The Originalist Road Not Taken in Kansas v. Glover

Abstract

In Kansas v. Glover, the Supreme Court held that it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the car, absent any information to the contrary. This essay argues that what makes Glover a hard case and an easy case is that the Court’s reasonable-suspicion jurisprudence under the Fourth Amendment, which originated with Terry v. Ohio, makes it nearly impossible to address the social-justice implications of technology-aided policing. It suggests that Justice Kagan’s concurrence and Justice Sotomayor’s dissent, both of which are rooted in doctrine, will prove ineffective in ameliorating the social issues. The essay concludes with the proposal that the Court overrule Terry based on originalist grounds, which would provide a more effective limit on the police’s use of technology.

Keywords: criminal procedure, technology, privacy, Kansas v. Glover, Supreme Court