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Divided SCOTUS Skeptical of Driver’s Fourth Amendment Claim (2)

Nov. 4, 2019, 9:51 AMUpdated: Nov. 4, 2019, 9:46 PM

U.S. Supreme Court justices were skeptical of a Kansas man’s argument that police violated the Fourth Amendment when they pulled him over, in a case that government officials warn has big public safety implications, while defense and other advocacy groups raise social justice and privacy concerns.

At oral argument on Nov. 4, a minority of the high court pressed the state on its “common sense” assumption that it was reasonable to pull over a car whose registered owner’s license was revoked, without the officer doing anything more, like trying to verify the driver’s identity first.

But without a definitive answer from the driver Charles Glover’s lawyer, veteran Supreme Court advocate Sarah Harrington, as to what more exactly is required of law enforcement in these situations, he could be out of luck. Chief Justice John Roberts, in particular, seemed exasperated during a lively exchange with Harrington of Goldstein & Russell, P.C.

Still, key justices like Neil Gorsuch asked tough questions of both sides, and how the high court ultimately decides the case could depend on how broadly or narrowly the justices rule—that is, as Justice Samuel Alito put it during the argument, whether they issue “a trivial decision or a revolutionary decision.”

Whether trivial, revolutionary, or something in between, a decision is expected by late June.

Totality of the Circumstance

The dispute stems from a 2016 traffic stop, where a Kansas officer pulled over the pickup truck that Glover was driving. The officer said he stopped the truck because, when he ran the license plate, he saw that its registered owner—Glover—had his driver’s license revoked.

But the officer didn’t have more information than that before pulling over the truck. He didn’t try to confirm Glover’s identity first. Charged with driving as a habitual violator, Glover challenged the stop on Fourth Amendment grounds.

The state’s top court ruled for Glover, finding the officer’s assumption that Glover was driving “was only a hunch and was unsupported by a particularized and objective belief.” Kansas officials appealed, backed by the Trump administration.

Out of the gate at the argument, some of the justices focused on the slim factual record in the case. The officer didn’t testify at a suppression hearing. There was just a stipulation that the officer assumed Glover was driving.

Nonetheless, Kansas solicitor general Toby Crouse and assistant to the U.S. solicitor general Michael Huston stressed what they characterized as the common sense nature of their position.

But Gorsuch pressed Crouse on that point, saying “you’re asking us to make an inference about facts when there are no facts in the record at all, zero.”

Crouse said the court should look to the totality of the circumstances, but Justice Sonia Sotomayor retorted that “there’s only one totality.” Likewise, Justice Ruth Bader Ginsburg said “it’s one circumstance, the registered owner’s driver’s license has been suspended, period.”

The government has “offered literally no way for this Court to assess whether that is, in fact, a reasonable assumption, whether it is, in fact, based on common sense,” Harrington argued.

Numbers, Revolution

But some justices pushed back on what they saw as assumptions in Harrington’s argument, and, in questions to both sides, multiple justices wondered how percentages and statistics should play into the Fourth Amendment equation.

“Do you think it’s totally random who the driver is? In other words, it’s registered to Fred Jones, but it could be anybody in the world?” Roberts asked Harrington at the beginning of an exchange that enlivened the usually even-keeled chief. He’d go on to say that “reasonable suspicion does not have to be based on statistics, it does not have to be based on specialized experience.” It can be based on common sense, he said.

Justice Stephen Breyer similarly seemed to struggle with Glover’s position.

Justice Samuel Alito, who usually sides with the government in criminal cases, told Harrington that she’s proposing “either a trivial decision or a revolutionary decision.”

He said it’s a “trivial decision” if all that’s lacking in this case is a statement from the officer, “I’ve been trained that, blah, blah, blah,” But it’s “a revolutionary decision if in every case involving reasonable suspicion there has to be a statistical showing or an examination of all the things that you think are necessary here.”

Harrington said all she’s asking for is “that the ordinary Fourth Amendment contextual analysis be required in every case. It doesn’t require statistics in every case. It doesn’t require any magic words. It just requires something to support the reasonableness of an assumption.”

Fourth Amendment experts anticipated ahead of the argument that the statistical aspect could come into play, thus making the case a potentially significant one if the court says something about how to gauge probabilities in the search and seizure context.

Broadly, the case is “about whether police officers can pull people over based on general probability rather than the officers’ personal observations,” said Matthew Tokson, law professor at the University of Utah.

Given that the reasonable suspicion standard is “such a nebulous, low” one, “it is always potentially helpful to receive further guidance from the high court—including how we ought to think of percentage possibilities,” said Stephen E. Henderson of the University of Oklahoma College of Law.

Safe Streets, Privacy

Over a dozen states have lined up to support Kansas, claiming that “the ability of state officers to keep their streets safe” is at stake.

“Studies show that despite having their license suspended, many drivers continue to drive their vehicles,” state officials say. “Because unlicensed drivers account for a disproportionate share of fatal motor vehicle accidents, such stops are often the sole, indispensable means available to officers to police against this important public safety hazard.”

An array of outside groups have lined up to support Glover, observing that license suspensions “are concentrated in poor communities and disproportionately in communities of color.” Because there are fewer vehicles per household in those communities, drivers are more likely to borrow vehicles from friends or family.

Such communities are also subject to increased use of Automated License Plate Readers, according to the Electronic Privacy Information Center, which raised concerns about automated policing techniques if the high court rules for Kansas.

The case is Kansas v. Glover, U.S., 18-556.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com