Law

The Supreme Court's Next Fourth Amendment Showdown

In November, the Supreme Court heard oral arguments in Kansas v. Glover.

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Assume you are a 17-year-old licensed driver and your father's driver's license has been suspended. He hands you the keys to his car and asks you to run an errand. While completing that errand you are stopped by the police. You have not broken a single law. You were stopped only because the officer guessed that your father might be driving. Was the traffic stop lawful?

The above scenario is hypothetical, but the questions it raises are genuine. In November, the U.S. Supreme Court heard oral arguments in a case that asks whether the Fourth Amendment "always permits a police officer to seize a motorist when the only thing the police officer knows is that the motorist is driving a vehicle registered to someone whose license has been revoked."

The case is Kansas v. Glover. In 2016, a patrolling sheriff's deputy ran the plates on a Chevrolet pickup truck and learned that the truck's owner, Charles Glover, had a revoked driver's license. The deputy had no idea if Glover was actually behind the wheel. But the deputy still pulled the truck over on the assumption that Glover was driving. He was. Now Glover wants the Supreme Court to rule the stop unconstitutional.

"When a driver loses his license, he and his family must rely on other drivers (a spouse, a driving-age child, a child-care provider, a neighbor) to meet the family's needs," Glover and his lawyers point out in their brief to the Supreme Court. "Under Kansas's proposed rule…any of those other drivers can be pulled to the side of the road at any moment merely for driving a lawfully registered and insured car in a completely lawful manner." That rule, they argue, is an "unjustified intrusion on personal privacy" that violates the Fourth Amendment.

According to Kansas, it does not matter if innocent drivers happen to get stopped based on the false assumption that someone else is behind the wheel. "While it is certainly possible that the registered owner of a vehicle is not the driver, 'it is reasonable for an officer to suspect that the owner is driving the vehicle, absent other circumstances that demonstrate the owner is not driving,'" the state maintains. "That is the very point of investigative stops—to confirm or dispel an officer's suspicion."

The Supreme Court has an unfortunate record of sometimes whittling away the Fourth Amendment in traffic stop cases. A victory for the state here would lower the constitutional safeguard even further.

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  1. Very neat blog post.Really thank you! Really Great.
    Believe in Yourself Quotes

  2. The Supreme Court has an unfortunate record of sometimes whittling away the Fourth Amendment in traffic stop cases.

    Yes, and the Nazis had an unfortunate habit of sometimes not being so nice to the Jews.

    You need to quit hanging around Robbie, the namby-pamby is apparently contagious.

  3. If the cops are going to argue that it’s reasonable to suspect that somebody who broke the law once is breaking the law again, what’s the point of punishing criminals if you don’t believe punishment is an incentive to stop breaking the law? It seems to me if you see a vehicle registered to an unlicensed driver going along the road you’d be more apt to think “well obviously that vehicle must have a different driver because we fined the shit out of the owner for driving without a license once before and surely he’s learned his lesson about driving without a license.”

    An adverse finding by the court would simply be an affirmation that the cops are correct in suspecting everybody’s guilty until proven innocent. And we’ve already got enough of that shit in the justice system between the cops and the prosecutors and all the former prosecutors sitting on the bench and all the complicit media willing to copy/paste police press releases on how things went down.

  4. Cases like these are where conservative justices lose civil libertarians. We’ll see how this plays out. I’m especially interested in where Gorsuch ends up on this case. It will help determine, in my mind, whether he is a for-real libertarian or a libertarian-leaning conservative.

    1. “It will help determine, in my mind, whether he is a for-real libertarian or a libertarian-leaning conservative.”

      Gotta check for ideological purity or to the cancel bin, huh?

      1. Who said anything about cancel bin? How would you even cancel a lifetime appointment?

        I actually have faith that Gorsuch will get this one right. If anybody “cancels” him, it will be the blue line flag bearers who lust for unfettered police power.

    2. Cases like this are where libertarians lose everyone else.

      It was quite reasonable to suspect that the Glover was driving Glover’s vehicle, and Glover was indeed driving Glover’s vehicle.

      Pick your battles.

      1. Precisely.

        The court should go on to point out, however, that if the driver turned out to be lawful, any other charges from the stop would be void.

  5. I fear even a positive ruling in this case will do little other than change how police justify the stops. It will become “he rolled through a stop sign”, “he crossed the lane line”, etc. That vehicle is still getting pulled over.

    1. “Broken taillight”.

    2. exactly. 90% of traffic regulations are there just to give the cops an excuse to pull over anyone they want at any time.

  6. It is more reasonable to suspect a car registered to someone with a suspended license is being driven illegally by that person than to assume that EVERY SINGLE PERSON at an airport is a bomb carrying terrorist, or that EVERY SINGLE PERSON driving past a certain point on the road is driving drunk.

    1. The airport situation is more a license situation. If you are in the airport, and esp if you are going through, or have gone through, TSA security, it is assumed that you have consented to being searched. And one place where this differs from the automobile case, is that traveling is considered a fundamental right, but not traveling by air, probably due to the ability of terrorists to kill large numbers of people at one time (the 9/11/01 hijackers killed almost 3K people (And injured another 6k) by only hijacking 4 planes, one of which was likely retaken by the passengers).

      1. it is assumed that you have consented to being searched.

        Couldn’t you make the same assumption about seeking a DL from the state and driving a car?

      2. “it is assumed that you have consented to being searched”

        I am well aware that this is the official line of the TSA, but it strikes me as completely disingenuous.

        As a practical matter, if not being prohibited from moving around freely (to the extent that you can afford) is a fundamental right, then unhindered air travel is part of that right given the distances that modern H. sap. wishes to travel. Similarly getting on and off of a ferry or train should not require giving up one’s rights.

      3. “And one place where this differs from the automobile case, is that traveling is considered a fundamental right, but not traveling by air, …”

        Yeah, once upon a time it was a fundamental right but has since been reduced to a privilege. A living and breathing constitution recognizes that the founders never envisioned travelers would be weaponized with high speed conveyances capable of mowing down many while traveling down the highway.

        Your betters accept your rationalization of “probably due to the ability of terrorists to kill large numbers of people at one time” and raise you to expose you as an uncaring POS about the individual and the ability to save a single life.

        Note: Interest in saving individuals has a very limited scope and in no way should be construed as applying to immigration or any other social justice concern.

      4. That is a garbage argument and a civil rights violation.

  7. Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    This grab for state power comes from the fact that we The People allowed agents of the government to conduct traffic stops without probable cause and warrants issued by judges.

    In the age of video, there is no reason that police in vehicles cannot send video of a traffic infraction to a judge, sign a warrant application under oath, and then stop the vehicle.

    1. Amendment IV wasn’t part of the 1789 constitution.

  8. I have a hard time generating Instant Internet Outrage over this. I mean, the state does have a point: it would be reasonable for an officer to assume the owner of the car is driving.

    As long as the stop is quick and ends once the driver is identified. It’s not an excuse for the cop to shine his flashlight looking for stuff in plain view or starts interrogating. I’m sure the law can provide for that limitation.

    1. While that might be, there are no assumption exceptions to the 4th Amendment.

      It’s bad enough, police get to seize our property and person without a warrant issued by a judge. Now the state wants to get away with tying vehicles to people in some scheme of infinite probable cause to stop vehicles.

      You know, police used to see violations of law (very few crimes on the books) and then go to a judge and then get a warrant. The law enforcement officer would serve that warrant on the suspect and then issue a summons to appear in court.

      Of course, quite a few police agencies used to thump skulls to people in line rather than arrest people.

      I guess we either have to accept police thumping skulls or infinite probable cause where the police can search and seize you and your property for any reason they wish.

    2. As long as the stop is quick and ends once the driver is identified. It’s not an excuse for the cop to shine his flashlight looking for stuff in plain view or starts interrogating.

      I think you might need to see a doctor about that brain injury you suffered when you fell off the turnip truck.

    3. “As long as the stop is quick and ends once the driver (is identified) has completed the DWI checkpoint interrogation.”

      Justice Kennedy, is that you?

      “It’s not an excuse for the cop to shine his flashlight looking for stuff in plain view or starts interrogating.”

      Is that your attempt at sounding reasonable and constitutionally restrained?

      “I’m sure the law can provide for that limitation.”

      Do you hear that? It’s all the members of the police chiefs association laughing their asses off at you.

  9. This seems like a slam dunk, but on 5th A grounds. If Kansas wants to take the car (or the liberty of the rest of the state with respect to the car) they clearly have the power in the modern court’s eyes, BUT Kansas has to pay just compensation – “public use” isn’t really a limitation after Kelo.

  10. I do not see anything unreasonable about the stop under the facts of the case. Glover was violating the law by driving without a valid license and was caught, and is now arguing that there was no reason to stop him because, hypothetically, he could have been someone else and that someone else could lawfully have been driving his car.

    This is no different than a man with a warrant out for his arrest leaving his home, which is known to the police as his residence, in clothing that obscures his face, and arguing — upon being stopped, affirmatively identified, and arrested — that, hypothetically, he could have been anyone else.

    This is absurd.

    It’s like Mr. Heckles from Friends.

    “You girls are disturbing my oboe practice ….”

    “You don’t play the oboe ….”

    “I could play the oboe ….”

    1. The difference is that the police don’t need reasonable suspicion to hail a pedestrian on the street and ask to talk to him, but they do need RS in order to start a traffic stop. Remember, you can always walk away from them if they want to ask you a question—stop laughing!—but you can’t drive away from them once they turn on the discos and pull you over. Hence they need RS for the latter, not the former.

      What a shit case. The lower court suppressed, the intermediate appellate court overturned the suppression order, and the KS Supreme Court overruled the intermediate appellate court. I have to imagine the Supreme Court of the US took the case to: 1) bloviate at length. 2) Rule the appellate court got it right by overturning the suppression order, and allowing KS to punish the guy.

      One side effect of this, if the SCOTUS holds that the officer had RS to pull the guy over, just because it’s his car—might be to bolster the claim of 3rd parties acting as law enforcement (like speed camera operators, red light camera operators) that pictures of your car violating the law are reasonable suspicion that you violated the law.

      I wouldn’t have taken the case and would have let the KS Supreme Court ruling stand. Any cop stupid enough to not find some underlying traffic violation for his pretextual stop, is too stupid to be allowed to keep his collar.

      1. The police do not need reasonable suspicion to “talk” to a person, but they *do* need reasonable suspicion to *stop* a person for investigatory purposes. That’s textbook Terry v. Ohio.

        At the end of the day, reasonable suspicion is all about “specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

        It is rational to infer that a car being driven — which is registered to someone with a suspended or revoked license — is being driven by the person to whom the vehicle is registered. I think this case is simple and not unlike the scenario I addressed above.

        “I could have been someone else,” doesn’t pass the laugh test, in my view. I don’t understand why this case ever made it this far.

        1. Plenty of people drive other people’s cars all of the time. It’s especially prevalent among the criminal classes, for reasons you can expect. I don’t think it’s a rational inference at all that the guy you’re looking for is necessarily driving the car he owns on paper. Start stacking observations about the guy you’re looking for that match up with observations on the driver—staying away from unfortunate observations like, ‘they’re both black’, etc—and I personally think you could get to reasonable suspicion they were the same person. But not just because it’s his car.

          In your example with the guy leaving the house, I didn’t think the police actually ‘stopped’ the man, merely hailed him and indicated they wished to speak with him. If they stopped him—made a reasonable person feel they were under the control of the officer, and unable to leave the presence of the officer—then yeah, they need RS.

          So much of this is fact-dependent, and so much of the jurisprudence, especially at the SCOTUS level, is written by people who have absolutely no idea how things happen in real life. C.f., Scalia’s comment that the passengers of a motor vehicle were perfectly free to leave the vehicle and walk away without having to answer the police officer’s questions. LOL.

          The case made it this far because the officer was silly enough to not add a traffic reason for the citation, whereupon he would have come across the fact that the guy driving the car wasn’t supposed to be. I mean, Jesus, how hard is it to pop him for illegal lane change or failure to maintain his vehicle within the lane? Or a bad taillight, and so on. The trial court didn’t think it was right for a police officer to pull people over because of the sins of the registered owner. I think they had a point.

          Story time. I had a Childress, Texas police officer (may fuck be upon that place) tailgate me about ten feet off my rear bumper, as I cruised 3 MPH below the speed limit on 287 in the right lane through his town. Not being my first time driving through small town Texas, I did not speed up, nor pull over and stop, but merely continued my travel without changing lanes or even hinting at breaking any traffic laws. Got to the city limits, the cop whipped a signal less 180 across the highway, and I left it in my rear view mirror.

          The officer does that, and we never hear about this case.

          1. //I don’t think it’s a rational inference at all that the guy you’re looking for is necessarily driving the car he owns on paper.//

            I cannot agree with that because you are effectively saying it is *irrational* to assume that the person to whom a vehicle is registered is the driving the vehicle. I think this entire line of thinking, moreover, is completely undermined by the fact that Glover, the person to whom the car was registered, was actually driving the car. I think it is very difficult to defend the conclusion that an inference is irrational in circumstances where the inference turned out to be completely correct. I don’t see how you get around that.

            Other than that, I have no disagreement with the rest of your comment.

            1. “I cannot agree with that because you are effectively saying it is *irrational* to assume that the person to whom a vehicle is registered is the driving the vehicle.”

              You must be one of those disconnected elitists assholes who cannot fathom a 1 car family for which there are multiple drivers.

              1. Go nullify your brain, with a handgun.

        2. Ok, go the other direction: an important bigshot, who prefers to work during his commute while his assistant drives. He owns a brand new, high end vehicle, but hasn’t actually driven in years, and his license is expired. Should this person and her secretary be subject to being pulled over and questioned all day, every day?
          What about a service industry owner who bought an extra vehicle for use by a second crew, but whose license has been revoked because he made a mistake with his child support, and he hasn’t gone to court yet? Should his employees then be liable to be pulled over at any time?
          Grandma whose license was revoked because of her failing eyesight, but her car less nephew comes every Sunday and drives her in her 10 year old Buick with 35k miles on it to church and then shopping?

  11. Ahh! The old “Your Honor. It was impossible for me to be driving 80 miles an hour. I was only driving for 15 minutes.” defense.

  12. >>But the deputy still pulled the truck over on the assumption that Glover was driving.

    “suspected suspended license” is barely reason to stop a moving vehicle in the first place.

    1. Oh no. The fines are outrageous. When the government tells you to stop driving they mean it. Plus, there’s a very good chance that the vehicle won’t have insurance, either. And, speaking as someone who was that guy 20 years ago, anybody willing to take that risk is probably a gold mine of other infractions, outstanding warrants, possession of stupidity, etc.

  13. Here’s a more appropriate hypothetical.

    Let’s suppose Suspect “X” committed a burglary and, after the commission of the crime, was seen running to his car with the stolen goods. The witness describes Suspect “X” to police and identifies him by name as an old friend from college that lives on the other side of town with his family. The witness also wrote down the vehicle’s license plate number and provides the police with a photograph of Suspect “X”. The police respond swiftly, but are unable to locate the vehicle or apprehend Suspect “X” that night.

    The following morning, the police are patrolling the streets on the other side of town and spot the vehicle with the matching license plate number. However, the police do not have a clear view and cannot visually identify the driver. The police pull over the vehicle and, lo and behold, Suspect “X” is the driver. He is arrested, the vehicle is searched, and the stolen goods are recovered.

    At trial, Suspect “X” argues that since he was never physically identified prior to the stop, and since the police relied solely on the matching license plate number, his conviction should be overturned.

    I think that’s a huge problem.

    If Glover wins his case at the Supreme Court, I fail to see how the above scenario is avoidable .

    1. Vehicle has been identified by a witness as being used in the commission of a crime. Officer pulls the vehicle over to determine if any evidence relating to the burglary is still remaining in the vehicle.

      Not the same situation, and I’d be fine with that investigatory stop.

      1. I think it is exactly the same situation.

        The basis for the stop, in both instances, is something *other* than the physical identification of the driver — that is, the license plate.

        If Glover is correct (and I do not think he is) the police in my hypothetical would have been precluded from making the stop because they could not rule out that the car was being driven by somebody else (for example, a member of Suspect “X”‘s family, with whom he resides).

        That a car was used in the commission of a crime (whether the crime is burglary, or driving with a suspended license) does not mean the person presently driving it committed the crime. That’s basically Glover’s argument — that is, unless the police specifically saw Glover enter the car and are able to affirmatively identify him, there is no reasonable suspicion and, therefore, no stop is warranted.

        I do not see the difference at all.

        1. “I do not see the difference at all.”

          Sesame Street-
          One Of These Things (Is Not Like The Others)
          One of these things is not like the others,
          One of these things just doesn’t belong,
          Can you tell which thing is not like the others
          By the time I finish my song?

          Did you guess which thing was not like the others?
          Did you guess which thing just doesn’t belong?
          If you guessed this one is not like the others,
          Then you’re absolutely… right! – Ernie

          Regrettably you are not.

          Do your apples taste like oranges and vice versa?

          1. Kill yourself.

            1. Sore loser. Emphasis on loser.

    2. In your case, you have a suspect tied to a license plate by a witness. In the article, you have a plate being run by a deputy for no discernable reason.

      1. That doesn’t matter. The police do not need any reason to run a plate. Not reasonable suspicion. Not probable cause. They can do it just because, and it is perfectly constitutional.

        1. “That doesn’t matter. The police do not need any reason to run a plate.”

          And did the car break any laws?

          1. Idiot.

    3. I’d think the big difference in the ‘robbery last night’ case would be that any reasonable police officer would pull the identified car over *with a warrant in hand*. Because they’ve had 12+ hours to get one at that point, and regardless of who is driving it, they’ll want to look for evidence related to the robbery in the vehicle. Any officer who didn’t already have a warrant would be an idiot.

  14. a patrolling sheriff’s deputy ran the plates on a Chevrolet pickup truck and learned that the truck’s owner, Charles Glover, had a revoked driver’s license.

    And the probable cause for running the plates is?

    1. The truck was within the vision cone of the officer – – – – – –

  15. You don’t need PC to run plates. Or reasonable suspicion. It’s public information. It’s also information that can be obtained without restricting the vehicle driver or owner’s freedom of travel in anyway.

    Consequently, automatic plate scanning machines are big business. Repo guys love ’em, as does Big Brother.

    1. How is it “public information”?

      Can I call the DMV and ask to find out who the ***hole with plates 123-456 that just cut me off?

      1. It is public, though there are some restrictions.

        In NYS, there are a variety of circumstances under which you could obtain information about a registered owner from the license plate alone.

        https://dmv.ny.gov/dmv-records/permissible-uses-personal-information

        1. “may” be, but I’ll give you the point.

          And anyone could claim that it was about traffic safety, even if the real purpose were to get the contact info for the hottie driving the car.

      2. 123-456 would probably be a personalized plate, so you already know you’re looking for a douchebag.

    2. It’s also information that can be obtained without restricting the vehicle driver or owner’s freedom of travel in anyway.

      As so aptly demonstrated in the article? The driver’s freedom of travel was interfered with.

      1. You’re mixing apples and oranges. The driver was stopped because of an infraction that was discovered. Running the plates, in and of itself, did not interfere with anything.

  16. “The driver was stopped because of an unreasonably presumed infraction that was discovered.” FTFY

  17. I think part of the disconnect here is that many of us disagree with how the police seem to abuse the ability to run plates, stop motorists on damn near any flimsy traffic offense, etc. Just so they can do a visual inspection of the car, and of course, bring in the drug dog (since apparently that is ok by SCOTUS). So yes the whole thing sucks.

    However, the only way I see that this behavior by the police would be unconstitutional is that SCOTUS provides a HUGE ruling which would change the whole structure of police interactions with motorists. Which I agree might very well be a good thing. The problem is this isn’t a good case to base something like that on.
    If a cop runs a plate, and the registered owner of the vehicle is wanted for bank robbery, wouldn’t it be reasonable to stop the car to determine if it was the owner who was driving? While the crime is of a much lesser severity, it is still against the law to drive on public roadways with a suspended license.
    Bottom line, I don’t like the whole system, but if there is any rational basis for the system, then this particular case seems like a good arrest.

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