Courthouse Steps Oral Argument: 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 Monday, November 4, 2019, 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 Oral Argument teleforum on Kansas v. Glover. My name is Micah Wallen, and I am 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 Criminal Law & Procedure Practice Group Executive Committee. Brian attended the oral argument just this morning and will be sharing his thoughts today. After he’s finished with his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Brian, the floor is yours.

 

Brian Fish:  Thank you very much, Micah. With all due respect to Dorothy and Toto, Charles Glover, you’re not in Kansas anymore. This case took an odd turn getting to the Supreme Court, and at the end of the day, I’ll have a lot of sports references because that’s sort of how this topic was framed. The case started when Deputy Mark Mehrer of the Douglas County, Kansas, police force saw a Chevy 1500 driving down the street and did a check for the license and registration of that vehicle. The Kansas database came back that this vehicle was owned by one Charles Glover, and that Mr. Glover had a revoked Kansas license.

 

      That’s important because, quite literally, that is the only fact that we know about this case at the time of this stop. More importantly, however, because it’s this time of year -- it’s the middle of college football season. College basketball season starts tomorrow. Importantly, we’re one mile from the Allen Fieldhouse at the University of Kansas. That fact actually comes up in the Kansas Supreme Court decision.

 

      So Deputy Mehrer finds this information out from the record check, pulls over one Charles Glover, and walks up to him, asks for license and registration. Mr. Glover admits that he has no valid Kansas driver’s license. Mr. Glover is ticketed and charged with being a habitual offender for driving on Kansas roads with a revoked license. Case goes to the district court, and the district court grants the motion to suppress that Glover files, again, based on the one fact that Deputy Mehrer was told by dispatch that the car was owned by someone who had a revoked license.

 

      Of course, the district court in Kansas granted the motion to suppress. The court of appeals reversed. The Kansas Supreme Court reversed again. Kansas petitioned for cert, and that got us here today. Kansas’s main point was — and this is our first football reference of the day — they’re up 26-3, and it’s late in the fourth quarter. Why do I say that? Kansas’s first point is that 12 state supreme courts, 10 intermediate state courts, and 4 federal courts of appeal all have reviewed this exact same fact pattern, and all have said that that is a reasonable suspicion for a stop. The three comes from three intermediate courts of appeal across the country, three, that say, “No, that’s not even reasonable suspicion for a stop.” So the score is 26-3. We’re late in the game. Does Glover have a 24-point play or five Justices who would agree with him, where, quite literally, hardly anybody else in the history of this issue has agreed with Charles Glover.

 

      The case comes down to what is reasonable when we’re talking about reasonable suspicion. Now, it’s interesting that, again, Charles Glover needs five Justices. Justice Gorsuch, while sitting on the Tenth Circuit, which happens to include Kansas, wrote an opinion in United States v. Cortez Galaviz on this very issue. Then-Judge Gorsuch commented, “Common sense,” which is discussed a lot today, “and ordinary experience suggest that a vehicle’s owner is, while surely not always, very often the driver of his or her own car.” Well, if that’s the case, is that reasonable suspicion based on absolutely nothing else?

 

      So how is this case important enough to garner Supreme Court attention? How do we articulate precisely what reasonable suspicion and probable cause mean when so many cases say that’s simply not possible? Well, I’ll give you a couple of takeaways from this morning’s hearing. This case came down to not so much Kansas v. Glover, but Justice Gorsuch versus Justice Sotomayor. And quite frankly, Justice Gorsuch was not having anything to do with Sotomayor. And my first takeaway is maybe they should move seats because those two had at each other more so than the two attorneys arguing the case.

 

      Gorsuch asked the very first question about what is the difference between the definitions of assumed versus inference. Did the officer assume that the owner of the vehicle was driving, or was that a reasonable inference based on common sense and, what comes into play in a minute or so, training and experience? And does the officer’s training and experience even matter when, again, that doesn’t even come into play at the Kansas District Court level? We were simply talking about officer sees a car driving, car is owned by an unlicensed driver.

 

      Sotomayor follows up with, “Well, is there anything else? Does the government need anything additional evidence to get to -- ”, well, what she calls — and here’s the first questionable call of the day — she calls it reasonable -- not reasonable suspicion or probable cause. She calls it “reasonable cause.” So whatever in Justice Sotomayor’s mind reasonable cause is, which she doesn’t quite define, she picks up on the fact that there’s no additional evidence and there’s nothing about the officer’s experience or training.

 

      The reason that is is because at the district court, there was simply a stipulation for the one salient fact is that Officer Mehrer was an officer of the law. He called in to dispatch. Dispatch told him that the pickup truck was registered to an unlicensed driver. Mehrer hits the lights and pulls him over, and we find Charles Glover who was, in fact, the owner of the vehicle, who was, in fact, driving without a license. Do we need any additional information? And that’s the heart of the case.

     

      The lineup -- the second takeaway, after the fact that maybe Gorsuch and Sotomayor should not sit next to each other any longer, is that the breakup seems to be along the following lines. The Chief Justice, Justice Gorsuch, Justice Kavanaugh, Justice Alito, and, perhaps surprisingly enough, Justice Breyer, who in one of my “wow” moments actually said, “This is tough for me to say this is unreasonable,” almost like he was hoping that he could find something to help the defendant out on this case but couldn’t. One the other side seemed to be Justice Sotomayor, Justice Kagan, and Justice Ginsburg, who variously talked about everything from additional officer testimony to should the -- there was the government’s burden, so therefore, even though Glover could have called the officer or cross-examined the officer and chose not to, it’s still the government’s burden, those kinds of issues.

 

      Which follows up on my third takeaway, which was magic words. Both Justices Gorsuch and Alito began talking about magic words. Justice Gorsuch actually said, “What are we really fighting about here? Is all we’re talking about --” — this is to Glover’s attorney — “Is this all we’re talking about is if the officer had taken a stand and said, ‘Based on my training and experience, I know there’s a reasonable possibility,’ reasonable suspicion, whatever the magic language is, whatever the magic words are. Is there reasonable suspicion to say that the driver of a vehicle is also the owner, and vice versa, the owner of a vehicle is also the driver?” That’s the next takeaway.

 

      The final takeaway should be -- well, in an odd sort of way, I started thinking about Pat Benatar. Both sides took about two minutes to present their case, and then said, “I’m done. Hit me with your best shot. Fire away. I’ve got nothing else to say. I’m here for your questions.” And most of the time for both arguments were filled with the Justices -- well, not always taking shots at each other, asking longwinded questions which seemed to get far afield from where this case was about. I’ll give you an example. Justice Ginsburg started talking about does it matter if this was a new cop or an experienced officer? Does it matter if it was a sunny day or a rainy day?

 

      Justice Sotomayor asked, “Well, should the officer have sped up, gotten next to the vehicle in question to peer in to see if the description that he was given as to who the owner of the vehicle was, was close enough or matched the driver of the vehicle?” In other words, if Mr. Glover was a 60-year-old white male, and Officer Mehrer looked in the vehicle and saw a 17-year-old black female driving the vehicle while doing 55 down the highway, trying to peer in, should he have done that? Could he have done that? Was it the something more that Justice Sotomayor picked up on, which was Glover’s argument; there had to be something more than just the dispatch telling Mehrer the vehicle had a suspended license.

 

      Continuing on with the highlights of the case this morning, Gorsuch said if that had happened, if the police officer took the stand and threw out a statistic and said simply, “Look, based on my training, knowledge, and experience, the owner is usually the driver. And since the owner had a suspended license, I pulled him over. I didn’t know anything else.” And what Kansas was -- their point was -- and they don’t care. They didn’t have to put in anything else. That’s reasonable in and of itself, and that’s the end of the matter.

 

      And like I said, Pat Benatar was singing, “Hit me with your best shot,” which brings up the point that the Solicitor General’s Office was making as they were given a few minutes of time as amicus on behalf of Kansas. Their main point was specifically to Justice Kagan, responding to one of her questions when Justice Kagan was asking, “Do we need more particulars about the driver or the owner or something else in this particular case?”

 

      Here, and I thought this was the main point the Solicitor’s Office was making, is what we had in this case doesn’t go to the particulars of Officer Mehrer’s training, knowledge, and experience, but to the particulars of this suspect. And that was the key difference in his counter to Justice Kagan’s question when she was discussing, “Do we need more particulars about the officer to say give us stats, or give more additional details, like he was going 55 miles an hour, or it was raining, sunny, night or day, those kinds of additional facts. Do they matter?”

 

      What the Solicitor was pointing out was, “This is particular to the suspect. And what we know about the suspect in this case was he owns a car, this car. He has a revoked license. And what we find out later is, obviously, because he’s been charged with a habitual offense, he’s always driving with a revoked license. But we admittedly find that out later.” The key point is that the particularities that both Justices Sotomayor and Kagan were wanting go to the suspect, not the officer and his training and experience.

 

      Finishing up with today’s discussion, turning to the main points that Glover’s counsel were trying to make, again, they did maybe not even a two minute drill. They did about a minute and a half drill trying to get the ball down the field and then run out the clock, scoring right before the end of the game. They simply said this was not a reasonable assumption, again displacing the differences between assumptions and inferences, that it’s Kansas’s burden to show that the identity of the driver is the same as the identity of the owner of the vehicle, and then basically spiked the football and said, “I’m done. What have you got?”

 

      That set off a flurry of activity from Justices Gorsuch and Alito. Gorsuch starts off again as he did with the Solicitor General of Kansas, he starts off with Glover’s attorney by asking, “If the police officer doesn’t testify, and we have that one salient fact, is that all we need? Do we need something else? And if not, what are we really fighting about? Well, since we don’t know anything else,” Gorsuch then continues, and he starts off on his magic words, “are all we really fighting about is you, Glover’s attorney, wanting the officer to come in to say some magic words, some mere formality to say, ‘Here’s a stat. People who own cars who have suspended licenses still drive the cars even though their licenses are suspended, and I’ve made 20 arrests in my career out of the hundreds of times that I’ve stopped said car.’ What are we really talking about?”

 

      Alito picks up on that from Gorsuch and actually says “magic words.” All we need are some magic words, picking up on Gorsuch’s theme of what are we really fighting about. Alito continues by pointing out the fact that well, look, yes, it’s Kansas’s burden to show that they had reasonable suspicion for a stop, the so-called Terry stop, but at that point, the defendant had the opportunity to cross-examine witnesses if he had so chosen, to bring in additional evidence, to testify himself, whatever. And the defendant didn’t do anything. All we have is the one stipulated fact that Glover owned the car and that Glover had a revoked Kansas license. I guess the third salient fact, since basketball season tips off tomorrow night, we’re a mile down the road from Allen Fieldhouse.

 

      At that point, Gorsuch comes back in, picking up again on the magic words, and that’s when the fireworks — well, maybe a minor tiff, but considering they’re on the Supreme Court bench, I’ll call them fireworks — between Justices Gorsuch and Sotomayor picked up. In an effort to change the tune and get away from the discussion between Gorsuch and Sotomayor, the Chief Justice starts really pushing the numbers. And his point was, “If probable cause is, as we know, something less than 50 percent, and reasonable suspicion is about at least 10 percent probability that criminal activity is afoot, then if we’re going to have a stats conversation, how many times do you think Officer Mehrer who pulls a car over for having an owner with a revoked license, how many times is it reasonable to assume that the driver of the vehicle is actually the owner who has the revoked license?” He keeps hammering Glover’s attorney. “Is it one out of ten? Is it a five percent chance? What’s chance of this happening, and is that reasonable?”

 

      The attorney never comes back with a number of her own. She simply says, “Since it’s Kansas’s burden to show this and that they didn’t,” in her opinion, “we win, they lose, and we don’t need anything else.” She continues to say this is not a stats-based argument, but then she starts talking about the stats that she wants to quote, and so we then go through a minute or two of fighting about statistics.

 

      At the end of the day, what we have is a case which on its face is yet another car stop case. But in a lot of the Court’s jurisprudence recently, the car stop cases involve probably cause in the sense that when the officer stops a vehicle for a traffic violation, something like speeding or running a red light, and the case gets ratcheted up because as the officer approaches the vehicle, he sees criminal activity inside the vehicle, he sees a gun, he sees drugs, something along those lines which pops it up to a probable cause determination, probable cause to arrest. In this case, unless we’re Justice Sotomayor, we’re talking about reasonable suspicion, not reasonable cause or probable cause. We’re simply talking about is this a reasonable suspicion to make a Terry stop when, again, all we have is that one salient fact in the record.

 

      So at the end of an hour or so of arguments, we’re left with Breyer saying, “Wow. It’s tough for me to say this is unreasonable.” Alito makes the comment of the day right at the end of oral arguments when he points out the obvious fact that if we were to buy into Mr. Glover’s point of view, that this would be a revolutionary case if we were to buy into Glover’s argument that we need something more than reasonable suspicion to make this stop, or this is just a trivial, blah, blah, blah, blah case. So when we read the record today, we’ll have three blahs, a trivial versus revolutionary at the end of this oral argument comment from Justice Alito.

 

     

      So is this a blah, blah, blah, or will Charles Glover get the 24-point play, convince five Supreme Court Justices that the 26 courts who have heard this argument before, who have all sided with the government in stating that this and this alone is a reasonable stop? Or is this a revolutionary case and we’re going to get the Hail Mary connection here in the middle of college football season?

 

      With that, Micah, what do you have for me?

 

Micah Wallen:  We’ll now go to our first question.

 

Caller 1:  This sounds like an interesting case. And I understand on the facts of this case that the only information the officer had was that the owner of the vehicle did not have a valid license. My question for Brian is whether or not it would make any difference if the police officer were told that the owner of the vehicle had an outstanding bench warrant for failure to appear. Would that justify a stop based on the assumption that owners of vehicles are the only people who drive vehicles or almost the only people who drive vehicles or usually drive vehicles? So could you have stopped the vehicle then and arrested the driver as having failed to comply with a warrant?

 

      If the owner was on parole and a condition of the parole was that for some reason the owner could only drive the vehicle in a municipality or in a particular county, you can’t leave, and the officer, of course, knows from his experience that the college colosseum where the sports event is occurring is in a different county, would the officer be justified in assuming that the driver of the vehicle must be the owner and that, assuming that it is the owner, the owner has violated his or her parole?

 

      Or just as sort of a third case, if the officer is told, well, the owner has prior convictions for narcotics, would the officer be justified in presuming that there ought to be a stop in order to get a look inside the car window as opposed to merely, as Brian suggested, checking the age and gender of the driver?

 

Brian Fish:  Well, Justice Ginsburg was trying to make a similar point to what you’re making, which is does it matter why the license is suspended? So she was picking up on something that Glover’s attorney was trying to say but doing so somewhat inarticulately. Ginsburg’s point was, “Can’t the officer simply hit a button or call back to his dispatch and ask why the license was suspended? Does that matter?” And the Kansas reply was, “No. The law is you can’t drive on our roads if you’ve got a revoked license. It doesn’t matter why it’s revoked.”

 

      So during the course of the hour, Justice Ginsburg kept going back to this several times. “Does it matter why? Does it matter for public safety, say, if the guy’s a habitual drunk as opposed to a habitual driver without a license?” Or to Glover’s point, “Look, most people get their licenses suspended because they didn’t pay fines or child support or something like that. It has nothing to do with public safety.” She wanted to talk about statistics about, well, people with suspended licenses who, just because they didn’t pay child support, have no greater or lesser ability to commit an accident than anybody else, etc., etc.

 

      And the simple point that Kansas was making is, “Doesn’t matter. Just doesn’t matter. The law is crystal clear. You can’t drive on the road without a license.” And so back to the is it reasonable to stop a car because the registered owner of the car has a revoked license? And Kansas kept pushing back on the idea that we need statistics, or we need additional information.

     

      So to answer the caller’s question most directly, if you’re Kansas, you don’t need any other information. You just need an officer and a revoked license and the vehicle driving down the road, that’s it. If you’re Glover and Justices Sotomayor, especially, and Justice Kagan, you need something else. If you’re the Chief Justice and Justice Breyer, your hang-up is what’s the something else got to be? If we’re going to have reasonable suspicion, which is less than probable to arrest, then yeah, the police officer can always do something else, but that’s to make an arrest.

 

      If we’re here simply talking about a Terry stop of a vehicle to further investigate in a brief encounter, hey, give me your license to see if the owner is the driver, then none of this really matters. And I think that was the heart of the matter, which is what’s the numbers? If we’re going to talk about numbers, what’s the number that you assign to reasonable suspicion as opposed to probable cause?

 

Micah Wallen:  All right, we have two other questions in the queue. We’ll move on to the next question.

 

Caller 2:  Hi. I just want to note that it’s kind of ironic that you’ve got some textualist judges talking about magic words. Either words mean something or they don’t, it seems to me. But I’m wondering if there’s an extension of this case possible beyond vehicular stops, supposing bicycles are vehicles. But supposing an officer were to suggest that in his experience, people with backpacks on bicycles are drug couriers in the neighborhood he happens to be patrolling. Has he now got free reign to stop any bicyclist?

 

      The other question I had was supposing he had stopped, and it had been a woman behind the wheel, does he just wave to her and let her go? Is that the end of the permissible contact?

 

Brian Fish:  The Court was making a very similar point but using a juvenile example in the sense that they were saying that most new drivers, young people, 16, 18, 19 years old, don’t carry their license. So if the officer knows that statistically, young people don’t have their license on their person when they’re driving their car, and it’s the law that you’re supposed to, should they be able to just pull over someone who they see is a young person driving a vehicle? And the answer, Kansas’s answer, and I would agree, is no. That’s not reasonable suspicion, that’s a hunch.

 

      And that differs from today’s case in that you actually had the State of Kansas telling this officer the owner has a revoked license. So there’s no hunch involved, if you want to use that term, or I want to use that term. The reasonable suspicion goes back to is it reasonable to assume the owner is the driver? And if that’s a reasonable suspicion, then easily, the officer can pull someone over and quickly investigate to see if there’s been a violation.

 

      While I understand your point, like I said, it was a very similar hypothetical was posed by the Court. That’s the difference between the hunch level and the reasonable suspicion level is today we had that additional piece of evidence. State of Kansas said somebody’s got a revoked license. The officer, having a reasonable suspicion that that somebody is driving the car, as opposed to simply looking at a person and saying, “Well, I’ve got nothing else other than that’s a young person. A young person doesn’t have their driver’s license on their person most times, so I’m going to have a free stop.” And I think both parties backed off of that kind of hypothetical, and the Court then just moved along.

 

      Now, as to the second point, we actually got into a discussion of the future in the sense that I started thinking about smart cars and if in 50, 60 years, driving will be different; probably a lot sooner than that. So the Court was posing the hypothetical, and Kansas was answering in that in a few years from now, cars will be driven differently. They won’t even be driven. It’ll just be computer programmed and off they go. And so in that scenario in the future, maybe the officer does need some other reasonable suspicion to stop the car. But we don’t have that today, and since we’re having the conversation in the Supreme Court today, the ball needs to cross the goal line of reasonable suspicion.

 

Micah Wallen:  We’ll now move on to our next caller.

 

Caller 3:  Good afternoon, gentlemen. Excellent analysis, and thank you very much for that. Two small questions. You sort of answered one of them, but the first one is we have Justice Sotomayor calling it reasonable cause. It sounds like we’re changing terminology in the middle of the game.

 

      And the second question I have is something more clearly is more than reasonable, articulable suspicion, but was there anything by Justices Sotomayor, Kagan, and Ginsburg that let us know that slippery slope that we could go down of something more? When would it end? Where does it begin? What would be the starting point of something more? Thank you very much.

 

Brian Fish:  Justice Sotomayor -- I want to say that it was just a slip of the tongue. Everybody does it. So she started using the term “reasonable cause.” But the reason I picked up on it she kept doing it. At least three or four times during her questions to both sides, she kept going back to reasonable cause. So is she creating a new term somewhere in the middle, or is it simply something else, that she was just tongue-tied and mushed the two together? It’s tough to say, but she certainly kept using that term over and over.

 

      Now, as to where does it stop, and what is the something more that Glover and at least three of the Justices wanted? Well, nobody ever said. They just kept saying, “Something more.” If you analyze some of the questions and where some of these Justices were coming from, I got the impression that at least Sotomayor and Kagan, what they thought would be a good idea, and I talked about this a minute or two ago, is the officer would have had to speed up, get next to the car to then peer in. Justice Sotomayor actually said, “Well, there’s cases out there where the officer actually gets in front of the suspect vehicle and lights them up that way to get them to slow down and pull over.”

 

      That kind of -- what should the officer do to get more information came up from the start. Kansas’s point is quite simply and honestly, “We train our officers not to do that for safety reasons,” citing the obvious examples of, “Well, if it’s one lane each way, do we have to have an officer driving on the wrong side of the road to then not pass the car, to then start looking in the vehicle, taking his eyes off the road where he’s going to start peering into the vehicle to ascertain the physical effects of the driver, and then call those physical effects into dispatch to see if the license of the revoked driver gives a physical description of the driver that says 60-year-old white male as opposed to 18-year-old black female or anything else. Does that matter?”

 

      And at the end of the day, to answer your question, no one, neither Glover’s attorneys nor the Court, at least, certain Justices, were going to give up what something more was. They just kept returning to that term. They wanted something more. And after an hour of listening to this, I still have no idea what something more is, other than to say I think they simply want to get rid of reasonable suspicion for a Terry stop and just get to probable cause. That’s just my two cents. I’m not positive about that, but that’s sort of where I was getting because at the end of the day, you could always have something more. But again, what -- at some point, something more, if you keep asking for something more, then you’re at probable cause to arrest and we don’t have this discussion. So that’s my two-cent takeaway.

 

Micah Wallen:  Brian, I’ll toss it back over to you. Is there anything else you wanted to cover and maybe a prediction for how you think this case will come out?

 

Brian Fish:  Predictions. Back to my sports analogy, I’ll call it in to Vegas and put a C-note down that it’s probably going to be, I might actually say 6-3. I think the Chief Justice, Justices Gorsuch, Kavanaugh, Alito, Breyer, and presumably Thomas, who did not ask any questions today, would come down on the side of the 26 other courts that have taken up this issue who have agreed with the government in each and every time that if an officer knows that a vehicle is owned by someone who has a revoked license that there is at least a reasonable suspicion that the owner is, in fact, the driver of the vehicle at that moment, and that’s enough to pull over the vehicle for a Terry stop.

 

      And again, that’s the key is this is a Terry stop, not an arrest. A Terry stop is strictly for the purpose of a quick investigation to either confirm or remove the officer’s suspicion that a criminal or, in this case, traffic violation, is taking place or is about to take place. And with Justice Breyer saying on the record, “It’s tough for me to say it’s unreasonable,” that speaks volumes.

 

Micah Wallen:  And actually, we had one more question come through. So since we have some time left over, let’s go ahead and hop to that question before we close out today.

 

Caller 2:  Hi. I just wanted to follow up on my previous question about if the driver had been a woman, does the officer just have to wave and turn around and that’s the end of his stop? And I did want to point out that my bicycle analogy or hypothetical included a backpack, it included a neighborhood, it included a policeman’s experience in that neighborhood. So it seems like there’s a lot more there. And to the extent that this case, actually, when you boil it down, seems like the property, the physical thing, the car, is what’s providing the suspicion. It seems like the bicycle and a backpack in a high drug trafficked neighborhood could be things that provide suspicion as opposed to any individual on the bicycle, so if you want to take a whack at that.

 

      Again, just seems like a slippery slope in the opposite direction than a thing a lot of civil libertarians would want to go where because you’re in possession of something that’s entirely legal, police can stop you, harass you, search you, all the rest. So that’s it. First, what happens if it’s a woman? Does the stop end? And second, there’s a lot more than just a bicycle there. There’s other facts.

 

Brian Fish:  Gotcha. Let me take a crack on the fact that maybe it’s an easily discernible difference between a Charles Glover and a Charlotte Glover who is the owner of this vehicle. If the officer gets information from dispatch that says Charles Glover is the owner of this vehicle and that Charles Glover has a revoked license, and if we do have additional facts, it’s a sunny day, it’s a convertible, the top’s down, and it is quite clearly not a Charles but a Charlotte, then there’s no reasonable suspicion that Charles is driving the car and, therefore, there would be no cause, reasonable, probable, or otherwise, to stop this vehicle just for the fact that the owner of the vehicle has a suspended or revoked license because clearly, Charlotte is not Charles.

 

      So here, today’s case, we didn’t have any of that. We had the -- and everybody kept pounding on this fact. All we had is the one joint stipulation, owner revoked, that’s it. So if additional facts had been brought out that would have ended the reasonable suspicion inquiry from the Kansas District Court, then most people would have said that was a good suppression in the sense that if the officer could have or should have, because it’s a sunny day, and it’s a convertible and the top’s down, seen that Charles Glover was not driving the car, that this was in no way Charles, a 60-year-old white male, this was the opposite in every way whatsoever, then most likely, Deputy Mehrer would have continued on driving unless Ms. Glover did something else that -- did something wrong to violate a traffic law in the State of Kansas. So I think, yeah, if the additional facts had been there, and the additional facts were such that it assuaged the reasonable suspicion of the officer that the owner was driving, then everybody moved along and this would’ve -- well, there would not have been a stop.

 

      The difference between today’s case and your bicycle backpack case goes back to the very heart of the Terry stop. Terry involved an officer with years of experience in the middle of the night seeing what everybody in law enforcement would call a guy casing out, if memory serves, a pharmacy in Ohio. Now, the difference is we did have all of these additional facts. Very experienced officer, officer sees the guy looking in the window by his testimony, he was casing out the joint, not once, not twice, but three times. So that led the Court to essentially create the reasonable suspicion plateau, if you will, and allow a short, brief encounter of law enforcement to an individual to determine if criminal activity is afoot.

 

      In your scenario, a kid or a person with a backpack pedaling down the street, even if it’s a high crime area, the Supreme Court has certainly said in many cases, flight in a high crime area when the defendant sees police and starts running, that’s enough for a stop. But your scenario is a person on a bicycle with a backpack pedaling down, unless there’s some ordinance that says you can’t pedal down the street without a helmet, or you can’t pedal down the sidewalk, or something along those lines, if they’re just pedaling down the street with a backpack on, they’re not fleeing the officer, then no, I disagree in the sense that I don’t think this case would violate anybody’s rights or it’s analogous to your scenario because there’s no reasonable suspicion. There might be a hunch that the kid with the backpack on the bicycle riding down the street is doing something wrong, but again, that’s hunch level, not reasonable suspicion level.

 

      The difference is we know that the owner has a revoked license, so now we’re down to is that reasonable enough for the stop? And that’s distinguishable from your fact pattern without something more. Is this bicyclist looking at the officer, and did he start pedaling faster? Did he jump off the bike and start running through the alley? Whatever. There’s nothing else. The officer might have a hunch based on his training, knowledge, and experience that drug dealers use kids on bicycles to ferry their drugs around. That sounds like a West Baltimore fact pattern if I ever heard one. But without something more, that would have been a bad stop.

 

      Here, we did have, as the Justices talked about, something more. We knew that the owner had a revoked license. I think that gets us to reasonable suspicion.

 

Micah Wallen:  All right, no other questions in the queue. Brian, is there anything else you wanted to address before I close us out?

 

Brian Fish:  No. Thank you very much for having me.

 

Michal Wallen:  All right. Well, 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.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.