by:  Don Samuel

Perhaps it comes as no surprise that the United States Supreme Court decided today that the police officer in Kansas v. Glover (discussed in a previous blog post) had a reasonable suspicion that justified his basis for stopping the vehicle that he knew was registered to a man whose license had been revoked.  The officer knew no other facts.  And the officer did not reveal anything about his training or experience in support of his reasonable suspicion.
 
Justice Thomas wrote that “common sense” provides the basis for the stop.  It is “common sense” that a registered owner, even with a revoked license, is the driver of the vehicle.  And common sense is alone sufficient to create a reasonable suspicion.  Common sense, in this case, is more than a “hunch,” albeit less than probable cause or proof beyond a reasonable doubt.
 
Eight Justices decided that the stop of the vehicle was justified.  Only Justice Sotomayor dissented.  She decried the reliance on “common sense” that included no individual facts about the defendant in this case.  The officer knew nothing about the driver.  Nothing was known about the reason that his license was revoked (which might reveal the likelihood that he would continue to drive despite the revocation).  
 
An interesting disagreement between Justice Sotomayor and Justice Thomas focused on whether the officer had a duty to investigate further (such as by looking in the window of the vehicle to determine if the physical characteristics of the driver matched the registered owner).  Justice Sotomayor suggested that some individualized suspicion, such as that kind of observation, was necessary.  Justice Thomas, on the other hand, held that an observation like that might dispel the reasonable suspicion (if the registered owner was a 50-year old man, but the officer could see the driver was a young woman), but that the burden was not on the police to engage in further investigation.  The record in this case – which included no information about any observation by the officer – only established this fact: the owner of this vehicle had a revoked license.  Nothing more, nothing less.  And it was not, according to Justice Thomas, the duty of the officer to determine if there were more or fewer facts that supported the conclusion that the registered owner was driving.
 
This is not the most important Fourth Amendment case to be decided in recent time.  But it reveals clearly that sometimes it is just “you know it when you see it” that is the answer to many Fourth Amendment questions.  I am left wondering, however, why it is in these cases that some Justices  "know it," but the others do not, when they see the same thing.

by Don Samuel

Kansas v. Glover poses such a simple question:  Can a police officer stop a car driving down the road if the officer knows that the car is owned by a driver whose license has been suspended, but the officer does not know who is actually driving the car?  Stated in somewhat more legal terms:  Does a police officer have a recognizable articulable suspicion to stop a car with an unknown driver, if the registered owner of the car does not have a valid driver’s license?  We spend most of our time evaluating questions of probable cause and articulable suspicion by weighing the totality of the circumstances.  Various pluses and minuses are tabulated to determine whether the totality equals probable cause or an articulable suspicion.  Not in this case.  There is no “totality” to evaluate.  There is just one fact: The car is registered to a driver whose license has been suspended.   
 
Yet, as simple as the question seems to be, there are problems with the method of reaching an answer that the Court must address:
 

1. Is the answer to be found in the empirical data that exists dealing with the frequency with which a car is driven by somebody (for example, a family member) other than the owner of the vehicle?  The DMV actually maintains data that would suggest an answer to this question
2. If the answer is based on such data, should the inquiry be more refined and focus on the empirical data that exists dealing with the frequency with which a car is driven by somebody other than the owner of the vehicle in cases in which the owner has had his or her license suspended.  The DVM and AAA also maintain relevant data state-by-state and nationwide.
3. If the data in Kansas shows that for every vehicle registered in the state, there are three drivers, does this make a difference?  
4. If the data is deemed irrelevant (or unreliable, or perhaps unknown to the officer), is the answer to the question found in the police officer’s experience? In other words, if the officer has been patrolling the streets for twenty years, is the articulable suspicion based on the data derived from that officer’s experience (e.g., “6 times out of 10, when I have stopped a car which is owned by a driver whose license has been suspended, that owner is unlawfully driving the car.”)
5. What if the officer has not been patrolling the streets for twenty years, but only for twenty days?  Does that officer’s insufficient experience preclude the officer from stopping the car?  What if he calls a more experienced officer back at the precinct and asks that officer about her experience?
6. Is the officer’s training, as opposed to experience, a sufficient basis for finding articulable suspicion?  Does a reviewing court have the obligation to evaluate the validity of the training? The trainer?
7. If the data is not the answer; and the officer’s experience is not the answer; and the officer’s training is not the answer, is the answer just “common sense?” Is that really the answer that the Court will rely on in deciding Fourth Amendment probable cause and articulable suspicion questions?  If the Court divides 5-4, can the “5” really brag that it is “common sense” if the 4 dissenters disagree.  Doesn’t sound very common to me.     
8. Regardless of the answers to 1 – 7, above, what percentage of illegal drivers must there be in order to support a stop?  In other words, as Chief Justice Roberts posed during the oral argument, if the data demonstrates that 10% of the time, the driver will be the owner who has no valid license, may the officer stop the vehicle?  20%?  30%?  Chief Justice Roberts asked the lawyer during oral argument, “Don’t you agree that all teenagers frequently text while driving, or at least 10% of teenage drivers do so?  And if so, may the police stop every car in which it appears that a teenager is driving?  Or a teenager is the registered owner?”
9. Consider whether your answer to #8 would apply in the typical drug courier profile case.  If the data supports the conclusion that 20% of travelers from a source city to a consumer city, who purchase the ticket with cash and have a quick return flight, and have no bags other than a carry-on,  etc etc, is a drug courier, does that mean that in every case in which the profile exists, the person can be stopped?  Or does the profile have to be more predictive, more reliable?   What makes Glover so interesting, by the way, is that  instead of a “profile” – an assortment of factors, whichcombined, make it likely that the traveler is a courier – in Glover there is only one fact: the registered owner is unlicensed.  There are no other facts that are known to the police.  
10. What if the registered owner is a teenager?  The teenager has a valid driver’s license, but she is not allowed to drive at night in her state.  The car is seen on the road at night, but the officer has no idea who is driving.  Can the officer stop the car?  After all, it might be the teenager.
11. Is there any room in this analysis for insistence that the officer, before stopping the vehicle, try to determine if the driver fits the description of the unlicensed owner?  In other words, if the data supports articulable suspicion, is there any duty on the part of the officer to attempt to corroborate the assumption generated by the data?

 
We await the decision in Kansas v. Glover.

by:  Don Samuel

Lawyers all know what the term “standing” means: It is not, when spoken in a courtroom, just a reference to what we all do when the judge (or jury) walks into the courtroom.  It also describes in a formal way, the parties’ relationship to the controversy.  If my neighbor to the south drives his car into the living room of the house belonging to my neighbor to the north, I can’t file a lawsuit, because I was not injured. I have no “standing” to complain.  If the Georgia Legislature passes a law that provides that only people with blonde hair can receive Medicaid benefits, somebody with brown hair who lives in Alabama cannot file a lawsuit, because a person from Alabama, regardless of hair color, has no beef with the Georgia legislature.  That person has no standing to complain.
            In criminal cases, the issue of “standing” is not often disputed.  In every case, the defendant who is charged with a crime has standing to defend against the charges.  That is clear.  And in all cases, the prosecutor (state or federal) has standing to bring the charges, assuming there is an allegation that a state or federal law was violated.  Both parties, therefore, have standing to participate in the case.
            But for the past century, an entirely different kind of “standing” has been the subject of dispute in criminal cases: specifically, prosecutors often claim that a defendant does not have “standing” to complain about a particular search that resulted in the discovery of evidence that is being used in the defendant’s prosecution. There is no doubt that the defendant has standing to defend against the charges.  But if I am the defendant, do I have standing to complain about a search of my wife’s pocketbook, from which the police seized a ledger that documented all of my cocaine sales? The police did not search my pocketbook. In fact, I wasn’t even with my wife when her pocketbook was searched. The prosecutor will argue that because my belongings were not searched, I have no “standing” to raise a Fourth Amendment challenge to the use of the ledger at my trial. 
            The prosecutor is right.  But that formulation of “standing” can be confusing, because it is entirely different than the concept of “standing” to participate as a party in the litigation.
            Why is the case of United States v. Ross getting attention now?  Because the Eleventh Circuit previously held that "standing" for Fourth Amendment purposes is also "jurisdictional" -- and (the earlier decision held), if the defendant does not have Fourth Amendment standing, then the prosecutor can challenge that at any time.  The right to challenge a defendant's claim if the defendant lacks that kind of standing can be raised at any time.  But if the government wants to challenge a defendant's standing to raise a Fourth  Amendment claim, that challenge must be made in a timely manner and not for the first time on appeal.  Because the Eleventh Circuit has that previous confused opinion, the Eleventh Circuit decided on March 23, 2020, that every judge in the Circuit is going to address this confusion in a case that the court agreed to hear en banc:  United States v. Ross, No. 18-11679.   When this case is decided, hopefully, we will all know where we stand on this issue.