Courthouse Steps Decision Teleforum: Kansas v. Glover

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on April 6, 2020, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Decision teleforum for the decision handed down earlier today in Kansas v. Glover. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Brian Fish, who is a member of The Federalist Society’s Criminal Law & Procedure Practice Group Executive Committee. After Brian gives his opening remarks, we will then open up the floor for audience Q&A. Thank you for sharing with us today. Brian, the floor is yours.

 

Brian M. Fish:  Thank you very much, Micah. Greetings Federalist Society land from the bunker here in east Baltimore. As Micah said, this is a Courthouse Steps on the decision in Kansas v. Glover. Kansas was the appealing side in this one. Again, thank you very much for joining my call here this afternoon. As Micah said, I’m on The Federalist Society’s Criminal Law Practice Group Executive Committee and a practicing attorney here in Baltimore when the COVID-19 virus ends. Hopefully all of you out there are staying safe with your loved ones and are doing the best you can teleworking.

 

      The case at hand -- I remember going to the November oral arguments and sitting through this thinking, “What was the Supreme Court of Kansas thinking?” It didn’t make any sense why this case would’ve been denied by them. And now after reading Justice Thomas’s majority opinion and the concurring opinion and Justice Sotomayor’s dissent, I’m now thinking, “What is Justice Sotomayor thinking?” because in neither case does it make any sense. There’s simply no logical point to the reason why the case was denied by the Kansas Supreme Court or much sense in what Justice Sotomayor was, I guess, trying to convey in her dissent.

 

      Basically, when I was sitting in the courtroom back in November, trying to think of a great sports analogy, this case had essentially been tried 12 times in the sense that between federal courts of appeal and states supreme courts, this fact pattern had come up 12 times. And the government went 12-0. So this was the 13th time this game was played, and for some reason the State of Kansas, their supreme court thought that it should go the other way.

 

      So let’s give you a brief rundown of what the facts were in this particular case and go to Justice Thomas’s decision. The case out of Kansas was at the motion to suppress stage. Parties stipulated seven facts and seven facts alone, and based on that stipulation, the trial court in Kansas granted the defense motion to suppress. So let’s talk about those seven facts. Let me scroll back up.

 

      And fact number one: the deputy in the case was a certified law enforcement officer. Number two: on April 28, 2016 the deputy was on patrol when he observed a 1995 pickup truck. And fact number three: he ran the plates on the pickup truck. Four: the run comes back that in fact the plates do belong to said 1995 Chevy 1500 pickup truck. The next fact: the truck is registered to one Charles Glover Jr., and that Charles Glover had a revoked driver’s license in the state of Kansas. Next fact: the deputy assumed—and that’s where the fight begins—the deputy assumed that the registered owner was the driver. Fact number six: the deputy didn’t observe any violation; he didn’t attempt to identify the driver. He simply pulled the driver over, and when the deputy approached the truck, the driver of the truck was identified as Charles Glover, Jr.

     

      That was the entirety of the evidence before the Kansas trial court. Again, the trial court granted the motion. The state appealed; the Kansas Court of Appeals reversed. Glover appealed through the Kansas Supreme Court. They reversed again. Kansas appealed to the Supreme Court and earlier today in, essentially, a 6-2-1 decision, the majority authored by Justice Thomas, the Supreme Court reversed yet again and sent the case back.

 

      So let’s talk about what happened, first of all, at oral argument and then how it played out in the three different decisions today. Oral argument: standard issue. Kansas went first in this one. They got their two minutes in before the Justices started firing off questions. The highlight of that colloquy was when Chief Justice Roberts asked a few questions, which were alluding to a statistical norm. Essentially, what is reasonable suspicion? Is there a number? It went back and forth but nothing really came of it substantially.

 

      Then when it came time for Glover’s counsel to argue, this is when the Chief Justice essentially pounced. He asked Glover’s attorney the following: is it reasonable to suspect that the owner of a vehicle is driver of the vehicle? And what’s the percentage?—I’m paraphrasing here—Is it 5 percent? The counsel agreed. Is it 10 percent? The counsel agreed. Well, then, what exactly is the definition of reasonable suspicion? Is there a statistical norm for reasonable suspicion as opposed to, say, probable cause or proof beyond a reasonable doubt? And the Chief Justice has this colloquy with the defense counsel. And essentially, what he comes down to is this: reasonable suspicion does not have to be based on statistics. It does not have to be based on a specialized experience. It is based on simply common sense.

 

      And that’s the key to the case. As a police case in the vernacular, TKE, the training, knowledge, and experience of the police officer, how does that apply to a reasonable suspicion fact pattern? And is the TKE, the training, knowledge, and experience, required to be shown in every reasonable suspicion stop? Essentially, in every Terry stop. The answer to that, at the end of the day, is no.

 

      And here’s the best line from today’s decision by Justice Thomas. Justice Thomas takes the path in the dissent, and here’s the best line of the day. Justice Thomas states the dissent’s definition of common sense defies common sense. And if that doesn’t give you at least a guffaw here today, nothing will. Essentially saying that if you look at Justice Sotomayor’s dissent, which he is saying is that in every single case, the government -- the police officer, if you will, but certainly the government prosecutor will have to show that the stop for Terry stop purposes has to -- the government would have to show that the police officer has some specialized knowledge about the area in the case of the Terry stop. Or something additional about it, in this case the driver of the vehicle on a car stop. You would have to show some additional piece of evidence other than just what everyday, non-police officer common sense is.

 

      And the Chief Justice simply shoots that down. We do not have to, essentially, bifurcate a police officer. His everyday common sense does not have to be overcome by his common sense as a trained police officer. In other words, we don’t have to show that the police officer has 20 years of experience and 1,000 car stops. And in his particularized training, knowledge, and experience that, say, vehicles being driven on the road tend to be driven, still, by their suspended owner. You don’t have to show that. What you simply have to show is that in an everyday common sense world, that if there’s a car, it’s reasonable to suspect that that car, or in this case this pickup truck, was driven by the owner of the pickup truck. And that’s it. And as Thomas says, the dissent is throwing away the common sense definition of common sense.

 

      Now, we’ve hit upon the 12-0. I have to throw a sports reference out there because as college basketball junkie, today was supposed to be the NCAA Championship Game, and I’m brokenhearted to be missing that. Of all the sports things that have been missed so far in the last 3 to 4 weeks, that’s, to me personally, the crushing one. And so this is the 13th time, essentially, this game has been played. And Thomas, essentially, slaps down both the Kansas court and the dissent. So the government in this particular fact pattern has run its record to 13-0.

 

      Justice Kagan and Justice Ginsburg join in a concurring opinion, written by Justice Kagan. Their concurrence essentially adds one additional fact that the majority simply didn’t take into account because from their perspective it didn’t really matter. But essentially, Justice Kagan is stating that based on additional information gleaned through the record but not necessarily at the time of the initial motion to suppress hearing, that in Kansas law enforcement, they almost never revoke a license except for either a serious offense or a repeated offenses. And therefore, based on that additional piece of knowledge, whether it was known by the deputy in this particular case or not, we don’t know, but essentially, they're adding this to the fact milieu and going from there.

 

      But anyway because that’s the case that Kansas doesn’t revoke people unless you're really really bad, that when the deputy made the records check, found out that it was Glover’s pickup truck and that Glover had a revoked license, it must have been revoked for a really, really bad reason; and therefore, that additional piece of evidence, if you will, was good enough for them to at least concur in the majority opinion.

 

      Justice Sotomayor in her totally one-off, no one joined in her dissent, what she’s essentially saying, as best as I can glean, is that she’s accusing the majority of simply filling in what she calls a “police officer’s hunch” and the majority is simply filling in the hunch with the phrase “common sense” to get the government, essentially, over the hurdle of a bad car stop. And she, based on her interpretation of the difference between hunch and reasonable suspicion, is voting to deny -- or, excuse me, dissents from the majority opinion and would vote to uphold the Kansas Supreme Court’s decision.

 

      But in her cases, I felt that she lacked the articulation on how she’s using the cases and their holdings in the proper way. And what I mean by that is specifically Navarette case, which Justice Thomas quotes with some effect in his majority opinion, she gets the completely wrong holding in the case. Not from the underlying who wins, who loses, but from a what the case is trying to hold; what the case is telling us law enforcement should do in a particular circumstance. She just gets it wrong. She does that on a couple of other cases where she’s infirming things and bringing it to the cases.

 

      You read the case that she’s discussing. It simply doesn’t say that. So that leads me back to what was she thinking, and quite frankly, I don't know. So what we have here today is a couple of things try to get clarified by the majority. And here’s the takeaway from the case: if what Justice Sotomayor is saying, or at least what I'm inferring she’s trying to say, is she wants reasonable suspicion to be almost to the height of probable cause if there’s a number to be given.  If, say, beyond a reasonable doubt is in the mid-90s on a scale of 1 to 100 and probable cause is somewhere around 50 percent, where should reasonable suspicion lie?

 

      And she would have it, if you read her dissent, almost the level of probable cause. And that’s just simply an incorrect position to hold. Obviously, by definition—lots of pun intended—reasonable suspicion is a lower, much lower, burden for the government to show a reason for a good stop, if there’s reasonable suspicion for a brief encounter for the officer to ask a few questions to figure out “is there criminal activity afoot?” Thus the Terry stop and the Terry frisk is a follow-through on that.

 

      Well, if we have reasonable suspicion at a much higher standard than simply common sense, then if you believe Justice Sotomayor, she would almost eliminate the possibility that it was, in fact, lawful activity, in which case the officer would simply say, “Thanks for your time. And have a nice day.” And just because there’s more probability in a reasonable suspicion stop as opposed to a probable cause stop, there’s more probability that there was in fact lawful activity being engaged upon by the person stopped doesn’t necessary make the stop unlawful. That’s the reasonable suspicion for a short, brief encounter as opposed to probable cause to make an arrest. And based on her decision, it appears to me that she’s essentially equating the two, which is simply not the law of the land.

 

      And for those reasons I think, coming full circle with the sports analogy, it’s now 13-0. At the end of the day, a car stop for a brief encounter is pretty much going to be allowed, if you will, when there’s a revoked or suspended license kind of case. Unlike what Sotomayor is asking for, the police officer doesn’t have to speed up and get next to the suspect vehicle, look in, and when he’s told that Charles Glover is a middle-aged man, he sees a teenaged girl, you have to then break off or shoot. None of those kinds of things will be required of an officer. If the officer simply calls in, gets the license plate to match the car, and the car comes back to as a person with a suspended license, that’s going to be a good stop.

 

      And for those reasons, I think folks that the 8-1 decision, it wasn’t that close. So I’d be happy to hear any of your questions or comments. Micah, what do we got?

 

Micah Wallen:  All right. Let’s go ahead and open up the floor for audience questions. We’ll now go to our first caller.

 

Michael Kielsky:  Hi, this is Michael Kielsky in Arizona. So would it be fair to summarize the current state of the law as any fact, even in the mistake in fact, is enough for reasonable suspicion?

 

Brian M. Fish:  No. Thanks for the call, Michael. No, I don't think that any fact -- I think first of all both the majority and the dissent tell us that it has to be particularized instead of -- what one of the questions that the justices asked is, “Well, what if we have a fact pattern where in this particular location there’s information that all teenage drivers, or a majority of the teenage drivers, don’t drive with their license on their person, and therefore, if you stop their car, they wouldn’t have their license. And there’s a ticketable offense. If the officer simply sees a teenage driver, is that good enough?” No. The answer to that question is no because that’s not particularized to the suspect in question.

     

      Here we have a car being driven, and the common sense inference that the Chief Justice continued to hone in on is that cars are -- it’s a reasonable inference to make that they're being driven by their owner, and therefore, on a scale of 1 to 100, we’re somewhere past 10 percent most likely. Which in his colloquy with the defense attorney, would get us to at least a reasonable suspicion.

 

      So I don't think that any fact, even if it’s a mistake in fact, gets us there. At least it would have to be a fact pertinent to this particular defendant. So if the deputy in question gets the information and makes the stop and it does, in fact, end up being a teenage girl, the deputy should simply say, “Well, thanks for your -- sorry to pull you over. Have a nice day,” and walk back because he’s got no more reason for the stop. He has done his due diligence. He’s made a quick, brief encounter to see if there’s criminal activity afoot. He’s ascertained no, and he walks away. That should be the end of it.

 

Michael Kielsky:  Well, if I could follow up, briefly, what about a slightly more particularized but still, perhaps, mistake in fact, such as a red Camaro was reported stolen and here is a red Camaro.

 

Brian M. Fish:  If that’s all the information -- now, would that be a reasonable stop if you get the additional information, which hopefully a police officer would call in, “Where was the Camaro stolen from?” If it was stolen here in Baltimore, we’re talking a fairly large city. Or was it stolen five minutes ago, three blocks away? I think if you get those kinds of additional facts—which would be a reasonable call from the police officer back to dispatch—if that’s all you have is “red Camaro,” “stolen,” and he sees a red Camaro, maybe not.

 

      But if that’s literally the only fact we have -- but if you read the Chief Justice’s colloquy with the defense attorney at oral argument, he first started, “Well, would you give me 5 percent? Would there be a 5 percent probability that the driver of the vehicle is in fact the owner?” The defense attorney says. “Yes, 10 percent.” That’s where Thomas -- excuse me, Chief Justice Roberts stops and says, “Well, you gave me 10 percent. That’s probably good enough.”

 

      Here is, if all you have is “Camaro” and “stolen,” is that good enough to stop the Camaro? Is that reasonable suspicion? I could see this particular Court, anyways, at least five of them saying, “Yeah, that’s probably reasonable.” But your fact pattern is pretty light, even more so than this particular case.

 

Micah Wallen:  All right. No other questions in the queue as of yet. If you’d like to join, just press star and then pound. Brian, is there anything else you wanted to cover about the case today? Actually, two questions just popped in, so we’ll go to our next caller.

 

Brian M. Fish:  Great.

 

Caller 2:  Hey, thanks for this brief. My name’s [inaudible 22:25]. I’m a law student over in Illinois. In the holding, Justice Thomas said that “We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.” And then he brought up a case where, let’s say you have a female -- that might not change anything, but let’s just say there’s a fact pattern where a guy is driving his female cousin’s car. The female cousin had a suspended license. The officer observes no traffic infraction, but he pulls the car over. How would that work? Would you say that the fact that the name obviously isn’t, you know, it’s a guy with a guy name. Common sense would tell you that it’s a male name. Would you say that that’s an inference? That negates the reasonableness of the stop?

 

Brian M. Fish:  Yes, absolutely. And that actual fact pattern came out in the Q&A to both sides during oral argument. So essentially, police officer sees car, sees, say, white male driving car; calls in dispatch; dispatch tells him the car is registered to Jane Doe and that Jane Doe has a suspended license, but he sees Jack, Jack Doe; well, then, no. Then you have no reasonable inference because you see a guy driving a girl’s car. So for that, no. That fact pattern with that change would make it an unreasonable inference because he saw someone who’s obviously not the owner driving the vehicle.

 

      And then the question is does the dispatch give him additional information to change your --change scenario. So say dispatch gives him “It’s Jane Doe and she’s a 50-year-old white female.” And the police officer looks in the car as it drives past—he hasn’t done anything yet—and the police officer sees a, say, a 50-year-old black female. Does he then have suspicion? No because the obvious additional fact that he’s been given makes an unreasonable inference to stop the car.

 

      So it’s a narrow holding based on the facts. There was only seven facts that were stipulated, and the one fact was he didn’t see who was in the car. At least that wasn’t one of the facts put into evidence at the motion to suppress hearing. He simply saw the car—the pickup truck, I guess—and ran the tags and what happened happened.

 

Micah Wallen:  All right. We’ll go ahead and move to our next caller. If anyone would like to join, just press star and then pound.

 

Caller 3:  Hey, thanks for doing this. This is a little break. I was supposed to start working, but I’m taking quarantine [CROSSTALK 0:25:24].

 

Brian M. Fish:  I understand completely.

 

Caller 3:  That didn’t happen. I was just curious, one thing that you sort of caught my attention was when you said that Justice Sotomayor had just gotten wrong some of the other cases. I from policy or politics I might disagree with her. But it seems interesting to say that she’d actually gotten the underlying logic of some of the holdings wrong. I was wondering if you could elaborate a little bit more on that.

 

Brian M. Fish:  Yeah, especially the Navarette case, which -- and a few others that were discussed, the Illinois v. Wardlow. When I say -- what she’s inferring -- let me bring up her opinion so I don’t misquote her. When I say she’s getting the holdings wrong, she’s making inferences that simply aren’t there. Especially the Navarette case, which Thomas specifically points out in his majority decision that you don’t add additional layers of reasonableness, if you will, just because, say in this case, it’s a police officer as opposed to a layperson. Or as opposed to a scientist as opposed to a layperson. You always start with the just simple, everyday what’s common sense. And that’s why he makes in his decision that line that I chuckled at, the dissent definition of common sense defies common sense.

     

      In Sotomayor’s decision, what she’s saying is that because this is a fact-based kind of decision and that -- what she’s saying is you can’t have the courts always simply making up, essentially, what common sense is. And that she’s adding additional -- she wants additional facts. Essentially, she wants to know what the police officer’s training, knowledge, and experience is before she’s willing to grant him a particular level of common sense that wouldn’t apply to an everyday person. And that’s where, in my opinion, she gets Navarette and a few other cases wrong.

 

      None of those in that line of cases is saying that you have to add --  you have to in every single kind of case put what a reasonable police officer or a reasonable scientist -- that’s not the standard. The standard starts with “What is a reasonable person?” and yes, in some -- in this case police encounter, you might have to put additional what would a reasonable police officer do in this situation. But that’s a secondary analysis that you don’t have to get to if you can simply make a common sense analysis based on what anybody would think or know. And in this particular case, it’s reasonable for anybody to infer that the driver of the vehicle is also the owner of a vehicle. And when we’re talking about reasonable suspicion, which is a fairly low standard in our system, you get there. And I think she just misquotes and takes a lot of language in Navarette and Brignoni out of context. And for that, that’s why I say what I say. I’ll stand with it.

 

Caller 3:  Okay. What --

 

Micah Wallen:  -- We’ll now move to our next caller. If you’d like to join the queue, just press star and then pound. And I think with the way the technology worked, I think we just cut off the last caller. But caller, if you’d like to call back in and join the queue to ask a follow up, you're more than welcome to.

 

David:  Good afternoon. My name is David. I’m calling from Florida. How are you?

 

Brian M. Fish:  Hi David. How are you? Good.

 

David:  Swell. Swell. Two questions: many jurisdictions issue citations based on radiographic imaging of a red light or tested speed violation. In these cases, the violator is presumed to be the registered owner of the automobile.

 

Brian M. Fish:  Right.

 

David:  Now, I’m not aware of any of these cases making it as far as the state supreme court and certainly not the Supreme Court of the United States. But do you see the Glover case, in particular this language that says the lack of information negating an inference that the vehicle owner is the driver, it should not prevent a stop. Do you see that language in the Glover case undermining a burden of proof argument, a probable cause argument, or a due process attempt in the case of red light camera or a speed camera violation? Again, these violations where the violator is presumed to be the register owner of the vehicle without proof beyond a reasonable doubt. 

 

Brian M. Fish:  Right. It’s a great question. I think I could answer and make the distinction two different ways. Here’s the first one: on those kinds of red lights, either speed camera or speed cameras depending on which one you get nabbed by, those violations are civil in nature.

 

      And the second thing that I will assume in most states—I know it is here in Maryland—that part of your licensing agreement, if you will, to be able to drive a car or own a car, I guess if you will, in the state of Maryland anyways, you're stuck with that. Obviously, I’m paraphrasing a bit. You're assuming liability for, using a tort vernacular, for anyone who drives your car. If they commit a camera violation, you're the one who gets the ticket. But again, since that is a civil violation, while it’s a similar fact pattern, we’re not going -- in the state of Kansas, driving on a revoked license is a criminal offense. And you could’ve -- I think Glover could’ve gotten a year or something like that because he had multiple offenses.

 

      So in a reasonable suspicion standard for a stop to see if criminal activity is afoot is different than a -- you assume the civil penalty liability when you own a car in a particular state, whether it’s Maryland or Kansas. So I don't think that the two could -- are going to be interchangeable for that reason.

 

David:  Okay. Your response is prompting me to -- I don't want to delay this. Is it possible you and I could talk offline about your response?

 

Brian M. Fish:  Sure.

 

David:  Because I don't want to carry on a discussion any further. Let me get to my next question, and then when you’re responding, tell me how I can contact you offline.

 

      A few of the amicus briefs in the Glover case suggest that -- now that we’re seeing more and more use of automated license plate readers, we can anticipate that a decision favorable to the State of Kansas will facilitate or enable repeated steps of persons not engaging in unlawful activity when they drive borrowed automobiles. How do you respond to that?

 

Brian M. Fish:  Well, again, it has to be an each individual situation in the sense that like my analogy where a young teenaged girl is driving a car registered to a middle aged man that we don’t give rise to the level of reasonable suspicion for a car stop. If all we’re doing is we have a camera set up, the camera is taking pictures of license plates and that picture is, what, then funneled to a patrol officer sitting a quarter mile up the road. And if there’s a ping on the camera that goes to a car owned by someone with a suspended or revoked license, that police officer can then pull that car over.

 

      My hunch is based on that, based on today’s decision, yeah because I don’t see any difference between a camera based on, say, a bridge overpass taking pictures of all the cars that drive past and a police officer sees a car with his own two eyes drive past, calls in the plates, and then the same facts are given back. I don't see any difference other than one is his own eyeballs and the other is the eyeballs at the other end of the camera. I don't think the court, this particular court anyways, would make that distinction.

 

David:  Okay. Thank you very much. How am I going to reach you offline?

 

Brian M. Fish:  Oh, yeah, sure. Let’s see here…if you click on The Federalist Society’s website and go to Baltimore, I’m also the Baltimore Chapter President, so I think my contact information should be right there.

 

David:  Excellent. Thank you very much, Brian.

 

Brian M. Fish:  All right.

 

Micah Wallen:  All right. We have arrived at the end of our question queue. Brian, did you have any thoughts for us before we close out?

 

Brian M. Fish:  Only to everybody out there, stay safe and God bless. Thank you very much to everybody for calling in. I appreciate it. And Micah, I’ll sign off.

 

Micah Wallen:  All right. And on behalf of The Federalist Society, I’d like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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