4/3/2020
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:
- 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
- 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.
- If the data in Kansas shows that for every vehicle registered in the state, there are three drivers, does this make a difference?
- 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.”)
- 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?
- 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?
- 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.
- 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?”
- 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.
- 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.
- 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.
