Glover v. Kansas - Reasonable Suspicion Based on Driving a Car Owned by a Person With a Revoked Driver’s License
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
On April 6, 2020, the U.S. Supreme Court decided an important case involving a common situation presented to law enforcement officers (Kansas v. Glover). A Kansas deputy sheriff on patrol ran the license plate number of a pickup truck owned by Charles Glover Jr. through a Kansas database. That review indicated that Glover’s driver’s license had been revoked. Based on these facts alone, the deputy stopped Glover’s pickup truck on the assumption that Glover was driving the truck. The stop revealed that Glover was indeed driving the truck. As a result, he was convicted of driving as a habitual violator.
The issue presented by the case was whether the deputy had reasonable suspicion to stop the pickup truck. In an 8-1 decision, the Court decided that he did.
Justice Thomas wrote the Court’s opinion (joined by seven other Justices). He reasoned that the frequency with which persons who have had their licenses revoked nonetheless continue to drive their vehicles is high enough to provide sufficient suspicion to reach the reasonable suspicion threshold – at least in the absence of evidence that would negate this suspicion. For example, Thomas noted that if the owner whose license had been revoked was male and the officer who ran the records check could see that the person driving the vehicle was female, this fact would negate the suspicion that the driver was the owner of the car.
The lone dissenter was Justice Sotomayor. Her dissent consisted of two basic arguments. First, she argued that the inference drawn by the deputy that the driver was likely the owner and therefore driving with a revoked license was not reasonable because it was not based upon his law enforcement training or experience. In essence, she argued that the common sense basis for any suspicion of criminal activity must be based on common sense derived from police training or experience and not from mere publicly-held common sense. Justice Thomas indicated that this approach “defies the ‘common sense’ understanding of common sense, i.e., information that is accessible to people generally, not just some specialized subset of society.” He also expressed concern that Justice Sotomayor’s rule “would impose on police the burden of pointing to specific training materials or field experiences justifying reasonable suspicion for the myriad infractions in municipal criminal codes,” although he did not explain why that would be undesirable. In fact, one suspects that this was just what Justice Sotomayor would require the police to do.
Justice Sotomayor’s second argument was that the majority’s holding abrogates the requirement that a determination of reasonable suspicion must be individualized. A determination of reasonable suspicion, she argued, “involves some observation or report about the target’s behavior – not merely the class to which he belongs.” Justice Thomas responded that “Deputy Mehrer did not rely exclusively on probabilities. He knew that the license plate was linked to a truck matching the observed vehicle and that the registered owner of the vehicle had a revoked license.” He deemed this to be an individualized suspicion.
This debate about individualized (or particularized) versus general (or categorical) suspicion gave rise to an interesting exchange between two law school professors who have written extensively about the Fourth Amendment. On PrawfsBlawg, Richard Re argued (right after completion of the oral arguments before the Supreme Court in Glover) that basing reasonable suspicion solely on the two facts that the owner of a car had had his license revoked and that someone was driving that car, creates an inference that “is just as generalized as any number of others that are thought to be impermissible.”[1]
To buttress his argument, Re alludes to what has come to be referred to as the “dorm room hypothetical.”[2] The hypothetical presumes that a study of dormitory rooms on a particular college campus has established that most dorm rooms contain contraband. The question raised is whether this fact alone establishes probable cause to search a particular student’s dorm room. Re cites his own work[3] for the proposition that “’individualized’ evidence is best understood as evidence that is sensitive to whether someone – some individual – has broken the law.” He argues that in the dorm room hypothetical, the police do not have probable cause to search a particular room unless they possess some evidence tying someone in that room to the possession of contraband. Without this kind of evidence, every dorm room on campus would be subject to search, a result that seems offensive to any reasonable view of fairness.
Orin Kerr (who may well be the preeminent, present authority on the Fourth Amendment) responded directly to Re’s blog post, indicating his disagreement.[4] He views the reasonable suspicion in Glover as individualized because it is based on a specific car observed on the road – not all cars owned by persons whose licenses have been revoked. He distinguishes the dorm room hypothetical because the magistrate issuing a search warrant has no reason to suggest why the particular room in question is to be searched. In Glover, the car stopped was chosen because it was observed on the highway and the owner’s license was known to have been revoked. This makes it individualized.
There are three other aspects of Glover that merit brief mention. Justice Kagan wrote a concurring opinion in the case (joined by Justice Ginsburg) that clarifies a point that was somewhat overlooked in the majority opinion. She points out that it was critical in this case that Glover’s license had been revoked, rather than suspended. What makes this distinction so important is the suspicion to be drawn from the two different situations. In Kansas at least (and probably in most states), a person’s driver license is revoked only for a repeat violation of traffic laws. In some instances, the revocation results from multiple violations of traffic laws. This demonstrates an inclination on the part of the license-holder to violate traffic laws, making it reasonable to think the person would not hesitate to drive with a revoked license.
On the other hand, Kansas law allows for suspension of a driver’s license for previous violations of laws that are not traffic laws. Examples cited in the Glover opinion include failure to pay parking fines, court fees, and child support. Thus, license suspension does not create the same level of suspicion of driving with a revoked license that license revocation creates.
Another aspect of Glover that bears mentioning is what the opinion does not do. It does not create a duty on the part of the officer making the stop to look for evidence that would reduce the level of suspicion possessed by the officer, such as the gender or age of the driver. As we have seen, if the owner whose license had been revoked is male and the driver of the car to be stopped is female, then reasonable suspicion no longer exists. Similarly, if the owner is 65 years old, but the driver appears to be in his twenties, then reasonable suspicion no longer exists.
Although the Supreme Court did not create this duty to investigate, there is nothing to prevent state courts from doing so. In Georgia, for example, the Georgia Court of Appeals has held, in a case with facts very similar to Glover, that the traffic stop was illegal because the officer made no effort to determine the gender of the driver (which did not match the registered owner).[5] Whether any other states will follow Georgia’s lead remains to be seen.
The last aspect of Glover worth mentioning has to do with evidence developed by empirical studies or local experience. If an empirical study gathers data on the frequency with which persons drive when their licenses are revoked and concludes that the frequency rate is very low, that would seriously undermine much of the reasoning used in Glover. In fact, the majority opinion cites an empirical study that reported a finding that 75% of drivers with revoked or suspended licenses continue to drive.[6] However, that study did not focus on revoked licenses alone. Similarly, a particular law enforcement department’s experience might be that it is rare to find a person driving with a revoked license.
On its face, Kansas v. Glover seems to be a rather straight forward case answering a relatively simple question. As we have seen, however, the decision is a little more complicated than it appears at first. On the other hand, it does provide a fairly clear answer to a common situation: if the police determine that a car being driven on a public road is owned by a person whose license has been revoked and there is no readily available information to suggest that it is not the owner driving the car, the police may stop the vehicle.
[1] Richard Re, “The Role of Individualization in Kansas v. Glover,” https://prawfsblawg.blogs.com/prawfsblawg/2019/11/the-role-of-individualization-in-kansas-v-glover.html, accessed on July 27, 2020.
[2] Orin Kerr, “Why Courts Should Not Quantify Probable Cause,” in The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, edited by Michael Klarman, David Skeel, and Carol Steiker (Cambridge University Press, 2012). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1797824, accessed on July 27, 2020.
[3] Richard Re, “Fourth Amendment Fairness,” 116 Mich. L. Rev. 1409 (2018).
[4] Orin Kerr, “What is ‘Individualized’ Suspicion?,” https://reason.com/2019/11/26/what-is-individualized-suspicion/printer/, accessed on July 27, 2020.
[5] State v. Martinez-Arvaelo, 340 Ga. App. 271 (2017). See also https://pacga.org/wp-content/uploads/2020/04/fyi_4_6_20_Kansas_v_Glover.pdf, accessed July 27, 2020.
[6] 2 T. Newman et al., National Coop. Hwy. Research Program Report 500: A Guide for Addressing Collisions Involving Unlicensed Drivers and Drivers With Suspended or Revoked Licenses, p. III-1 (2003).