Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019

www.vtbar.org preme court decisions, including the Ver- mont Supreme Court’s decision in Edmonds, to reach its eventual holding. As the Kan- sas appeals court explained, every state su- preme court to have considered the issue has held an officer has reasonable suspicion to initiate a traffic stop where “(1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstanc- es which indicate that the owner is not the driver of the vehicle.” 17 But the Kansas ap- peals court relied on the Vermont Supreme Court’s decision in Edmonds for a point that appears to have been directly addressed only in Vermont, that requiring an officer to gather evidence confirming the owner-as- driver presumption, “essentially raises the evidentiary standard from one of reasonable suspicion to the more demanding standard of probable cause.” 18 The Kansas appeals court found this persuasive and rested its decision in part on this reasoning. The decision in Edmonds arose from facts similar, but not identical, to the facts in Glov- er and presented essentially the same ques- tion that is now before the United States Su- preme Court. Like the Kansas appeals court, the Vermont Court relied on the weight of authority from other state courts to reach its decision. 19 And as the Kansas appeals court recognized, the Vermont Supreme Court reached the same decision as those other courts: An officer has reasonable suspicion when the officer knows that the owner of a car does not have a valid operator’s license, unless the officer knows additional facts re- butting this presumption. 20 The Kansas Supreme Court rejected this rule and reversed the Kansas appeals court’s decision for two reasons. 21 First, the Kansas Supreme Court concluded that the owner- as-driver presumption rested on impermis- sible assumption stacking. 22 That is, to get to the owner-as-driver presumption a law enforcement officer has to assume that the registered owner of a vehicle is most likely the driver of that vehicle. 23 But, as the dis- trict court pointed out, this assumption is not necessarily supported by practical ex- perience. And this assumption rests on the second assumption that someone without a valid operator’s license is likely to violate their suspension or revocation and contin- ue to drive. 24 As the Kansas Supreme Court stated: “This assumption is flawed because it presumes a broad and general criminal incli- nation on the part of suspended drivers.” 25 The Kansas Supreme Court explained this is problematic because “officers cannot as- sume criminal conduct is taking place and detain someone without ‘specific and artic- ulable facts which, taken together with ra- tional inferences from those facts, reason- ably warrant that intrusion.’ ” 26 The Kansas Supreme Court took this standard to mean “officers and courts should presume that citizens are engaged in lawful activities and THE VERMONT BAR JOURNAL • SUMMER 2019 Vermont Supreme Court. For example, students this summer are working on Kansas v. Glover, 7 an appeal from a decision of the Kansas Supreme Court that considered, and ultimately rejected, the Ver- mont Supreme Court’s reasoning in State v. Edmonds. 8 Glover arises from a traffic stop and asks whether there is reasonable suspi- cion for a traffic stop when a law enforce- ment officer knows that the registered own- er of a vehicle does not have a valid license but does not have any information support- ing the inference that the owner of the vehi- cle is in fact driving the vehicle. 9 The facts of the case are straightforward. One day in 2016, a deputy sheriff spotted a 1995 Chevy pickup truck driving down the road. The sheriff could not see the driver and did not see any traffic violations, but nonetheless decided to run the truck’s li- cense plate. The sheriff was able to deter- mine that the truck was properly registered in Charles Glover, Jr.’s name and that the State of Kansas had revoked Glover’s driv- er’s license. The sheriff “assumed” Glover was driving the truck and initiated a traffic stop. 10 Finding that Glover was, in fact, driv- ing, the sheriff issued Glover a summons to appear and then allowed Glover to drive away. The State of Kansas subsequent- ly charged Glover with driving as a habitu- al offender. Glover filed a motion to sup- press the evidence from the traffic stop, and Glover and the State stipulated to the facts described above. 11 Glover argued evidence that the owner of a car did not have a val- id operator’s license was insufficient to sup- port the inference that the owner of the car was driving and, therefore, the sheriff lacked reasonable suspicion to support the stop in violation of the Fourth Amendment. 12 The State argued there is reasonable suspicion to support a traffic stop where an officer knows the owner of a car does not have a valid operator’s license unless the officer has information rebutting the presumption that the owner is the driver. 13 The Kansas district court granted Glover’s motion to suppress in a decision issued from the bench, concluding “it was not reason- able for an officer to infer that the registered owner of a vehicle is also the driver of the vehicle absent any information to the con- trary.” 14 The district court judge based her decision in part on her personal experience. She explained three cars were registered in her name, she drove one every day, her husband drove the second, and her daugh- ter drove the third. 15 She concluded that she believed her experience was like that of many other families, and, therefore, the sheriff’s assumption that Glover was driving the truck registered in his name was not a reasonable inference that could validate the traffic stop. 16 The State then filed an inter- locutory appeal. The Kansas Court of Appeals reversed. That court relied on a litany of state su- 21

Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 21