The Originalist Road Not Taken in Kansas v. Glover

Sarah A. Seo Professor of Law, Columbia Law School

Sarah A. Seo[*]

At first glance, it may be puzzling that the U.S. Supreme Court granted certiorari in Kansas v. Glover.[2] At issue was whether a sheriff’s deputy had reasonable suspicion for an investigative stop as required under the Fourth Amendment, a well-established doctrine going back to the 1968 case Terry v. Ohio.[3] The reasonable suspicion standard requires the sort of fact-intensive inquiry that lower courts, not the nation’s highest court, usually conduct. Also curious is that, despite the longstanding mandate that the totality of the circumstances must be taken into account, the issue in the case rested on only these stipulated facts:

  1. Deputy Mark Mehrer is a certified law enforcement officer employed by the Douglas County Kansas Sheriff’s Office.
  2. On April 28, 2016, Deputy Mehrer was on routine patrol in Douglas County when he observed a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ.
  3. Deputy Mehrer ran Kansas plate 295ATJ through the Kansas Department of Revenue’s file service. The registration came back to a 1995 Chevrolet 1500 pickup truck.
  4. Kansas Department of Revenue files indicated the truck was registered to Charles Glover Jr. The files also indicated that Mr. Glover had a revoked driver’s license in the State of Kansas.
  5. Deputy Mehrer assumed the registered owner of the truck was also the driver, Charles Glover Jr.
  6. Deputy Mehrer did not observe any traffic infractions, and did not attempt to identify the driver [of] the truck. Based solely on the information that the registered owner of the truck was revoked, Deputy Mehrer initiated a traffic stop.
  7. The driver of the truck was identified as the defendant, Charles Glover Jr.[4]

Kansas argued that the information that Deputy Mehrer obtained through his patrol car’s mobile data terminal (MDT), which is basically a laptop or tablet mounted on the dashboard, was sufficient to give him reasonable suspicion that the registered owner was the one driving the Chevy truck. The petitioner countered that relying solely on the stipulated facts to support reasonable suspicion amounted to a bright-line rule allowing the police to stop any car registered to an unlicensed owner. He further argued that Deputy Mehrer should have gathered more facts to corroborate his suspicion, like making sure that the registered owner’s sex matched the person driving the car. In short, the pared-down stipulations in Glover narrowed the issue to a dispute about law enforcement’s reliance on surveillance technology in an increasingly digital world. To put this differently, the doctrinal question about the quantum of suspicion required to satisfy the reasonableness standard can also be framed as a socio-legal question about officers’ use of information retrieved from electronic databases.

From the socio-legal perspective, Glover falls in a line of Supreme Court cases about the constitutional regulation of technology used in police work. In fact, several amici in Glover warned of similar privacy concerns that had been raised in Carpenter v. United States[5] about collecting cellphone records and in United States v. Jones[6] about attaching GPS devices to cars.[7] Although Deputy Mehrer manually entered Glover’s license plate number into his MDT, automated license-plate readers (ALPRs) do the same thing but automatically, as the name indicates, with cameras. The potential of ALPR data nearly reaches the investigatory insights gleaned from cellphone and GPS data. In requiring a warrant in Carpenter, the Supreme Court explained—by quoting Justice Sonia Sotomayor’s concurrence in Jones—that “mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”[8] The same can be accomplished with ALPRs, which can be installed just about anywhere, such as on streetlights and police squad cars, and can capture up to 1,800 license plates a minute.[9] Once the images are uploaded into a searchable database, police can then piece together the location history of specific cars, determine an individual’s driving patterns, and identify where someone has been and when.[10] Clearly, the future is automation. According to a 2011 survey, seventy-one percent of police departments used ALPRs, with more surely having adopted the technology in the nine years since.[11]

The Supreme Court, however, did not recognize Glover’s similarities with other recent Fourth Amendment technology cases, presumably because ALPR data consists of government-issued license plate numbers taken from public streets, which do not receive constitutional protection like personal information obtained from privately-owned smartphones and cars.[12] So rather than approaching Glover as a case about access to digital information as in Carpenter or Jones, the Court analyzed Glover as a warrantless, on-the-street police encounter governed by Terry v. Ohio. Regardless, Glover raises concerns about technology’s impact on privacy, especially for the poor, a demographic that in this country overlaps significantly with racial minorities. Police use ALPRs and MDTs not just to investigate crime but also to identify unlicensed motorists. Many licenses are suspended or revoked not on public safety grounds but for a whole host of reasons that mainly have to do with poverty: failure to pay parking tickets, court fees and fines, or child support.[13] Suspending licenses for non-driving reasons has become a common revenue-raising strategy and, as a result, has increased the likelihood of a police encounter for impoverished drivers or friends and family borrowing their cars.[14] It has probably also increased demographic profiling, since officers are necessarily guessing about license status as they pick and choose which plate numbers to check. (The stipulated facts suspiciously omitted Deputy Mehrer’s reasons for targeting Glover’s truck.) Once pulled over, motorists are then subject to the police’s considerable authority; they can be ordered out of the car, questioned in an intimidating way, and, in the same intimidating manner, asked to “consent” to a search of their car.

Notwithstanding the difficult privacy issues that technological changes pose, the question presented made Glover an easy case for the state to win before the Supreme Court, which it did in an 8–1 decision. In other words, what makes Glover a hard case and an easy case is that the Court’s reasonable suspicion jurisprudence makes it nearly impossible to address the social justice implications of technology-aided policing. In fact, the Terry line of cases has only exacerbated the problem of discriminatory and unequal policing. The rest of this essay will provide a review of the majority opinion, concurrence, and dissent; explain why Justice Elena Kagan’s and Justice Sotomayor’s proposals, both rooted in doctrine, will prove ineffective in ameliorating the social issues (aside from the fact that they did not have the votes); and propose an alternative, radical solution that would provide a more realistic way to place limits on the police’s use of technology.

I. The Glover Opinions

A. Justice Thomas’s Opinion for the Court

The majority opinion, written by Justice Clarence Thomas, begins with a recitation of Fourth Amendment precedents affirming that reasonable suspicion is a much lower standard than preponderance of the evidence and permits officers to make “commonsense judgments and inferences about human behavior” based on the totality of the circumstances.[15] It then points out that Deputy Mehrer saw an individual driving a Chevy truck with the Kansas plate 295ATJ, that the registered owner of the truck had a revoked license, and that the model of the truck as noted in the registration database matched the observed vehicle. “From these three facts,” the opinion concludes, “Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”[16]

There were at least two moments during oral argument that foreshadowed the Court’s decision. The first occurred when Chief Justice John Roberts asked respondent’s counsel whether “it’s totally random who the driver is? In other words, it’s registered to Fred Jones, but it could be anybody in the world?”[17] After several exchanges, the chief justice remarked that “even you are willing to agree that [there’s] at least ten percent” chance that the driver is Fred Jones.[18] In the second moment, Justice Stephen Breyer acknowledged that while counsel would say that Deputy Mehrer’s suspicion was wrong, “it’s pretty tough for me to say that that person’s wrong, unreasonable.”[19] Indeed, the Glover opinion emphasizes that because reasonable suspicion “falls considerably short of 51% accuracy,” the possibility that the registered owner is not always the driver didn’t negate the reasonableness of Deputy Mehrer’s inference.[20]

B. Justice Kagan’s Concurrence

Justice Kagan joined the majority but wrote a separate concurrence to add one more fact to the “totality of the circumstances” analysis that, for her, made all the difference: Deputy Mehrer also knew that the registered owner had a “proclivity for breaking driving laws” because Kansas “almost never revokes a license except for serious or repeated driving offenses.”[21] Justice Thomas’s opinion also mentioned the seriousness of license revocation, but did so merely to “reinforce[]” the officer’s commonsense inference.[22] For Justice Kagan, however, this additional fact provided crucial support for the inference that the registered owner would commit the offense of driving as a habitual violator. The case would have been different for Justice Kagan if the registered owner’s license was instead suspended, a regulatory consequence that often does not relate to driving and road safety but to being poor. Accordingly, the inference that an individual with a suspended license would break the law by continuing to drive seemed “hardly self-evident” to Justice Kagan, who doubted that “our collective common sense could do the necessary work” to transform a “mere hunch” to the requisite reasonable suspicion.[23]

But it is not farfetched that poor people with suspended licenses would keep driving. A 2015 New York Times article noted that “many drivers who have lost their licenses in Tennessee, too poor to pay what they owe and living in places with limited public transportation, . . . have driven anyway, resulting in courts so clogged with ‘driving while suspended’ cases that some judges dispatch them 10 at a time.”[24] The article went on to maintain that “Tennessee is not alone in the practice.”[25] According to a 2015 report published by the Brennan Center for Justice, forty-three states authorized or mandated license suspension for failure to pay court fees and fines.[26] For the poor, the legal inability to drive has rippling consequences in a car-dependent society. Most people drive to work. When their licenses are suspended, poor people often find themselves in a bind: They need to hold down a job to pay off their criminal-justice debts so that they can reinstate their licenses, but without a license, they cannot hold down a job. Making matters worse, poor people tend to live farther away from job-rich metropolitan areas and must commute from lower-income suburbs.[27] And it’s not just about going to and from work. Outside New York City, American life—from the mundane like buying groceries or taking children to school, to the vital like getting medical care or attending religious services—practically requires driving a car. Some can depend on friends and family for rides, but many others have no choice but to keep driving. It’s not that they are demonstrating “a willingness to flout driving restrictions,” which was the focus of Justice Kagan’s reasonable-suspicion analysis.[28] Rather, they are taking care of life’s essentials first.[29] In either case of incorrigibility or necessity, an officer surely has more than a “mere hunch” that a registered owner with a suspended license for being too poor to pay court fees or fines might still be behind the wheel.

By differentiating license revocations and suspensions, Justice Kagan tried to stake a compromise position, assenting to the Court’s reasonable-suspicion jurisprudence under the Fourth Amendment on the one hand and recognizing the dilemma that many poor Americans face on the other. Regardless of the concurrence’s qualms about the demographic impact of investigating license suspensions, there is no getting around the fact that the Fourth Amendment does not scrutinize legislatures’ policy choices. So long as there is reasonable suspicion that a motorist may be driving without a license, an officer can conduct a brief investigatory stop. This may be why the Brennan Center’s recommendations focus not on doctrinal changes but on legislative reforms, like the elimination of license suspension for nonpayment of fees and fines.

C. Justice Sotomayor’s Dissent

Justice Sotomayor, in her dissent, took a different tack. Instead of distinguishing revocations from suspensions, she maintained that “settled doctrine” and “key foundations of [the Court’s] reasonable-suspicion jurisprudence” did not permit vehicle stops based solely on the fact that the car was owned by someone with a revoked license.[30] Her doctrinal argument focused on the officer’s common sense, which, in her view, the reasonableness inquiry requires. She argued that because Deputy Mehrer provided no basis for the key inference, the Court erroneously relied on its own conclusions about the average person’s intuitions. “It is the reasonable officer’s assessment,” she insisted, “not the ordinary person’s—or judge’s—judgment that matters.”[31] Repeating this point in Fourth Amendment parlance, the dissent stated that the reasonable-suspicion inquiry “permits reliance on a particular type of common sense—that of the reasonable officer, developed through her experiences in law enforcement.”[32] An officer’s “experiences”—or the phrase “training and experience,” a leitmotif in Fourth Amendment caselaw—was missing in this case. Justice Sotomayor pointed out that the state “could have easily described the individual or ‘accumulated experience’ of officers in the jurisdiction,” but it “chose not to present such evidence.”[33] And so the justices had to “fill the gap” in the bare, stipulated facts.[34]

The Supreme Court, however, has never required common-sense conclusions to be based only on an officer’s training and experience and, in fact, has sometimes relied on the justices’ own “commonsense judgment and inferences about human behavior.”[35] This quote comes from Illinois v. Wardlow, a case analytically similar to Glover; the issue was whether just two facts—the respondent’s presence in a high crime area plus his unprovoked flight upon seeing the police—amounted to reasonable suspicion. The Court agreed with the government, which did not introduce supporting evidence, that “headlong flight—wherever it occurs—is the consummate act of evasion.”[36]

It is true that Terry v. Ohio, the case that established the reasonable-suspicion standard, highlighted the officer’s “30 years’ experience in the detection of thievery” to justify an investigatory stop (and frisk).[37] The Terry opinion explained that the officer was “entitled to draw from the facts in light of his experience.”[38] It is also true that, since then, the Supreme Court has frequently referred to officers’ training and experience. Justice Sotomayor’s Glover dissent quoted from, for example, Ornelas v. United States that “a police officer views the facts through the lens of his police experience and expertise.”[39] But examining this quote in full and placing it in the context of the case make clear that Ornelas doesn’t support Justice Sotomayor’s claim that “reasonable suspicion eschews judicial common sense.”[40] According to the complete sentence in Ornelas, “A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise.”[41] Therefore, “background facts” derived from the judge’s knowledge of her community and an officer’s experience both “yield inferences that deserve deference.”[42]

At the suppression hearing in Glover’s case, the trial judge granted his motion to suppress based on her own personal circumstances. She had three cars registered in her name; she drove one of them, while her husband and daughter drove the other two. “And,” she declared, “that’s true for a lot of families that if there are multiple family members and multiple vehicles, that somebody other than the registered owner often is driving that vehicle.”[43] Before we can conclude, per Ornelas, that the trial judge’s “background facts” and inferences are entitled to deference on review and that the Supreme Court should have upheld the lower courts’ decisions, we ought to consider Ornelas’s holding that notwithstanding the “due weight [given] to inferences drawn from those facts by resident judges and local law enforcement officers,” “determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.”[44] Although Justice Sotomayor criticized the majority for “relying on judicial inferences [that promote] broad, inflexible rules that overlook regional differences,” the overriding concern in Ornelas was precisely the opposite. The de novo standard of review was intended to “unify precedent” across the country.[45]

Still, appellate judges, including Supreme Court justices, do defer to the police, such that the phrase “training and experience” has now become a recurring theme in Fourth Amendment caselaw.[46] But there is a difference between relying on an officer’s experience and requiring that experience to support reasonable suspicion. In the mine-run case, an officer’s experience imparts a more sinister color to what could be ordinary inferences. It suggests that while a given set of facts might seem innocent to the layperson or judge, a trained officer would know better. This was the case in United States v. Cortez, another opinion that Justice Sotomayor cited in support of her argument that Deputy Mehrer should have grounded his inference on his law enforcement training and experience. In Cortez, Border Patrol agents deduced from a set of footprints in the Arizona desert that a person, whom they called “Chevron” after the shoes’ print, was guiding groups of eight to twenty Mexican citizens into the United States by foot; that the groups were then picked up by a truck or camper; and that Chevron and his groups traveled on clear nights on weekends between two and six in the morning. In finding that the agents had reasonable suspicion for the investigatory stop of a pickup truck that, indeed, was transporting a group of six undocumented individuals and the two respondents, one of whom was wearing shoes with a chevron shoeprint, Cortez allowed that “when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion.”[47] Nothing in Cortez required the invocation of training and experience. Cases are littered with references to an officer’s training and experience not because Fourth Amendment jurisprudence demands it, but because such testimony can turn a humdrum situation into a suspicious scene that justifies police action.

The ultimate point I want to make is not that Justice Sotomayor was wrong in Glover. Rather, I point out the dissent’s doctrinal errors to suggest that there is something terribly wrong with the Fourth Amendment itself. As interpreted by the Supreme Court over the decades, the guarantee against unreasonable searches and seizures, which was supposed to shield individuals from officials prying into our private lives and spaces, has morphed into a provision quite the opposite. It is no exaggeration to describe the Fourth Amendment today as a source of discretionary power for law enforcement. Even the police are trained (speaking of training) to see the Fourth Amendment that way. A bestselling 1995 textbook exhorted patrol officers to “know search-and-seizure laws inside-out because they are your tools.”[48] While judges and defense lawyers might read Fourth Amendment caselaw to ascertain what the police cannot do, the police study doctrine, often with the aid of prosecutors, to figure out what they can do.[49]

The over-reliance on training and experience in reasonable-suspicion analyses—a “magic incantation of words,” as Justice Neil Gorsuch put it—offers an example of how the Fourth Amendment has greatly increased the police’s discretion.[50] Take the common scenario of a drug-enforcement officer frisking a suspect. Under Terry, a frisk is justified only when there is reasonable suspicion that the person is armed and presently dangerous, and this limited pat-down of the outer clothing for weapons cannot be expanded into a search for evidence of a crime underneath the clothing. That means that if an officer feels a small, hard object inside a cellophane packet during a frisk, she cannot reach inside the pocket or even move the object around from outside the clothing in order to determine what it is. That would no longer be a frisk but a full-on search, however minimal the movements, which requires probable cause that the packet contains contraband drugs. In Minnesota v. Dickerson, the Supreme Court affirmed the suppression of a lump of crack cocaine found inside the respondent’s jacket because the officer did not have probable cause before conducting the search through “the sense of touch.”[51]

What happened after Dickerson is instructive. Knowing that they must have probable cause before the search—that is, that they must immediately recognize cocaine on “plain touch” through a suspect’s clothing—law enforcement officers now receive instruction on this particular skill so that they can give testimony on their expertise, like the following:

I have personally frisked at least one hundred (100) suspects, both during Terry stops and searches incident to arrest and discovered powdered cocaine in small plastic bags in trousers pockets. In addition, during in-service field training for our officers in “drug recognition,[”] I routinely “frisk” other officers who have placed cocaine in their trouser pants. I have done this at least once a month in the past year. I have also handled at least 25 bags of cocaine in its powdery form seized from automobiles, and this has added to my familiarity with how it feels to the touch[.] I have received formal training on how powdery cocaine feels to the touch at my police academy and while on active duty in the Air Force, using actual powdered cocaine.[52]

This is actual, real-life testimony used successfully in New York and Indiana courts and now offered as a model to law enforcement trainees. Perhaps the average person or judge might not be able to tell the difference in feel between a packet of powder cocaine and, say, a packet of sugar. But this sort of testimony suggests that a qualified officer would be able to distinguish between the two. Who knows how often she may be correct—ten percent of the time? Five percent? Regardless, training and experience have effectively expanded the scope of what Terry permitted, a limited frisk of the outer clothing.

This is precisely why Justice Sotomayor’s doctrinal argument will backfire. Law enforcement “training and experience” has become boilerplate for good reason. These credentials are not difficult to obtain and recite in court. In future cases, patrol officers could simply testify that they had read reports on “the percentage of vehicle owners with revoked licenses in Kansas who continue to drive their cars” or on “how the behavior of revoked drivers measures up relative to their licensed counterparts,” to pick a few examples of the sort of expert knowledge that the dissent wanted from Deputy Mehrer.[53] With such testimony, an officer’s decision to pull over a car registered to an owner with a revoked or suspended license would become bulletproof. In short, Justice Sotomayor set the bar too low. It will be all too easy to meet the requirement that inferences must be based on training and experience, and Fourth Amendment jurisprudence will only further facilitate the over-policing of the poor.

II. The Originalist Proposal

Given the state of the Fourth Amendment today, how can we recover the right that was meant to protect individuals? I propose that we pursue this goal strategically. Justice Kagan’s compromise would not work in many states since, as Justice Sotomayor pointed out, the “distinction between revocation and suspension may not hold up in other jurisdictions.”[54] In any case, her concurrence enlisted only Justice Ruth Bader Ginsburg. Meanwhile, Justice Sotomayor’s doctrinal approach garnered no other votes. Assuming, for the moment, that we have these three votes for some solution to insulate the poor from arbitrary investigative stops, we need at least two more votes. The social justice implications, however, has so far not persuaded the other six justices. But there is an untried idea that might convince at least two of them: originalism.[55]

Jurisprudential theories, to be frank, are usually aligned with political preferences. Stated generally, living constitutionalists tend to advocate progressive governance while originalists typically prefer small government. But this alignment gets scrambled in the Fourth Amendment context, where many progressives seek minimal state presence in crime and punishment while many conservatives don’t mind a strong law enforcement apparatus.[56] As a result, when it comes to the Fourth Amendment, originalism can help those who want to place some limits on the police.

Here, then, is the originalist road not taken in Glover: overrule Terry v. Ohio as a radical departure from the Fourth Amendment of the founding era. An examination of officers’ authority in the eighteenth century makes clear that the power that twenty-first century police forces wield would be unrecognizable to those who drafted the Bill of Rights.[57] To be sure, there is no consensus on the original meaning of the Fourth Amendment. Scholars have debated what, exactly, the drafters sought to accomplish and, more specifically, how to interpret the amendment’s two clauses in relation to the other.[58] Namely, does the first clause’s prohibition on “unreasonable searches and seizures” stand independently, or is it modified by the second clause that sets forth the requirements for a warrant? Fortunately, this debate has no bearing on the police practice at issue in Glover and authorized by Terry. On this, there is scholarly consensus that eighteenth-century common law did not license warrantless investigatory stops based on reasonable suspicion (of course, whether lawmen did so anyway is another matter).[59]

A. Terry’s Transformation of Fourth Amendment Jurisprudence

To begin, the Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” In the founding era, the word “unreasonable” in this context meant unlawful or, more precisely, “against the reason of the common law.”[60] Whether or not the Fourth Amendment was intended to require a warrant for searches of houses and papers—the subject of much scholarly debate—the common law governed when officers could “seize,” otherwise known as “arrest,” persons without a warrant. For felony offenses, an officer could make a warrantless arrest if (1) the officer witnessed the person commit the offense, or (2) the officer had probable or reasonable cause for believing that the person in fact committed the offense. The “in fact” in the second scenario set an important limitation; a felony had to have been actually, not probably, committed.[61] Only the first justification—commission of the offense in the officer’s presence—provided grounds for warrantless arrests for misdemeanors. In Atwater v. City of Lago Vista, the Supreme Court noted that in the eighteenth century, “common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers’ warrantless misdemeanor arrest power.”[62] The Atwater opinion is correct in observing variance among jurisdictions; some allowed warrantless arrests for all misdemeanor offenses while others restricted the authority to the specific misdemeanor of breach of the peace. But it is indisputable that in every jurisdiction, what was not permitted was a seizure, no matter how brief, of an individual based on suspicion that an offense may have been committed. This was the common law until 1968.

In Terry v. Ohio, the Supreme Court created a new Fourth Amendment seizure short of an arrest called a “stop” and a lesser Fourth Amendment search called a “frisk.” It then applied a lower standard of reasonable suspicion to the practice now known as a “stop-and-frisk.” In sum, the police may conduct a brief investigatory stop to dispel or confirm their articulable suspicions that criminal activity may be afoot, and they may pat down an individual’s outer clothing for weapons if they have reason to believe that the person is armed and presently dangerous.

Before Terry, stop-and-frisks were illegal under the common law except in five states that had updated their laws in the mid-twentieth century.[63] Nevertheless, the practice proliferated as police officers increasingly viewed themselves as proactive crime fighters. They stopped individuals to ask questions and frisked them for weapons not because they witnessed the individual committing an offense or believed that a felony had in fact been committed, but because their suspicions were aroused. This was the case in Terry. Officer McFadden observed two men “who didn’t look right” to him pacing up and down a block and reckoned that they were contemplating robbery.[64] But before John Terry and Richard Chilton had even begun to attempt robbery, Officer McFadden approached them and in short order frisked the two. The guns that he found should have been excluded from evidence because he didn’t have probable cause for the seizure and search.

The Terry opinion remarked that the lawfulness of “this on-the-street encounter” raised “issues which have never before been squarely presented to this Court.”[65] What Chief Justice Earl Warren meant, to put it differently, was that law enforcement was asking the Court to legalize what had been unlawful under the centuries-long common law of arrests, which required probable cause for all seizures and searches of persons. Despite the illegality, officers routinely performed stop-and-frisks with impunity before states had adopted the exclusionary rule. After California embraced the rule of exclusion in 1955 and the Supreme Court mandated the rule for every state in the 1961 case Mapp v. Ohio, California and New York changed their laws to permit stop-and-frisks.[66] In Terry, Ohio asked the Supreme Court to authorize the practice for the rest of the country. The Court obliged, declaring that “we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.”[67]

B. Originalist Justifications for Overruling Terry

Neither the Supreme Court’s rationale in 1968, nor the doctrinal and policy developments that have since relied on Terry, matter much under the theory of originalism. For its strongest adherents, stare decisis takes a backseat to fidelity to original meaning, and Justices Thomas and Gorsuch have demonstrated a willingness to disregard decades of precedent.[68] Tellingly, both signaled an interest to do so with regard to the Fourth Amendment as recently as 2018. At issue in Carpenter v. United States was whether the government needed a warrant to obtain petitioner’s cellphone records from his wireless carrier.[69] A threshold question in Fourth Amendment analysis is whether there was a “search,” and since the 1967 decision in Katz v. United States, courts have defined “search” as the invasion of a “reasonable expectation of privacy.”[70] Using this definition, the Supreme Court held in Carpenter that a search had occurred and, moreover, that a warrant was required. Justice Thomas dissented not just in outcome but also in methodology, maintaining that the “Katz test distorts the original meaning of ‘search.’”[71] Justice Gorsuch, in a separate dissent, made the same point that “Katz’s problems start with the text and original understanding of the Fourth Amendment” and proposed a return to the “traditional approach to the Fourth Amendment” that defines “search” as an intrusion on private property.[72]

It’s worth a brief pause here to consider whether it would be wise to employ originalism as a means to overrule Terry if it would also undermine Katz. There are reasons to believe that the consequences of overruling Katz might be smaller than feared. For one thing, the Supreme Court’s conclusions under the Katz test have turned out to overlap significantly with the property-based trespass test.[73] It is true that the Court in recent years has relied on Katz to bestow the greatest Fourth Amendment protection available, the warrant requirement, on non-traditional forms of property in the digital age that do not conform to concepts of ownership and possession. But—and this is the second point—it is not clear that the fate of decisions like Carpenter and Riley v. California necessarily must rise and fall with Katz. Analogizing electronic information to houses and especially to papers might suffice to save those cases. In Riley, for example, Chief Justice Roberts compared information stored in a cellphone to documents that would be found in a home and concluded that, in fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”[74] In Carpenter, Justice Gorsuch indicated that he would find a Fourth Amendment property interest in cellphone records belonging to third parties.[75] Indeed, Justice Antonin Scalia strove to apply the trespass test to place limits on technology-aided searches in cases like Kyllo v. United States, which involved a thermal imaging device, and Jones v. United States, which involved a GPS tracker. Of course, the problem with the property approach is that newer technologies can, and have, allowed the government to circumvent these rulings. If law enforcement must get a warrant to attach a GPS device on a suspect’s car (a trespass on private property under Justice Scalia’s analysis), then officers can instead use drones to track the car’s movements. But—and this is the third point—decisions relying on Katz are also vulnerable to the same obsoletion. If law enforcement must get a warrant to obtain cellphone records under Carpenter, then officers can instead use ALPR data to trace a car’s location history. All this is to say, the implications of the originalist proposition are uncertain, but it at least provides a baseline. Justice Gorsuch warned that “neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.”[76] Perhaps we should take his warning as a suggestion.

If Justices Thomas and Gorsuch are open to revisiting Terry v. Ohio as they are to revisiting Katz, then they could provide the remaining two votes necessary to rescind the police’s authority to conduct investigatory stops based on reasonable suspicion. But the other three potential votes—Justices Kagan, Ginsburg, and Sotomayor—have recently reaffirmed their commitment to stare decisis, and likely the biggest obstacle in persuading them to overrule a solid, fifty-year-old precedent is law enforcement’s reliance interest.[77] And rely they have. Police have operationalized and scaled up their use of stop-and-frisks, which have become an integral component of crime-control programs throughout the United States and are “carried out systematically, deliberately, and with great frequency,” according to Professor Tracey Meares.[78] Professor Jeffrey Fagan calls it simply the “Terry regime.”[79] The practice is so common that it has even penetrated American culture, featuring regularly in crime movies and procedurals. If the Supreme Court were to reverse Terry, torrents of criticism and predictions of spikes in crime rates are to be expected from law-and-order quarters.[80]

But it would seem that reliance on a prior decision to pursue constitutionally questionable methods of policing ought not to be taken into account when considering whether to overrule that prior decision. Recent cases have highlighted problems with the systematic use of stop-and-frisks. United States v. Johnson, a Seventh Circuit case, exposed how the combination of Terry and traffic law enforcement has led to the creation of specialized units that engage in pretextual policing in communities of color.[81] In Johnson, five officers from the Milwaukee Police Department’s “Neighborhood Task Force Street Crimes Unit,” whose modus operandi is “to look for smaller infractions and hope that possibly they may lead to bigger and better things,” relied on a suspected parking violation to investigate a passenger waiting for a friend in a Toyota Highlander. While they did find a gun on the floor of the SUV, which is why the Fourth Amendment issue was litigated, one wonders about the number of false positives, the number of times that the Unit harassed innocent residents whose experiences never became court cases.

Floyd v. City of New York provides an indication of the ineffectiveness of field interrogations.[82] In the class-action lawsuit, Professor Fagan analyzed eight years’ worth of UF-250 forms, which New York Police Department officers must complete each time they stop an individual.[83] From 2004 to 2012, he found that fifty-two percent of all stops included a frisk, which unearthed a weapon only 1.5 percent of the time. Moreover, the “hit rate” of the stops was very modest; only twelve percent resulted in an arrest or summons. When Professor Fagan more closely examined the bases for investigatory stops indicated on the UF-250 forms, he concluded that six percent of the stops were “apparently unjustified.”[84] But this was a conservative estimate. He didn’t count the forms that ticked the mysterious, catch-all justification “other” for the stop (approximately twenty-six percent), nor the forms that failed to identify any suspected crime (thirty-six percent). These numbers strongly suggest either that a significant percentage of stop-and-frisks didn’t meet Terry’s reasonable suspicion standard or that the standard is disturbingly low as to be meaningless. In addition to the Fourth Amendment problem, Professor Fagan’s analysis revealed a Fourteenth Amendment issue. Officers did not carry out the department’s stop-and-frisk policy evenly in all high-crime areas, but instead focused on those neighborhoods with large minority populations. Based on his expert testimony, the district court judge held New York City liable for violating the plaintiffs’ constitutional rights.[85]

The NAACP had predicted this outcome. In its amicus brief in Terry, the civil rights organization granted that the attempt “to establish some third state of police powers”—a halfway point between probable cause and no cause at all—“has the allure of sweet reasonableness and compromise.”[86] But it maintained that “there is no third state; the reasonableness of theory is paper thin; there can be no compromise.” Although courts may require reasonableness to be grounded on articulable suspicions and not mere hunches, on the “ghetto street” in “the real world,” reasonable suspicion would operate on the unfounded stereotype that a Black person posed danger “even in the absence of visible criminal behavior.”[87] The NAACP argued that both the Fourth Amendment and equal protection depended on a steadfast adherence to the probable cause standard. Even if courts applied the standard deferentially, it at least required the police to specify actual criminal conduct.

The Terry court, however, prioritized the imperatives of law enforcement at a time when crime rates were going up, and this justification may still cause Supreme Court justices to be wary of overruling Terry. Even if mass-scale stop-and-frisks instituted as part of a crime-control program run afoul of the Constitution, there are situations where it may seem appropriate, necessary even, to allow the police to briefly question an individual and quickly check for weapons. But recent scholarship casts doubt on the need for a lower standard than probable cause. In a follow-up study on the Floyd data, Professor Fagan found that stops based on probable cause resulted in a greater reduction in crime than stops based on reasonable suspicion. In fact, non-probable cause stops were “unproductive and add[ed] nothing to the crime control efforts of law enforcement.”[88] It turns out that probable cause, which is tied to behavioral indicia of crime, is more reliable than reasonable suspicion, which “is inherently subjective and prone to cognitive distortion, bias and error.”[89] In other words, the NAACP was right all along. The third state of police powers might appear indispensable to fighting crime, but it is just an appearance. In reality, the reasonable-suspicion standard and the indiscriminate use of field interrogations have broken people of color’s trust in the very institution that is supposed to protect all of us. According to Professor Fagan, Terry is the “original sin” for the seemingly unbounded expansion of the police’s discretionary power. As penance, he proposed that courts recalibrate “Terry standards to move them closer to Mapp’s more exacting probable cause standard.”[90]

Another way to get at the same result is to overrule Terry, which the Court can accomplish in one fell swoop. Professor Fagan’s proposal, by contrast, depends on each individual judge in each case to require more for reasonable suspicion. Overruling Terry has the additional benefit of bringing back the distinction between misdemeanors and felonies for seizure purposes. This, in turn, has the further advantage of providing some regulation of technology used in police work, the larger issue in Glover. Under the pre-Terry common law, Deputy Mehrer would not have been authorized to stop the truck without personal knowledge that the misdemeanor offense—and driving without a license is a misdemeanor in every state—is being committed.[91] The information he obtained from his MDT would not have been sufficient, without corroboration, to justify a stop.[92] This is, in fact, the rule that respondent Glover and Justice Sotomayor sought but could not achieve under the existing Terry standard, which effectively places the burden on individuals to negate reasonable suspicion once officers meet that low standard. Going back to the older common law would shift the burden back to the government, where it belongs. It could also disincentivize officers from entering any old license plate number they happened upon just to check for possible, suspected violations in the first place. They might not bother if they cannot do anything with information of a revoked or suspended license without confirming that the owner is the one behind the wheel. The old common-law rule would better protect both privacy and the poor than any efforts to rejigger the Terry doctrine.


Technology’s transformation of policing has raised vexing Fourth Amendment questions at least since the early twentieth century, with the automobile in Carroll v. United States[93] and wiretaps in Olmstead v. United States.[94] Reverting to an eighteenth-century Fourth Amendment may seem outright dangerous to some and regressive to others. On the one hand, modern society is filled with hazards that did not exist over two centuries ago, and the law enforcement benefits of technology can be hard to resist. As the Glover opinion noted, the ability to pull up registration information on MDTs (or ALPRs) to enforce suspensions and revocations can promote road safety, since licenses are often taken away for reasons related to dangerous driving. Relying on originalism to limit this capability seems counterproductive to public safety. On the other hand, technology in the hands of law enforcement threatens individual privacy in new ways, and it may seem intuitive that the Fourth Amendment must evolve alongside technological advances. The promises and perils of technology have posed a recurring quandary of figuring out how to simultaneously allow and cabin its use within constitutional boundaries.[95] Perhaps eighteenth-century common law struck the right balance between individual liberty and public safety. Perhaps those rules can still work in today’s modern world. Whether earlier norms governing police encounters will safeguard the rights of vulnerable groups is uncertain, but what is clear is that jettisoning those norms has contributed to police abuse and inequality in the criminal justice system. We need to reclaim the Fourth Amendment as the people’s right. As Tracey Maclin once asked, “whose amendment is it, anyway?”[96]

[*] Professor of Law, Columbia Law School. I am grateful for inspiration and invaluable feedback from Jeffrey Fagan, John Rappaport, and Daniel Richman.

[2] Kansas v. Glover, 140 S. Ct. 1183 (2020).

[3] Terry v. Ohio, 392 U.S. 1 (1968).

[4] Glover, 140 S. Ct. at 1187.

[5] Carpenter v. United States, 138 S. Ct. 2206 (2018).

[6] United States v. Jones, 565 U.S. 400 (2012).

[7] See Brief of Fines and Fees Justice Center et al. as Amici Curiae in Support of Respondent, Glover, 140 S. Ct. 1183 (No. 18–556); Brief of Electronic Privacy Information Center et al. as Amici Curiae in Support of Respondent, Glover, 140 S. Ct. 1183 (No. 18–556).

[8] Carpenter, 138 S. Ct. at 2217 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)).

[9] Kaveh Waddel, How License-Plate Readers Have Helped Police and Lenders Target the Poor, Atlantic (Apr. 22, 2016).

[10] See, e.g., Brief of Electronic Frontier Foundation et al. as Amici Curiae in Support of Appellant at 12–19, United States v. Yang, 958 F.3d 851 (9th Cir. 2020) (No. 18–10341); Street-Level Surveillance, Electr. Frontier Found. (last updated August 28, 2018).

[11] Waddel, supra note 8.

[12] Given that ALPR-collected data, as public property, do not fall within the Fourth Amendment’s purview, privacy scholars and advocates have argued for sub-constitutional regulations on the use of ALPRs, and several states have enacted such legislation. See Automated License Plate Readers: State Statutes, Nat’l Conference of State Legislatures (last updated June 23, 2020); Electr. Frontier Found., supra note 9.

[13] See, e.g., William E. Crozier & Brandon L. Garrett, Driven to Failure: An Empirical Analysis of Driver’s License Suspension in North Carolina, 69 Duke L.J. 1585 (2020) (finding that license suspensions are not associated with traffic volume but with poverty and race).

[14] See, e.g., Allison P. Harris, Elliott Ash & Jeffrey A. Fagan, Fiscal Pressures and Discriminatory Policing: Evidence from Traffic Stops in Missouri, Colum. Pub. L. Res. Paper No. 14–591 (2018); Jade Chowning, Erin Keith & Geoffrey Leonard, Highway Robbery: How Metro Detroit Cops and Courts Steer Segregation and Drive Incarceration, Det. Just. Ctr. (Mar. 2020).

[15] Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020) (quoting Illinois v. Wardlow, 528 U.S. 119, 125 (2000)).

[16] Id.

[17] Transcript of Oral Argument at 42, Glover, 140 S. Ct. 1183 (No. 18–556).

[18] Id. at 44.

[19] Id. at 50.

[20] Glover, 140 S. Ct. at 1188. According to a 1981 survey of all federal judges, they ascribed, on average, a forty-five percent certainty to probable cause and a thirty-one percent certainty to reasonable suspicion. C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees? 35 Vand. L. Rev. 1293, 1327–28 (1982).

[21] Glover, 140 S. Ct. at 1192 (Kagan, J., concurring).

[22] Id. at 1188.

[23] Id. at 1192 (Kagan, J., concurring).

[24] Shaila Dewan, Driver’s License Suspensions Create Cycle of Debt, N.Y. Times (Apr. 14, 2015) (emphasis added).

[25] Id.

[26] Matthew Menendez et al., Brennan Ctr. for Just., The Steep Costs of Criminal Justice Fees and Fines, 20, 28 (Nov. 21, 2019).

[27] See, e.g., Gillian B. White, Long Commutes Are Awful, Especially for the Poor, Atlantic (June 10, 2015).

[28] Glover, 140 S. Ct. at 1192 (Kagan, J., concurring).

[29] See, e.g., Meghan Keneally, 'It's Not America': 11 Million Go Without a License Because of Unpaid Fines, ABC News (Oct. 25, 2019).

[30] Glover, 140 S. Ct. at 1194 (Sotomayor, J., dissenting).

[31] Id. at 1195.

[32] Id. at 1196 (emphasis added).

[33] Id. at 1197.

[34] Id. at 1196.

[35] Illinois v. Wardlow, 528 U.S. 119, 125 (2000).

[36] Id. at 124.

[37] Terry v. Ohio, 392 U.S. 1, 23 (1968).

[38] Id. at 27.

[39] Glover, 140 S. Ct. at 1195 (Sotomayor, J., dissenting) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

[40] Id.

[41] Ornelas, 517 U.S. at 699 (emphasis added).

[42] Id.

[43] Brief for Respondent at 5, Glover, 140 S. Ct. 1183 (No. 18–556).

[44] Ornelas, 517 U.S. at 699.

[45]  Id. at 697.

[46] See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995 (2017).

[47] United States v. Cortez, 449 U.S. 411, 419 (1981).

[48] Charles Remsberg, Tactics for Criminal Patrol: Vehicle Stops, Drug Discovery & Officer Survival 25 (1995).

[49] See Daniel Richman, The Process of Terry-Lawmaking, 72 St. John’s L. Rev. 1043, 1044 (2012).

[50] Transcript of Oral Argument at 38, Kansas v. Glover, 140 S. Ct. 1183 (2020) (No. 18–556).

[51] Minnesota v. Dickerson, 508 U.S. 366, 370 (1993).

[52] Steven L. Argiriou, Terry Frisk Update: The Law, Field Examples and Analysis, Fed. L. Enforcement Training Ctr., 5–6.

[53] Glover, 140 S. Ct. at 1197 (Sotomayor, J., dissenting).

[54] Id. at 1198.

[55] This idea has worked before with the Sixth Amendment. See Crawford v. Washington, 541 U.S. 36 (2004); Blakely v. Washington, 542 U.S. 296 (2004).

[56] Twenty-first century progressives ought not to be confused with early twentieth-century progressives, who were not opposed to greater government involvement in criminal matters. See, e.g., Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (2003).

[57] This is one reason why Carol Steiker has argued that the benchmark time period for interpreting the Fourth Amendment should be the late nineteenth century, when professional police forces were first established, and not circa the eighteenth century. See Carol S. Steiker, Second Thoughts about First Principles, 107 Harv. L. Rev. 820, 844–46 (1994). This Essay nevertheless examines the earlier period because the justices that adhere to originalism are likely to do so. In any case, the common law on warrantless seizures remained constant from the founding era through the mid-twentieth century.

[58] See, e.g., Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181 (2016); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999).

[59] For another discussion of Terry and originalism, see Larry Rosenthal, Pragmatism, Originalism, Race, and the Case against Terry v. Ohio, 43 Tex. Tech L. Rev. 299, 330–37 (2010).

[60] Davies, supra note 57, at 624–25; Donohue, supra note 57, at 1192.

[61] See Davies, supra note 57, at 632–33.

[62] Atwater v. City of Lago Vista, 532 U.S. 318, 328 (2001).

[63] Those states were New Hampshire, Rhode Island, Delaware, California, and New York.

[64] Terry v. Ohio, 392 U.S. 1, 5 (1968).

[65] Id. at 9–10.

[66] People v. Cahan, 44 Cal. 2d 434 (1955); Mapp v. Ohio, 367 U.S. 643 (1961). For more on the exclusionary rule and stop-and-frisks, see Sarah A. Seo, Policing the Open Road: How Cars Transformed American Freedom 142–52, 192–95 (2019).

[67] Terry, 392 U.S. at 24.

[68] For an “inclusive” version of originalism that allows for “some precedent . . . only to the extent that the original meaning itself permits them,” see William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015).

[69] Carpenter v. United States, 138 S. Ct. 2206 (2018).

[70] Katz v. United States, 389 U.S. 347 (1967).

[71] Carpenter, 138 S. Ct. at 2238 (Thomas, J., dissenting).

[72] Id. at 2264, 2272 (Gorsuch, J., dissenting).

[73] See David A. Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875, 885 (2008).

[74] Riley v. California, 573 U.S. 373, 396 (2014).

[75] Carpenter, 138 S. Ct. at 2272 (Gorsuch, J., dissenting). Justice Thomas, however, maintained that the Fourth Amendment does not protect papers owned and maintained by third parties. Id. at 2242–43 (Thomas, J., dissenting).

[76] Id. at 2272 (Gorsuch, J., dissenting).

[77] See, e.g., Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2497–2501 (2018) (Kagan, J., dissenting); Knick v. Township of Scott, 139 S. Ct. 2162, 2189–90 (2019) (Kagan, J., dissenting). When deciding whether to overrule precedent, the Supreme Court considers the quality of the precedent’s reasoning, the workability of the rule, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. Janus, 588 U.S. at 2478–79.

[78] Tracey L. Meares, Programming Errors: Understanding the Constitutionality of Stop-and-Frisk as a Program, Not an Incident, 82 U. Chi. L. Rev. 159, 164 (2015).

[79] Jeffrey Fagan, Terry’s Original Sin, 2016 U. Chi. Legal F. 43, 49 (2016).

[80] For an example of such criticism coming from the academy, see Paul G. Cassell and Richard Fowles, What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the “ACLU Effect” and the Role of Stop and Frisks in Preventing Gun Violence, 2018 U. Ill. L. Rev. 1581 (2018). For a rebuttal, see John Rappaport, Jeff Sessions Is Scapegoating the ACLU for Chicago’s Murder Rate Spike, Slate (May 11, 2018).

[81] United States v. Johnson, 874 F.3d 571, 576 (7th Cir. 2017) (en banc) (Hamilton, J., dissenting), cert. denied, 139 S. Ct. 58 (2018).

[82] Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).

[83] Id. at 558–60.

[84] Id. at 578–79.

[85] Id. at 587. The stop-and-frisk patterns and problems discovered in the Floyd litigation are not limited to New York City. A recent study shows that investigative stops conducted in New York City and Ferguson, Missouri, were similarly institutionalized and disproportionately affected the poor and people of color. Jeffrey Fagan & Elliott Ash, New Policing, New Segregation: From Ferguson to New York, 106 Geo. L.J. Online 33 (2017).

[86] Brief for the NAACP Legal Defense and Educational Fund, Inc. as Amicus Curiae at 56, Terry v. Ohio, 392 U.S. 1 (1968) (Nos, 63, 67, and 74).

[87] Id. at 38, 56, 64.

[88] Fagan, supra note 78, at 79.

[89] Jeffery Fagan, Terry’s Original Sin, 2016 U. Chi. Legal F. 43, 66 (2016).

[90] Id. at 95.

[91] Driving While Revoked, Suspended or Otherwise Unlicensed: Penalties by State, Nat’l Conference of State Legislatures (last updated July 2016).

[92] Eight states punish subsequent offenses as a felony. See id. Whether or how much officers have to corroborate the information they’ve digitally acquired to meet the probable-cause standard is an open question.

[93] Carroll v. United States, 267 U.S. 132 (1925).

[94] Olmstead v. United States, 277 U.S. 438 (1928); see, e.g., Sarah E. Igo, The Known Citizen: A History of Privacy in Modern America (2018).

[95] According to Orin Kerr, the Supreme Court has adjusted Fourth Amendment protections over “several generations” to maintain an equilibrium, set at “Year Zero,” between government power and individual rights amid technological and other social changes. Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 481–82 (2011). I make a very different argument: Fourth Amendment jurisprudence has inordinately expanded the government’s power vis-à-vis individual rights. See also Seo, supra note 65. Moreover, while Kerr proposes that courts should continue to preserve the “equilibrium” as technology evolves, this Essay calls for reinstating eighteenth-century common-law rules governing seizures.

[96] Tracey Maclin, Constructing Fourth Amendment Principles from the Government Perspective: Whose Amendment Is It, Anyway? 25 Am. Crim. L. Rev. 669 (1988).