Justice Kavanaugh (49:27): I'm just trying to figure out why -- what sense that makes. And I don't want to dwell too long on this but you made a point of it in the brief of, yeah, the officer should just follow them around until they do something wrong on the traffic laws. And do you think that really is a sufficient basis to stop someone in this exact circumstance, if they had gone another mile down the road -- it would have been fine because he -- swerved or hit, just barely exceeded the speed limit? You're encouraging pretextual stops.
Sherry Colb: You raise an important issue, Justice Kavanaugh. Should police follow a car until the driver messes up? I wouldn’t endorse that approach. It invites pretextual stops, as you suggest. But that is the law under Whren against United States. Stops are generally lawful when there’s probable cause or reasonable suspicion, regardless of officer motive or grounds. What’s not lawful is stopping a car when you have no probable cause and no reasonable suspicion.
Here the officer knew that the car’s owner was unlicensed. Common sense tells us that someone else was driving because those people may legally drive the car, while the owner may not.
To illustrate the problem, here’s an example. Imagine that Bill buys a house for himself, his wife, and his four children. A few years down the road, Bill abuses his wife, and she gets a restraining order and a vacate order. Bill moves out. A few weeks later, police drive by Bill’s house at dusk and see someone walking around the front yard. It is too dark to determine who it is or even the person’s sex. Absent a reason to believe it is Bill, it seems very unlikely to be. After all, a court has ordered Bill to stay away. We have the right house and some person there, and we have an owner under a restraining order. None of that is suspicious unless and until we have some basis for thinking that Bill, rather than his wife or someone else, is there in the yard.
The same is true when you see a car on the road whose owner is unlicensed. Maybe his wife or a close friend or a child is driving. Maybe a different family member. Maybe he’s loaned out the car on a ride-share app. If you really wanted to stop the car, you could follow and wait for a mistake. Not ideal but legal under the doctrine. The main point is that you cannot do what the officer did: you cannot stop the one person least likely to be driving, the one with the suspended license. We have every reason to think someone else, someone licensed, is driving, unless and until something happens to suggest otherwise.
Justice Gorsuch (2:58): Maybe I'm not being clear what I'm -- what I'm getting at. In most cases, officers have testified that "in my experience," so we have some factual basis for a judge to then make a legal conclusion that the officer's stop was reasonable. Here, we don't have any facts from the government, from the officer about experience or realities on the ground. And yet you're asking the judge to make a legal conclusion about certain facts on the ground that are not present in the record. It's almost like a judicial notice of facts not in record. Is that a thing?
Sherry Colb: Not judicial notice, Justice Gorsuch, no. That’s not a thing in cases like this. But sometimes it’s obvious that what you see amounts to reasonable suspicion. A lot depends on whether you need a specialist to know something is suspicious. Sometimes you do, like maybe in Terry versus Ohio. A lay person might have thought the two guys, Terry and Chilton, were window-shopping. Officer McFadden relied on his time on the force to conclude otherwise. But in this case, you don’t need to rely on expertise. The officer knew what anyone would know, that owners are usually the ones at the wheel in their own cars. Owners do not tend to lend their cars to other people or to allow others to drive their cars. It’s not like lending someone a shovel or a rake. When you see a car, you can pretty much assume that its owner is at the wheel. It is a commonsense inference that we can all draw, and it is at least enough for reasonable suspicion.
The inference that owners are at the wheel is so clear that even respondent acknowledges it. Respondent says this case is different, though. Here the owner had his license suspended, so we can no longer assume he’s driving. But that reasoning is faulty. Yes, people without licenses generally do not drive. But when those people stop driving, we typically don’t see their cars on the road. They find other ways to get around, and their cars sit idle in a parking space. Not always but generally. And reasonable suspicion does not require always.
So the default rule remains that owners are at the wheel of their own cars. When the owner loses her license, then no one is at the wheel of her car. We don’t need statistical evidence or an “in my experience” claim by the officer for this proposition. The foundation is the commonsense that we all have. It leads us to conclude, with good reason, that if we see a car moving along the roads, the person at the wheel owns the car. And if the owner’s license is suspended, then that owner is violating the law.