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Monday, November 25, 2019

The Role of Individualization in Kansas v. Glover

Earlier this month, the Supreme Court heard oral argument in Kansas v. Glover, a case about when police have reasonable suspicion to stop vehicles that are owned (but not necessarily being driven) by people with suspended licenses. I want to draw attention to an underappreciated strand of argument in this case—namely, the role of “individualized” or “particularized” evidence. In short, the justices and their commentators have focused on whether police had a reliable or testable basis for their suspicion; but a lack of individualized evidence may actually be the more serious and intractable problem.

Most of the discussion around Glover has had to do with whether the police suspicion had a sufficiently reliable and testable basis in fact. For example, the justices quizzed the parties—especially Sarah Harrington, Glover’s superb counsel—as to whether rigorously collected statistics or an officer’s personal experiences would be a sufficient basis for suspicion, if that evidence had been entered into the record. And the justices also discussed whether requiring those types of evidence would have any practical effect. Perhaps so, on the theory that officers could be cross-examined on their past stops, or a defendant might try to marshal various forms of public data to counter the police’s asserted figures.

But the entire debate about statistics versus testimony—and, even more generally, about whether the police had a reliable or testable basis for their suspicion—does not speak to the potential need for evidence to be individualized. Whether founded on studies or testimony or something else, the government’s inference of suspicion would still depend entirely on two claims: (i) the suspect’s car was registered to someone with a suspended license; and (ii) such cars are often being driven by their registered owners. This inference is just as generalized as any number of others that are thought to be impermissible.

To see this point, consider a dorm room hypothetical developed by Professors Orin Kerr and Jane Bambauer (here and here). Imagine that police sought a warrant to search a particular college dorm room on the grounds that most dorm rooms contain illegal narcotics. If the police are correct that they have identified a dorm room and that most such rooms contain contraband, would they have a lawful basis to obtain a warrant and enter? Note that this question arises whether or not the police ground their inference in statistics or testimony. Either way, we have to separately consider whether the evidence is individualized. Is it?

No. As I have argued in Fourth Amendment Fairness, “individualized” evidence is best understood as evidence that is sensitive to whether someone—some individual—has broken the law. Imagine that the target of the dorm search acted lawfully and so possessed no narcotics in her room. Would the police’s basis for suspicion then change? Not at all. After all, the suspect would presumably still be a dorm resident, and the fact that most dorm rooms contain narcotics would also be unaffected. In this key respect, the dorm search hypo is different from, say, a search based on a reliable eyewitness. Of course, even reliable eyewitnesses can be wrong. But the eyewitness is much less likely to identify the dorm resident as possessing narcotics in her room if the resident in fact avoids doing so.

Now turn back to Glover. Imagine that the government had entered reliable information into the record proving beyond any doubt that most moving cars registered to people with suspended licenses are in fact being driven by their registered owners. Even so, we would still have to ask whether that evidence is sufficiently individualized. The imagined car search, after all, can be viewed as a factual variation on the dorm search hypo. Much as people often have to live in dorms, many people also have to drive the vehicles of family and friends whose licenses are suspended—a claim forcefully made in Glover’s brief. And if police can get reliable evidence on narcotics, ditto for drivers with suspended licenses. So, if the dorm search hypo would pose an individualization problem, the same is true of the car stop in Glover.

This lack of individualization got some attention during the oral argument, especially from Justice Elena Kagan. At one point, for example, she explored whether a “statistic” would “alone” be sufficient to support reasonable suspicion:

JUSTICE KAGAN: … [S]uppose we just had a statistic that said, you know, . . . that 30 percent of drivers are likely to do this [illegal act]. Would you say that, you know, that alone is enough, if it's just statistical?

And then:

JUSTICE KAGAN: … [S]uppose that a particular police department actually did a kind of survey or, you know, a … study … and found that actually 50 percent of teenagers do not carry their driver's license with them at all times. … So now it’s like common sense that if you see a teenager, she won't be carrying her driver’s license with her. Does that -- does that give the police officer the ability to stop every teenager that he sees?

Later, however, Kagan seemed to express an opposing view—namely, the idea that statistics become “particularized” when linked to relevant individuals:

HUSTON: The difference, Your Honor, is that you need a reason—you need—the officer needs something that identifies the particularized suspicion that this driver is committing a crime.

JUSTICE KAGAN: There is the particularized suspicion: Look, she's a teenager.

Apart from those pointed exchanges, most of the debate about the case—both on and off the Court—has focused on so-called “hit rates.” This evocative phrase refers to the odds that police will “hit” criminality when they conduct a particular stop or search. That information is surely important, and commentators like Professor Andrew Crespo are right to insist that the Court must approach that issue in a careful way. But the hit rate adopts the perspective of the officer or, more broadly, of the state. In other words, the hit rate tells us a great deal about whether the government is successfully meeting its law-enforcement goals.

Attention to individualization points toward another variable to consider—what we might call the “being-hit rate.” By that phrase, I mean the odds that a law-abiding person will be searched. This additional metric has the virtue of adopting the perspective of the individuals who hold Fourth Amendment rights. When someone experiences a high being-hit rate, she can plausibly claim to have suffered a greater infringement of her Fourth Amendment rights. And, critically, an individual’s being-hit rate is linked to whether the government’s evidence is individualized. Again, individualized evidence is evidence that is sensitive to whether someone—some individual—has broken the law. When the individualization requirement is met, individuals reduce their odds of being searched by following the law.

So the Court and its commentators need to keep the issue of individualization in view. It isn’t enough to figure out how often stops like the one in Glover will catch offenders, whether through statistics or testimony. In addition, it is critical to consider how a rule in favor of such stops will affect Fourth Amendment rights-holders. If Glover is right that many individuals have to drive cars owned by people with suspended licenses, then driving such a car is like living in a dorm, or (to use Kagan’s example) like being a teenager. Unless greater individualization is required, people who are lawfully going about their lives—such as by residing in a dorm, being a teenager, or driving a family member’s car—will face a heightened risk of being “hit” with a burdensome search. The Fourth Amendment should care about that.

This line of thought helps explain why Fourth Amendment case law usually disfavors intrusive steps, including car stops, that lack individualization. Yes, investigation based on generalized evidence can still be permissible, such as when there is an exigency or when the intrusion is negligible. In those cases, rights-holders who benefit from police investigation have a strong interest in demanding that the investigation takes place. But those scenarios, while important, are exceptional. The doctrine’s preference for individualization suggests that car stops like the one in Glover should be impermissible, provided there is no exigency.

If we would not stand for residential searches based on generalized crime statistics (even if the statistics accurately show a high likelihood of finding crime), then we should at least pause before approving similarly generalized car stops.

Posted by Richard M. Re on November 25, 2019 at 08:30 AM | Permalink

Comments

Richard, interesting post. I have a response here: https://reason.com/2019/11/26/what-is-individualized-suspicion/

Posted by: Orin Kerr | Nov 26, 2019 4:45:03 AM

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