which Pennington re- sponded “no.” Sergeant Flack then stated that Pennington seemed nervous. Pennington responded that he was nervous any time he was around police officers because they “kill Black people.” Sergeant Flack replied that Pennington was “watching too much TV, that ain’t true.” Next, Sergeant Flack printed Pennington’s warning, ex- plained it to him, and returned Pennington’s other docu- ments. After giving Pennington the warning, Sergeant Flack again said that Pennington appeared nervous and asked if he was sure there was nothing in the car. Pennington said no, and that he is nervous any time he is around police officers. After Sergeant Flack explained again why he stopped Pen- nington, he asked whether Pennington would consent to a ve- hicle search due to his nervousness. Pennington said no, and Sergeant Flack agreed not to search the car but noted that he believed Pennington was “up to something.” Sergeant Flack insisted that Pennington was nervous, and after Pennington defended himself, Sergeant Flack asked whether he had “a little bit of personal use or … a lot,” be- cause Sergeant Flack “[did not] care about personal use.” Pen- nington explained that he had nothing and asked whether he could continue on his way. Sergeant Flack did not respond and instead asked Pennington if he was on parole or proba- tion, to which Pennington said “no.” Pennington exited Ser- geant Flack’s vehicle about three minutes after Sergeant Flack gave him the warning and returned his other documents.2 2 Id. at 24:22. No. 23-3315 5 Pennington returned to his vehicle and continued up Inter- state 57. Following this interaction, Sergeant Flack sent a message from his in-car computer to the in-car computer used by Illi- nois State Police Sergeant and canine officer John Lillard. Ser- geant Flack explained to Sergeant Lillard that Pennington had denied his request for a search, described the make and model of the car Pennington was driving, and shared Pennington’s drug-related criminal history. Sergeant Lillard told Sergeant Flack that he would “keep an eye out for it,” and Sergeant Flack shared which direction Pennington traveled after leav- ing the first stop. 2. Second Traffic Stop About an hour after Pennington had been released from the first traffic stop with Sergeant Flack, Sergeant Lillard spot- ted the car Pennington was driving and observed him im- properly pull in front of a semi-truck. Sergeant Lillard initi- ated a traffic stop based on improper lane usage. After ex- plaining the reason for the stop, Sergeant Lillard asked Pen- nington to exit his vehicle. Sergeant Lillard had Pennington raise his shirt to ensure he was not carrying a weapon, then directed Pennington to his squad car.3 Sergeant Lillard ex- plained the traffic violation to Pennington and indicated that he would issue Pennington a warning. Sergeant Lillard had 3 The first seven minutes of the video lack audio, so we rely on Sergeant Lillard’s testimony from the motion to suppress hearing for the beginning of the stop. At the hearing, Sergeant Lillard stated that the first few minutes of audio were not recorded due to user error, but he manually turned on his microphone about six minutes and fifty seconds into the video. (District Court Dkt. 17-4, Lillard Video; Dkt. 24 at 71–72). 6 No. 23-3315 trouble, however, logging into the in-car computer database system to complete the written warning, which delayed the stop. Sergeant Lillard’s computer issues persisted, so he even- tually called the Illinois State Police help desk for assistance. The call lasted for approximately four minutes, and Sergeant Lillard’s computer issues were eventually resolved. During the wait time, Sergeant Lillard inquired about Pennington’s trip and criminal history. Sergeant Lillard also explained again why he stopped Pennington and that he was going to issue Pennington a warning for improper lane usage. Not long after, Trooper Luke Dorsey, whom Sergeant Lillard had radioed for assistance, also arrived on the scene. After terminating the call to the help desk, Sergeant Lillard asked Pennington if he had any guns, drugs, or large sums of money in the car, to which Pennington responded “no.” Ser- geant Lillard then asked if there was anything illegal in the vehicle, which Pennington again denied. Sergeant Lillard said “okay,” and that he would take his canine around Penning- ton’s car while Trooper Dorsey wrote the warning for im- proper lane usage. Pennington then asked what the purpose of the dog sniff was, and Sergeant Lillard responded that it was because he could conduct the sniff and because he was not prolonging the traffic stop as Trooper Dorsey would be writing the warning. When Pennington prodded further about the purpose of the dog sniff when he had been pulled over for only an im- proper lane usage, Sergeant Lillard explained that every so often he would run his canine during a traffic stop, especially when he has help from another officer. Sergeant Lillard and Trooper Dorsey switched places. After allowing the canine to No. 23-3315 7 relieve itself, Sergeant Lillard began walking the dog around Pennington’s vehicle. About 90 seconds later, and before Trooper Dorsey issued the warning to Pennington, the canine alerted to the presence of controlled substances within the ve- hicle. Sergeant Lillard completed the dog sniff about a minute later. Once the canine alerted to the presence of controlled sub- stances, Sergeant Lillard conducted a search of Pennington’s vehicle and discovered crack cocaine. Pennington was ar- rested on scene. B. Procedural Background A federal grand jury returned a superseding indictment charging Pennington with one count of possessing with the intent to distribute 28 grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii). Pennington moved to suppress the drugs found during Sergeant Lillard’s traffic stop. He made four arguments in support: (1) Sergeant Lillard lacked reasonable suspicion to stop Pennington; (2) Sergeant Lillard unreasonably delayed writing Pennington’s warning so he could conduct a dog sniff; (3) the two traffic stops were impermissibly coordinated to circumvent Rodriguez v. United States, 575 U.S. 348 (2015), and United States v. Rodriguez-Escalera, 884 F.3d 661 (7th Cir. 2018); and (4) Sergeant Lillard had no independent probable cause to justify prolonging the traffic stop. At the conclusion of the evidentiary hearing on the motion to suppress, the district court denied Pennington’s request. It first concluded Sergeant Lillard’s stop was justified at its in- ception because the officer had probable cause, or at least 8 No. 23-3315 reasonable suspicion, to stop Pennington for improper lane usage. The court credited Sergeant Lillard’s testimony and video evidence as supporting this conclusion. The court then reasoned that the first stop conducted by Sergeant Flack was irrelevant to the lawfulness of Sergeant Lillard’s subsequent stop because Sergeant Lillard independently observed Pen- nington commit a traffic violation. The court next found that the dog sniff did not unreasonably prolong Sergeant Lillard’s stop because the stop “didn’t extend beyond the purpose of writing the written warning,” and that the stop was not pro- longed just to conduct the dog sniff. The court also found the total duration of Sergeant Lillard’s stop was reasonable given the technical difficulties he encountered. In preparation for trial, the district court conducted a pre- trial conference and addressed a number of Pennington’s pre- trial motions concerning its ruling on the previous motion to suppress. In addition to requesting reconsideration of argu- ments he had made previously, Pennington argued Sergeant Flack unlawfully prolonged the first traffic stop, rendering evidence obtained from Sergeant Lillard’s subsequent stop the “fruit of a poisonous tree.” The district court rejected that argument, reasoning Sergeant Lillard had developed inde- pendent reasonable suspicion for the second stop. Accord- ingly, the district court denied Pennington’s requests for re- consideration on the motion to suppress. Before trial, Pennington moved to dismiss the superseding indictment based on vindictive prosecution and selective en- forcement. The district court denied that motion without an evidentiary hearing. With respect to the vindictive prosecu- tion claim, the district court found Pennington had not shown he was prosecuted for any impermissible reason. Next, the No. 23-3315 9 court rejected the selective enforcement claim, providing two reasons: (1) the officers developed sufficient objective reasons to stop Pennington, so any pretextual motivations the officers may have harbored were irrelevant; and (2) Pennington failed to show he was treated differently than similarly situated members of a protected class. Pennington then entered a conditional plea agreement, re- serving his right to appeal the denial of his suppression mo- tions and his motion to dismiss the superseding indictment. The district court sentenced Pennington to a term of ten years’ imprisonment followed by eight years of supervised release.4 He now appeals. II. ANALYSIS Pennington challenges both the denial of his motion to suppress and the denial of his motion to dismiss the super- seding indictment without an evidentiary hearing. We ad- dress each in turn. A. Motion to Suppress “When reviewing the denial of a suppression motion, we assess conclusions of law de novo and findings of fact for clear error.” United States v. Avila, 106 F.4th 684, 692 (7th Cir. 2024). “A factual finding is clearly erroneous only if, after 4 After oral argument, former President Biden granted Pennington clem- ency and commuted his sentence of imprisonment. Accordingly, Penning- ton’s term of imprisonment ended on April 17, 2025. His conviction and term of supervised release, however, remained intact. Thus, the commu- tation of Pennington’s prison term did not moot his appeal—he could still benefit from success on appeal because his term of supervised release could still be affected. See Pope v. Perdue, 889 F.3d 410, 414 (7th Cir. 2018); United States v. Raney, 797 F.3d 454, 461 n.6 (7th Cir. 2015). 10 No. 23-3315 considering all the evidence, we cannot avoid or ignore a def- inite and firm conviction that a mistake has been made.” United States v. Devalois, 128 F.4th 894, 899 (7th Cir. 2025) (quoting United States v. Yang, 39 F.4th 893, 899 (7th Cir. 2022)). We also afford “special deference to credibility deter- minations made by the district court.” Avila, 106 F.4th at 692. The Fourth Amendment prohibits unreasonable searches and seizures. U.S. CONST. amend. IV. “Because of this Consti- tutional protection, police officers ordinarily need probable cause to stop someone for the seizure to be reasonable.” Avila, 106 F.4th at 693. The Supreme Court has carved out an exemp- tion, however, for routine traffic stops. Id. For an initial traffic stop to pass constitutional muster, the officer must reasonably believe that he observed a traffic violation. Id. (citing United States v. Cole, 21 F.4th 421, 427 (7th Cir. 2021) (en banc) (noting that because traffic stops are typically brief detentions they require only reasonable suspicion of a traffic violation—not probable cause)). A traffic stop is reasonable only if it was “justified at its inception, and reasonably related in scope to the circum- stances which justified the interference in the first place.” Cole, 21 F.4th at 427 (quoting Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004)). “A traffic stop may, however, ‘become unlawful if it is prolonged beyond the time reasonably re- quired to complete the mission of’ the stop.” Avila, 106 F.4th at 693 (quoting Rodriguez, 575 U.S. at 354–55). “‘Authority for the seizure thus ends’ when the mission is ‘or reasonably should have been’ accomplished.” Devalois, 128 F.4th at 898 (quoting Rodriguez, 575 U.S. at 354). “The mission of a traffic stop … is ‘to address the traffic violation that warranted the stop and attend to related safety No. 23-3315 11 concerns.’” Cole, 21 F.4th at 428 (quoting Rodriguez, 575 U.S. at 354). Part of this mission includes “ordinary inquiries incident to [the traffic] stop.” Rodriguez, 575 U.S. at 354 (alteration in original). For example, “[p]olice may check the driver’s li- cense, seek the vehicle’s registration, request proof of insur- ance, and investigate whether there are warrants out for the driver’s arrest.” Devalois, 128 F.4th at 898–99 (citing United States v. Gholston, 1 F.4th 492, 496 (7th Cir. 2021), and Yang, 39 F.4th at 903). The officer may also typically ask questions re- lated to the stop, such as questions about the driver’s travel plans. See Cole, 21 F.4th at 430. “These checks serve the same objective as enforcement of the traffic code: ensuring that ve- hicles on the road are operated safely and responsibly.” Ro- driguez, 575 U.S. at 355. Officers may also “engage in certain additional activities” beyond the stop’s mission, “as long as they do ‘not prolong the traffic stop.’” Devalois, 128 F.4th at 899 (quoting Cole, 21 F.4th at 429). This includes asking questions unrelated to the stop’s mission and conducting a dog sniff. Cole, 21 F.4th at 429; see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (unre- lated questioning); Illinois v. Caballes, 543 U.S. 405, 408 (2005) (dog sniff). But if there is no independent reasonable suspi- cion to justify those activities, they are lawful only if they do not prolong the traffic stop. See Rodriguez-Escalera, 884 F.3d at 668 (“Absent reasonable suspicion … , law enforcement may not extend a traffic stop with measures like a dog sniff unre- lated to the mission of the stop.”). Pennington maintains that both the first stop by Sergeant Flack and the second stop by Sergeant Lillard violated his Fourth Amendment rights because each stop was unreasona- bly prolonged. From this, Pennington argues the district court 12 No. 23-3315 should have suppressed the drugs Sergeant Lillard discov- ered during the second traffic stop. 1. First Traffic Stop Pennington argues Sergeant Flack unreasonably pro- longed the first stop by continuing to investigate whether Pennington possessed drugs after Sergeant Flack printed Pen- nington’s warning and handed back his documents. The district court did not reach whether Sergeant Flack unreasonably prolonged the first traffic stop, but we have no trouble concluding he did. First, Sergeant Flack printed Pen- nington’s warning, explained it to him, and returned his li- cense and insurance documents. These actions concluded the mission of the traffic stop: issuing a warning to Pennington for speeding. Rodriguez, 575 U.S. at 354. But Sergeant Flack, suspecting Pennington was “up to something,” continued to question Pennington. Sergeant Flack asked why Pennington appeared to be nervous; whether he had drugs in the car; whether he would consent to a search of the car; and whether he was on parole or probation. From the police vehicle’s cam- era, it is clear this line of questioning lasted approximately three minutes after Sergeant Flack issued Pennington the warning. And the record does not suggest Sergeant Flack, at that point, had “the reasonable suspicion ordinarily de- manded” to support prolonging the stop. Id. at 355. So, because Sergeant Flack continued to question Penning- ton after the stop’s mission had concluded, Sergeant Flack un- reasonably prolonged the first stop. The government offers two counterarguments, but neither persuade. First, it contends Pennington’s detention ended once Ser- geant Flack printed the warning and handed back his No. 23-3315 13 documents, so any questioning beyond that point was just a consensual encounter. But the “retention or return of docu- mentation is not dispositive” in evaluating when a seizure ends. United States v. Finke, 85 F.3d 1275, 1281 (7th Cir. 1996). “In assessing whether a person has been seized, we look to the totality of the circumstances and ask whether ‘a reasona- ble person would feel free to terminate the encounter.’” United States v. Lopez, 907 F.3d 472, 487 (7th Cir. 2018) (quoting United States v. Drayton, 536 U.S. 194, 201 (2002)). Here, a reasonable person in Pennington’s position would not have felt free to leave Sergeant Flack’s squad car until Ser- geant Flack finished his continued questioning. After printing Pennington’s warning, Sergeant Flack continued to ask Pen- nington whether he had illegal drugs in the car, whether he was on parole or probation, and whether he would consent to a search of the car. See United States v. Borys, 766 F.2d 304, 311 (7th Cir. 1985) (explaining consensual encounter ripened into investigative stop when agents told defendant they suspected him of transporting drugs and sought permission to search his luggage). During that continued questioning, Pennington asked if he was free to leave but did not receive an answer. And this questioning occurred in Sergeant Flack’s police ve- hicle, an enclosed space he controlled. See United States v. Smith, 794 F.3d 681, 685 (7th Cir. 2015) (explaining police questioning in an enclosed space like an alley is less likely to be consensual than questioning in “open, populated spaces”); cf. Lopez, 907 F.3d at 487 (explaining detention continued while multiple officers blocked the defendant’s exit and re- tained his vehicle, keys, and phone). No reasonable person in Pennington’s shoes would have felt free to ignore Sergeant Flack’s continued questioning and leave the vehicle without responding. 14 No. 23-3315 Second, the government argues Pennington’s nervousness justified Sergeant Flack’s continued questioning, as the stop’s officer-safety purpose remained intact until Pennington left Sergeant Flack’s vehicle. But the “officer safety interest stems from the mission of the stop itself.” Rodriguez, 575 U.S. at 356. As explained above, the stop’s mission concluded once Ser- geant Flack printed Pennington’s warning and returned his documents. Sergeant Flack’s continued questioning, even if taken as safety precautions, detoured beyond that mission. See id. The government’s interest in officer safety does not save Sergeant Flack’s post-mission questioning. But even though Sergeant Flack unreasonably prolonged the first stop in violation of Pennington’s Fourth Amendment rights, that alone is not enough to justify suppression here. Recall that Pennington ultimately seeks to suppress the drugs found during the second traffic stop; Sergeant Flack did not recover any drugs during the first stop. To show that the ex- clusionary rule should operate to suppress the drugs recov- ered during the second stop based on the illegality of the first stop, Pennington must demonstrate the first stop’s illegality tainted the second stop. His challenge to the first stop falters at this step. The exclusionary rule requires suppression of evidence seized in violation of the Fourth Amendment when suppres- sion’s deterrence benefits outweigh its substantial social costs. United States v. McGill, 8 F.4th 617, 624 (7th Cir. 2021) (citing Utah v. Strieff, 579 U.S. 232, 237 (2016)). The rule “encompasses both the primary evidence obtained as a direct result of an il- legal search or seizure and … evidence later discovered and found to be derivative of an illegality, the so-called fruit of the poisonous tree.” Strieff, 579 U.S. at 237 (quotation marks No. 23-3315 15 omitted). Suppression is a “last resort,” not a “first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). The Supreme Court has recognized multiple exceptions to the exclusionary rule involving “the causal relationship be- tween the unconstitutional act and the discovery of evi- dence.” Strieff, 579 U.S. at 238. One such exception is the at- tenuation doctrine. Id. Under that doctrine, evidence is admis- sible “when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest pro- tected by the constitutional guarantee that has been violated would not be served by suppression of the evidence ob- tained.’” Id. (quoting Hudson, 547 U.S. at 593). To evaluate whether the second stop was sufficiently at- tenuated from the first, three factors guide our analysis: (1) the temporal proximity between the two stops, (2) the presence of intervening circumstances, and, particularly, (3) the purpose and flagrancy of the official conduct. United States v. Davis, 44 F.4th 685, 689 (7th Cir. 2022); see also Brown v. Illinois, 422 U.S. 590, 603–04 (1975) (identifying these fac- tors). “In the final analysis, however, the question is still whether the evidence came from ‘the exploitation of that ille- gality or instead by means sufficiently distinguishable to be purged of the primary taint.’” United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)). Here, the discovery of drugs during the second stop was sufficiently attenuated from the unlawful first traffic stop. First, the amount of time that passed between the two stops favors the government. The temporal proximity factor weighs in favor of attenuation only if “substantial time” passes 16 No. 23-3315 between the unlawful act and when the evidence is found. Strieff, 579 U.S. at 239. About an hour passed between Ser- geant Flack’s unlawful first stop and Sergeant Lillard’s sec- ond stop of Pennington. This is sufficient to support attenua- tion. Cf. Davis, 44 F.4th at 689 (concluding 45 minutes between initial entry and voluntary consent was sufficient for attenua- tion). Second, the presence of intervening circumstances also fa- vors the government. Sergeant Lillard had independent rea- sonable suspicion to pull Pennington over for the second stop, as he observed Pennington improperly pull in front of a semi- truck and initiated the second traffic stop on that basis. See United States v. Jackson, 962 F.3d 353, 357 (7th Cir. 2020) (ex- plaining an officer’s reasonable belief that a driver committed even a minor traffic violation supports a traffic stop). Pen- nington’s independent traffic violation—unrelated from the first stop’s justification—severed the causal chain between the two stops. Pennington resists this conclusion, arguing both stops col- lectively constitute a single, coordinated investigative effort by both officers. He relies on United States v. Gorman, 859 F.3d 706 (9th Cir. 2017), where the Ninth Circuit held the fruit of the poisonous tree doctrine applied when officers’ first illegal stop “significantly directed” law enforcement’s actions in conducting the second stop that yielded the evidence. See id. at 716–17. The same cannot be said here. Gorman is not persuasive as applied to this case’s facts because even though Sergeant Lillard knew Pennington had not consented to Sergeant Flack’s earlier request to search, Pennington’s refusal did not taint Sergeant Lillard’s decision to initiate a second traffic stop No. 23-3315 17 after observing a traffic violation. Indeed, Sergeant Lillard tes- tified that he followed Pennington for a while but had no rea- son to stop Pennington until Pennington’s subsequent traffic violation. And any subjective motivation Sergeant Lillard may have harbored does not undermine his independent jus- tification for stopping Pennington. See United States v. Bass, 325 F.3d 847, 850 (7th Cir. 2003) (“Any ulterior motive an of- ficer may have for making the stop is irrelevant.” (citing Whren v. United States, 517 U.S. 806, 813 (1996))). Simply put, Pennington’s intervening traffic violation severed the causal connection between the two stops. The final attenuation factor—the purpose and flagrancy of the officers’ conduct—also favors the government. This in- quiry centers on “whether law enforcement acted in bad faith.” Davis, 44 F.4th at 689. This matters “because we do not employ the exclusionary rule when ‘suppression would do nothing to deter police misconduct.’” Id. (quoting Davis v. United States, 564 U.S. 229, 232 (2011)). Although Sergeant Flack’s continued questioning unreasonably prolonged the first stop, Sergeant Lillard’s initial decision to pull Pennington over was lawful. And, as discussed below, Sergeant Lillard’s initial determination and conduct during the second traffic stop was also lawful. See Strieff, 579 U.S. at 241–42 (holding this factor “strongly favor[ed]” the government when of- ficer’s initial Terry stop was mistaken, but “his conduct there- after was lawful”). There’s also “no indication” that Sergeant Flack’s prolonged questioning “was part of any systemic or recurrent police misconduct.” Id. at 242. Sergeant Flack’s un- reasonably prolonged first stop was not a “wanton and pur- poseful … Fourth Amendment violation,” Brown, 422 U.S. at 602–03, so suppressing the drugs Sergeant Lillard discovered 18 No. 23-3315 in the second stop would not serve the exclusionary rule’s de- terrence function. Taken all together, the drugs Sergeant Lillard discovered during the second stop were sufficiently attenuated from Ser- geant Flack’s unreasonably prolonged first stop. For that rea- son, suppression based on the first stop is not warranted. 2. Second Traffic Stop Pennington also argues suppression is warranted because Sergeant Lillard unreasonably prolonged the second traffic stop. We disagree. Pennington first argues Sergeant Lillard unreasonably prolonged the stop by conducting checks that were redun- dant with Sergeant Flack’s checks from an hour earlier. Pen- nington contends Sergeant Lillard already knew Pennington had no outstanding warrants and had insurance, a license, and registration, so Sergeant Lillard did not need to ask Pen- nington to sit in the patrol car or whether he had weapons, to check Pennington’s records again, and to conduct other ques- tioning.5 None of those actions, however, unreasonably prolonged the stop. Sergeant Lillard could ask Pennington “to sit in the police car for the duration of [the] traffic stop without any par- ticularized suspicion of dangerousness,” United States v. Good- will, 24 F.4th 612, 615 (7th Cir. 2022), as a request to move into the squad car was “reasonably incidental” to the stop, United States v. Lewis, 920 F.3d 483, 492 (7th Cir. 2019). Sergeant Lillard also appropriately “attend[ed] to … safety concerns” related to the stop by asking Pennington whether he had any 5 Sergeant Lillard did not conduct a protective frisk for weapons. No. 23-3315 19 weapons. Cole, 21 F.4th at 428 (quoting Rodriguez, 575 U.S. at 354); see also Goodwill, 24 F.4th at 615 (explaining that “[o]ffic- ers reasonably fear for their safety during traffic stops” for many reasons, including because “a driver can have a hidden weapon”). And when officers conduct a traffic stop, “they are entitled to demand the driver’s identification, of course, and it is routine to check the driver’s record for active warrants, driving history, and criminal history. Those checks are done for important reasons, including officer safety.” United States v. Simon, 937 F.3d 820, 833 (7th Cir. 2019) (quoting Swanigan v. City of Chicago, 881 F.3d 577, 586 (7th Cir. 2018)); see also United States v. Sanford, 806 F.3d 954, 956 (7th Cir. 2015) (“The trooper checked the occupants’ criminal histories on the computer in his car—a procedure permissible even without reasonable suspicion … .”). Sergeant Lillard did not have to rely on the check run earlier that afternoon; he was entitled to conduct his own check of Pennington’s records and criminal history. Relying on the Ninth Circuit’s decision in United States v. Gorman, 859 F.3d at 717–19, the dissent argues that Sergeant Lillard impermissibly extended the second stop by perform- ing redundant database checks. We respectfully disagree. The mission of the second stop was to issue Pennington a warning for improper lane usage. As Sergeant Lillard prepared that warning—which was delayed by a software malfunction—he simultaneously accessed Pennington’s background infor- mation through a separate software program. Because these checks occurred while he was preparing the warning and did not divert from the stop’s mission, we cannot accept the dis- sent’s view that they unreasonably prolonged the stop. Next, despite Pennington’s contention otherwise, most of Sergeant Lillard’s questioning before the dog sniff—like his 20 No. 23-3315 questions about Pennington’s travel plans, criminal history, and gang involvement—fall squarely within the stop’s mis- sion. Those questions were either related to the traffic stop it- self or to safeguarding Sergeant Lillard’s safety during the stop. See Rodriguez, 575 U.S. at 354; Cole, 21 F.4th at 429–30. And even if some of Sergeant Lillard’s other questioning did not relate to the stop’s mission, that questioning was still per- missible unless it prolonged the stop. See Cole, 21 F.4th at 429. The district court found Sergeant Lillard’s questioning did not fall within this category, and we agree. This questioning occurred while Sergeant Lillard was still trying to log into his computer and write the warning. This alone distinguishes Sergeant Lillard’s actions from scenarios where officers con- tinue to question and investigate the suspect after the Terry stop’s justification had already evaporated, like Sergeant Flack engaged in during the first stop. See Lopez, 907 F.3d at 475, 486 (holding officers unreasonably prolonged stop when they suspected the defendant of drug trafficking based on an informant’s tip, opened the defendant’s bags, and found no contraband, but continued to detain and question him). From this, we cannot say the district court clearly erred in finding Sergeant Lillard’s questioning did not prolong the stop. Pennington also argues Sergeant Lillard unreasonably prolonged the stop when he conducted a canine sniff while Trooper Dorsey finished writing Pennington’s traffic warn- ing. “An officer may conduct certain unrelated checks—in- cluding a dog sniff—during a lawful traffic stop, but he may not do so in a way that prolongs the stop, absent the reasona- ble suspicion ordinarily demanded to justify detaining an in- dividual.” Lewis, 920 F.3d at 491 (quotation marks omitted). The government does not contend Sergeant Lillard had inde- pendent reasonable suspicion to justify the sniff, so the No. 23-3315 21 “critical question” is whether the sniff prolonged the stop. Ro- driguez, 575 U.S. at 357. The district court found Sergeant Lillard did not delay the stop by conducting the dog sniff. This is a factual finding we review for clear error. See Gholston, 1 F.4th at 497. The district court credited the officers’ testimony that it takes between 10 to 15 minutes to enter a written warning. The court also found that the additional four minutes of technical difficulties Ser- geant Lillard endured while trying to write the ticket was not a purposeful delay. And because Sergeant Lillard completed the dog sniff about 20 minutes after initiating the traffic stop, the court found the stop was not delayed to conduct the sniff and the stop’s overall duration was not too long. Given the officers’ credible testimony and the video evidence, these findings do not leave us with a “definite and firm conviction that a mistake has been made.” Devalois, 128 F.4th at 899 (quo- tation marks omitted). Lastly, Pennington takes issue with Trooper Dorsey sub- bing in to finish writing the warning while Sergeant Lillard conducted the dog sniff, contending this swap unreasonably added time to the stop. But “so long as the transfer of duties does not prolong a traffic stop, the officer who begins to write a citation need not be the one to complete it.” Devalois, 128 F.4th at 900. And the court found the stop “wasn’t even de- layed” by the officers trading duties. This factual finding was not clearly erroneous. Sergeant Lillard messaged Trooper Dorsey to assist with the traffic stop. Nothing in the record shows Sergeant Lillard stopped working on the warning until the officers switched places in Sergeant Lillard’s vehicle. This is also why the district court’s alternative characteri- zation of any delay from this tradeoff as “de minimis” does not 22 No. 23-3315 carry the day for Pennington. He is correct that Rodriguez re- jected a de minimis rule for extensions of a stop. See 575 U.S. at 356–57; see also Lopez, 907 F.3d at 486 (explaining the question of whether a stop was unreasonably prolonged “does not de- pend on exactly how many minutes the stop lasts,” as “a 15- minute stop would be too long if the investigation justifying the stop finished at the 14-minute mark”). But in evaluating the district court’s factual findings, we look to the substance of those findings and may still affirm when the court did not clearly err in finding the stop was not extended at all. See Gholston, 1 F.4th at 497–98 (holding that although the district court “chose[] imperfect language” in characterizing officer’s delays as de minimis, it nonetheless stayed within the bounds of Rodriguez because “the court found that [the officer] did not extend the stop at all, not that any delay was permissibly de minimis”). That’s what happened here. In short, the officers switching roles did not render the stop here unreasonable. In sum, the second stop by Sergeant Lillard was not un- constitutionally prolonged beyond the time reasonably re- quired, so suppression of the drugs eventually obtained dur- ing that stop was not warranted. B. Motion to Dismiss Pennington also challenges the district court’s decision to deny without an evidentiary hearing his motion to dismiss the superseding indictment for selective enforcement.6 We re- view de novo a district court’s denial of a motion to dismiss 6 Pennington appears to have abandoned on appeal the vindictive prose- cution theory he pressed below. (See