What is "individualized" suspicion?

An interesting issue raised by Kansas v. Glover.

|The Volokh Conspiracy |

Over at Prawfs, Richard Re has a post on Kansas v. Glover and the need for "individualized" evidence in applying the reasonable suspicion test.  Glover, you may recall, is the case on whether the government has reasonable suspicion to stop a car being driven on the road that is owned by a person with a suspended license.  Richard suggests that the stop in Glover is problematic less because there isn't enough suspicion but because the suspicion is not sufficiently individualized.

I disagree, and I thought it might be worth explaining why.

It seems to me that the stop in Glover is quite individualized.  An officer observed a specific car on the road.  Under state law, the car must have a visible license plate that uniquely identifies the car.  And the government keeps a database linking the car to its owner, as well as another database linking the owner to his driving record.  As a result, the basis for the stop is not just individualized, but about a single individual. The unique license plate is linked to a single owner, and the single owner's specific and individual license status is the reason for the cause.  Assuming that this is enough suspicion—that is, assuming the inference that a car is being driven by its owner is sufficiently reliable to create the needed cause—it seems to me that the suspicion is meaningfully individualized.

I gather Richard disagrees because he is looking at a smaller subset.  In my analysis above, I treated the general category as "cars on the road."  I then saw the basis for individualization as "a positive 'hit' indicating that the owner of that car has a suspended license."  In contrast, I gather Richard treats the general category as "cars on the road that have returned a positive 'hit' indicating that the owner of that car has a suspended license." He then looks for a basis of individualization within that category, and he sees none.

One lesson to draw from this difference is that individualization is inherently relative.  We say evidence is "individualized" when we have reason to see it as different from the reference group.  But what's our reference group?  You can always draw that narrowly or broadly.

But is the Fourth Amendment so unmoored?  Just off the top of my head, I wouldn't think so.  Here are some tentative thoughts, as this is an interesting issue worth pondering that I don't yet have the firmest sense of on the merits.

It seems to me that the requirement that reasonable suspicion must be individualized is mostly about evidence that explains why the police picked that person or thing to search or seize and why not a different one.  As long as there is enough amount of suspicion, I don't see, contra Richard, a requirement of individualization beyond that explanation.

Take the Harvard dorm hypothetical in which an officer submits a warrant application consisting solely of two things: first, a study that Harvard dorm rooms are likely to contain illegal drugs; and second, a request to search a particular Harvard dorm room.  In that hypothetical, the suspicion is not individualized because the magistrate has no idea why the police picked that particular room and not one of the many other rooms.  We intuit there must be an explanation for why they picked that one room.  And we become instinctively cautious about whether there is cause because we sense that the government isn't  telling us the whole story of the real reason they are searching that room.

In Glover, by contrast, I'm not aware of a concern as to why the officer picked that particular car.   At least as litigated, we don't have reason to think the officer knew lots of cars had owners with suspended licenses and that the officer had some suspicious reason to pick that one.  So I tend to think that, if the court sees the amount of suspicion as sufficient, the suspicion is individualized by the specific evidence that this particular car was the one whose owner had a suspended license.

 

 

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  1. This tracks my own thinking about that case. You could always transform particularized suspicion into general by making it about the class of individuals exhibiting the basis for the particularized suspicion; You have no particularized reason for thinking THAT car is driven by a drunk driver, you suspect all cars that are weaving all over the road… Richard Re’s approach transforms the requirement that suspicion be particularized into a requirement that it be unique.

    1. Brett, you have made an interesting point here that raises a question I don’t see answered anywhere else in the comments, and that is, what was the “reasonable suspicion’ that prompted the stop in the first place?

      Unless the officer is scanning ALL plates, there must be some reason for that individual plate to be run. THAT would be the reasonable suspicion for the stop.

      In your example, a simple observation of “weaving all over the road” provides reasonable suspicion the driver may be impaired, and justifies a stop.

      In the Glover case, the license plate itself offers no useful information about the car’s owner to a casual observer. I’m left wondering why the officer ran that particular plate prior to a stop, if that’s the actual sequence of events.

  2. The inference is not “that the care is being driven by its driver”; the inference is that the car is being driven by its OWNER — which is not at all the same. I may own the car, but my wife, son or daughter are all perfectly legally entitled to drive the car. The suspicion is not individualized at all. Owners are not required to be the sole or even the primary operators of the vehicle.

    1. Thanks, Hardfloor, typo fixed. At the same time, I think your objection is not to the subject of the post but to other issues in Glover that neither Richard nor I are focused on in this exchange. That is, I take you to be focused on whether the inference is sufficiently reliable, not whether its application here is sufficiently particularized. Richard was only focused on that latter question, so I focused on that in my response to him, too.

      1. Orin,

        I think it is related to particularity. What is being stopped here, a car or a person? The answer is both. There is particularity with respect to the car, but there isn’t particularity with respect to the person.

        The text of the 4th Amendment is as follows:

        “particularly describing the place to be searched, AND the persons or things to be seized”

        Now, if this was a computer science type AND function, then particularity of the place to be searched (the car) would not be enough. You would also need particularity regarding the person seized.

    2. Hardfloor,

      Even using your hypothetical with father, mother, son, and daughter; the officer knows the registered owner (father) is male so if it is a female driver then the stop would not be made. This makes the stop a 50/50 possibility. That is reasonable.

      1. Whatever you think of the arguments above, the claim that the reliability of driver ID can be refined by observation of the driver is utterly implausible.

        Consider the mechanics of what you are proposing. The identification must be accomplished before the stop for it to count in the reasonableness of the stop. You don’t get to pull the driver over, see that you were wrong and say “whoops, my mistake, have a nice day.” That’s still an unconstitutional stop even if you might not get called on it by the person you wrongfully stopped.

        That means the cop has to see the vehicle going past at normal driving speeds, evaluate the drivers license, get a positive hit, get back the owner’s name, then attempt to assess – not only from outside the car but from inside his own patrol car and both still at driving speeds – the likelihood that the person behind the wheel is male, female, young, old, etc. All while not driving off the road and causing a wreck yourself.

        I don’t know about you but in the vast majority of cases I can just about confirm that there’s a human head where the driver should be. It’s a silhouette. I’m pretty sure I could tell if a dog were driving but telling a man from a woman? Not nearly reliably enough and fast enough to matter for this discussion.

        So, no, it’s not a 50/50 possibility because you don’t have that knowledge prior to the stop.

      2. That involves knowing the identity of all of the other people who are allowed to drive the car, either as additional insureds or as people who just borrow it on occasion. My husband is insured on my car, but there are plenty of situations with same-sex couples, siblings, friends who borrow the car, etc. (For a while, when my car was getting a new transmission, I drove my friend’s car. We both have red hair and sometimes get mistaken for each other. In that situation, “woman in her 30s with red hair” would only get you to 50-50 about the driver being the owner.)

        1. But, of course, we’re only asking enough certainty to justify stopping the car to check, we’re not convicting or even indicting anybody on this.

          1. But your general point could be made about all 4th Amendment cases. The defense of “it’s not like we are convicting or even indicting anybody on this” applies to ALL searches and seizures.

            So, it seems to that this always true statement does not ever distinguish permissible searches and seizures from impermissible ones. The 4th Amendment was designed to stop unreasonable searches and seizures, even though they NEVER amount to a conviction or an indictment on their own.

      3. Person owns five cars. Has a suspended license. He and his four buddies or employees are all convoying to job site or funeral or whatever in the five cars. All males. All about the same age. Passes officer. Officer notes ownership of cars and suspended license. Officer pulls them all over.
        Suspended license meets Harvard Dorm.
        Could you check all the dorm rooms? The answer is no. Can you pull over all the cars? I wouldn’t think so. Can you just pull over one of the cars? If you pull over one car and you have a no hit, now you have a higher probability of success with the remaining 4 cars can you chase them down and pull them over? Assume the officer does. v1 no hit. v2 no hit. v3 no hit. v4 no hit – Can they now proceed to v5 which is a very likely hit and if so and it is a hit can you move to suppress based upon the impropriety of the prior stops? Apply this same analysis to the Harvard Dorm scenario and assume only 5 rooms in the dorm. Improperly search 4 with no hit and now you have your probable cause on the fifth. Seems wrong to me.
        Anyway, cars which can be used by say a number of people are like a moving dormitory with multiple rooms.

        1. I own five or six vehicles (two, perhaps, involve joint titles). I do not recall driving three of them more than once or twice. Three of the five are operated daily by someone who owns no vehicle. The likelihood that any of these vehicles, if observed by a police officer on a street, is being operated by the owner is relatively low.

          1. I own 4 cars. The only people that drive any of them are myself and my wife. I don’t know too many people who own that many cars, even people with children old enough to drive. I also don’t know many people who have suspended licenses, although I can’t be sure. I do know some people who have suspended licenses that drive all the time.

          2. Here I’m entirely in agreement with Kirkland.

            Many people are on title to multiple, or no cars, which they either rarely (bordering on never) or often (bordering on always) drive.

            My wife’s Jeep, for example, has only me on the title, though when we got it it was me and my mother (who co-signed the loan when we were young). My mother has driven it at most a handful of times in the last decade. Our truck, on the other hand, only has my wife on the title (since she’s the one that wanted it), and yet she has also not driven it in years, while I drive it most of the time (mostly because she got it for me to drive her around in off-road or snowy environments).

            The two motorcycles in my garage haven’t even been driven by anyone related to me this year, even though both are in my name, due to a disability that started last year, yet the Harley still gets ridden regularly….. by a buddy of mine after he had to sell his to pay for a child’s medical bills.

            So on the particularity point, which is the correct set? This vehicle out of all vehicles, or this vehicle out of those which aroused reasonable suspicion?

            I think the right model is out of those with reasonable suspicion does the information about this specific vehicle rise to probable cause. The alternative would allow the police to pull over anyone who (for example) has a Hells Angels or Outlaws jacket on, or a Black Lives Matter bumper sticker, or a F**k the Police bumper sticker, all of which are particularized out of the general population of vehicles on the road (and each of which are probably more likely than the general rate to be carrying contraband).

            In other words, once the police are interested in a set (ex: cars with modified exhausts, or skirts, or after market wings), is there particularized suspicion on a specific car. The alternative would just give carte blanche to detain anyone with specific modifications (skirts, wings) or associations (Hell’s Angels, suspended license owners).

      4. “This makes the stop a 50/50 possibility.”

        No it doesn’t, unless you assume the suspension has no effect on the probability that the person will drive the car. And you shouldn’t assume that.

        1. That is, unless the state can show that suspending a persons license has no impact whatsoever on their driving…… which then defeats any rationale basis for suspending licenses in the first place.

  3. Let’s play out the Harvard dorm example with a series of supporting “facts” that may allow for a more individualized suspicion. Let’s recall the basic facts.

    1. There is a study that Harvard dorm rooms are likely to contain illegal drugs.
    2. A need to search a particular room.

    Now, let’s add on “facts” that may support a search warrant on that particular room. Lets address whether the fact is enough to justify a search
    A. The individual room is owned by a person of a particular race. That race is statistically more likely to be selling drugs. Enough?
    B. The individual room is owned by a person with a criminal record. Enough?
    C. The individual room is owned by a person with a criminal record of drug sales. Enough?
    D. There are reports of drugs being sold out of this dorm building AND point B. Enough?
    E. There are reports of drugs being sold out of this dorm building AND point C. Enough?

    1. I think you’re missing something, but not by much, I’ll give you that.

      Race isn’t a component of drug dealing, having a criminal record isn’t a component of drug dealing, even having a criminal record of drug dealing isn’t a component of drug dealing. Being in a particular building isn’t a component of drug dealing. So, you have no particularized reason to believe a component of the offense is present.

      Not having a valid driving license is an actual component of the offense of driving without a valid driving license, so the fact that the car you observe being driven down the road is owned by somebody without a valid license gives you particularized reason to believe the offense may be occurring.

      The reason I said “not by much”, is that the government likely also has enough information available to it, that it could refine it’s flagging operation to only flag a plate if the car is both registered to somebody without a valid license, AND nobody else in the household had a valid drivers license.

      And having the information to bore down further before doing the stop, the government ought to do so. Sure, you’ll get a few false negatives that way, but it’s false positives we’re trying to suppress.

      1. Brett,

        Even if there is another male in the house with a valid license; that still makes it a 50% probability that the owner is driving as I highly doubt an officer would stop the vehicle if a female is driving when it is the male that has no license.

        1. Disregarding the correctness of the math, Bretts argument (as I read it) is that if the state has more information with which it could narrow down a broad rule it must use it. It can’t ignore information already in its possession merely because that would constrain it further – that’s the entire point.

    2. A-D: No, that’s not enough.
      E: That shouldn’t be enough but you can probably find a judge who will issue a warrant on that flimsy basis.

  4. “The unique license plate is linked to a single owner…”
    Yes, but isn’t that more a function of how most people register their cars? My wife and I each have a car registered in our own name but I’ve also heard it’s common for a wife’s car to be registered in her husband’s name.

    Do these linked databases also link with with insurance info on the vehicle and covered drivers? If so, the officer may not have even made an attempt to look at the possibility of another driver operating the vehicle.

    1. If an officer is looking for a male then why would he/she stop a female driving the vehicle? That makes it more individualized, even toward the specific vehicle.

  5. I am not a lawyer, but I have been a law enforcement officer (federal).

    If you have to be a lawyer and expert in 4th amendment law to figure out what constitutes “reasonable suspicion”, individualized or not, then effective law enforcement will cease to exist in this country.

    It is wholly reasonable for the average person, law enforcement or not, to suspect that the owner of the vehicle is the driver unless there are other facts supporting the contrary, for example visible indications such as apparent gender, age, etc.

    Let me put it this way, your best friend at work drives an easily identifiable car. Other family members also drive the car, but you have never met their family. You see the car driving through the mall parking lot, do you wave? Or do you say to yourself, I have no way of knowing who is driving, so I better not wave. Most people would wave because it’s the reasonable thing to do.

    1. Except that whether you decide to wave or not, will not, in any scenario, end up with someone being arrested and deprived of their liberty.

        1. Yes, seriously.

          Once they’ve got a stop, they can always – if they want – proceed to full arrest regardless of any real evidence, because of the legal fiction that probable cause emanates from dogs trained to bark on command.

      1. The question isn’t whether someone can be *arrested*. It’s whether the police can even *pull over* a car whose owner has a suspended license.

        Orin says yes: Police have “reasonable suspicion” (the 4th Amendment issue here) that the driver is also the owner of the car, so they should be able to stop the car and check.

        Richard says no: Police can’t even pull over a car that they’ve confirmed is owned by someone with a suspended license, unless they have other reasons to believe that the owner is also the driver.

        1. “The question isn’t whether someone can be *arrested*. It’s whether the police can even *pull over* a car whose owner has a suspended license.”

          If you’re not free to go, you’re “arrested”; It just means you’re stopped, after all. Once you’re in a situation where continuing along your way results in legal consequences, bingo, you’re “under arrest”.

          Now, the Supreme court has confused this somewhat by pretending that people are free to go when they know damned well they’ll be in trouble if they leave, but that’s still, as I understand it, the standard.

    2. “It is wholly reasonable for the average person, law enforcement or not, to suspect that the owner of the vehicle is the driver unless there are other facts supporting the contrary, for example visible indications such as apparent gender, age, etc.”

      This seems wrong. I own at least five vehicles. I drive one.

      1. If the legislature wished to make it a crime to operate a vehicle owned by someone with a suspended license, then, they should have done just that. Alternatively, if the legislature wished to place a restriction upon such drivers to the extent of allowing officers to stop at will then they should/could have done that.
        Having failed to do so the legislature it would seem has given license to people to drive, without harassment, vehicles whose owners have a suspended license. For the police to pull over such vehicles is to frustrate by way of executive/police practice the negatively implied will of the legislature.

      2. “This seems wrong. I own at least five vehicles. I drive one.”

        To you it should, you are an attorney with a personal opinion on 4th amendment issues.

        A LEO is not. This is not a math issue as the officer has no way to determine how many people have driving privileges for your cars. The standard is “a reasonable person”, not “a reasonable lawyer”.

        A LEO has to make decisions without advice from their attorney, and with only the facts they have not the ones they wish they had.

        Is it reasonable to think that in the absence of other factors to assume the owner of the vehicle would be driving? Yes it is. Once the vehicle is stopped, and the officer can identify that the driver is not the owner, the reasonable suspicion, is no longer reasonable and the driver is free to go, investigation complete. In the case at hand, the driver was indeed the owner.

        Trying to parse “reasonable” into a definition that a non lawyer LEO cannot figure out without a pocket guide of endless “if, else, then” options would create an inviable system, and significantly impact the enforcement of even basic public safety laws.

    3. “It is wholly reasonable for the average person, law enforcement or not, to suspect that the owner of the vehicle is the driver unless there are other facts supporting the contrary, for example visible indications such as apparent gender, age, etc.”

      And in this case there are facts supporting the contrary, specifically the fact that the owner’s license has been suspended.

  6. Prof Kerr,

    Even using Richard’s subset; the analysis is individualized. All the registered vehicles that also have an owner without a license still results in a specific vehicle/owner result identification. The officer then knows (in this case) it is an adult male so if a female (adult or teen) is driving then no reason for the stop. Even if the owner male has a son of driving age regardless of officer having that info; that still makes it a 50% probability the owner is driving.

    1. I also notice a couple of issues with the dorm room hypothetical:

      1. The dorm room is not “owned” whereas the vehicle is “owned”. The rights are different between occupant and owner.

      2. Better hypothetical, the occupant of the dorm room was suspended for the semester and not authorized to use the dorm room. It is noticed that the room is still being used. Can that room be searched to determine who is using the room?

      1. Couple things…

        You’ve mentioned 50% a few times. I thought that the courts had made it clear that reasonable suspicion and probable cause are not mathematical calculations and they aren’t going to set numerical thresholds. Could be wrong, but that’s what I’ve read.

        On the dorm room: if there are multiple roommates, and only one has been suspended, then the remaining roommates sure as hell retain whatever level of protection against search they had before the suspension, not diminished even a little bit. And I’d say a 4-bunk dorm room with one student suspended is the best analogy to a family car with one family member suspended.

    2. Even if the owner male has a son of driving age regardless of officer having that info; that still makes it a 50% probability the owner is driving.

      Nonsense. I bought my son a used car when he graduated from college. I registered it in my name, with him listed as the principal driver on the insurance. It’s 12 years later, and he is still driving that clunker around. As far as I know, the only time anyone but him ever drove it was when we were road testing the car before purchase.

      I don’t think parents purchasing cars for their children, and registering the cars in their own name, is all that uncommon. I know of others who do that. I know of parents of multiple children who have have done that for every kid.

      1. Using my family as an example, only one out of four vehicles we own was at any point regularly driven by the registered owner, and for the last year exactly zero of the four has been.

        Jeep – registered to me (previously me and mom) always driven by wife
        Truck – registered to wife, always driven by me
        Crotch rocket – registered to wife, previously driven by me
        Harley Touring – registered to me, previously driven by me, now driven by a friend (who doesn’t live with us)

        So in at least in the case of this family, registration would never identify the driver.

    3. 50% possibility if you assume that it is equally likely that a licensed driver is operating the vehicle as it is that an unlicensed/suspended license driver is operating the vehicle.

      If you knew that a certain household had a father, mother, and two sons; one son has a learner’s permit but not a driver’s license; the other son is a licensed driver; the car is being operated by a young man; and there is no one else in the car, is it reasonable to say that there’s a 50% chance that the car is being operated by the person with a learner’s permit only?

      1. And that’s the crux of the matter. Is is reasonable to believe that an unlawful act is occurring u def the exact facts of a lawful act?

        Can you assume in a state where open unlicensed carry of a firearm is legal (Arizona, for example) that a person is breaking the law, such as being a felon in possession? What if you see a person leaving a house and you know that one of the residents is a felon?

        Fortunately in AZ, the answer is No.

        That should be the answer here too.

  7. In [cases about stopping a vehicle based on its owner not having a license], by contrast, I’m not aware of a concern as to why the officer picked that particular car.

    I think you want to be careful about that reasoning. A huge number of traffic stops are actually a pretext for something else.

    For instance: police may be investigating a particular person, and it serves the investigation to try to pull that person over. If they know that person doesn’t have a license, they can follow the person’s vehicle around, and wait to stop it at what seems like the most opportune time. (At least, that is frequently the fact pattern seen in my jurisdiction, which already allows RAS to be founded on the owner of a vehicle not having a license, so long as police don’t have any information suggesting that the driver is not the owner.)

    Also for instance, profiling: officers may have a profile of drug traffickers, and they just pull over every vehicle that fits that profile, as long as they can justify a stop (whereas other vehicles wouldn’t be pulled over for those same infractions.) Usually those stops are based on a visible infraction, but with computers advancing, law enforcement would easily have a machine read passing license plates and flag every vehicle that (1) is associated with an unlicensed driver, and (2) fits the desired profile.

    1. “I think you want to be careful about that reasoning. A huge number of traffic stops are actually a pretext for something else.”

      I was once pulled over for having a tire that was low on air. Not flat, just low on air. The police officer said something like, “Now that you’re pulled over, we’re going to check everything,” then ran my license and insurance, inspected the vehicle, etc. Obviously, they just wanted to get a nice look-see to figure out if they could issue me a ticket for something, but the Fourth Amendment has been so turned inside-out that what they did was completely legal.

  8. It sounds like you’d also have to argue it creates ‘individualized suspicion’ good enough for a home search because an owners name with a warrant appeared on the deed for a property, without first bothering to ascertain that it was a rental property and the owner didn’t actually live there, but an innocent 3rd party did. Your argument is ‘individualized by ownership is sufficient cause’, rather than individualized to the particular individual in the car/house. That strikes me as a fatal flaw in the logic, or one you’d have to admit permits manifestly unjust outcomes if extended to other situations.

  9. Under the standard of individualization given, why did the police pick a college dorm room, when most people live in very different kinds of dwellings? If you make the reference set general enough, you can easily come up with a differentiating principle that sets it apart from others.

    And what makes the inference “unlicensed owners are likely to be driving their cars” different from the inference “college dorm dwellers are likely to smoke pot?” Both, on the surface, would appear to be general inferences rather than evidence about a specific individual.

  10. “At least as litigated, we don’t have reason to think the officer knew lots of cars had owners with suspended licenses and that the officer had some suspicious reason to pick that one.”

    Is that relevant? Hypothetically, let’s say I could show that the cop declined to stop other similarly situated vehicles.

    And in the dorm room hypo, who says the cops are going to only search one room? Maybe they plan on searching the rooms one by one. Maybe this is the closest room. Does the judge have to ask if they’ve submitted other applications? If they put in the affidavit, “we want to search this particular room because it’s closest to the parking lot.”, does that change the outcome?

    1. The outcome will be that the warrant is issued, the police knock the door down and kill the students emotional support dog, and the university bills the student for the mess.

      After all, the police had a warrant.

      Which really just goes back to the point that the People need to pay for all damages our agents caused. Breaking down the door is “taking” the door (and breaking it), so it’s inequitable for the individual to bear the costs of that taking alone – it should be paid from the public fisc.

  11. “In that hypothetical, the suspicion is not individualized because the magistrate has no idea why the police picked that particular room and not one of the many other rooms. We intuit there must be an explanation for why they picked that one room.”

    Based on Whren, that can’t be what “individualized” means.

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