Kansas v. Glover: Just Common Sense?

April 13, 2020

Kansas v. Glover, 589 U.S. ___ (2020) (Thomas, J.).
Response by Professor Stephen A. Saltzburg
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

Kansas v. Glover: Just Common Sense?

The Supreme Court decided one of the most interesting “reasonable suspicion” cases in years in Kansas v. Glover.¹ Kansas charged Charles Glover, Jr. with driving as a habitual violator after a Kansas officer, Mark Mehrer, on routine patrol ran the license plate number of Glover’s truck, discovered that the state had revoked the driver’s license of the car’s owner (Glover), and determined that he had reasonable suspicion to stop the car to determine whether Glover was in fact driving.

Glover claimed that the officer lacked reasonable suspicion in his motion to suppress all evidence seized during the stop. “Neither Glover nor the police officer testified at the suppression hearing,” and the motion was decided on the basis of stipulated facts.²

One of the key stipulated facts was this: “Deputy Mehrer did not observe any traffic infractions, and did not attempt to identify the driver [of] the truck. Based solely on the information that the registered owner of the truck was revoked, Deputy Mehrer initiated a traffic stop.”³

The trial court granted the motion to suppress, but the Kansas Court of Appeals reversed, finding that “it was reasonable for [Deputy] Mehrer to infer that the driver was the owner of the vehicle” due to “specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.”⁴ The Kansas Supreme Court reversed the Court of Appeals, reasoning that Mehrer had “only a hunch,” not reasonable suspicion.⁵ The U.S. Supreme Court reversed.

Because Deputy Mehrer did not testify, it is impossible know why, out of all the cars on the road, he decided to check the license plates on Glover’s truck. One can reasonably be curious about the reason, but it might not be significant for Fourth Amendment purposes unless there was a pattern of Mehrer and/or his department selecting discrete minorities for surveillance. Since there was no allegation of discrimination, the explanation for the license check was irrelevant to the Court’s decision.

Justice Thomas delivered the opinion of the Court. He cited earlier decisions of the Court that make clear (a) that reasonable suspicion is a less demanding standard than a preponderance or probable cause, and (b) that states have a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that licensing, registration, and vehicle inspection requirements are being observed.”⁶

Justice Thomas offered two observations that would be applicable in any jurisdiction: “[t]he fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of Deputy Mehrer’s inference;” and “[e]mpirical studies demonstrate what common experience readily reveals: Drivers with revoked licenses frequently continue to drive and therefore to pose safety risks to other motorists and pedestrians.”⁷ But he also focused on the specifics of license revocation in Kansas to conclude that “[t]he State’s license-revocation scheme covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive,” and “[t]he concerns motivating the State’s various grounds for revocation lend further credence to the inference that a registered owner with a revoked Kansas driver’s license might be the one driving the vehicle.”⁸

At the end of his opinion, Justice Thomas emphasized “the narrow scope of our holding,” and indicated that an officer’s initial suspicion might be dispelled by additional facts: “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.’”⁹

Justice Kagan, joined by Justice Ginsburg, wrote a concurring opinion. She posed a question that might explain why the lower courts were unable to agree in the case: “What are the odds that someone who has lost his license would continue to drive? The answer is by no means obvious. You might think that a person told not to drive on pain of criminal penalty would obey the order—so that if his car was on the road, someone else (a family member, a friend) must be doing the driving. Or you might have the opposite intuition—that a person’s reasons for driving would overcome his worries about violating the law, no matter the possible punishment. But most likely (let’s be honest), you just wouldn’t know.”¹⁰

Justice Kagan chose to explain how, if “you just wouldn’t know,” she resolved this case. She emphasized the fact that “Mehrer learned from a state database that Charles Glover, the truck’s owner, had had his license revoked,” and “Kansas almost never revokes a license except for serious or repeated driving offenses.”¹¹ She explained “I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws . . . . [F]or example, if Kansas had suspended rather than revoked Glover’s license” because, “[a]long with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.”¹²

Like Justice Thomas, Justice Kagan recognized that additional information might dispel reasonable suspicion—e.g., “when the officer learns a car has two or more registered owners,” or even when “ the attributes of the car may be relevant.”¹³ “Consider if a car bears the markings of a peer-to-peer carsharing service; or compare the likelihoods that someone other than the registered owner is driving (1) a family minivan and (2) a Ferrari.”¹⁴ She suggested someone like Glover could challenge a stop on the basis of statistical evidence like “the frequency with which those stops discover unlicensed drivers behind the wheel.”¹⁵ She also indicated that drivers could question an officer about what the officer knew in deciding to make the stop and not rely upon a stipulation as Glover did.

Justice Sotomayor wrote the lone dissent. She argued that “reasonable suspicion eschews judicial common sense,” and that “[i]t is the reasonable officer’s assessment, not the ordinary person’s—or judge’s—judgment, that matters.”¹⁶ She pointed out that there was no evidence that Officer Mehrer “had any informed belief about the propensity of unlicensed drivers to operate motor vehicles in the area—let alone that he relied on such a belief in seizing Glover,” and concluded that “[t]he consequence of the majority’s approach is to absolve officers from any responsibility to investigate the identity of a driver where feasible” when “that is precisely what officers ought to do—and are more than capable of doing.”¹⁷

Justice Sotomayor objected that the majority’s “use of statistics illustrates the danger of relying on large-scale data to carry out what is supposed to be a particularized exercise” and “the majority’s distinction between revocation and suspension may not hold up in other jurisdictions.”¹⁸ Her bottom line was this: “The State below left unexplained key components of the reasonable-suspicion inquiry. In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion.”¹⁹

Justice Thomas responded to the dissent’s point about there being a difference between a police officer’s reasoning and an ordinary person’s by saying that the notion that an officer is permitted “to use only the common sense derived from his ‘experiences in law enforcement’ . . . defies the ‘common sense’ understanding of common sense, i.e., information that is accessible to people generally, not just some specialized subset of society.”²⁰ He added that “this standard appears nowhere in our precedent.”²¹ He stated that “we in no way minimize the significant role that specialized training and experience routinely play in law enforcement investigations . . . . We simply hold that such experience is not required in every instance.”²² He also reiterated the Court’s many holdings that reasonable suspicion must be based on “individualized suspicion that a particular citizen was engaged in a particular crime.”²³

So what guidance does Glover give law enforcement and courts? Is the reasoning limited to driver revocations in states like Kansas where the reasons for revocation are driving related? Justice Thomas does cite the Kansas law but only after he talks about common-sense reasoning. Does this mean Glover does not apply to suspensions? That was Justice Kagan’s suggestion. Although Justice Sotomayor’s dissent appears to assume the majority agreed with Justice Kagan, only Justice Ginsburg joined her, and Justice Thomas really does not address the distinction between revocation and suspension. Moreover, the statistic he relies upon shows that 75% of drivers with suspended or revoked licenses continue to drive. So is a police officer entitled to treat suspensions and revocations alike? What if the officer does not know the basis for a suspension?

How likely is it that the average police officer on routine patrol will be possessed of the statistics that Justice Kagan assumes might exist? And how frequently must that officer check for new statistics? If a jurisdiction suspends a person’s license, the suspension means “don’t drive,” so if a suspended driver ignores the suspension is that really not as serious as a revoked driver ignoring the revocation? Assuming it is not quite as serious, is the distinction a sufficient order of magnitude to make a difference for Fourth Amendment purposes?

Returning to a point made earlier, we have no idea why Officer Mehrer decided to check on Glover’s license plate. Might it matter after all? Can a jurisdiction instruct its officers to run the license plate of every automobile they come across and to assume that any owner whose license has been suspended or revoked should be stopped to see if the owner is driving? What is the common-sense answer? To change slightly a point Justice Kagan made, the truth is we just don’t know.

Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor of Law and Co-Director of the Litigation and Dispute Resolution Program at The George Washington University Law School. Professor Saltzburg was appointed by The Chief Justice of the United States as a member of both the Advisory Committee on the Federal Rules of Criminal Procedure and the Advisory Committee on the Federal Rules of Evidence.

No. 18-556 (U.S. Apr. 6, 2020).
Id. at 1.
Id. at 2 (alteration in original) (quoting App. to Pet. for Cert. at 60–61).
State v. Glover, 54 Kan. App. 2d 377, 385 (2017), rev’d 308 Kan. 590 (2018), cert. granted, 139 S. Ct. 1445 (2019), rev’d No. 18-556 (U.S. Apr. 6, 2020).
State v. Glover, 308 Kan. 590, 591 (2018), cert. granted, 139 S. Ct. 1445 (2019), rev’d No. 18-556 (U.S. Apr. 6, 2020).
Glover, slip op. at 4 (alteration in original) (quoting Delaware v. Prouse, 440 U.S. 648, 658 (1979)).
Id.
Id. at 5–6.
Id. at 9 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
Id. at 1 (Kagan, J., concurring).
Id. at 2.
Id.
Id. at 4.
Id.
Id.
Id. at 2–3 (Sotomayor, J., dissenting).
Id. at 4.
Id. at 6, 8.
Id. at 8.
Id. at 7 (Thomas, J., majority opinion)
Id.
Id. (emphasis in original).
Id. at 8 n.1.

Recommended Citation
Stephen A. Saltzburg, Response, Kansas v. Glover:Just Common Sense?, Geo. Wash. L. Rev. On the Docket (Apr. 13, 2020), https://www.gwlr.org/kansas-v-glover-just-common-sense/.