Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover

Some interesting issues raised by the only Fourth Amendment case currently on the Supreme Court's docket.

|The Volokh Conspiracy |

Next Monday, the Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. GloverGlover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car?   Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?

Glover touches on a conceptually rich Fourth Amendment question I have written about before, and I wanted to offer a few thoughts about different ways the Justices might approach it.

I.  What is the nature of reasonable suspicion?

The most interesting part of Glover, I think, is that it raises a fundamental question about the nature of the reasonable suspicion test—and of likelihood thresholds in Fourth Amendment law, such as probable cause, more broadly.

Here's the context.  The norm in Fourth Amendment law is for every case on likelihood thresholds to be fact-specific.  To learn what reasonable suspicion or probable cause mean, you start by reading what the precedents say the standards are.  But the doctrinal statements of the standard are vague in isolation.  To really learn the law, I think, you need to read a bunch of Supreme Court cases.  After you read a bunch of cases, you get a what Karl Llewellyn would call a "situation-sense" for what kind of degree of plausibility the standards require.

This common-sense, totality-of-the-circumstances inquiry doesn't produce a lot of rules on what facts amount to enough suspicion.  But both reasonable suspicion and probable cause become pretty predictable when you study Fourth Amendment law because they're based on a kind of feel that you learn to develop when you read the cases.  Even thought the doctrinal tests can be vague in their words, every police officer and every judge with a criminal docket eventually develops a situation-sense of where the lines are.  There are disagreements on occasion, but they're relatively rare.

II.  The Unusual Feature of Glover

Glover is unusual because it involves a recurring fact pattern that is based on likelihoods likely outside our typical experience.  First, the police see a car and run a license check.  Second, the license check reveals that the registered owner has a suspended license.   The question is, does the license suspension create reasonable suspicion to stop the car?  It's harder to answer that based on our situation-sense than it usually is in Fourth Amendment cases, I think, as it would seem to depend on dynamics that most people don't often encounter.

Consider the questions you'd want to think about.  First assume that the case before you is is entirely typical and generic.   To answer the typical case, you'd probably want to know two things.  First, how often do non-owners drive an owner's car?  And second, how frequently do people with suspended licenses continue to drive?

That's a start.  But then you would want to know if the particular case before you is typical.  While we might have answer for the odds in a typical case,  any particular case might be quite different.  Variation may be common. And that can change the odds.

Consider two examples.  First, how often non-owners drive a car may vary based on the city or even the neighborhood where the car is found.  Family size is one possible concern.   In a town like Fresno where 37% of households include kids, there's a decent chance that teenage drivers might be driving the family car.  In a city like San Francisco where only 16% of households have kids, that's less likely. Along the same lines, the kind of car might make a difference.  I would guess that a new Porsche 911 is very likely to be driven by its registered owner.  On the other hand, a family minivan likely would have more possible drivers.

The same dynamic applies to the rates at which people still drive after their licenses have been suspended.  That plausibly varies based on the reasons why a particular jurisdiction suspends licenses.  For example, Illinois may suspend your license if you don't pay your parking tickets.  In California, on the other hand, they won't.  I would imagine that people are particularly unlikely to stop driving when their licenses are suspended for unpaid parking tickets, either because they don't have the money to pay but need to drive or else they don't think unpaid tickets are a big deal.  The key point, it seems to me, is that state or local policies can change the likelihood that spotting a car on the road when the owner's license was suspended means that a crime is afoot.

III.  Three Conceptual Ways Forward

So how do you try to figure out if there is reasonable suspicion in Glover?  In light of the above discussion, I think there are three basic conceptual approaches:

A. Continue to focus on the overall gestalt sense of whether there is reasonable suspicion.   Under this approach, you would treat Glover like any other reasonable suspicion case.  You'd try to get a rough sense whether in general an owner's suspended license will create reasonable suspicion when the car is spotted on the road.  You would recognize some special cases will be different, as you might be in a place where those rough senses aren't justified or dealing with a particular car or time when you might expect a different result.  But you'd reach the answer guided by the rough sense, the feel, of the likelihood.

B.  Focus on the statistical likelihood of a typical case.   Under this approach, you would want to know the typical empirics of how many cars there are per driver and how license suspensions affect driving patterns. You could then estimate a rough likelihood that a typical stop based on a suspended license is going to involve the suspended owner behind the wheel.  You'd then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

C. Focus on the statistical likelihood of that actual case. Under this approach, you would try to develop a statistical model of that particular stop.  You would recognize that the likelihood of reasonable suspicion varies based on local factors, ranging from the jurisdiction to the neighborhood to the car to the time of day.  As a result, instead of answering the likelihood of finding the driver behind the wheel in some generic case, you would try to figure out the likelihood of it based on all the kinds of local factors that would be known when the officer makes the stop. You'd then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

IV. We've Been Here Before: Florida v. Harris

At this point you're probably wondering: Hasn't this problem come up before?  And indeed it has.  I see a lot of conceptual similarities between Glover and a 2013 probable cause case, Florida v. Harris, 568 U.S. 237 (2013)In Harris, the state court below went for approach C.  The U.S. Supreme Court reversed, adopting approach A.

Harris asked whether a positive alert from a drug-sniffing dog was sufficient to create probable cause that drugs were present in the car.  As I see it, the dog's alert on the car was sort of like the license check that reveals the car owner's suspended license.  It was a single triggering event, with the likelihood probably outside our everyday experience, which could vary in significance.  The question in Harris was, how do you know when the alert was sufficient?

In the decision below, the Florida Supreme Court took option C above.  That is, the Florida court assessed the statistical likelihood that each particular dog's alert created that particular probable cause.  That approach required the government to produce a lot of information about that particular dog to be able to assess the reliability of its alerts.  In each case, the Florida Supreme Court ruled, the State was required to

present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.

The U.S. Supreme Court granted cert and unanimously reversed.  Instead of the Florida court's approach C, the U.S. Supreme Court took approach A.

According to Justice Kagan, writing for the majority, the Florida court's statistical approach had "flouted" the U.S. Supreme Court's guidance on probable cause that "rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach."

The Court's basic thinking was that well-trained drug-sniffing dogs are generally pretty reliable.  Based on that, evidence of solid training was usually going to be enough:

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

But it wouldn't be enough in every case, as a defendant "must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses."

The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog's (or handler's) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 23-24 ("[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate"). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause — if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

V.   Which Approach for Glover?

Enough wind-up.  What should the Court do with Glover?  My own view, consistent with the unanimous opinion in Harris, is that Approach A is the right path forward.  That is, the Court should get a feel for the general likelihood that the owner is behind the wheel when the police learn that an owner's license is suspended but the car is on the road.  No calculations or statistics are needed.  As in Harris, it's more a matter of ball-park feel.

And as in Harris, that situation-sense shouldn't be the end of things.  Whichever way the Justices see the default, the other side should be able to show that a particular case is special.  If the Justices think that  an owner-suspension alert normally creates reasonable suspicion, the defense should be able to show specific circumstances when it doesn't.  If the Justices think that an owner-suspension alert normally fails to create reasonable suspicion, the government should be allowed to show when it does.

My own sense, I'll add, is that the owner-suspension alert ordinarily creates reasonable suspicion these days.  That's largely the case because I think reasonable suspicion is a pretty low threshold.  It's more than a hunch, but it's a lot less than probable cause.  When the owner of a car has a suspended license but the car is on the road, it's certainly possible that someone else is driving.  But my situation-sense is that, these days, it's ordinarily going to be reasonable suspicion.  The owner of the car isn't supposed to be driving, but there's the car on the road.  It's the kind of thing that a prudent officer would reasonably want to check out to make sure the owner isn't behind the wheel.

VI.  The Problem With Fourth Amendment Statistics, and A Response to 17 States and to Professor Crespo

Why not adopt one of the statistical approaches, such as B or C above?  The main reason is one I wrote about in this book chapter in 2012, Why Courts Should Not Quantify Probable Cause.

In that chapter, I argued that it's important not to try to quantify probable cause in order to measure it accurately.   The basic problem is that you don't know what you don't know.  When we quantify, we feel like we're being all scientific.  But we're actually blinding ourselves to the intuitions needed to assess probable cause accurately. Using numbers, I argued, would provide a false sense of certainty that blinds us to the intuitions needed to assess probable cause accurately.

I think similar concerns make approaches B or C problematic in Glover.  If you come up with a typical likelihood, approach B above, you don't know if a particular case is a typical example.  You miss or don't appreciate all the reasons to think a particular case is different.  And if you come up with a case-specific likelihood, approach C above, you end up misunderstanding when you have only a partial and inaccurate view of the relevant criteria and factors that misrepresents the odds. It feels scientific, as it has numbers and data.  But this is a context in which I think the intuitive approach is more accurate.

This puts me in disagreement with some very interesting amicus briefs, I should add. First, an amicus brief of 17 states adopts approach B. It offers and analyzes empirical evidence of the general odds that a driver-suspension alert will mean that a suspended driver is behind the wheel.  It's an interesting brief, and the general odds can help inform intuitions about general cases.  But I don't think it can go beyond that.

I also end up in disagreement with Professor Andrew Crespo, who filed a solo amicus brief in Glover in support of the defendant.  I think it's fair to say that Professor Crespo favors approach C.  In his brief, he argues that the government must provide localized statistical data to establish that the owner-suspension created reasonable suspicion.  In particular, he argues that the state should have to provide evidence of "how many times vehicles reportedly registered to unlicensed drivers are actually driven by those individuals when such vehicles are stopped in the relevant geographic area."

I disagree with Professor Crespo for the reasons flagged above. Among the difficulties, what is the level of generality for the "relevant geographic area"?  It seems to me that the odds may vary along different geographic criteria, ranging from the state or city (which may determine suspension policies) to the neighborhood (which may be more or less family-friendly) to the specific road (which may be driven by people from different places).  The odds also can vary based on non-geographic factors, such as the car (Porsche v. mini-van), the time of day (commuting time vs. night-time), the decade (are we moving to self-driving cars?), or the officer who decided to make the stop.

Even assuming the government can readily collect some kind of data, which is its own problem, it's hard for us to know which criteria matter. And I think that makes it hard to use data about those criteria to say whether a particular stop is one that was justified by reasonable suspicion.

As always, stay tuned.  Glover will be argued next Monday, November 4th, 2019.

 

 

Advertisement

NEXT: Today in Supreme Court History: October 31, 1963

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’d agree, the case is going to be lost by Glover.

    Reasonable suspicion is a pretty low bar. United States v. Jones, 1994 noted that probable cause is less than 50%, and reasonable suspicion is a level below that. Easily below 30% for reasonable suspicion.

  2. I agree with your prediction (Option A), but don’t understand how it’s arrived at.

    And Option C seems entirely unworkable. For Option B we can use past data to determine either that “yes, this is the general trend, so now it’s always ok, or no it’s never ok.” But Option C seems to require a 4th Amendment blind leap in every new jurisdiction – they don’t know what the pattern was in Newtown, because it didn’t exist yesterday. So now the police have to pull people over to learn what the local distribution is only to later find out they weren’t permitted to do so? How do you know if the pattern changes?

    And that’s where I don’t understand how to get to Option A without just making up your own facts, nor how you think it’s “more accurate” to make up facts a la Harris – which made up the “fact” (unsurprisingly, a false fact) that drug dogs are reliable at detecting drugs (in reality, drug dogs are reliable at alerting whenever their handlers want them to).

    Alternatively, I think the right rule (following your paradigm) is using B to determine the default answer, then using C as proof for A. So if the general nationwide rule is “yes, this is sufficient because when we looked into it we found it accurate enough at 10% of the time because reasons 1,2,3.” So now the default rule is Yes. But in an individual case (C) when the officer sees the vehicle he may also see the driver, and in doing so perceive their apparent gender, age, and skin color. If that doesn’t match the registration then he has new information that wasn’t before the court that indicates the answer is No.

    Sadly my version, like most rules for police, reward them for being ignorant. I don’t have a fix for that.

  3. Don’t police have access to personal data on car owners, at least via their drivers’ licenses? Age? Sex? Maybe even a photograph? Seems like checking those boxes would do a lot to exclude mistaken suspicions.

    1. Yes, see my 2nd to last paragraph, directly above your comment.

      “… when the officer sees the vehicle he may also see the driver, and in doing so perceive their apparent gender, age, and skin color. If that doesn’t match the registration then he has new information that wasn’t before the court that indicates the answer is No.”

    2. I think that’s the Respondent’s argument. The Court should essentially require owner suspended plus some kind of corroborating information to verify the driver is the owner. A DMV photograph (or even identifying information) is likely enough.

  4. perhaps divorcing driver’s licenses from vehicle registration might be a good start. If the car is legal there is no need to stop it. It may be driven by anyone (who is licensed).

    Every car on the road may have an unlicensed driver in it, so why not check every driver of every car (because citizens still know how to use tar and feathers is why) on the road?

    Only by matching property to a specific citizen (and their unlicensed state) can any suspicion come in.

    When you are looking for property use the registration. When you are looking for people use the license. One has nothing to do (in traffic) with the other.

    1. Alternatively, your drivers license could just be a plate, which you afix to what ever you’re driving. Registration is then by VIN.

      1. That has a bit of trouble because plates and licenses serve different purposes: The license is permission to drive on public roads, and the plate is permission for a particular vehicle to be on public roads.

        Both a registered vehicle being driven by somebody not licensed to drive, and a licensed driver driving an unregistered vehicle, can be offenses. Your proposal would make the latter hard to detect.

    2. Police often do sobriety checks where every driver is checked for sobriety and usually license, insurance and registration.

  5. Question: is there a threshold for running a license check in the first place? I know police aren’t supposed to pull over cars ‘just because’, can police run a license check on any car they come across ‘just because’?

    1. No, there isn’t a threshold for license checks. A license check doesn’t involve any invasion of privacy — the license plate is right there on the car and in fact specifically exists so that the car can be identified by authorities. I’ve likely had my license plate run many times and never had any idea about it, because it doesn’t involve any kind of infringement on me. I’d only know about it if they took further actions based on the license check, and those further actions are what they need reasonable suspicion for.

      1. That may be law, but without a doubt, searching the registry of ALL vehicles to find out about one, which you have no other interest in other than it is in front of you; is a search.

        I would further say that it is an unreasonable search that infringes on information provided to the government for official business. If they were to search only the expired/revoked/unpaid/undocumented database, might be something a police force with way too much time on their hands would do, but is otherwise reasonable.

        1. What’s it a search OF though? It’s not a search of someone else’s personal information or property. It’s a search of the government’s own database.

          1. Yes. The prohibition is against searching your papers, not reading glowing neon sign you carry around.

            Second, the purpose of a license plate is so the police can quickly look it up in their database to see if the car is reported stolen. (We’ll skip unofficial reasons like it, and fines for expiration, are a driving force of an income vector for government.)

            In no way is this an incorrect use of the data you provide. That is its exact use.

            1. Alas, you’ve made a mistake. They are not “your” papers. It is the government’s database. Not your database. You have no rights to the database. The government has the rights to the database.

      2. Yes, but it shouldn’t be. The officer had neither probable cause, nor reasonable suspicion when the officer ran the plate.

        We, as a nation, need to stop the powers that be from constantly surveilling us. This is just one encroachment and facial recognition and social credit scores are on their way.

  6. A general assumption that any car registered to someone whose license is suspend is being driven illegally is the exact opposite of the “particularized suspicion” required in Terry.

    1. The “registered to someone whose license is suspended” part gets you to at least some degree of particularization, unless you’re taking issue with running the license in the first place.

      1. “The “registered to someone whose license is suspended” part gets you to at least some degree of particularization”

        Sure, in the same sense that, “everybody driving down this road” gets you to at least some degree of particularization. But that’s not good enough.

        1. For example, cops don’t have reasonable suspicion to pull over everybody leaving Joe’s bar at 2am, even if that’s a pretty good reason to think somebody might be intoxicated. They have to some particularized suspicion about the driver. Maybe he was walking funny or something.

        2. No, in a much more particularized sense than “everybody driving down this road”. The percentage of cars registered to people with suspended licenses, and being driven by people with suspended licenses, has to be much higher than the over all percentage of cars being driven by people with suspended licenses.

          1. The point is that these types of general assumptions don’t have the required particularity.

            Roadblocks, though considered “reasonable” in certain cases, generally don’t meet the particularity requirement, even though they gets you to at least some degree of particularization” by only applying to people on certain roads at certain times. Same thing with “presence in a high-crime area,” which also gets you to some degree of particularization.

            It simply isn’t reasonable to assume that everyone driving a car is the registered owner.

            1. No, the question is exactly how much particularity is required.

              Every car in a given area is EVERY car. Every car in a given area owned by somebody with a suspended license is a tiny fraction of the cars. You have a specific reason to suspect THAT car, and not the one next to it, might be driven by somebody with a suspended license.

              About 2.6% of potential drivers in the US have suspended licenses at any given time. 1 car in 38 is a LOT more particular than 1 car in 1. 38 times more particular, in fact.

              Thus we know there’s already some particularity here. The question is how much you need for the stop to be reasonable.

              1. “No, the question is exactly how much particularity is required.”

                “About 2.6% of potential drivers in the US have suspended licenses at any given time. 1 car in 38 is a LOT more particular than 1 car in 1.”

                OK, let’s say that 2.6% of cars in Bumville have owners with their licences suspended at any given time. And lets say that 2.5% of drivers happen to be in the “Skids” section of Bumville, where there is a lot of drug trafficking. That would make singling out people in the “Skids” neighborhood more particular than singling out people driving cars whose owners have suspend licences. By your reasoning, either I can stop everybody in the “Skids” neighborhood, or I can’t stop people with suspended licenses. But I don’t think your reasoning is correct.

                1. It all comes down to the question of, when a car owned by somebody with a suspended license is seen being driven, how likely is it that the guy with the suspended license is the driver?

                  If it were no more probable than any other car on the road, there’d be no particularity at all.

                  If it were over 50% probable, you’d have sufficient cause to bring charges for driving without a license just on the basis of seeing that car on the road.

                  Somewhere between ‘no more probable” and 50% probable, there’s a threshold for sufficient cause to do a traffic stop.

                  So, where’s that threshold, and what IS the probability? The one is a judgment call, the other we could actually get some numbers on.

                  1. Somewhere between ‘no more probable” and 50% probable, there’s a threshold for sufficient cause to do a traffic stop.

                    Ah….that is the gestalt Professor Kerr wrote about.

                  2. “Somewhere between ‘no more probable” and 50% probable, there’s a threshold for sufficient cause to do a traffic stop.”

                    See Kerr’s link on why courts shouldn’t quantify probable cause.

                    But the threshhold theory can’t be right, because for any threshhold I can define a “high crime area” where the odds of being in it are smaller than your threshhold, and we know that mere presence in a high crime area doesn’t qualify.

                    “Particularized” seems to require something more than just a generalized assumption about a specific category of individuals.

                    1. Let’s run a few sample situations past you, and see what you think. In each sample situation, there is a robbery at a local store, identifying a single white male suspect in their 20s, carrying a backpack of stolen goods. The police officer with his 2 partners are is very nearby the crime. They see the following

                      1. A single white male with a backpack rapidly leaving the area of the store. Does the cop have reasonable suspicion to halt and question him?
                      2. Two white males with backpacks rapidly leaving the area of the store. Do they have the reasonable suspicion to halt and question either one of them, knowing there is a 50% chance or more of one of them being innocent?
                      3. Three white males with backpacks rapidly leaving the area. Is there reasonable suspicion to halt any one of the three?

                    2. Objection.

                      In your example, the police know there has been a crime.

                      In the case of police scanning a license plate (with valid registration) and seeing that it’s registered to someone without a valid driver’s license, they don’t know there’s been a crime.

                      That’s a pretty big distinction.

                    3. For these purposes, it’s not important that there “is” a crime definitively established or not. The example is designed to establish probabilities and reasonable suspicion with a minimum level of confounding factors.

                      We could have, for example, said a “tip” from an informant about the same situation was coming, that they would commit an armed robbery. But that increases the number of factors to consider.

                      The example was meant to clearly demonstrate probability and reasonable suspicion.

  7. The problem with the analogy to Harris is that the Supreme Court got it wrong. As you point out, their decision was based on the premise that “well-trained drug-sniffing dogs are generally pretty reliable.” Start with a false premise and you can not reach a trustworthy conclusion.

    Turning to Glover, I concede that you’re probably right that the Supreme Court will choose something like your Approach A. I strongly disagree with your assessment that it is “the right path forward.” That approach puts entirely too much subjective judgement in hands of people with an incentive to find a justification for their actions after the fact. The entire point of the Fourth Amendment (and of the entire principle of a constitution based on enumerated powers) is to protect us from the unbridled discretion of the government to interfere with our lives.

    Will there be circumstances where a more rigid approach would blind us to intuition? Yes. And given the frequency with which intuition is demonstrably wrong, I’m okay with that tradeoff. I’m even more okay with it when I look at all the cases where the cop’s subjective judgement was so flagrantly wrong that it is utterly implausible. See, for example, the recent article about the cop who “mistook” used tea leaves for marijuana – and who, in the face of contradictory evidence, continued to make that absurd claim.

    1. “As you point out, their decision was based on the premise that “well-trained drug-sniffing dogs are generally pretty reliable.” Start with a false premise and you can not reach a trustworthy conclusion.”

      And even a reliable test, applied indiscriminately, is likely to be wrong most of the time.

      1. Yes. Even a test with a very low false positive rate is going to produce a lot of false positives if widely used to test for relatively rare situations.

        1. A big part of the problem with the dogs is the Clever Hans effect. The dog is very good at figuring out when the handler WANTS it to alert, even if the handler would genuinely prefer the dog only alert for cause.

          The challenge isn’t so much training the dog, as training the handler not to give the dog the slightest hint of how to react.

          1. A big part of the problem with the dogs is the Clever Hans effect. The dog is very good at figuring out when the handler WANTS it to alert, even if the handler would genuinely prefer the dog only alert for cause.

            But given the Supreme Court’s ruling, there’s no reason why the handler would prefer that.

            1. Cops may sometimes be sociopaths, but Supreme court rulings don’t automatically make them sociopaths. Ordinary human decency is still a reason.

  8. How about not randomly running license plates in the first place?

    1. That would seem to be a thing to do.

  9. I always thought that in Harris, the defense should have gotten to cross-examine the dog.

    1. I don’t know how we know that the dog alerted because it actually smelled drugs, and not because it had an inchoate and unparticularized suspicion or hunch.

  10. When “reasonable suspicion” becomes increasingly unreasonable, year after year, it might be time to stop trusting cops “gut instinct”.

    Numbers would back this up. Too bad the SCOTUS says there are no rules and the points don’t matter.

  11. I tend to agree that Option A is the one the Court will take (although I don’t know what result they’ll end up with). I also agree with the analogy to Harris. IMO, the Supreme Court was very uncharitable with the Florida Supreme Court’s opinion, which engaged with all the evidence and did make a totality of the circumstances determination. IMO, the Supreme Court ended up essentially taking the same test the Florida court did but more or less concluded the opposite way with every bit of evidence. Essentially, it’s a totality of the circumstances test with a thumb on the scale in favor of a drug sniffing dog with “training.” But that’s a bit of a tangent.

  12. I would think that a visual look matching information from the driver’s license database – race, sex, age, height, weight, etc. – would be sufficient.

    If it’s a suspended license the information will show up, won’t it?

    I think that a registered owner with a suspended license plus a driver who appears to match the registered owner license information would be sufficient.

    I don’t see this as a hard case.

    1. The issue is that once you’re pulled over for a “legitimate” reason, a whole bunch of rights go out the window.

      So any additional barrier that stops cops from pulling over people is one they’re going to fight against.

    2. The point is the legitimacy of the stop. You can’t visually confirm any of those physical characteristics until after the stop – by which time it’s too late to use that as part of the justification.

  13. The solution it seems would be for anyone whose license may be suspended to simply register the car to an LLC, Trust, or other entity so when the plates are run any possible “reasonable suspicion” goes straight out the window.

    1. I was wondering what the case would be if there were joint owners and only one of them had a suspended license. But your solution is better.

  14. Let’s also be honest that much of this problem is due to the extension of Terry to traffic stops thus not requiring probable cause. Terry while allowing stop and frisk did not require person to turn over documents or for such to be required. And yet that is what happens in traffic stops. Where does difference come from?

    Traffic stops, if they are going to require turning over license, registration, insurance should require probable cause.

  15. Possibly dumb question, the article repeatedly assumes that the person the car is registered to is the owner. That might be true in some states but I don’t think it is true in all states. The vehicle’s owner is the person who holds title to the vehicle. A vehicle is not necessarily registered to the owner. The registration is just to demonstrate that the vehicle is roadworthy and all applicable taxes have been paid. That’s USUALLY the owner, but not necessarily (consider the case of a person owning a car but loaning it to a relative long term. They relative may be responsible for paying the registration fees and making sure the smog inspection is done while they are in possession of the car, though they are not the owner. Or not. I maintained registration on a vehicle that I owned even though my brother borrowed it for about five years.) Granted, if the person the vehicle is registered to and the owner are not the same person, it is more likely that the former is driving it than the latter, but I think the fact that ownership and registration are distinct and that long term loans of vehicles are a thing that happens, it’s pretty unreasonable to assume the operator is either the person it is registered to or the owner.

    1. So, this is actually addressed, and it really gets to the base questions of “what is reasonable suspicion”, which is a pretty low bar. A probability metric is one way to look at it. “Reasonable suspicion” is a level below “probable cause.” That gets to a different question. What probability is “probable cause”? Again, courts are extremely reluctant to put a % on it, but they generally put it below “Preponderance of the evidence” which is a 50% chance.

      So, if “probably cause was, say, 40%, and reasonable suspicion was, say, 25%….

      What are the odds that someone driving the car is also the owner. 25%? Then you might have reasonable suspicion to pull them over, if your database noted their license was suspended.

  16. Seems reasonable to me to suspect the person driving a car will the person to which is is registered. If it isn’t and that is the sole reason for the stop, seems to me the cop is going to let the person stopped on their way pretty quickly once it is verified the driver is not the registered owner.

    1. If the cop let the driver go as soon as he saw that his or her face did not match the suspended driver’s license photo, the stop would not be a problem, and it would be very unlikely for a case to go higher than the trial court.

      That’s not how modern traffic stops work. Having found an excuse to stop you the police will check your papers. They will look through your car windows for anything to justify searching it. They may bring in a drug-sniffing dog – who is as likely to alert by reading the handler’s body language as by smelling something, but always gives an excuse to thoroughly search the car. And before they search the car, they will search you and your passengers, just in case someone is carrying a gun. Not that using this excuse means they are only searching for guns.

      And any powder, leaves, or pills they find will be tested with notoriously inaccurate field tests, with false positives resulting in an arrest. People have sat in jail for months for powdered sugar.

      And that’s if the cop is honest. Otherwise he may pretend to smell marijuana himself, and deliberately misread the field test. And if caught, “good” police are likely to help him cover it up, and the police union will defend him and require that his rights are far better protected than any “civilian” suspect’s are/

  17. Even if the chosen approach is A (intuition), it seems silly not to collect and use data to help inform that intuition and improve it over time, and also to measure and report how well it is doing at any given time.

  18. Also: It seems that many commenters ( and perhaps Orin as well) are implicitly assuming that the likelihood that a car is being driven by its owner is unchanged by our knowing that its owner’s license is suspended.
    That assumption seems unjustified. For starters, suspendees obviously have a significant disincentive to drive, because the penalty if they’re caught is substantial. Possibly pushing in the other direction, suspendees may be likelier to be single, which would presumably reduce car-sharing need/opportunity. Where does this leave us? It’s not clear, which is kinda the point. Rather than making a blind assumption, it’s better to shine a little light on the situation. For light, read data.

    1. We’re not assuming it’s unchanged, just that it’s still reasonably large.

      1. Good point. Even then it’s not obvious to me, but perhaps I’m overgeneralizing based on myself.

  19. What if the car is registered to a man, and a woman is obviously driving? What is the man is aged, and the driver is obviously a teenager? What is the driver is of a obviously different race?

  20. So am I to understand your position to be that we are more likely to have a correct estimate of the percentage of time a given incident will turn out to be a case of driving on the basis of a suspended license if we go by the seat of our pants than if we use explicit statistics?

    If so this is an empirically testable proposition. We just need to collect up all the cases where the seat f the pants intuition says there is a 20% chance the driver is driving on a suspended license and see how far off the fraction of those cases where the driver really is driving on a suspended license and see if that is farther from 20% than when it is based on the statistical approach.

Please to post comments