SUPREME COURT OF THE UNITED STATES
_________________
No. 18–556
_________________
KANSAS, PETITIONER
v. CHARLES
GLOVER
on writ of certiorari to the supreme court of
kansas
[April 6, 2020]
Justice Sotomayor, dissenting.
In upholding routine stops of vehicles whose
owners have revoked licenses, the Court ignores key foundations of
our reasonable-suspicion jurisprudence and impermissibly and
unnecessarily reduces the State’s burden of proof. I therefore
dissent.
I
I begin with common ground. The Fourth
Amendment permits “brief investigatory” vehicle stops,
United
States v.
Cortez,
449 U.S.
411, 417 (1981), on “facts that do not constitute probable
cause,”
United States v.
Brignoni-Ponce,
422 U.S.
873, 881 (1975). To assess whether an officer had the requisite
suspicion to seize a driver, past cases have considered the
“totality of the circumstances—the whole picture,”
Cortez,
449 U. S., at 417, and analyzed whether the officer assembled
“fact on fact and clue on clue,”
id., at 419.
The stop at issue here, however, rests on just
one key fact: that the vehicle was owned by someone with a revoked
license. The majority concludes—erroneously, in my view—that
seizing this vehicle was constitutional on the record below because
drivers with revoked licenses (as opposed to suspended licenses) in
Kansas “have already demonstrated a disregard for the law or are
categorically unfit to drive.”
Ante, at 5. This analysis
breaks from settled doctrine and dramatically alters both the
quantum and nature of evidence a State may rely on to prove
suspicion.
A
The State bears the burden of justifying a
seizure.
Florida v.
Royer,
460
U.S. 491, 500 (1983) (plurality opinion);
Brown v.
Texas,
443 U.S.
47, 51–52 (1979). This requires the government to articulate
factors supporting its reasonable suspicion, usually through a
trained agent. See
Ornelas v.
United States,
517 U.S.
690, 696 (1996); see also
United States v.
Sokolow,
490 U.S.
1, 10 (1989). While the Court has not dictated precisely what
evidence a government must produce, it has stressed that an officer
must at least “articulate more than an ‘inchoate and
unparticularized suspicion or “hunch” ’ of criminal activity.”
Illinois v.
Wardlow,
528 U.S.
119, 123–124 (2000) (quoting
Terry v.
Ohio,
392 U.S.
1, 27 (1968)). That articulation must include both facts and an
officer’s “rational inferences from those facts.”
Brignoni-Ponce, 422 U. S., at 880, 884. A logical “gap
as to any one matter” in this analysis may be overcome by “ ‘a
strong showing’ ” regarding “ ‘other indicia of
reliability.’ ”
Florida v.
Harris,
568 U.S.
237, 245 (2013). But gaps may not go unfilled.
Additionally, reasonable suspicion eschews
judicial common sense,
ante, at 5, in favor of the
perspectives and inferences of a reasonable officer viewing “the
facts through the lens of his police experience and expertise.”
Ornelas, 517 U. S., at 699;
Cortez, 449
U. S., at 416–418 (explaining that the facts and inferences
giving rise to a stop “must be seen and weighed . . . as
understood by those versed in the field of law enforcement”);
Heien v.
North Carolina,
574 U.S.
54, 73 (2014) (Sotomayor, J., dissenting) (“[O]ur enunciation
of the reasonableness inquiry and our justification for it
. . . have always turned on an officer’s factual
conclusions and an officer’s expertise with respect to those
factual conclusions”). It is the reasonable officer’s assessment,
not the ordinary person’s—or judge’s—judgment, that
matters.[
1]
Finally, a stop must be individualized—that is,
based on “a suspicion that the particular [subject] being stopped
is engaged in wrongdoing.”
Cortez, 449 U. S., at 418;
Prado Navarette v.
California,
572 U.S.
393, 396–397 (2014). This does not mean that the officer must
know the driver’s identity. But a seizure must rest on more than
the “likelihood that [a] given person” or particular vehicle is
engaged in wrongdoing.
Brignoni-Ponce, 422 U. S., at
886–887. The inquiry ordinarily involves some observation or report
about the target’s behavior—not merely the class to which he
belongs. See,
e.g.,
Navarette, 572 U. S., at
398, 402 (upholding vehicle stop based on an anonymous tip about
driver conduct, interpreted in light of the “accumulated experience
of thousands of officers”);
Sokolow, 490 U. S., at 10
(evaluating the collective facts giving rise to suspicion that an
individual was transporting narcotics instead of relying on law
enforcement’s simplified drug courier “ ‘profile’ ”).
B
Faithful adherence to these precepts would
yield a significantly different analysis and outcome than that
offered by the majority.
For starters, the majority flips the burden of
proof. It permits Kansas police officers to effectuate roadside
stops whenever they lack “information negating an inference” that a
vehicle’s unlicensed owner is its driver.
Ante, at 1. This
has it backwards: The State shoulders the burden to supply the key
inference that tethers observation to suspicion. The majority
repeatedly attributes such an inference to Deputy Mehrer.
Ante, at 4, 6, 9. But that is an after-the-fact gloss on a
seven-paragraph stipulation. Nowhere in his terse submission did
Deputy Mehrer indicate that he had any informed belief about the
propensity of unlicensed drivers to operate motor vehicles in the
area—let alone that he relied on such a belief in seizing Glover.
Ante, at 1–2.
The consequence of the majority’s approach is to
absolve officers from any responsibility to investigate the
identity of a driver where feasible. But that is precisely what
officers ought to do—and are more than capable of doing. Of course,
some circumstances may not warrant an officer approaching a car to
take a closer look at its occupants. But there are countless other
instances where officers have been able to ascertain the identity
of a driver from a distance and make out their approximate age and
gender. Indeed, our cases are rife with examples of officers who
have perceived more than just basic driver demographics. See,
e.g.,
Heien, 574 U. S., at 57 (officer thought
that motorist was “ ‘very stiff and nervous’ ”);
United States v.
Arvizu,
534
U.S. 266, 270 (2002) (officer observed an “adult man” driving
who “appeared stiff”);
United States v.
Ross, 456
U. S 798, 801 (1982) (officer pulled alongside car and noticed
that the driver matched a description from an informant);
Brignoni-Ponce, 422 U. S., at 875 (officers stopped a
vehicle whose occupants “appeared to be of Mexican descent”). The
majority underestimates officers’ capabilities and instead gives
them free rein to stop a vehicle involved in no suspicious activity
simply because it is registered to an unlicensed person. That stop
is based merely on a guess or a “hunch” about the driver’s
identity.
Wardlow, 528 U. S., at 124 (internal
quotation marks omitted).
With no basis in the record to presume that
unlicensed drivers routinely continue driving, the majority
endeavors to fill the gap with its own “common sense.”
Ante,
at 5. But simply labeling an inference “common sense” does not make
it so, no matter how many times the majority repeats it. Cf.
ante, at 5, 6, 7, 8. Whether the driver of a vehicle is
likely to be its unlicensed owner is “by no means obvious.”
Ante, at 1 (Kagan, J., concurring). And like the
concurrence, I “doubt” that our collective judicial common sense
could answer that question, even if our Fourth Amendment
jurisprudence allowed us to do so.
Ante, at 3.
Contrary to the majority’s claims,
ante,
at 3–5, 7, the reasonable-suspicion inquiry does not accommodate
the average person’s intuition. Rather, it permits reliance on a
particular type of common sense—that of the reasonable officer,
developed through her experiences in law enforcement.
Cortez, 449 U. S., at 418. This approach acknowledges
that what may be “common sense” to a layperson may not be relevant
(or correct) in a law enforcement context. Indeed, this case
presents the type of geographically localized inquiry where an
officer’s “inferences and deductions that might well elude an
untrained person” would come in handy.
Ibid.; see also
Arvizu, 534 U. S., at 276 (prizing an officer’s
“specialized training and familiarity with the customs of the
area’s inhabitants”). By relying on judicial inferences instead,
the majority promotes broad, inflexible rules that overlook
regional differences.
Allowing judges to offer their own brand of
common sense where the State’s proffered justifications for a
search come up short also shifts police work to the judiciary. Our
cases—including those the majority cites—have looked to officer
sensibility to establish inferences about human behavior, even
though they just as easily could have relied on the inferences
“made by ordinary people on a daily basis.”
Ante, at 6. See,
e.g.,
Navarette, 572 U. S., at 402 (pointing to
“the accumulated experience of thousands of officers” to identify
certain “erratic” behaviors “as sound indicia of drunk driving”);
Wardlow, 528 U. S., at 124 (permitting officers to
account for the relevant characteristics of a location when
interpreting whether flight from police is “evasive”);
Sokolow, 490 U. S., at 9–10 (crediting the evidentiary
significance of facts “as seen by a trained agent” to identify a
suspicious traveler). There is no reason to depart from that
practice here.
Finally, to bolster its conclusion as grounded
in “common experience,” the majority cites “empirical studies.”
Ante, at 4. But its use of statistics illustrates the danger
of relying on large-scale data to carry out what is supposed to be
a particularized exercise. Neither of the referenced reports tells
us the percentage of vehicle owners with revoked licenses in Kansas
who continue to drive their cars. Neither report even offers a
useful denominator: One lumps drivers with suspended and revoked
licenses together, while the other examines the license status of
only motorists involved in fatal collisions. The figures say
nothing about how the behavior of revoked drivers measures up
relative to their licensed counterparts—whether one group is more
likely to be involved in accidents, or whether the incidences are
comparable—which would inform a trooper’s inferences about driver
identity.
As the concurrence recognizes, while statistics
may help a defendant challenge the reasonableness of an officer’s
actions, they “cannot substitute for the individualized suspicion
that the Fourth Amendment requires.”
Ante, at 4–5, n. If
courts do not scrutinize officer observation or expertise in the
reasonable-suspicion analysis, then seizures may be made on
large-scale data alone—data that say nothing about the individual
save for the class to which he belongs. That analytical approach
strays far from “acting upon observed violations” of law—which this
Court has said is the “foremost method of enforcing traffic and
vehicle safety regulations.”
Delaware v.
Prouse,
440 U.S.
648, 659 (1979).
The majority today has paved the road to finding
reasonable suspicion based on nothing more than a demographic
profile. Its logic has thus made the State’s task all but
automatic. That has never been the law, and it never should be.
II
The majority’s justifications for this new
approach have no foundation in fact or logic. It supposes that
requiring officers to point to “training materials or field
experiences” would demand “ ‘scientific certainty.’ ”
Ante, at 3. But that is no truer in this case than in other
circumstances where the reasonable-suspicion inquiry applies.
Indeed, the State here was invited to stipulate to the evidence it
relied on to make the stop. It could have easily described the
individual or “accumulated experience” of officers in the
jurisdiction. Cf.
Navarette, 572 U. S., at 402. The
State chose not to present such evidence and has not shown that it
could not have done so. Accordingly, it has proved no harm to
itself.[
2]
In fact, it is the majority’s approach that
makes scant policy sense. If the State need not set forth all the
information its officers considered before forming suspicion, what
conceivable evidence could be used to mount an effective challenge
to a vehicle stop, as the concurrence imagines?
Ante, at 4.
Who could meaningfully interrogate an officer’s action when all the
officer has to say is that the vehicle was registered to an
unlicensed driver? How would a driver counter that evidence—by
stating that they were of a different age or gender than the owner
and insisting that the officer could have easily discerned that?
And where would a defendant bring his arguments if the trial judge
makes the key inference, or by the same token, fails to make an
inference that “might well elude” the untrained?
Cortez, 449
U. S., at 418.
Moreover, the majority’s distinction between
revocation and suspension may not hold up in other jurisdictions.
For one, whether drivers with suspended licenses have “demonstrated
a disregard for the law or are categorically unfit to drive” is
completely unknown. And in several States, the grounds for
revocation include offenses unrelated to driving fitness, such as
using a license to unlawfully buy alcohol. See,
e.g., Ky.
Rev. Stat. Ann. §186.560 (West Cum. Supp. 2019); Mont. Code Ann.
§61–5–206 (2019); R. I. Gen. Laws §31–11–6 (2010). In yet
other jurisdictions, “revocation” is the label assigned to a
temporary sanction, which may be imposed for such infractions as
the failure to comply with child support payments. Okla. Stat.,
Tit. 47, §6–201.1 (2011). Whether the majority’s “common sense”
assumptions apply outside of Kansas is thus open to challenge.
* * *
Vehicle stops “interfere with freedom of
movement, are inconvenient, and consume time.”
Prouse, 440
U. S., at 657. Worse still, they “may create substantial
anxiety” through an “unsettling show of authority.”
Ibid.
Before subjecting motorists to this type of investigation, the
State must possess articulable facts and officer inferences to form
suspicion. The State below left unexplained key components of the
reasonable-suspicion inquiry. In an effort to uphold the
conviction, the Court destroys Fourth Amendment jurisprudence that
requires individualized suspicion. I respectfully dissent.