Can Police Stop a Vehicle Just Because a Computerized License Plate Check Shows Its Owner Has a Suspended License?
Can Police Stop a Vehicle Just Because a Computerized License Plate Check Shows Its Owner Has a Suspended License?
Since the Court’s 1966 decision in Terry v. Ohio, police can make investigatory stops if they have reasonable suspicion. Terry’s holding has been greatly expanded to allow stops not only of people on the streets but also of motor vehicles and even of luggage. This case will be the Court’s latest foray into what facts give an officer reasonable suspicion to make Terry stops of vehicles to check for driving violations. The result may either greatly expand or contract law enforcement’s ability to make investigatory vehicle stops. Millions of people in America spend a substantial part of their daily or weekly time driving. Thus, the outcome should be of interest to most drivers in the United States.
Docket No. 18-556
Argument Date: November 4, 2019
From: The Supreme Court of Kansas
by Mark M. Dobson
Nova Southeastern University, Shepard Broad College of Law, Fort Lauderdale, FL
Under the Fourth Amendment, does a law enforcement officer have reasonable suspicion to stop a properly registered vehicle when the only thing the officer knows is that the vehicle’s owner has a revoked license?
This case comes to the Supreme Court on facts stipulated to by both parties at a pretrial suppression hearing. Neither of the two principal actors, Charles Glover, the stopped vehicle’s driver, nor Sheriff’s Deputy Mark Mehrer, who stopped it, testified at the hearing. This may prove potentially damaging to the state and decisive to the Court’s ruling.
The stipulated facts are as follows. Deputy Mehrer was on routine patrol when he saw Glover’s pickup truck and ran a registration check. The state’s database indicated that Glover, the truck’s owner, had a suspended license. The deputy “assumed the registered owner of the truck was also the driver” and stopped the truck to investigate this. At the time, the deputy had not seen any traffic violation committed nor could he identify the driver. The deputy’s assumption proved correct. Mehrer cited Glover for habitual driving under a suspended license and then, ironically, let him drive away. He was later convicted of being a habitual violator for driving while his license was suspended, a class A misdemeanor.
Glover moved to suppress all information Mehrer gained from the stop, claiming the stop was without cause in violation of Glover’s Fourth Amendment rights. Specifically, Glover claimed the deputy had no reasonable suspicion to make the stop. At the suppression hearing, the state argued an officer could reasonably infer that a registered owner is the person driving a vehicle, unless there is positive evidence to the contrary. This inference is the sole basis for the state’s claim of reasonable suspicion. The Douglas County District Court judge found the inference unreasonable, based on his own experience that many people lawfully drive vehicles not registered to them, and granted the motion.
On appeal to the Kansas Court of Appeals, the state prevailed. State v. Glover, 400 P.3d 182 (Ks. 2017). That court cited “the consensus of state supreme courts that have considered this issue” and held that there is reasonable suspicion to investigate if an officer knows a vehicle’s registered owner has a suspended license and “is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver.” (Emphasis added). Besides precedents from other state courts, the court of appeals also cited several policy reasons for its decision. A requirement that police attempt to verify a driver matches the owner’s physical description would not be possible to satisfy in some situations, for example, when darkness, weather, or the road conditions or volume of vehicles prevent this. Denying law enforcement officers like Mehrer the right to stop vehicles in these situations would seriously limit an officer’s ability to investigate traffic violations. Moreover, requiring this would effectively raise the standard for an investigatory vehicle stop from reasonable suspicion requiring only a minimum of objective facts to one approaching probable cause or the preponderance of evidence.
Glover appealed, and the Kansas Supreme Court reversed in his favor. State v. Glover, 422 P.3d 64 (Ks. 2018). The state supreme court noted that the state has the burden of proving that any warrantless seizure is a reasonable one. For reasonable suspicion to exist, the state must be able to show specific and articulable facts, along with a rational inference from them, that crime is being, has been, or is about to be committed. The U.S. Supreme Court has refused to reduce this finding of reasonable suspicion to a “neat set of legal rules.” Here the state supreme court noted Mehrer had one fact alone—the registered owner of the pickup had a suspended license. From this, the state wished the court to presume that the registered owner is most likely also a vehicle’s driver. The court found this presumption contained two errors. First, an owner-is-the-driver presumption requires stacking unstated assumptions without any further facts to support them. Second, the presumption rested on what Mehrer did not know. The court refused to draw an inference from lack of evidence in the record as doing so would relieve the state of its burden and shift it to the defense.
The court focused on the explicit language of one of the stipulations, “Deputy Mehrer assumed the registered owner was also the driver.” (Emphasis in original.) The court distinguished between an assumption and an inference. Inferences are based on facts, while assumptions accept something as true without any proof to support the assumption. Thus Deputy Mehrer’s assumption amounted to a mere hunch, which is not enough for reasonable suspicion. The court noted common experience in many Kansas communities suggested several drivers share the same vehicle registered to only one of them.
Even if the court had been willing to accept the state’s first presumption, the state’s argument was flawed, according to the state supreme court, because it presumed a broad inclination of drivers with invalid license to drive in open defiance of the law. This went against the proposition that courts should presume citizens are usually acting lawfully and have a right to be free from governmental interference.
Finally, the state supreme court rejected the state’s argument as it eliminated an officer’s need to try and develop specific facts as to whether the registered owner was in fact the driver. Indeed, the presumption eliminated an officer’s motivation to do so as the officer’s investigation may dispel the officer’s initial suspicion, making a stop invalid.
The court agreed reasonable suspicion is a low burden. But it is one needing some specific evidence. As the court stated, “the problem is not that the State necessarily needs significantly more evidence; it needs some more evidence.” (Emphasis in original.) Exactly what this “some more evidence” was, the court declined to say.
Kansas petitioned the U.S. Supreme Court on October 25, 2018, to address whether reasonable suspicion existed for the stop. On April 1, 2019, the U.S. Supreme Court granted Kansas’s petition to review the ruling of the Kansas Supreme Court.
As noted above, this case comes to the Court on a brief set of stipulated facts. This may prove ultimately significant to the Court’s ruling. On September 9, 2019, the Court requested the official record from the Kansas Supreme Court. On September 27, this was delivered.
The Fourth Amendment guarantees in part, “[t]he right of the people to be secure…against unreasonable searches and seizures.” This right extends to motorists publicly driving vehicles. Although there is not as great a privacy interest in motor vehicles as in one’s home, the Court has recognized such an interest in motor vehicles does exist. At the same time, there is certainly a public safety interest in ensuring that motor vehicles are driven by licensed drivers who are operating them properly. The conflict between these two interests is at the heart of this case.
Delaware v. Prouse, 440 U.S. 648 (1979), held that law enforcement cannot make random, suspicionless stops of motor vehicles to check for license and other violations. Unless a traffic stop is at a lawful roadblock, the police must have reasonable suspicion to do so. This requires that they be able to point to specific and articulable facts from which they can reasonably conclude criminal activity has been, or will be, going on. Reasonable suspicion is clearly a lesser quality and quantity than proof beyond a reasonable doubt for conviction, probable cause for an arrest or search, and even less than a preponderance of the evidence. Reasonable suspicion should be based on common sense, practical reasoning, and considerations. In assessing whether such exists, a “totality of circumstances” standard should be used. However, the Court has said this cannot be reduced to a fixed quantity. On these broad principles, the parties agree. Where they disagree is how these principles apply to Glover’s case.
There is no dispute about the lawfulness of Deputy Mehrer’s action in checking the pickup’s publicly displayed license plate. Kansas argues when this check revealed that, although the vehicle was lawfully registered, its registered owner had a suspended license, this fact alone was enough for a Terry stop to investigate. Terry v. Ohio, 392 U.S. 1 (1968). This is based on what Kansas calls the common-sense inference that the registered owner is likely to be the person driving a vehicle. After all, people usually own vehicles to drive them. Kansas admits that if, before the stop, Mehrer learned facts indicating otherwise, then the inference would no longer be reasonable, and the stop would be unlawful. Thus, if the database the state uses says that the owner is one gender and an officer sees the driver is of the opposite gender, a lawful stop could not be made.
Kansas argues that the inference Mehrer made about suspended/ revoked-license drivers continuing to drive is a perfectly logical one. Both Kansas and its amici point to various statistical studies. For example, the National Highway Safety and Traffic Administration cites a study concluding that “many suspended/ revoked drivers continue to drive after suspension,” while another from Mothers Against Drunk Driving claimed “[a]s many as 50 to 75 percent [of drivers] continue driving despite having their license suspended or revoked.” Kansas cites these studies and others to refute the state supreme court’s assertion it is wrong to assume many suspended drivers continue to drive. The state admits that a registered vehicle may have more than one person driving. However, the state argues that even if these include a suspended/revoked-license owner and two other lawful drivers, this alone presents a 33 percent chance that the person driving it at any time is doing so illegally, enough the state claims for reasonable suspicion.
Kansas also argues once Mehrer learned the owner’s license was suspended, the deputy was under no obligation to investigate further before stopping the pickup. Further investigation may not be feasible due to such things as weather, darkness, tinted windows, road conditions, volume of traffic, and other factors. Imposing such a further duty to investigate could endanger officers and effectively converts the reasonable suspicion standard to one approaching probable cause, Kansas concludes.
Glover’s argument can be summed up as follows. The state had the burden to demonstrate reasonable suspicion. To do so, it needed to create an adequate factual record. It failed to do so; thus the Court should rule in the driver’s favor. Glover argues that since reasonable suspicion should be judged by a totality of circumstances, it must be particularized to each individual case’s unique situation. Thus, it is essential for the state to demonstrate why, in light of a particular officer’s training, experience, and familiarity with the surrounding local circumstances, the decision to stop was made.
As noted, this case was submitted on a stipulated set of facts. There is nothing in the record about the time of day, weather, and so on, or even what Deputy Mehrer knew about the inclination of suspended-license drivers to continue driving either in Kansas generally or in Douglas County and its local environs. Glover argues that failure to supply this information means Kansas has not carried its burden. While nationwide statistics about the number of drivers driving on suspensions may be helpful, they alone should not be considered sufficient. In essence, he argues that reasonable suspicion cannot be based on the “law of averages” or a “one size fits all” type of test. Instead it requires particular information about a particular driver, the particular officer’s training and experience, and the particular circumstances of each case. This is why one nationwide rule based on one single fact alone is not good enough. Kansas chose to stipulate that Mehrer made the stop solely on the one fact. Having chosen to not call other evidence, Kansas should not be able to avoid the consequences of its decision. Indeed, as one amicus points out, the state drafted the very stipulation Glover says now defeats Kansas’s argument.
Glover notes the Court has refused to adopt “bright-line” approaches finding a single fact enough for reasonable suspicion and should continue to do so here. He argues that allowing a single factor to control will actually discourage police from trying to get other information to confirm their initial suspicion.
Glover also disputes the relevancy and legitimacy of the statistics Kansas relies on. Kansas relied on statistics about the percentage of suspended drivers still driving to bolster its public safety argument. Glover claims this statistical reliance ignores the fact that licenses can be suspended for many reasons unrelated to safe driving, for example, failure to pay child support or unpaid parking tickets. Thus, promoting safe driving is not as strong an argument as Kansas claims. Finally, Glover notes that the Court’s rejection of Kansas’s bright-line rule would have only small practical effect. The rule would apply only when there are no other reasons to make legitimate traffic stops. When other legitimate reasons exist, police can make stops based on them.
Several amici point out that Automatic License Plate Readers (ALPR) now exist and are being used frequently across the United States. ALPRs can be easily mounted in cars or on stationary objects like poles. The devices can read and check hundreds of plates per minute and quickly report data about vehicles and their owners. Since approximately 7 percent of drivers in this country have suspended licenses, Kansas’s one-fact rule and use of ALPRs would greatly increase the government’s ability to make traffic stops. Amici point out that poorer communities usually have more drivers per vehicle. In a household with four drivers, if the owner has a suspended license, the other three would be subject to repeated stops until the owner remedies the license problem. The amici note that these poorer communities also tend to be more heavily minority. Thus, accepting Kansas’s argument would disproportionately impact this part of the population.
The state responds to this in two ways. First, all this is irrelevant as once Mehrer learned the pickup’s owner had a suspended license, he could stop it to see if the owner was driving unless he learned information indicating otherwise beforehand. Second, the state notes the argument about an inadequate record was not raised in the state courts nor relied on in the Kansas Supreme Court’s decision. To raise it now would not give the state a fair opportunity for rebuttal. Ironically, Glover makes much the same argument about Kansas and its amici statistical arguments.
This case will be significant no matter who wins. The decision will effect how many vehicles the police can easily stop for investigation. Millions of Americans own vehicles and drive them on an almost daily basis. How easy, or hard, it is for police to establish reasonable suspicion for a vehicle stop will certainly affect their ability to gather evidence of any kind of crime, not just driving with suspended licenses. Once a lawful stop is made, this greatly increases the police’s opportunity to gather information about citizens and make arrest for all sorts of crimes, not just traffic offenses.
While the Supreme Court has said that police cannot unreasonably prolong a traffic stop to purposefully search for evidence of other crimes, there are many things that lawfully stopping a vehicle lets them do. Police can lawfully require drivers and passengers to exit vehicles, thus increasing police ability to see whether they may be carrying items like concealed weapons. Police can demand documentation from drivers, which may turn up other violations, such as no required insurance coverage. Police can also run a driver’s name through national criminal databases to see if there is an outstanding warrant. While police cannot automatically search vehicles stopped to investigate a suspended-license violation, they can ask for consent to do so. Many people incorrectly believe that if police make such a request, the person asked must agree. This is not so, but the Supreme Court has refused to hold that police must tell people of their right to refuse such consent. Also, if police do not unduly prolong a traffic stop to do so, they can even have trained narcotics detection dogs do a car sniff while the stop is happening. Finally, police can lawfully look inside a vehicle without entering it, and if evidence of crime is in plain sight, they can then seize it and take further action. In short, any time police make a lawful vehicle stop, their opportunity to discover evidence of criminality significantly increases.
There are several possible outcomes to this case. First, the Court could accept Kansas’s argument for a bright-line nationwide rule that an officer has reasonable suspicion to stop a vehicle whenever the officer merely knows its registered owner is not lawfully licensed and the officer possesses no information indicating the owner is not also the driver. Under this ruling, the number of lawful traffic stops would greatly increase. Thus, temporary police intrusions on privacy, of both innocent and offending persons, would increase—most likely significantly. Finally, the Court’s acceptance of Kansas’s bright-line argument may show an inclination to apply a lenient totality of circumstances approach to reasonable suspicion where motor vehicles are concerned.
Second, the Court could rule for Glover and simply find that when an officer learns a lawfully registered vehicle is owned by an unlicensed driver, this fact alone can never supply reasonable suspicion for a traffic stop. Since 4 federal circuit courts, 16 state supreme courts, and several more state intermediate appellate courts have found otherwise (agreeing with Kansas’s argument), this would lower the present police ability to make traffic stops in a number of jurisdictions.
The Court could, on the record before it, reject Kansas’s bright-line argument but acknowledge the possibility of data or information that could have supported Deputy Mehrer’s decision to make the stop but were not presented. This data could either be of a nationwide, state, or local nature. Indeed one of the more interesting matters to look for is how the Court deals with the various statistical arguments the respective parties make.
The needed information could even be more situation-specific. The record does not reflect why Mehrer did not try to confirm his suspicion Glover was the driver. Perhaps, if Mehrer had explained why factors like time of day, weather, road conditions, or traffic volume prevented him from seeking confirmation, the Court would find his assumption alone sufficient to support the stop. If so, then the Court’s opinion could be a classic example of the party with the burden of proof’s failure to make an adequate record to carry it. It would also stand as an example of the potential danger inherent in relying on a short-stipulated record of facts without presenting any live testimony. If the Court resolves the case on this basis, care should be taken to not automatically criticize the prosecution for not having Mehrer testify. There may have been good reasons, like health or change of job, why it was not possible for the state to do so. However, this then suggests that requests for continuances, rather than using stipulated facts, should be the state’s answer to temporary officer unavailability.
Mark M. Dobson is a professor of law at the Nova Southeastern University, Shepard Broad College of Law, in Fort Lauderdale, FL. He can be reached at firstname.lastname@example.org or at 954.262.6157.
PREVIEW of United States Supreme Court Cases 47, no. 2 (November 4, 2019): 9–12. © 2019 American Bar Association
In Support of Petitioner Kansas
In Support of Respondent Charles Glover