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