How the Supreme Court Got It Wrong: Kansas v. Glover [(Glover III), 140 S. Ct. 1183 (2019).]
Belinda J. McCaskey | April 21, 2021 | PDF Version (161 KB)
Summary: The United States Supreme Court held that a traffic stop based only on an assumption that the owner of the vehicle is the driver is reasonable, so long as the officer does not have any information negating the inference. This ruling reverses the Kansas Supreme Court which held that such a stop was unreasonable and violated the protections provided by the Fourth Amendment. The U.S. Supreme Court emphasized the narrowness of the decision and reiterated that each stop is individualized and subject to the reasonableness standard; however, it reached the wrong conclusion.
Preferred Citation: Belinda J. McCaskey, How the Supreme Court Got It Wrong: Kansas v. Glover, 60 Washburn L.J. Online 95 (2021), https://washburnlaw.edu/wljonline/mccaskey-glover.
I. Introduction
Rarely will one argue that an eight-to-one majority decision by the United States Supreme Court is wrong. However, Kansas v. Glover[1] is such a decision. In the case, an officer of Douglas County, Kansas, initiated an investigatory stop based only on the assumption that the driver was also the owner of the vehicle. This decision ignores “key foundations of our reasonable-suspicion jurisprudence”[2] and opens a Fourth Amendment Pandora’s box.[3]
The officer initiating the stop searched for the license plate number in the Kansas Department of Revenue’s file service and learned the registered owner of the vehicle had a revoked license.[4] Based on the assumption that the driver of the vehicle was the owner, the officer initiated a traffic stop.[5] Mr. Glover, the respondent, moved to suppress the results of the traffic stop, arguing the stop violated his Fourth Amendment right against unreasonable seizure because the officer lacked reasonable suspicion.[6]
The district court granted Glover’s motion to suppress, but the Kansas Court of Appeals reversed.[7] On further appeal, the Kansas Supreme Court agreed with the district court that the officer was acting on a “hunch” and needed something more for reasonable suspicion.[8] However, the United States Supreme Court reversed the Kansas Supreme Court decision, holding that, absent any negating information, a commonsense inference that the owner is the driver is reasonable and, therefore, not a violation of the driver’s Fourth Amendment right.[9]
The Supreme Court majority was wrong in this case.[10] An investigative stop based solely on an inference that an owner of a vehicle is the driver of the vehicle is not reasonable under the Fourth Amendment. It has long been decided that the Fourth Amendment allows brief investigative stops, including traffic stops, without probable cause but requires reasonable suspicion.[11] An officer has met the reasonable suspicion standard, so long as the officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”[12] Reasonable suspicion is an exceptionally low bar.[13] It is “considerably less” than a preponderance of the evidence and “obviously less” than probable cause.[14] However, in this case, despite the low bar, the standard was not met, and more importantly, this decision lessens the state’s burden to link observation to suspicion[15] and in its wake “destroys Fourth Amendment jurisprudence.”[16]
II. Background
A. State v. Glover
Kansas charged Mr. Glover with driving as a habitual violator, which is a class A nonperson misdemeanor, under Section 8-287 of the Kansas Statutes.[17] Prior to trial, Mr. Glover moved to suppress all evidence resulting from the traffic stop.[18] Mr. Glover argued the stop violated his Fourth Amendment right against unreasonable seizure because the deputy lacked reasonable suspicion.[19] The district court granted Mr. Glover’s motion, finding it was not “reasonable for an officer to infer that the registered owner of a vehicle is also the driver of the vehicle absent any information to the contrary.”[20]
In response, the State filed an interlocutory appeal of the district court’s decision to the Kansas Court of Appeals.[21] The Kansas Court of Appeals reversed the lower court’s decision, finding the traffic stop within the bounds of the Fourth Amendment.[22] Mr. Glover appealed the decision of the Kansas Court of Appeals to the Kansas Supreme Court.[23] The Kansas Supreme Court affirmed the original decision of the district court.[24]
B. Legal Background
The Fourth Amendment of the United States Constitution guarantees the right for “people to be secure in their persons, houses, papers, and effects,” and guards “against unreasonable searches and seizures.”[25] For a stop to be reasonable, an officer must have specific, articulable facts that “criminal activity may be afoot.”[26]
The court judges the reasonableness of the stop by balancing the state’s interest in effective law enforcement against an individual’s right to privacy and security, free from police interference.[27] The requirement of reasonable suspicion strikes the balance between indiscriminate official interference and protecting the public interest.[28] Courts must protect against overbearing or harassing police conduct, otherwise Fourth Amendment protections would “evaporate” at the discretion of the police.[29]
In Terry v. Ohio, the U.S. Supreme Court held an officer has reasonable suspicion when “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ed] th[e] intrusion.”[30] This objective standard is measured by the reasonable person considering the particular circumstances.[31] The reasonableness requirement “demands something more than the broad and unlimited discretion” of law enforcement.[32] The officer must be able to articulate more than a hunch or unparticularized suspicion.[33]
The Court acknowledged that a series of innocent acts, when taken together, may necessitate further investigation.[34] Additionally, the Court recognized that a police officer must be able to investigate possible criminal behavior even if probable cause to make an arrest does not exist.[35] Because of these interests, the Court held that “in determining whether the officer acted reasonably” one must look “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”[36]
III. Court’s Decision
In an eight-to-one decision, with one concurrence[37] and one dissent, the Court held that it is reasonable for an officer to initiate a traffic stop when no evidence negates the commonsense inference that the driver is the owner of the vehicle.[38] Justice Thomas delivered the opinion of the Court.[39]The Court reasoned that, because reasonable suspicion is a less demanding standard than preponderance of the evidence and obviously less than probable cause, an officer’s commonsense judgement concerning the circumstances and inferences about human behavior are enough to satisfy the standard.[40] The Court went on to explain that the state’s vital interest in protecting the public from those not permitted to operate a vehicle justified the low bar.[41]
The Court explained that an assumption that a driver with a revoked license would not be driving (because of the revoked license) did not negate the officer’s inference that someone with a revoked license would, in fact, still drive.[42] Citing several statistics suggesting that drivers commonly continue to drive on a suspended or revoked license, the Court found that the officer made a reasonable inference.[43] Additionally, the Court concluded that the knowledge that a registered owner is not always the driver of a vehicle does not negate the reasonableness of the officer’s assumption.[44]
In her dissent, Justice Sotomayor argued that the officer was operating on a hunch and not something more, as is required.[45] There was nothing the officer articulated that suggested he made the stop based on a particularized suspicion founded on his officer training.[46] The officer merely assumed the driver was Glover.[47] The majority emphasized that a commonsense inference need not be based on an officer’s specialized training.[48] The assumption that the driver of a car is also the registered owner does not require special law enforcement training or experience; rather, it is a reasonable inference made by ordinary people on a daily basis.[49]
The majority drew on precedent to rationalize the idea that commonsense judgement alone can be enough in circumstances, such as Glover’s, where a driver has a revoked license.[50] The opinion of the Court, though narrow in scope, has the effect of chipping away at the Fourth Amendment. In her dissent, Justice Sotomayor suggested more than a chipping-away: she accused the majority of “destroy[ing] Fourth Amendment jurisprudence . . . .”[51]
IV. Commentary
The Fourth Amendment protects against unreasonable seizures.[52] A seizure is only reasonable if the totality of the circumstances causes an officer to have a particularized and objective suspicion that criminal activity is “afoot.”[53] An assumption that an unlicensed owner of a vehicle must always be the driver, standing alone, is not enough to rise to the level of reasonable suspicion under the Fourth Amendment. The totality of the circumstances must be objectively reasonable, the stop must not be random, and the officer conducting the stop must have a particularized suspicion that the targeted individual is engaged in criminal activity.[54] Additionally, the balance between an individual’s right to privacy and security, free from police interference, with the state’s interest in effective law enforcement tilts heavily in favor of the respondent, Mr. Glover—thus making the stop unreasonable.
First, the totality of the circumstances must show that an officer’s decision to conduct a traffic stop was objectively reasonable.[55] The court views this objective standard through the lens of a reasonable officer in similar circumstances.[56] Although a trained law enforcement officer may draw inferences and make deductions, a stop requires more than a hunch or unparticularized suspicion and demands more than the broad, unlimited discretion of an officer.[57] Here, the deputy stopped Mr. Glover based on nothing more than an unsupported assumption that the owner of the vehicle was also the driver.[58] Based on the totality of the circumstances, this does not rise to the level of reasonableness.
Second, random traffic stops, based on an assumption or no objective reason at all, are not reasonable seizures based on the standard established by the Fourth Amendment.[59] Random stops are never reasonable without an articulable suspicion of something more.[60] The court distinguishes random stops that are not reasonable from random stops that are subject to a standard practice with explicit, neutral criteria—such as a checkpoint stop.[61] In Mr. Glover’s case, the deputy randomly selected Mr. Glover’s tag to run through the Department of Revenue’s file service. Based on the knowledge that the owner of the truck was unlicensed, and nothing more, he initiated an investigatory stop, which is not reasonable.
Third, there must be a particularized suspicion that the individual subjected to a traffic stop is engaged in criminal activity.[62] The totality of the circumstances must raise suspicion that the individual subjected to a seizure is committing a wrongful act.[63] Here, the deputy only knew Mr. Glover was unlicensed, not that Mr. Glover was the driver. Because the deputy witnessed no traffic violation or criminal activity, this stop was unreasonable.
Finally, the court judges the reasonableness of the stop by balancing the state’s interest in effective law enforcement against an individual’s right to privacy and security, free from police interference.[64] The requirement of reasonable suspicion strikes the balance between indiscriminate official interference and protecting the public interest.[65] Based on the mere assumption that the owner of the vehicle was also the driver, the deputy did not meet the reasonable suspicion standard. Accordingly, in order to protect an individual’s right to privacy from the “overbearing or harassing police conduct” of an unsupported assumption, the Supreme Court should have found the stop unreasonable.[66]
V. Conclusion
“[A seizure] is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”[67] The rule adopted by the Supreme Court allows for law abiding citizens to be mistakenly stopped while driving a revoked licensee’s car.[68] The “unsettling show of authority” during a traffic stop creates a physical and psychological intrusion that “may create substantial anxiety,” “interfere with freedom of movement,” and is “inconvenient.”[69] Because the Court adopted a bright-line rule, Fourth Amendment rights will erode, and the delicate balance between individual liberty and public interests will collapse.[70]
A reasonable suspicion requires that the totality of the circumstances results in a particularized suspicion. The officer only needs to possess specific facts, along with reasonable inferences based on those facts, to meet the burden. However, one lone inference is not enough to justify the intrusion upon an individual’s privacy interests.[71] Since the deputy randomly searched for Mr. Glover’s license plate number in the Department of Revenue’s file service and assumed, without anything more, that the driver of the truck was the unlicensed owner, the officer lacked reasonable suspicion to effectuate the stop on Mr. Glover. The United States Supreme Court was wrong in deciding otherwise.
1. Kansas v. Glover (Glover III), 140 S. Ct. 1183 (2020). [Return to Text]
2. Id. at 1194 (Sotomayor, J., dissenting). [Return to Text]
3. Pandora’s box is a modern-day idiom derived from Greek mythology meaning “a prolific source of troubles.” Pandora’s Box, Merriam-Webster, https://www.merriam-webster.com/dictionary/Pandora%27s%20box [https://perma.cc/K4M2-QMF5] (last visited Feb. 20, 2021). [Return to Text]
4. State v. Glover (Glover I), 400 P.3d 182, 184 (Kan. Ct. App. 2017), rev’d, 422 P.3d 64, 66 (Kan. 2018), rev’d, 140 S. Ct. 1183 (2020). [Return to Text]
5. Id. [Return to Text]
6. Id. [Return to Text]
7. Id. [Return to Text]
8. State v. Glover (Glover II), 422 P.3d 64, 66 (Kan. 2018), rev’d, 140 S. Ct. 1183 (2020). [Return to Text]
9. Glover III, 140 S. Ct. 1183, 1186 (2020). [Return to Text]
10. Id. at 1196 (Sotomayor, J., dissenting). [Return to Text]
11. See Navarette v. California, 572 U.S. 393, 396–97 (2014). [Return to Text]
12. Id. at 396–97 (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). [Return to Text]
13. Id. at 397 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). [Return to Text]
14. Id. [Return to Text]
15. Glover III, 140 S. Ct. at 1196 (Sotomayor, J., dissenting). [Return to Text]
16. Id. at 1198. [Return to Text]
17. Glover I, 400 P.3d 182, 184 (Kan. Ct. App. 2017); see Kan. Stat. Ann. § 8-287 (West, Westlaw through 2021 Reg. Sess.). [Return to Text]
18. Glover I, 400 P.3d at 184. [Return to Text]
19. Glover II, 422 P.3d 64, 66 (Kan. 2018). [Return to Text]
20. Id. at 67. [Return to Text]
21. Glover I, 400 P.3d at 184. [Return to Text]
22. Id. [Return to Text]
23. Glover II, 422 P.3d at 67. [Return to Text]
24. Id. at 66. The Kansas Supreme Court rejected the bright-line rule that the “owner-is-the-driver” because such a rule would shift the burden from the State by eliminating the officer’s need to have specific and articulable facts that the registered owner is driving. Id. at 72. The court reiterated the very low bar needed to satisfy reasonable suspicion but declined to allow an absence of evidence to fill the evidentiary gap. Id. [Return to Text]
25. U.S. Const. amend. IV. [Return to Text]
26. Terry v. Ohio, 392 U.S. 1, 30 (1968). [Return to Text]
27. Id. at 21. [Return to Text]
28. Delaware v. Prouse, 440 U.S. 648, 656 (1979). [Return to Text]
29. Terry, 392 U.S. at 22. [Return to Text]
30. Id. at 21. [Return to Text]
31. Id. at 21–23. [Return to Text]
32. United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975). [Return to Text]
33. Terry, 392 U.S. at 22. [Return to Text]
34. Id. [Return to Text]
35. Id. [Return to Text]
36. Id. at 27. [Return to Text]
37. Justice Kagan, with whom Justice Ginsburg joined, wrote the concurring opinion. See Glover III, 140 S. Ct. 1183, 1191–94 (2020) (Kagan, J., concurring). She wrote to emphasize the limited scope of the opinion. Id. Relying on stipulated facts and the knowledge that Kansas usually only revokes licenses because of the propensity to break driving laws, Justice Kagan found reasonable suspicion. Id. at 1192. She further stated that, had the facts been different, such as the registered driver having a suspended license—a penalty assessed for a number of infractions having nothing to do with driving behavior—the outcome may have been different. Id. at 1192–93. [Return to Text]
38. Id. at 1191 (majority opinion). [Return to Text]
39. Id. at 1186. [Return to Text]
40. Id. at 1187–88; Navarette v. California, 572 U.S. 393, 403 (2014). [Return to Text]
41. Glover III, 140 S. Ct. at 1188; Delaware v. Prouse, 440 U.S. 648, 658 (1979). [Return to Text]
42. Glover III, 140 S. Ct. at 1188. [Return to Text]
43. Id. The Court also suggested that because Glover was considered a “habitual violator,” defined by statute as being convicted of three or more driving offenses in the past five years, he was more likely to be the driver. Id. at 1189. [Return to Text]
44. Id. at 1188. [Return to Text]
45. Id. at 1195 (Sotomayor, J., dissenting). [Return to Text]
46. Id. [Return to Text]
47. Glover II, 422 P.3d 64, 69 (Kan. 2018). The Kansas Supreme Court explained the difference between an assumption and an inference. Id. “[A]n assumption is ‘a statement accepted or supposed true without proof or demonstration.’” Id. (quoting Am. Heritage Dictionary 80 (1969)). “[A]n inference is ‘something inferred; a conclusion based on a premise,’ and to infer is ‘to conclude from evidence; deduce’ or ‘to have as a logical consequence.’” Id. (quoting Am. Heritage Dictionary, supra at 673). The Kansas Supreme Court explained that a true inference is based on an evidentiary premise, whereas an assumption has no basis in proof. Id. [Return to Text]
48. Glover III, 140 S. Ct. at 1189. [Return to Text]
49. Id. [Return to Text]
50. Id. at 1190; see also Delaware v. Prouse, 440 U.S. 648, 658 (1979) (describing a state’s vital interest in ensuring vehicle requirements are obeyed); Navarette v. California, 572 U.S. 393, 402 (2014) (stating the reasonable standard is that of an ordinary man in light of the practical considerations of daily life). [Return to Text]
51. Glover III, 140 S. Ct. at 1198 (Sotomayor, J., dissenting). [Return to Text]
52. U.S. Const. amend. IV. [Return to Text]
53. Terry v. Ohio, 392 U.S. 1, 30 (1968). [Return to Text]
54. See id. at 27; Brown v. Texas, 443 U.S. 47, 51 (1979). [Return to Text]
55. Terry, 391 U.S. at 21. [Return to Text]
56. Id. at 22–23. [Return to Text]
57. Id. at 22. [Return to Text]
58. See Glover III, 140 S. Ct. 1183, 1187 (2020). [Return to Text]
59. Brown, 443 U.S. at 51. [Return to Text]
60. Id. [Return to Text]
61. Id. [Return to Text]
62. Terry, 392 U.S. at 30. The Fourth Amendment is satisfied “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Id. [Return to Text]
63. Id. [Return to Text]
64. Id. at 21. [Return to Text]
65. Id. [Return to Text]
66. Id. at 15. [Return to Text]
67. Id. at 17. [Return to Text]
68. This rule will disproportionately affect poor people as they are more likely to share a car. See Susan Shaheen, Adam Cohen & Alexandre Bayen, The Benefits of Carpooling: The Environmental and Economic Value of Sharing a Ride 7 (2018) (reporting that those who carpool tend to be from lower-income households without access to automobiles). [Return to Text]
69. Delaware v. Prouse, 440 U.S. 648, 657 (1979). [Return to Text]
70. See United States v. Chartier, 772 F.3d 539, 543 (8th Cir. 2014) (holding that a traffic stop was reasonable upon the assumption that the registered owner was the driver under case-specific circumstances, including darkness, poor weather, and difficult traffic conditions). When presented with the opportunity to adopt a bright-line rule, the Eighth Circuit declined to do so. See id. [Return to Text]
71. Terry, 392 U.S. at 21. [Return to Text]
