A Pretext Too Far
A Pretext Too Far
Seventh Circuit establishes limits on officers' ability to ask itinerary questions during routine traffic stops
In December 2021, this opinion was vacated and overruled by the Seventh Circuit sitting en banc. That opinion can be found here.
In 1996, a unanimous Supreme Court held that defendants could not challenge traffic stops under the Fourth Amendment merely because they were pretextual.1 Thus, if police saw a car cross slightly over the center line, they could legally stop the car even if their real motivation for the stop was a belief the driver was transporting drugs.
But, the Supreme Court later said, the police were limited by their professed reason for the stop and could not unreasonably prolong it unless they discovered additional cause for suspicion.2 A recent Seventh Circuit case gives bite to that limit.
From Tailgating to Drug Trafficking in 40 Minutes
In June 2018, a deputy sheriff sent a message to his fellow law enforcement officers about a Volkswagen he thought was suspicious: it had California plates and was traveling roughly 15 to 20 miles per hour under the speed limit in an urban area. Spotting the car and suspecting it might be involved in drug trafficking, another officer followed it, hoping to catch the driver in a minor traffic violation that would allow him to pull the car over.
After another car cut the driver off at the intersection of two interstates, the officer got his chance. And he pulled future-Defendant Janhoi Cole over for “following too closely.”
The officer requested Cole’s license and registration, then had Cole sit in the front seat of his cruiser. What followed was eight-and-a-half-minutes of “conversation,” six of which related to Cole’s residence, employment, travel history, travel plans, vehicle history, and registration information. At the end of this conversation, the officer said he was going to let Cole off with a warning but ordered Cole to follow him to a nearby gas station because he was “concerned for their safety” on the unprotected shoulder.
This was not true. The officer later testified that he was not going to let Cole go until he had “somehow managed to search the car for drugs.” And he used the drive to the gas station to radio for a drug-sniffing dog.
At the gas station, the officer continued to question Cole in what the Seventh Circuit described as a “faux-casual” manner about his itinerary. Cole’s answers began to be contradictory and incoherent in various ways as the questioning went on.
The drug dog finally arrived 40 minutes after the original stop, quickly alerting to the presence of drugs—namely, several kilograms of methamphetamine and heroin in a hidden compartment.
The district court denied Cole’s motion to suppress.
Six-and-Half Minutes Too Long
The Seventh Circuit reversed. But not for the reason you might expect. The panel majority focused neither on the drive to the gas station nor the 40 minute delay between stop and drug-sniff. Instead, it held that the stop was unconstitutional because of the officer’s six-and-half minutes of itinerary questions in the police cruiser.
Judge Hamilton wrote that the officer “slow-walked his work throughout the stop” and spent the time in the cruiser “questioning Mr. Cole about topics he already knew the answers to or went beyond the limited topics justified by the traffic stop,” such as determining whether to issue a ticket. While there might be circumstances where itinerary questions are justified—such as where a driver is drowsy and the officer is not sure whether it is safe for them to continue on their way—none were present in this case.
The Court rejected the government’s argument that the officer did not unreasonably extend the stop because this questioning lasted only 8-10 minutes and the usual length of this sort of stop is 15 minutes:
Even if we assume that issuing a warning typically takes 15 minutes … that does not mean that an officer has 15 free minutes to investigate other crimes before starting the substance of the stop in the hope that the questioning will unearth signs of other wrongdoing to justify still more detention and more investigation …
Here, the officer even admitted that he delayed collecting insurance information critical to issuing a warning so that he could try to piece together Cole’s story.
Road Related is Not Enough
The government argued that the officer’s questions were permissible and did not improperly extend the stop because they were “road-related.” But the Court emphatically rejected that argument, characterizing it as a claim that “officers may insist that a driver who is lawfully stopped for a minor and routine traffic violation be able to convince the officer that she is not a criminal.”
“Under the Constitution,” the majority wrote, “drivers do not need ‘stories’ to travel on interstate highways.”:
Rodriguez made clear that police officers may not use the implicit threat of state-sanctioned violence to hold someone against his will to extract details about his personal life, absent reasonable suspicion of criminal activity.
The Court distinguished Cole’s case from its earlier decision in Lewis,3 pointing out that in the latter the officer had asked itinerary questions while he completed necessary paperwork. Lewis had thus failed to show that the questioning had extended the stop at all.
Judge Hamilton also distinguished relatively innocuous questions—such as “How are you doing?” or “Where are you going today?”—from the more invasive questioning here. A “brief context-setting question” at the beginning of the stop does not raise constitutional concerns. But “extended itinerary questioning,” unrelated to the purpose of the stop, does absent additional reason for suspicion.
Lawful Behavior Doesn’t Count
The Seventh Circuit also brushed aside the government’s claim that the officer had sufficient suspicion of drug activity at the outset of the stop to justify his questions.
The government said that the officer’s suspicion was more than a hunch because Cole “was from a large American city, drove cautiously on a major interstate highway, owned a popular brand of car, sat with good posture, and had empty fast-food wrappers in the passenger compartment.” But, as Judge Hamilton wrote, those “are perfectly normal facts that could easily be true of millions of law-abiding Americans.” If these facts were enough to create reasonable suspicion, officers would be justified in stopping and questioning pretty much anyone about potential drug trafficking activity.
The Court took special umbrage at the suggestion that driving below the speed limit could support reasonable suspicion, writing that it had “rejected the startling notion that obeying traffic laws may … justify a stop.” It emphasized that lawful operation of a car can only be considered suspicious activity under extraordinary circumstances.
The majority also recognized that it is perfectly normal for people to be nervous when stopped by the police. So that nervousness alone cannot be a basis for extending traffic stops.
Conclusion
The Seventh Circuit’s opinion is notable for its forcefulness in rejecting the government’s attempts to justify the officer’s questioning. Throughout the opinion, the majority is especially sensitive to the risk that blessing the government’s arguments would give the police the discretion to stop and question a great many innocent people—what Professor Jane Bambauer has called the risk of “hassle.”4 This sensitivity is all the more significant given the relatively short period of time in question (just six-and-half minutes). The decision thus provides ammunition to future defendants challenging pretextual stops and itinerary questioning.
The opinion is United States v. Cole, No. 20-2105
The panel included Judges Hamilton (author), Rovner, and St. Eve. Judge St. Eve dissented.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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Whren v. United States, 517 U.S. 806 (1996).
Rodriguez v. United States, 575 U.S. 348 (2015).
United States v. Lewis, 920 F.3d 483 (7th Cir. 2019).