On April 6, 2020, the U.S. Supreme Court issued an 8-1 opinion by Justice Clarence Thomas that gives law enforcement greater discretionary latitude in stopping motor vehicles.


On April 28, 2016, Deputy Mark Mehrer was on routine patrol when he observed a 1995 pickup truck driving down the highway. For reasons never fully explained in the Supreme Court’s opinion, Deputy Mehrer decided to run a license check on the pickup. That check revealed that the vehicle was registered to Charles Glover, Jr. and that Glover’s driver’s license was revoked. Presuming that the person driving the truck was its owner, Charles Glover, Deputy Mehrer initiated a “vehicle stop.”


Two facts are relevant here: 1) Deputy Mehrer had no reason to believe at the time he ran the license plate check that the vehicle had been stolen or involved in any criminal wrongdoing; and 2) after the deputy learned who the truck belonged to and that the owner had a revoked driver’s license, he did not have a reasonable inference that the person driving the vehicle was actually its owner.


Charles Glover, Jr. was in fact driving the vehicle when Deputy Mehrer stopped it. Glover was arrested and charged under Kansas law with driving with a revoked license.


Motion to Suppress, Reasonable Suspicion


Glover’s attorney filed a motion to suppress all evidence from the stop because Deputy Mehrer did not have reasonable suspicion.


The trial court granted the motion, but an intermediate appellate court in June 2017 reversed the lower court order. Glover sought additional appellate review before the Kansas Supreme Court. That court in July 2018 reversed the appellate court and reinstated the trial court order to grant Glover’s motion to suppress. The state’s highest court found that Deputy Mehrer violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal wrongdoing.


The state sought, and secured, certiorari review before the Supreme Court. The court decided to review whether it is reasonable to suspect that the registered owner of a vehicle is driving that vehicle when law enforcement elects to conduct a vehicle stop.


Investigative Stops


Nearly three decades ago, the court held that the Fourth Amendment allows a law enforcement officer to initiate a “brief investigative stop” when the officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”


The problem with the Glover case is this: Deputy Mehrer had absolutely no “particularized and objective basis” for initiating the investigative stop when he did the license plate check, namely that Glover was driving the vehicle. Law enforcement should not be able to make a stop after randomly running a license plate check on a vehicle, when there is no basis for suspecting that either the vehicle or its owner are involved “criminal activity.”


SCOTUS Allows Assumption as Reasonable Suspicion


Justice Thomas, and the rest of the majority, glossed over Deputy Mehrer’s initial decision to run the license plate check, preferring to focus their attention on the issue of whether the officer could draw a reasonable inference that the owner of a vehicle was its most likely driver.


In a laundry list of prior cases, the Supreme Court has held that reasonable inferences can, and should, be based on an officer’s training, experience, and even common sense (if the facts support the inference). The Thomas-led Glover opinion altered this historical legal landscape with the following conclusion:


“The inference that the driver of a car is its registered owner does not require any specialized training; rather, it is a reasonable inference made by ordinary people on a daily basis.”


Lone dissenting Justice Sotomayor preferred to stick with court precedent, respecting the historical perspective it brought to the table:


“With no basis in the record to presume that unlicensed drivers routinely continue driving, the ‘common sense’ does not make it so, no matter how many times the majority repeats it. Whether the driver of a vehicle is likely to be its unlicensed owner is ‘by no means obvious.’ 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.


“Contrary to the majority’s claims, 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.”


We agree with Justice Sotomayor.


A legal inference cannot, and should not, be based on a presumption of common sense. Since Deputy Mehrer did not testify at the pretrial suppression hearing, there is no way to attach a presumption that he had “common sense.” To presume that he did flies in the face of historical Supreme Court precedent.