Tuesday, April 7, 2020

Reasonable suspicion after Glover

On Monday, the Supreme Court held in Kansas v. Glover that a Kansas police officer did not violate the Fourth Amendment when he initiated an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner had a revoked driver’s license. Absent any other information, the officer reasonably suspected that the driver was the vehicle's owner (and driving despite his license's revocation).
The Glover majority reminded us that while a reasonable suspicion must be more than just a hunch, it "falls considerably short of 51% accuracy."

But reasonable suspicion nonetheless continues to have bite, as Glover illustrates with respect to three points:

Officers still can't ignore evidence that dissipates reasonable suspicion.

Glover proceeded on a bare stipulation, and the majority emphasized the narrow scope of its holding, noting that under the totality-of-circumstances approach, "the presence of additional facts might dispel reasonable suspicion." 

The Tenth Circuit has repeatedly made this point about both reasonable suspicion and probable cause. See, e.g., Stanley v. Finnegan, 899 F.3d 623, 628 (10th Cir. 2018) (“an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists”); United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (“Thus, in determining whether probable cause to arrest existed, we look not only to the facts supporting probable cause, but also to those that militate against it.”); United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (“If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.”)

Officers still have to corroborate unreliable claims before those claims may support a reasonable suspicion 

In Glover, nobody questioned the reliability of the evidence said to support reasonable suspicion (just its force). And so Glover does not undo cases requiring additional corroboration in the face of, say, an anonymous 911 call or other untrustworthy accusations. See, e.g., Stanley v. Finnegan, 899 F.3d 623, (10th Cir. 2018) (teenage son's bizarre claims of child abuse "cried out for investigation and confirmation").

Officers still can't be racist.

The majority rejected the dissent's concern that its decision would pave the way for findings of reasonable suspicion based on nothing more than a demographic profile: “To alleviate any doubt, we reiterate that the Fourth Amendment requires, and Deputy Mehrer had, an individualized suspicion that a particular citizen was engaged in a particular crime. Such a particularized suspicion would be lacking in the dissent’s hypothetical scenario, which, in any event, is already prohibited by our precedents. See United States v. Brignoni-Ponce, 422 U.S. 873, 876, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (holding that it violated the Fourth Amendment to stop and ‘question [a vehicle’s] occupants [about their immigration status] when the only ground for suspicion [was] that the occupants appear[ed] to be of Mexican ancestry’).”

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