Tuesday, April 7, 2020

Commonsense Suspicion: Thoughts on Kansas v. Glover

By Orin S. Kerr - April 07, 2020 at 05:48AM

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(a) Was the intuition negated by the fact that Glover's license was revoked and therefore he could not legally drive?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  Studies suggest that people often drive illegally after their license was revoked.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 a particular surprise. I wasn't particularly surprised by the vote count, either, 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'm generally sympathetic to her narrowing approach, 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 could see that cutting both ways.  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.

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 that grouping.

(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 common sense. 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.



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