Can a person be pulled over based on reasonable suspicion for driving with a revoked license? In Kansas v. Glover, the Supreme Court answered yes.  The trial court had said that merely running the plates, if one does not know who the driver is, is not enough. The U.S. Supreme Court disagreed, finding ample support for reasonable suspicion, in an 8-1 ruling.  We had a wonderful faculty discussion at Duke Law today, led by my amazing colleague Lisa Griffin, regarding the case.

Justice Clarence Thomas’ opinion for the majority described why it is “common sense” that the person driving a car would tend to be the registered driver.  Orin Kerr has described how it was not clearly set out why this is a common sense matter.

The majority emphasized that it was a revoked license at issue, which “demonstrated a disregard for the law or are categorically unfit to drive.” Thus, under the Kansas statutes, the Division of Vehicles of the Kansas Department of Revenue (Division) “shall” revoke a driver’s license upon certain convictions for involuntary manslaughter, vehicular homicide, battery, reckless driving, fleeing or attempting to elude a police officer, or conviction of a felony in which a motor vehicle is used. The majority emphasized, then, that these are serious and driving-related reasons fo revoking a license.

One question is whether the case might come out differently if it was a suspended license – suspended for non-driving related reasons. Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, emphasized that Kansas only allowed revocations for a person serious and driving related reasons: “Kansas almost never revokes a license except for serious or repeated driving offenses.”  Justice Kagan then explained:

“I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignor- ing driving laws. Consider, for example, if Kansas had sus- pended rather than revoked Glover’s license. Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.” Justice Kagan added, “several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. See Brief for Fines and Fees Justice Center et al. as Amici Curiae 7.”

That Fines and Fees Justice Center amicus brief is here.  It cites to our Center’s work – which includes such studies. We have described how people with a suspended (not revoked as in the Glover case) license constitute a huge portion of the public.  In North Carolina, 1/25 million people or one out of seven adults has a suspended license – but as Justice Sotomayor notes in dissent, the terminology varies from state to state, and in North Carolina, “driving with a  revoked license” refers to driving with a suspended license, including a license suspended for failure to pay traffic tickets or failure  to appear in traffic court.

The Kansas v. Glover opinion highlights, not just an area of uncertainty in the scope of its interpretation of what is reasonable under the Fourth Amendment, but also how driver’s license suspension statutes create broad authority for traffic stops.

Perhaps the ruling will create more reason for focus on what are the underlying reasons why drivers licenses can be revoked (or suspended).  In most states, they can be suspended for non-driving-related reasons, such as failure to pay traffic tickets and failure to appear in court.  Some states have reconsidered these rules in recent years, since they can largely serve to deprive people who cannot afford to pay tickets, of their right to drive.  Nor does suspending their license create ability to pay; far from it, and indeed it can cause severe economic consequences.

As the amicus brief in the Glover case, notes, “Today, forty-two states use license suspensions as a coercive means of collecting fines and fees, and almost all suspend licenses for unpaid child support. It’s a paradoxical policy. People without licenses have a hard time getting to work, and people without jobs have a hard time paying debts.”

For our Center’s work on this subject, see the article Will Crozier and I recently published in the Duke Law Journal. We have also found that some people do not have correct addresses on file and would therefore not be likely to have notice of a drivers license suspension. Given the vast reach of suspensions, one hopes that lower courts would be careful not to extend the Glover opinion to cover stops regarding suspicion of driving with a suspended license. Such stops may, however, be quite common in jurisdictions with large numbers of suspensions. That case may come to the Court before too long, and unfortunately, the majority’s opinion contains no language clearly limiting its ruling to revocations and not also including the far broader category of non-driving related license suspensions.