Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 22

On 22 have a right to remain free from police in- terference.” 27 Because the owner-as-driver presumption necessarily depends on an as- sumption that the owner of a car is engag- ing in criminal activity, despite the fact that there is nothing criminal in the simple fact that a car owned by someone without a valid license is being driven, the Kansas Supreme Court concluded it is flawed in its inception and cannot support reasonable suspicion. The Kansas Supreme Court also rejected the rule adopted by the Vermont Supreme Court and other state supreme courts be- cause the Court concluded that rule imper- missibly shifts the burden of proof from the State to a defendant. 28 The Court reasoned that a rule permitting officers to presume that the owner of a vehicle is also its driver “relieves the State of its burden by eliminat- ing the officer’s need to develop specific and articulable facts to satisfy the State’s burden on the determinative issue of whether the registered owner is driving the vehicle, not whether the vehicle is being driven.” 29 The Kansas Supreme Court called the rule’s re- liance on an absence of information rebut- ting the owner-as-driver presumption a kind of “judicial gap-filling” that cannot be used to convert an unfounded assumption into a logical inference. 30 And all of those state su- preme court decisions that, like Edmonds, reach the contrary result? The Kansas Su- preme Court dismissed them all, stating: “In our reading of these decisions, none of them discuss the underlying assumptions that the district court needed to make. . . nor do they discuss the problems with inference stacking or with the lack of evidence being produced by the State.” 31 The Court read these deci- sions to rest on an assumption about com- mon experience—that the owner of a vehi- cle is most likely to drive the vehicle—with- out considering whether that assumption is either valid or sufficient to support the legal conclusion that there is reasonable suspicion to support a traffic stop. 32 What will the United States Supreme Court do with this issue? That remains to be seen, but Appellate Advocacy students have been wrestling with this for several weeks. Students will argue this case in late July. They may argue that the Kansas Su- preme Court’s decision would elevate the evidentiary burden for reasonable suspicion to that necessary for probable cause, in line with the Edmonds reasoning. On behalf of students and the Vermont Law School legal writing faculty, I invite you to join us for what promises to be several days of interesting oral arguments. Feel free to contact me at [email protected] or Sandy Johnston at sjohnston@vermont- law.edu for more information or to volun- teer to help us make students practice-ready through intensive oral argument and to re- ceive two CLE credits for your contribution to legal education. ____________________ Catherine Fregosi, Esq. is admitted to practice in Vermont. She clerked for the Hon. Justice John A. Dooley and the Hon. Justice Karen R. Carroll of the Vermont Su- preme Court before joining the VLS legal writing faculty. THE VERMONT BAR JOURNAL • SUMMER 2019 ____________________ 1 Beth McCormack, Making Your Writing Out of Cite: Using the Bluebook to Improve Your Writing and Credibility, 41 V t . B. J. 30 (Winter 2016). 2 Brian Porto, Rhetoric Revisited: A Second Look at How Rhetorical Techniques Improve Writing, 42 V t . B. J. 31 (Summer 2016). 3 Jared K. Carter, Strengthening Our Legal Anal- ysis, 45 V t . B. J. 20 (Spring 2019). 4 Nieves v. Bartlett, 139 S. Ct. 1715 (2019). 5 United States v. Stitt, 139 S. Ct. 399 (2018). 6 Garza v. Idaho, 139 S. Ct. 738 (2019). 7 422 P.3d 64 (Kan. 2018), cert. granted, 139 S. Ct. 1445 (2019) (mem.). 8 2012 VT 81, 192 Vt. 400, 58 A.3d 961. 9 Glover, 422 P.3d at 66. 10 Id. at 67. 11 Id. 12 Kansas v. Glover, 400 P.3d 182, 184 (Kan. Ct. App. 2017). 13 Id. 14 Glover, 422 P.3d at 67 (quotation omitted). 15 Id. 16 Id. 17 Glover, 400 P.3d at 186. 18 Id. at 187 (citing State v. Edmonds, 2012 VT 81, ¶ 9, 192 Vt. 400, 58 A.3d 961)). 19 Edmonds, 2012 VT 81, ¶ 9. 20 Id. ¶ 11. 21 Glover, 422 P.3d at 68-69. 22 Id. at 69-70. 23 Id. at 69. 24 Id. at 70. 25 Id. 26 Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). 27 Id. 28 Id. at 70. 29 Id. 30 Id. at 71. 31 Id. 32 Id. www.vtbar.org