Kansas v. Glover: The Newest Challenge to the Fourth Amendment
ARTICLE by Dustin Leenhouts
VOLUME VIII ISSUE I
In a country where concerns about privacy and police power are ever present, challenges to the Fourth Amendment are taken very seriously. Kansas v. Glover, the newest challenge, was recently granted a writ of certiorari by the U.S. Supreme Court. While this case may appear to have little impact on the common citizen, it is important to analyze any potential increase of government power. This paper will analyze the contemporary challenge to the Fourth Amendment that arises from Kansas and provide an argument for why the Supreme Court of the United States should uphold the decision made by the Kansas Supreme Court.
I. History of the Case
On April 26, 2016, a Douglas County police officer ran the plates of a 1995 Chevrolet pickup truck. The officer noticed that this truck was registered to Charles Glover, who recently had his licence suspended. On this fact alone, the officer pulled the truck over. Upon talking to the driver, the officer discovered that the individual was in fact the owner of the vehicle and had been driving without a licence in violation of Kansas law.1 Glover claimed that the officer violated his Fourth Amendment rights. The issue this case will address is whether, for the purpose of pulling a suspect over, an officer can assume that the driver of a vehicle is the registered owner of that vehicle. If the U.S. Supreme Court decides in favor of Glover, it will expand the power of an officer to initiate a stop, significantly decreasing individual liberty.
The Douglas County District Court ruled in favor of Glover on the matter of suppressing the evidence obtained from the stop. The State of Kansas then appealed to the Kansas Court of Appeals, which reversed the district court’s decision, claiming that:
The Kansas Supreme Court overturned the Kansas Court of Appeals, claiming that “the State has the burden to prove the officer had reasonable suspicion, and this burden cannot be shifted to the defendant.”3After exhausting all options at the state level, the State of Kansas filed a petition for a writ of certiorari on Oct. 25, 2018. This petition was granted on April 1, 2019. As of publication, the court is accepting amicus curiae briefs. Oral arguments began on November 4,
II. Argument from the Petitioner
On June 17, 2019, the State of Kansas filed a brief that laid out its argument, which has three parts. The first section supports the claim that “[a]n officer has reasonable suspicion to stop a vehicle when the officer knows the registered owner cannot legally drive, absent information that the owner is not the driver.”5 The second section refutes the Kansas Supreme Court’s decision, stating that it adopted a more stringent standard than reasonable suspicion.6 The final section demonstrates the substantial burden that the Supreme Court of Kansas placed on police officers with their ruling.7
The first section establishes what the state requires of police officers to initiate a search. Kansas provided the standard set by Terry v. Ohio (1968), which established that for an officer to have reasonable
suspicion, they must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”8 The State of Kansas emphasized that initiating a stop only requires a “minimal level of objective justification.”9 This intends to show the court that there is not a high standard for the initiation of a stop similar to the one committed by the officer in this case. Kansas then attempted to establish the reasonableness of the officer’s actions, asserting that “[c]ourts have repeatedly found that an officer may reasonably suspect that the registered owner of a vehicle is the driver of his or her vehicle.”10 One of the many cases Kansas mentioned as precedent for its assertion is State of Iowa v. Vance (2010), in which the judge ruled that it is “reasonable for an officer to infer the registered owner of the vehicle will do the vast amount of the driving.”11 This argument emphasizes that officers could justify their actions because they could “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”12
The second part of Kansas’ argument claimed that “[t]he Kansas Supreme Court adopted a standard more demanding than reasonable suspicion.”13 For a police officer to intrude upon a suspect's Fourth Amendment rights, the officer must have a “minimal level of objective justification.”14 Kansas stated in its brief that “requiring corroborating evidence imposes a higher burden than reasonable suspicion requires.”15 Kansas attempted to demonstrate that the Supreme Court of Kansas’ decision created a new standard that is considerably more stringent than the standard previously upheld by the U.S. Supreme Court through United States v. Cortez-Galaviz (2007).16
The final part of Kansas’ argument is that “investigative stops like the one here are reasonable and important to public safety.”17 Kansas argued that if the court required an arresting officer to gather more information, the officer and the public would be at a greater risk of harm. This new standard set by the Kansas Court of Appeals would make establishing whether someone was driving without a licence more difficult. Some examples of difficult situations to obtain this information are “at night, in bad weather, or when the suspect vehicle has tinted windows.”18 With all this information considered, Kansas claimed that “It is not hard to imagine the perils that an officer and other motorists may face in the mine run of encounters when attempting to identify a driver in a moving vehicle while driving among other motorists,” and they would like the U.S. Supreme Court to consider the implications of confirming the standard set by the lower court.19
III. Argument from the Respondent
Glover’s case aligns with the judgement of the Kansas Supreme Court and laid out two supporting arguments. The first argument stated that “[t]he isolated fact that a car on the road is owned by an unlicensed driver does not establish reasonable suspicion that the driver is engaged in illegal activity.”20 The second argument supported the claim that “the balance of government and private interests” does not support the rule that would be implemented if the court ruled in favor of the petitioner.21
The argument from Glover asserted that the officer’s justification to pull over the defendant was unreasonable because the standard for reasonableness “can be determined only in context, with reference to the totality of the relevant circumstances.”22 Glover
argued that the State of Kansas attempted to turn a single piece of evidence into a totality of circumstances. The officer admitted that the sole reason he pulled over Glover was because the registered owner of the vehicle had his licence suspended.23 Any time a stop is initiated, an officer must establish “reasonable suspicion that a driver is violating a traffic-related law.”24 Given that the officer knew only that Glover’s licence was suspended, Glover claimed that the officer could not have possibly established reasonable suspicion based on the totality of evidence.25 Kansas asserted that “Courts have repeatedly found that an officer may reasonably suspect that the registered owner of a vehicle is the driver of his or her vehicle,” but Glover claimed that this is misleading.26 The majority of the cases discussed by Kansas “rely on a civil presumption that the owner of a car was the driver of the car when the evidence shows that the owner was present in the car,” which would mean there was an additional piece of evidence to consider.27
Glover’s next argument is that the “balance of government and private interests” does not support the rule that was proposed by the State of Kansas.28 The management and regulation of vehicles and drivers falls under the purview of the state, meaning that it is in the state’s interest to maintain a safe environment for travelers. Part of completing this task involves keeping unsafe drivers off the road, but Glover pointed out that a substantial amount of people who had their licences revoked did not have this done due to driving infractions. An individual can have their license revoked for “failing to comply with child support obligations,” “failure to pay court costs on time,” and “forgetting a court date.”29 This means that if officers pulled over any of these individuals, they would not be working toward maintaining a safer road but would instead be using the stop to investigate a different
offense. Furthermore, if officers wished to discover whether the driver of the car was in fact the person whom the car was registered to, they could simply pull up next to the car and compare a picture from their database to the person driving. Kansas argued that this could cause undo danger to the officer involved if “the encounter happens at night, in bad weather, or when the suspect vehicle has tinted windows,” but Glover pointed out the stop that led to this case occurred in the morning on a day with clear skies, so it would not have been a problem to simply look in the window to see if the driver looked like the owner of the car.30 Glover argued that the officer could have waited for the driver to make a small traffic infraction to pull them over, but instead decided to initiate the stop on only one piece of information. This means that “millions of drivers who are indisputably following every traffic law” would have to deal with “the risk of being seized at the side of the road and every ill consequence that comes with that.”31
IV. Additional Considerations
Kansas’ reliance on Terry is misleading given the facts of the case. The U.S. Supreme Court upheld in Terry that to establish reasonable suspicion, an officer must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”32
The facts of Terry demonstrate that Kansas should be understood in a similar manner. Glover argued that when analyzing a Fourth Amendment issue like this one, the courts “must balance the government’s law-enforcement interests against individuals’ privacy interests. Here, the balance is not even close.”33 In Terry, the question of whether to further investigate the suspects only came after watching them repeatedly walk in front of the door, act suspiciously, and fail to answer the officer’s questions in a coherent manner. The officer then found a handgun, which could have been used to rob the store or cause harm. In Kansas, the sole reason the officer pulled over the respondent
was that the registered owner of the car had his license suspended. There is an inherent difference in the consequences of the two cases if the officers had not initiated a search. If the officer had failed to stop the defendant in Terry, the defendant would have almost certainly used his weapon to rob the store. In the majority opinion for Terry, Chief Justice Earl Warren said the officer “had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.”34 This case had an element that Kansas lacked: there was no reason to suspect that swift action was required to discover whether the respondent was a clear danger to others. When understood in context, Terry provides less supporting evidence than Kansas claimed.
Kansas’ brief overstates the burden on the officer. It is true that accepting the standard set by the ruling from the Kansas Supreme Court would make initiating a stop more difficult for an officer, but Kansas exaggerated this burden, claiming that “Requiring more evidence would also be unnecessarily dangerous.”35 This argument is infeasible considering all of the possible additional evidence that could have been used to make a stop. Glover points out that the officer could have simply pulled up next to the car and looked through the window to see if the driver appeared to be the person to whom the car was registered. This method of initiating the stop ensures the safety of the officer while firmly supporting the suspect’s Fourth Amendment rights.
V . Conclusion
The Fourth Amendment’s rights of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” are among those which make this country the freest and most prosperous country to exist.36 These rights ensure that citizens are subjected to government searches only rarely and when absolutely necessary. Unfortunately, it appears to be a necessary
element of the U.S. government to continuously push the boundaries of its power, forever diminishing the liberties we value so highly. Kansas’ continuous use of the word “stop” to describe this incident demonstrates this principle, as the event could accurately be referred to as a “seizure.”37 The State of Kansas claims that “such stops promote that goal and do not unreasonably intrude on individual liberty,”38 referring to the state’s vital interest to secure roadways.39 This normative statement has no basis in fact because the intrusion on individual liberties is far greater than Kansas admits.
If the U.S. Supreme Court rules in favor of Kansas, the amount of cars that will be subject to search will increase more than Kansas admits. In Kansas, the officer manually typed the license plate number into his database. This, however, is not the only way this could have been achieved. Police districts across the country are increasingly using automated license plate readers, which allow police cars to scan up to two thousand license plates a minute.40 In districts where police cars are equipped with this technology, there could be a large number of people pulled over every day. Even family members of the person to whom the car is registered could be pulled over, making it clear that the U.S. Supreme court ruling in favor of Kansas would be a vast decrease in individual liberty.41 Additionally, Kansas assumes that if a police officer determines that the driver of the vehicle is not the owner of the vehicle they will “inquire no further and send them on their way,” but according to the Fines and Fees Justice Center, “[t]his is a fantasy.”42 If the officer asked any questions outside of ascertaining whether the driver was the owner of the vehicle, they would be using the stop to investigate ancillary, and potentially inconsequential infractions without reasonable suspicion of any offence. This increase of police investigations of possibly unrelated infractions would result in a vast decrease in individual liberty.
The expansion of governmental power that would result from the U.S. Supreme Court ruling in favor of the State of Kansas would dramatically reduce the amount of privacy an individual has while driving. In 2017, 1.7 million people had their licenses suspended in Florida alone.43 In one year, nearly 10 percent of the Florida population and anyone that 10 percent lent their cars to could have been subjected to a police stop. If the U.S. Supreme Court rules in favor of the State of Kansas, millions of drivers could be subjected to being pulled over by the police while following every traffic law. The ability to drive your car without being accosted by the police falls directly under the right to privacy. If the U.S. Supreme Court rules in favor of the State of Kansas, anyone driving a car borrowed from someone with a suspended license would have their rights to privacy made obsolete. Additionally, one should question whether it is in the best interest of a U.S. citizen to give the police the power to constantly check license plates to discern whether owners of cars have had their licenses suspended. Considering the vast array of offences that individuals have their licenses’ suspended for, it becomes evident that this power is not justifiable. It is not in the interest of U.S. citizens for police to have the power to initiate millions of stops and discern whether they, for example, did or did not pay a court fee. This is clearly an instance where the government’s interest to enforce the law does not supersede the right to privacy. Kansas vastly understated the intrusiveness of a “stop,” the consequential restriction of liberty, and the vast reduction of privacy for drivers.
It is incumbent on those who wish to uphold the liberty and rights granted to them by the Fourth Amendment to ensure that any case challenging these rights is scrupulously examined. If the court is to rule in favor of Kansas, these rights will be diminished. The interest of the State to maintain a safe roadway does not excuse the infringement on individual liberty resulting from the Supreme Court ruling in Kansas’ favor.
1 Brief for the Petitioner at 2, Kansas v. Glover, U.S. (2019) (No. 18-556).
2 State v. Glover, 54 Kan. App. 2d 377, 400 P.3d 182 (2017).
4 Damon Root, The Supreme Court’s Next Big Fourth Amendment Case, Rᴇᴀsᴏɴ, (2019), https://reason.com/2019/09/10/the-supreme-courts-next-big-fourth- amendment-case/.
5 Brief for the Petitioner, supra note 1 at 9.
6 Id. at 20.
7 Id. at 21.
8 Terry v. Ohio, 392 U.S. 1, 21 (1968).
9 United States v. Sokolow, 490 U.S. 1, 7 (1989).
10 Brief for the Petitioner, supra note 1 at 5.
11 State of Iowa v. Vance, 790 N.W.2d 775, 781 (2010).
12 Brief for the Petitioner, supra note 1 at 9.
13 Id. at 20.
14 Supra note 9.
15 Brief for the Petitioner, supra note 1 at 21.
16 See United States v. Cortez-Galaviz, 495 F.3d 1203, 1207 (2007) (stating that
requiring “an officer to know the identity of the driver . . . would take us from Terry .
. . into the land of requiring an officer to have probable cause before effecting any
18 Id. at 26.
19 Id. at 26.
20 Brief for Respondent at 10, Kansas v. Glover, U.S. (2019), (No. 18-556).
21 Id. at 37.
22 Id. at 12.
23 Id. at 2.
24 Id. at 11.
25 Id. at 19.
26 Brief for the Petitioner, supra note 1 at 5.
27 Brief for the Respondent, supra note 20
28 Id. at 37.
29 Id. at 40.
30 Brief for the Petitioner, supra note 1 at 26
31 Brief for the Respondent, supra note 20 at 46.
32 Brief for the Petitioner, supra note 1 at 9.
33 Brief for the Respondent, supra note 20 at 9.
34 Supra note 8 at 30.
35 Brief for the Petitioner, supra note 1 at 26.
36 U.S. Const. amend. IV.
37 Brief for the Petitioner, supra note 1 at 2.
38 Id. at 7.
39 See Delaware v. Prouse, 440 U.S. 648, 658 (2019).
40 Brief of Amici Curiae Fines and Fees Justice Center, et al., Support Respondent, Kansas v. Glover (2019) (No. 18-556) at 5.
42 Id. at 12.
43 Wayne K. Roustan, Florida suspends nearly 2 million driver's licenses. Help may be on way., Sᴜɴ Sᴇɴᴛɪɴᴇʟ, Feb. 16, 2018, available at https://www.sun-sentinel.com/ news/transportation/fl-reg-drivers-license-suspensions-20180208-story.html
[a] law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to investigate whether the driver has a valid driver's license if, when viewed in conjunction with all of the other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle.2