Commonsense Suspicion: Thoughts on Kansas v. Glover

The Supreme Court rules in an interesting Fourth Amendment case.

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The Supreme Court has handed down Kansas v. Glover, a Fourth Amendment case I have blogged about a few times on whether the police had reasonable suspicion to pull over a driver based on a database hit that the registered owner of a car spotted on the road had a revoked license.  In a brief opinion by Justice Thomas, the Court ruled that the stop is permitted.  The decision was 8-1, with Justice Sotomayor dissenting.  Justice Kagan concurred, joined by Justice Ginsburg.

I'll start by going through the opinions, and then I'll offer some thoughts of my own.

I.  The Majority Opinion

For Justice Thomas, writing for the majority, this was an easy case.  It was simply a matter of common sense.  Indeed, the heart of the opinion is really just a single sentence (in bold below):

Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.

Why was this common sense?  Justice Thomas doesn't detail that.  But he does detail reasons why the common sense intuition is not negated by various contrary arguments:

(a) Was the intuition negated by the fact that Glover's license was revoked and therefore he could not legally drive?  No, Justice Thomas says.  Studies suggest that people often drive illegally after their license was revoked.  This is particularly likely in Kansas, Justice Thomas argues, because Kansas only revokes licenses when someone has shown to be pretty lawless with their cars: Those people are particularly likely to disregard the law.

(b) Was the intuition negated by the lack of evidence in the record that the officer had personal experience or training with it?  No, Justice Thomas says. Reasonable suspicion is normally (and here) about commonsense intuition, not an individual officer's training or experience. While an officer's particular training or experience can help establish or negate reasonable suspicion, it's not required to make inferences that are widely shared and understood.  Anyone can make those inferences, including judges, without an officer's testimony on it.

(c) Was the intuition negated by lack of individualized suspicion?  No, there was individualized suspicion here: The officer had a specific reason to think a particular person was violating a particular law.  The officer's "[c]ombining database information and commonsense judgments in this context is fully consonant with this Court's Fourth Amendment precedents."

Importantly, this doesn't mean that a license revocation always creates reasonable suspicion that the owner of the car is driving.

We emphasize the narrow scope of our holding. . . . [T]he presence of additional facts might dispel reasonable suspicion.  For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not "raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Cortez, 449 U. S., at 418; Ornelas, 517 U. S., at 696 ("'[e]ach case is to be decided on its own facts and circumstances'" (quoting Ker v. California, 374 U. S. 23, 33 (1963))). Here, Deputy Mehrer possessed no exculpatory information—let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck—and thus the stop was justified.

II. Justice Kagan's Concurrence

Justice Kagan concurred, joined by Justice Ginsburg.  Although she joined the majority, she offered a narrower approach than the majority opinion seems to contemplate.

Justice Kagan thought it "crucial[]" that this was a case about a revoked license in a state that only allowed license revocations when a person was shown to have a "penchant for ignoring driving laws." In a state that suspended licenses for all sorts of reasons, Justice Kagan reasoned, a database report that a person's license was merely suspended would be a different case: That would not suggest a driver's lawlessness, and therefore wouldn't suggest the driver was unlawfully driving impermissibly.

Justice Kagan then offered various ways that a defendant can try to show that the commonsense judgment identified by the majority does not apply in a particular case.

III. Justice Sotomayor's Dissent

Justice Sotomayor filed a solo dissent. She argued that reasonable suspicion should be based only on an officer's established training or experience, and that the majority's approach effectively put the burden on the defendant to show circumstances negating the majority's inference.  The result, she argues, is that the police will have no incentive to look into whether the "commonsense judgment" is valid in a particular case.  And the defense will have to way to challenge whether the inferencer is valid.

IV.  My Thoughts on the Case

A few thoughts on the case, in no particular order:

(1) The result in the case isn't surprising. I also wasn't particularly surprised by the vote count, although the case seemed significantly more divided at oral argument than the 8-1 that eventually emerged.

(2) Glover ends up as a minor case in the grand scheme of things. Its ruling will be practically important in a specific set of cases, but it didn't break new theoretical ground. To be sure, Justice Sotomayor argues in her dissent that the majority takes a new approach by relying on common sense rather than an officer's experience and training.  But I think she's wrong on that. As the majority properly points out, the Court taking the lead on the inferences is the way reasonable suspicion is normally evaluated.

(3) When I first blogged on the case, I noted that there were three basic conceptual ways the Court could rule:  (a) by reliance on a judicial sense, (b) through general statistics, and (c) through specific statistics.  The Court opted strongly for the first of the three approaches, approach (a).  I think that was the right approach, as I argued in my first post.

(4) With the above said, it was puzzling that the majority didn't unpack its "common sense" intuition in the opinion.  Presumably the idea is that people usually own cars in order to drive them.  For the most part, people drive the cars that they own.  So when you see a car on the road, it's a common sense inference—at least enough to get to reasonable suspicion in most cases—that the owner is driving.  I think that makes a lot of sense given how low the reasonable suspicion standard is.  But it's somewhat odd that this thinking is not actually explained in the majority opinion.  It's sort of like a paragraph is missing, in which the Court explains why its intuition is indeed based on common sense.

(5) Justice Kagan was really interested in some of the more conceptual questions at oral argument, and I wasn't surprised she ended up writing in the case. I have significant sympathy with her concerns, and her opinion is thoughtful as always, but I'll be interested to see if lower courts follow her narrower approach or take the majority opinion as more of a bright-line rule. My guess is more the latter than the former, in part because lower courts may find some of her suggestions hard to implement.

Take the question of whether there is really such a big difference between revocation and suspension.  Justice Kagan suggests that the more lawless a person has to be to get the legal treatment, the more likely it is that the owner will be driving unlawfully. (The majority suggested that, too—perhaps at Justice Kagan's prompting?—but seemed less focused on that than Kagan's concurrence.) Perhaps.  At the same time, I'm not sure how much of a difference that would really make. I can imagine a lot of people thinking that suspension for a really minor reason is not that big a deal, and that it's probably not the end of the world to keep driving because of it even if it's technically not legal. So maybe that's a big difference, but maybe it's not.

Given these kinds of uncertainties, I suspect lower courts will probably interpret Glover broadly.  Although lower courts will realize that the majority opinion is not a bright-line rule, the gravitational pull of its clear answer, and the relative brevity of the opinion, are likely to lead to a broader interpretation.  My guess, anyway.

(6) Finally, I wonder if Glover will come up in debates on the recent practice, in at least some states, of pulling over drivers with out-of-state plates to make sure that the people in the car are following quarantine rules.  Whether that practice is legal can partly be resolved under the special needs line of cases that don't require suspicion.  But to the extent a suspicion-based doctrinal approach is applied, I wonder how far courts will take Glover's reasoning. If it's common sense that the owner is behind the wheel, is it also common sense that out-of-state plates indicates that someone in the car is driving away from that state?

As always, stay tuned.

NEXT: District Court OK's Closing Gun Shops as "Non-Essential"

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  1. “Finally, I wonder if Glover will come up in debates on the recent practice, in at least some states, of pulling over drivers with out-of-state plates to make sure that the people in the car are following quarantine rules.”

    Wouldn’t that be against 14A’s P&I requirement: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .?”

    1. I’m reading Kerr’s question as assuming the constitutionality — during a pandemic/quarantine/declared emergency — of states banning residents of other states from entering. Like you, I certainly have questions if such a ban is legal, though I think Volokh may have blogged that courts in the past have upheld such temporary infringements on the right to travel. (I am still curious how that legal issue will shake out here, if/when it makes it up through the courts post quarantine).

    2. Wouldn’t that be against 14A’s P&I requirement: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .?”

      There is also a Federal “nondiscrimination” requirement — to receive Federal highway funds (and Interstate Highways were built with 90% Federal money), states had to promise not to discriminate against vehicles operated by drivers from other states.

    3. An interesting question would be a state like Massachusetts where licenses and registrations are administratively suspended without prior notice to the person, and in some cases where the mail is sent to an old address, no notice at all.

      A Massachusetts vehicle registration explicitly states that it is not authoritative, that only the version on the police computer network is, and citizens do not have access to that. Due Process????

  2. Since this article is about the fourth amendment, I thought I would take the opportunity to ask a some questions about the fourth amendment in general, but not about this specific case.

    The fourth amendment reads as follows:

    “The right of the people to be secure in their persons, houses, papers, and effects,[a] 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.”

    My question involves only the first part of this sentence, in a cases not involving Warrants or seizures :

    “The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, ”

    My question is does the fourth enumerate a right of the people to secure their persons, houses, papers, and effects, against unreasonable searches and seizures, in cases not involving Warrants?

    Does the right prevent the government from enforcing a Law, or system of Laws that act to prevent a person from taking personal action to secure his persons, houses, papers, and effects, against searches and seizures? Or must a person rely on the Courts not signing Warrants for this? Does the fourth enumerate such a right? If the amendment does not enumerate such a right, does the fourth prove that the enumerated right exists for purposes of the ninth amendment?

    Does the fourth prove that the right is a privilege or immunity that the fourteenth amendment can act on whether by the privileges and immunity clause or by other complicated theories of the 14th?

    What is the algorithm for finding on point precedent deciding such questions?

    Thank You for considering my questions.

  3. In the context of driving, I think the analysis of Thomas’ argument C misses a key point. To take the example given, “if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties”, that observation is not possible until the stop has been effected. You simply cannot make age or even gender determinations in a car flying past you at highway speeds. That puts the officer in the untenable position of “my search was constitutional if I guessed right but unconstitutional if I guessed wrong”. The officer is not on reasonable notice about what stops will be allowed and which not.

    You could redefine the standard (as Thomas maybe does) to “I don’t have to guess right, I just can’t have any prior knowledge that I’m wrong” but that encourages willful ignorance – “I just won’t look”. That should not be the right standard either.

    1. I think you’re misunderstanding the opinion. The court isn’t denying that sometimes, an officer won’t be able to see what the driver looks like at all before initiating the stop. (Indeed, that seems to have happened here.) The court is saying that if the officer does see the driver before the stop, and sees that it is clearly not the registered owner, that may eliminate the justification.

      1. But if the driver is clearly not the registered owner, there’s a reasonable inference that the car may be stolen.

  4. In support of an even narrower application of Glover moving forward (as posited by the concurrence), I see potential significance in the majority’s statement that Glover’s revoked license (as opposed to a revoked license in general) does not render the “common-sense inference” any less reasonable. (Page 4, slip opinion). This statement is followed soon thereafter with a discussion of Kansas’ scheme for revoking licenses, largely for those with a history of flouting the traffic law. The inference remains sufficient for purposes of RS because someone in Glover’s unique situation would be more likely to disregard the “don’t drive” order.

    I don’t see the distinction being so much between whether a license is deemed “revoked” or “suspended” rather it is between whether the license has been rendered invalid due to a history of disregarding the traffic law or due to some other, less-foretelling reason (e.g., failing to pay a fine or child support).

    Apart from the narrow circumstances of a Glover-like driver, I also see future significance of the “reasonable inference” as it pertains to a licensed driver. For example, where a computer check indicates the licensed owner of a particular vehicle has an outstanding warrant, a stop of the vehicle seems lawful under the “reasonable inference” approach alone. As Professor Kerr already noted, the same approach could apply to the ban on out-of-state drivers and an investigative stop of such.

  5. “Finally, I wonder if Glover will come up in debates on the recent practice, in at least some states, of pulling over drivers with out-of-state plates to make sure that the people in the car are following quarantine rules.”

    Good point.

    “For the most part, people drive the cars that they own.”

    I own five. I drive one. Three of those cars are uniformly driven by people (four or five people) who do not own them.

    My circumstance does not disprove the assertion, but it inclines me to wonder about its reliability, especially with police stops at stake.

    1. I agree. I wish I had seen your post before I made a similar point below.

  6. I have four cars in a four-person household. None of the cars are normally driven by the registered owner. My wife works for an automaker, so the car that she drives and the car that I drive are registered to her company, not to us. The cars that my son and daughter each drive are registered to me and my wife.

    My situation presents a somewhat unusual set of circumstances I guess, but not unique. I believe Orin’s original post on this case touched on some of the problems with the so-called common sense approach. One problem is that when the police rely on only information related to the registered owner, they are going to be wrong some percentage of the time. We don’t know what the percentage is, and we might find there is no consensus on what a tolerable error rate would be. Is it reasonable if on average a registered owner is driving his car 90% of the time? 80%? 50%? I gather Justice Thomas assumes the error rate would be low. I have my doubts. I also suspect that if we had to put a number on it, my tolerance for stopping the wrong person would be lower than his.

  7. “Why was this common sense? ”

    It isn’t. For several years, I didn’t have a driver’s license. However, I did own (and properly registered) a motor vehicle, which I did not operate illegally. More than once, I paid for a ride somewhere by letting someone borrow my car.

    To my common sense, provide some reason to believe that the suspended licensee is actually driving the car, or show that the car was reported stolen, and stopping the car is reasonable.

    1. I don’t get this. Are you saying that because you never did it, it isn’t common sense that lots of people do? Or are you saying that the fact that you (and undoubtedly others) follow the law, it’s less likely (generally) to be a violation?

      Because I think you’re assuming the wrong thing — that it has to be pretty likely that the owner is driving the car. That’s not true at all. To reasonably suspect something might be true I think is pretty damn far from “likely” or “commonly” or whatever. It’s just that it has to be “reasonable” for the officer to suspect the thing is occurring. I know that line-drawing may be hard, but this doesn’t seem to be remotely close. And your experience to the contrary doesn’t undermine the common sense view that driver = owner is a reasonable suspicion.

      1. It’s not reasonable because there’s no reason to believe that the driver of a vehicle is the registered owner. It’s possible that the driver of a car might be driving on a suspended license. but that’s true whether or not the registered owner is suspended, which undercuts the claim that suspicion might be/is reasonable. Suppose a law-enforcement agency promulgates a policy that since a majority of sex offenders are male, all male persons encountered by officers of the agency are to be held and searched for possession of child pornography. Does that strike you as an exercise of “reasonable suspicion”.

  8. Truck owner has suspended license. Cop pulls truck over on suspicion the operator of truck is likely also the owner. Proves to be correct. WHAT THE HELL IS THE DEBATE?

    I’m for restraining the government, etc., as much as the next guy. But why be concerned about this case?

    1. “Truck owner has suspended license. Cop pulls truck over on suspicion the operator of truck is likely also the owner. Proves to be correct. WHAT THE HELL IS THE DEBATE? ”

      The assumption is that the driver is the owner of the vehicle. There’s absolutely nothing that limits drivers to only driving cars they own. Come up with some evidence that the driver is the owner, like say the driver matches the description on the suspended license.You can easily switch to this formulation: Cop pulls over driver because, according to the cop, the driver looked like someone who might be a drug user. Cop searches car. Proves to be correct. The fact that the cop made a lucky guess doesn’t override the 4th amendment. I’m awhite dude, but I can see all kinds of ways this type of reasoning leads to the crimes of “driving while black” and “driving while hispanic”, and also “stop and frisk”

      1. It’s not an assumption. It’s a suspicion. The question is whether that suspicion is reasonable. So it’s irrelevant that “nothing limits drivers to only driving cars they own.” In fact, that is the reason why the car is pulled over in the first place — to investigate to see whether that’s true or not.

        1. “It’s not an assumption.”

          It’s not unless you’re using English.
          Assumption, noun
          1. something taken for granted; a supposition:
          2. the act of taking for granted or supposing.
          3. the act of taking to or upon oneself.
          4. the act of taking possession of something:
          5. arrogance; presumption.

          “it’s irrelevant that “nothing limits drivers to only driving cars they own.””

          If people could only drive cars they owned (and registered), then it would be reasonable to assume that the driver of a car was being driven by the registered owner. Since the premise is false, the conclusion is invalid.

          So, you were apparently confused because I was using English and basic logic, and assumed you could follow along.
          6. the taking over of another’s debts or obligations.

  9. The SC opinion was a disappointing read. There is certainly more than math (or even applied math) involved here, but in the past few centuries (and more recently, as high schoolers) we have learned ways of reasoning about such matters which can and should be used to inform discussions of this type. Alas they’re not real evident in this opinion, which instead:
    -manages to be unclear about the basic nature of the main criterion being used (is it a conditional likelihood? a process requirement? effectively a Gallup poll (and if so who is the implicit target population, and what inputs are its respondents assumed to consider when making their judgements)?
    -employs a mix of quantitative and vague, qualitative characterizations of likelihood
    -asserts that in order to meet their vague, qualitative standard a likelihood of 51% is not required, then goes on to assert that 100% is not required, either
    -provides (as Orin highlights) zero insight into the reasoning behind its baldfaced assertion that the given scenario meets their vague, qualitative standard
    -provides almost no guidance as to when the baldfaced assertion can be ignored, save one example
    -tosses in a few statistics without clarifying their differing and sometimes tenuous relationships to the primary relevant likelihood (I suspect because no one working at the Court has a clear understanding of these).

    The highest court in the land shouldn’t have to deal with complex technical topics as if they were radioactive dog turds on their nicely manicured lawn. They should make better use of experts (or in this case, bright high-schoolers or undergrads) to better clarify, communicate and inform the technical underpinnings of their opinions.

    1. So…… basically you just want more math.
      Good luck with that.

      1. OK forget that I ever mentioned math. I want a clear exposition of the concepts, plausible assumptions, and sound reasoning on which the opinion was based. The main opinion didn’t include these.

    2. You’re inferring that there actually is some basic logic in their opinion, which there is not, unless you count “whatever ruling lets the cops do whatever the fuck they want is what we want to come up with”.

  10. We emphasize the narrow scope of our holding.” Words often written, but less frequently followed. Cops will basically never admit that they see the driver prior to initiating the stop, and once the stop is initiated they can continue the stop even after seeing/recognizing that it isn’t the ‘expected’ driver. So it’s just another excuse to pull cars over (like the police don’t have enough excuses as it is). Most judges are fine with that — the cops aren’t usually making these ‘fishing’ stops in THEIR neighborhoods.

    1. ” the cops aren’t usually making these ‘fishing’ stops in THEIR neighborhoods.”

      And the judges drive nicer cars than the ones that are getting pulled over.

    2. Is that true that they can continue the stop. I’d suggest they can’t. SCOTUS has ruled you can’t extend a stop longer than is necessary to investigate and/or cite the infraction that led to the detention unless evidence of other criminality is spotted during that. Once I give a license that shows I’m not the registered owner, that should end the stop.

  11. I wonder how many “common sense” beliefs in history have proven wrong? I’d bet quite a few.

    Also at some point someone should reconcile the evidence rule that prior bad acts can’t come in as they are irrelevant to whether someone committed the current act, to the fact that prior bad acts are considered fair game in a reasonable suspicion/probable cause analysis.

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