4/6/2020
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suspicion that justified his basis for stopping the vehicle that he knew was registered to a man whose license had been revoked.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 Nothing was known about the reason that his license was revoked (which might reveal the likelihood that he would continue to drive despite the revocation).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.
