Amicus Curiae Brief — Kansas, Petitioner v. Charles Glover

No. 18-556

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------STATE OF KANSAS,

Petitioner,

v.

CHARLES GLOVER,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Kansas

-----------------------------------------------------------------AMICUS CURIAE BRIEF OF OKLAHOMA,

ARKANSAS, COLORADO, GEORGIA, INDIANA,

KENTUCKY, MICHIGAN, NEBRASKA, OHIO,

UTAH, AND WYOMING AS AMICI CURIAE

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------MIKE HUNTER

Attorney General

of Oklahoma

MICHAEL K. VELCHIK

RANDALL YATES

Asst. Solicitors General

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

OKLAHOMA OFFICE OF

THE ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 522-4392

Mithun.Mansinghani@

oag.ok.gov

[Additional Counsel Listed On Inside Cover]

================================================================

Counsel for Amici

LESLIE RUTLEDGE

Attorney General of

Arkansas

BILL SCHUETTE

Attorney General of

Michigan

CYNTHIA H. COFFMAN

Attorney General

of Colorado

DOUG PETERSON

Attorney General of

Nebraska

CHRIS CARR

Attorney General of Georgia

MICHAEL DEWINE

Attorney General of Ohio

CURTIS T. HILL, JR.

Attorney General of Indiana

SEAN D. REYES

Attorney General of Utah

ANDY BESHEAR

Attorney General of

Kentucky

PETER K. MICHAEL

Attorney General

of Wyoming

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTERESTS OF AMICI CURIAE .......................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

3

I.

II.

III.

The Decision Below Undermines Law

Enforcement’s Efforts To Promote Public

Safety .........................................................

3

A. Unlicensed drivers present a significant risk to public safety .....................

4

B. Police officers have limited means to

combat motorists driving with suspended licenses ....................................

6

This Petition Presents A Compelling Vehicle To Address The Important Question

Presented ...................................................

9

The Decision Below Is Wrong .................... 11

A. It is reasonable to infer that the registered owner is the driver, absent contrary information ................................. 11

B. Where the registered owner of a vehicle is unlicensed to drive, an officer

has a particularized and objective basis

for suspecting legal wrongdoing .......... 16

C. Reasonable suspicion may be drawn

from otherwise lawful acts .................. 17

ii

TABLE OF CONTENTS—Continued

Page

D. Police officers often cannot safely obtain

any “additional information” about

the driver without conducting a brief

investigatory stop ................................ 18

E. The majority rule adequately protects

the rights of law-abiding citizens ........ 21

CONCLUSION..................................................... 23

iii

TABLE OF AUTHORITIES

Page

CASES

Alabama v. White, 496 U.S. 325 (1990) .................. 4, 10

Armfield v. State, 918 N.E.2d 316 (Ind. 2009) ..... 7, 8, 20

Brendlin v. California, 551 U.S. 249 (2007) .................3

Delaware v. Prouse, 440 U.S. 648 (1979) ... 1, 4, 7, 12, 13

Illinois v. Gates, 462 U.S. 213 (1983) ..........................12

Illinois v. Wardlow, 528 U.S. 119 (2000) .............. 18, 21

Missouri v. McNeely, 569 U.S. 141 (2013) ....................4

Navarette v. California, 572 U.S. 393 (2014) ..............21

Nutraceutical Corp. v. Lambert, No. 17-1094

(U.S.) ........................................................................10

Ornelas v. United States, 517 U.S. 690 (1996) ...........11

Reid v. Georgia, 448 U.S. 438 (1980) ..........................18

State v. Donis, 723 A.2d 35 (N.J. 1998) ........................7

State v. Hess, 648 S.E.2d 913 (N.C. App. 2007) ...... 8, 19

State v. Martinez-Arvealo, 797 S.E.2d 181 (Ga.

App. 2017) ..................................................................8

State v. Neil, 207 P.3d 296 (Mont. 2009) ....................19

State v. Pike, 551 N.W.2d 919 (Minn. 1996) ..... 8, 19, 22

State v. Richter, 765 A.2d 687 (N.H. 2000) .................19

State v. Seward, No. 43658, 2016 WL 5266624

(Idaho App. Sept. 22, 2016) .....................................19

State v. Tozier, 905 A.2d 836 (Me. 2006) ....................20

iv

TABLE OF AUTHORITIES—Continued

Page

State v. Turner, 416 P.3d 872 (Ariz. Ct. App.

2018) ........................................................................21

State v. Vance, 790 N.W.2d 775 (Iowa

2010) .................................................... 8, 9, 20, 21, 22

State v. Weber, 139 So.3d 519 (La. 2014) ....................13

Terry v. Ohio, 392 U.S. 1 (1968) .......................... passim

United States v. Arvizu, 534 U.S. 266 (2002) .... 10, 16, 18

United States v. Brignoni-Ponce, 422 U.S. 873

(1975) ..................................................................... 3, 7

United States v. Chartier, 772 F.3d 539 (8th Cir.

2014) .................................................................... 8, 20

United States v. Cortez, 449 U.S. 411 (1981) ........ 15, 17

United States v. Cortez-Galaviz, 495 F.3d 1203

(10th Cir. 2007)............................................ 12, 13, 16

United States v. Pyles, 904 F.3d 422 (6th Cir.

2018) ........................................................................12

United States v. Sokolow, 490 U.S. 1 (1989) ....... passim

Village of Lake in the Hills v. Lloyd, 591 N.E.2d

524 (Ill. App. 2d Dist. 1992) ....................................12

Virginia v. LeBlanc, 137 S. Ct. 1726 (2017) ...............10

Walker v. Texas Div., Sons of Confederate Veterans,

Inc., 135 S. Ct. 2239 (2015) .......................................7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ......................................... passim

v

TABLE OF AUTHORITIES—Continued

Page

RULES

Sup. Ct. Rule 37.4 .........................................................1

OTHER AUTHORITIES

AAA Foundation for Traffic Safety, Unlicensed

to Kill 2 (Nov. 2011) ...................................................4

Barry Watson, The Crash Risk of Disqualified/

Suspended and Other Unlicensed Drivers, PROCEEDINGS OF ROAD SAFETY RESEARCH, POLICING

& EDUC. CONF. 181 (2002) .........................................5

David J. DeYoung et al., Estimating the exposure

and fatal crash rates of suspended/revoked and

unlicensed drivers in California, 29(1) ACCIDENT

ANALYSIS & PREVENTION 17 (1997), available at

https://www.sciencedirect.com/science/article/

abs/pii/S0001457596000565 ...................................14

K. James Kallail et al., The influence of license

status on Kansas child fatalities due to motor

vehicle crashes, 15(2) INT’L J. OF INJURY CONTROL

& SAFETY PROMOTION 77 (2008) ................................5

Mary Callahan, Guerneville man dies of injuries

in Highway 116 crash, The Press Democrat

(Feb. 24, 2012), available at https://www.press

democrat.com/news/2307027-181/guernevilleman-dies-of-injuries ..................................................6

NHTSA, Trends in Fatal Crashes Among Drivers

With Invalid Licenses (Dec. 2009) ............................4

vi

TABLE OF AUTHORITIES—Continued

Page

Paul Payne, Unlicensed driver sentenced to four

years in prison in fatal Santa Rosa crosswalk

crash, The Press Democrat (June 29, 2012),

available at https://www.pressdemocrat.com/

news/2317379-181/unlicensed-driver-sentencedto-four?gallery=2356207 ...........................................6

Report: Beware of Unlicensed drivers, ABC NEWS

(July 13, 2018), available at https://abcnews.

go.com/Travel/story?id=118913&page=1 ...............14

Stephanie Blows et al., Unlicensed Drivers and

Car Crash Injury, 6(3) TRAFFIC INJURY PREVENTION 230 (2005) ....................................................5

Sukhvir S. Brar, Estimating the over-involvement of suspended, revoked, and unlicensed

drivers as at-fault drivers in California fatal

crashes, 50 J. SAFETY RESEARCH 53 (2014)................5

The 10 States with the Most Suspended/Revoked

Licenses, Insurify (June 4, 2018), available at

https://insurify.com/insights/the-10-states-withthe-most-suspended-revoked-licenses/ .....................5

U.S. Census Bureau, QuickFacts, Kansas, available at https://www.census.gov/quickfacts/ks ........13

1

INTERESTS OF AMICI CURIAE

Amici curiae are the States of Oklahoma, Arkansas, Colorado, Georgia, Indiana, Kentucky, Michigan,

Nebraska, Ohio, Utah, and Wyoming.1 They operate

their own motor vehicle licensing agencies and are responsible for ensuring the safety of motorists, passengers, and pedestrians, as well as enforcing the criminal

laws of their state. Drivers’ license and registration requirements “are essential elements in a highway

safety program,” and “the States have a vital interest

in ensuring that only those qualified to do so are permitted to operate motor vehicles.” Delaware v. Prouse,

440 U.S. 648, 658 (1979).

This case involves a challenge to the constitutionality of a standard and frequent practice of state law

enforcement officers: stopping motor vehicles known to

be registered to individuals with suspended licenses,

or having outstanding arrest warrants, in order to verify whether the driver is committing or has committed

a crime. Studies show that despite having their license

suspended, many drivers continue to drive their vehicles. And because unlicensed drivers account for a disproportionate share of motor vehicle accidents, such

stops are often the sole, indispensable means available

to officers to police against this important public safety

hazard.

The decision below severely undermines the ability of state officers to keep their streets safe. It injects

unnecessary uncertainty in states across the country

1

Amici submit this brief pursuant to Sup. Ct. Rule 37.4. All

parties received notice of amici’s intention to file this brief.

2

as to whether officers can continue employing this

standard law enforcement practice. This in turn jeopardizes the lives of lawful drivers, passengers, and

pedestrians everywhere. Accordingly, amici states

have a substantial interest in this Court’s disposition

of the case.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

The question presented implicates a frequently recurring problem that police officers face when combating a significant public safety hazard: unlicensed

drivers. Numerous studies have documented that unlicensed drivers are statistically more likely to be involved in automobile accidents, and that these crashes

tend to be especially severe. Studies also show that

drivers who have their licenses revoked nevertheless

continue to drive with alarming frequency. Ordinarily,

police officers lack the tools to identify unlicensed drivers on the road. But when an officer runs a license

plate and discovers that the vehicle’s registered owner

is unlicensed to drive, the officer has reasonable suspicion to stop the car and investigate whether the driver

is in fact unlicensed. Yet the court below broke with the

considered judgment of six U.S. Courts of Appeals in

holding that even in these limited circumstances, police officers may not stop a car absent further corroborating evidence that the driver is in fact unlicensed. In

so holding, the court failed to acknowledge that officers

will often be unable to obtain any further information

about the driver—whether because of nightfall, the

3

weather, tinted windows, or traffic conditions. Thus, if

left to stand, the decision below will severely undermine law enforcement’s ability to police against unlicensed drivers.

The Petition presents a compelling vehicle to resolve this issue. There are no facts in dispute, and the

legal question has been passed upon by numerous

lower courts, which have fully ventilated the arguments on each side. Because the decision below is

wrong and jeopardizes public safety, this Court should

grant review.

------------------------------------------------------------------

ARGUMENT

I.

The Decision Below Undermines Law

Enforcement’s Efforts To Promote Public

Safety.

Every day, law enforcement officials patrol America’s streets to protect ordinary citizens from fleeing

criminals, drunk drivers, and unsafe motorists. When

a lawbreaker is ensconced in a vehicle, officers often do

not have the benefit of examining facial expressions,

spoken words, or furtive gestures. Instead, they must

rely upon what evidence remains visible to them: the

external appearance of cars, their movements, and

their license plate numbers. United States v. BrignoniPonce, 422 U.S. 873, 884-85 (1975); see also, e.g.,

Brendlin v. California, 551 U.S. 249, 252 (2007).

Often this is enough for officers to develop reasonable suspicion of a crime. Police can investigate specific

4

vehicles that match a witness’s description. See, e.g.,

Alabama v. White, 496 U.S. 325, 327 (1990). They can

pull over swerving cars to stop suspected drunk drivers. See, e.g., Missouri v. McNeely, 569 U.S. 141, 145

(2013). And in most jurisdictions, they can stop vehicles registered to unlicensed drivers to investigate

whether the driver is in fact licensed to operate the

vehicle. Relatedly, they can investigate whether the

person driving has an outstanding arrest warrant—

sometimes for very serious crimes—based on the identifying information broadcast by a license plate. This

forms a critical responsibility of police officers across

the country, in light of the significant hazards unlicensed drivers and those with outstanding warrants

pose to the public.

A. Unlicensed drivers present a significant

risk to public safety.

Almost forty years ago, this Court suggested

that “drivers without licenses are presumably the less

safe drivers.” Prouse, 440 U.S. at 659. We now have

the statistics to back that up. Although unlicensed

drivers account for only 2.6% of all motorists on the

road, they are responsible for 18.2% of fatal crashes.

AAA Foundation for Traffic Safety, Unlicensed to Kill 2

(Nov. 2011). These crashes result in roughly 7,000

deaths each year. NHTSA, Trends in Fatal Crashes

Among Drivers With Invalid Licenses (Dec. 2009).

And in 43.0% of these cases, the drivers are both

unlicensed and under the influence. Unlicensed to Kill,

supra at 3.

5

Numerous studies have concluded that “[u]nlicensed drivers are a high risk group for car crash injury after taking other crash-related risk factors into

account.” Stephanie Blows et al., Unlicensed Drivers

and Car Crash Injury, 6(3) TRAFFIC INJURY PREVENTION

230, 230 (2005). For example, suspended, revoked, and

unlicensed drivers are 3.7 to 4.9 times more likely to

have caused fatal crashes in which they are involved.

Sukhvir S. Brar, Estimating the over-involvement of

suspended, revoked, and unlicensed drivers as at-fault

drivers in California fatal crashes, 50 J. SAFETY RESEARCH 53, 53 (2014). Not only that, their crashes also

“tend to be more severe.” Barry Watson, The Crash

Risk of Disqualified/Suspended and Other Unlicensed

Drivers, PROCEEDINGS OF ROAD SAFETY RESEARCH, POLICING & EDUC. CONF. 181 (2002).

This is a particularly pressing issue in Kansas,

which has the fifth highest rate of drivers with suspended licenses.2 In the state, 14% of child fatalities

from motor vehicle accidents occur where the driver

was not licensed. K. James Kallail et al., The influence

of license status on Kansas child fatalities due to motor

vehicle crashes, 15(2) INT’L J. OF INJURY CONTROL &

SAFETY PROMOTION 77 (2008).

But these accidents are more than statistics. They

often destroy the lives of victims and their loved ones.

Examples are too numerous to detail here, but their

2

The 10 States with the Most Suspended/Revoked Licenses,

Insurify (June 4, 2018), available at https://insurify.com/insights/

the-10-states-with-the-most-suspended-revoked-licenses/.

6

sheer volume should not lead us to lightly pass over

victims like Glenn Vierra, 58, who was killed by an unlicensed driver with four prior convictions for driving

without a license.3 Nor should we forget Christopher

“Buddy” Rowe, a four-year-old boy who was struck by

an unlicensed motorist and sent flying 80 feet through

the air while his mother, twin sister, and 6-year-old sister watched from the crosswalk. The driver had previously been caught driving without a license twice

before—including 5 days before he killed Buddy.4 Officers who endeavor to prevent these crimes are engaged

in serious, life-saving work.

B. Police officers have limited means to

combat motorists driving with suspended licenses.

Police officers have a circumscribed toolkit to combat unlicensed drivers. As this Court has noted, absent

some way to narrow the inquiry, it would be unworkable for police officers to stop cars at random to identify

unlicensed drivers: “It seems common sense that the

percentage of all drivers on the road who are driving

without a license is very small and that the number of

3

Mary Callahan, Guerneville man dies of injuries in Highway 116 crash, The Press Democrat (Feb. 24, 2012), available at

https://www.pressdemocrat.com/news/2307027-181/guernevilleman-dies-of-injuries.

4

Paul Payne, Unlicensed driver sentenced to four years in

prison in fatal Santa Rosa crosswalk crash, The Press Democrat

(June 29, 2012), available at https://www.pressdemocrat.com/news/

2317379-181/unlicensed-driver-sentenced-to-four?gallery=2356207.

7

licensed drivers who will be stopped in order to find

one unlicensed operator will be large indeed.” Prouse,

440 U.S. at 659-60. As a result, officers generally cannot “stop[ ] an automobile and detain[ ] the driver in

order to check his driver’s license,” id. at 663, absent

some additional reason to suspect that criminal activity may be afoot.

Officers do, however, have access to government

databases that link license plate numbers to vehicle

registration information. See State v. Donis, 723 A.2d

35, 36-37 (N.J. 1998) (explaining system). That, indeed,

is the principal expressive purpose of license plates.

See Walker v. Texas Div., Sons of Confederate Veterans,

Inc., 135 S. Ct. 2239, 2249 (2015) (“[L]icense plates are,

essentially, government IDs.”). From there, an officer

can ascertain whether the registered owner of a vehicle has a suspended license or warrant for his arrest.

The officer can also obtain all the information available on the registered owner’s driver’s license, including

his name, age, height, and weight.

Although state license plate requirements have a

long history, Walker, 135 S. Ct. at 2248, they have become only more necessary in modern times, where vehicles can travel at high speeds, with tinted windows

or cabins high off the ground. “At best,” an officer may

“ha[ve] only a fleeting glimpse of the persons in the

moving car, illuminated by headlights.” BrignoniPonce, 422 U.S. at 886; see, e.g., Armfield v. State, 918

N.E.2d 316, 317 (Ind. 2009) (officer “did not have the

opportunity to verify anything about the identity of the

driver in the short time it took for him to pass the

8

[defendant’s car]”). At worst, officers will be unable to

safely view the identity of the driver at all.

American courts are filled with cases documenting

the various reasons why this is the case: It can be difficult to see at night. See, e.g., United States v. Chartier,

772 F.3d 539, 543 (8th Cir. 2014); State v. Hess, 648

S.E.2d 913, 915 (N.C. App. 2007); State v. MartinezArvealo, 797 S.E.2d 181, 183 (Ga. App. 2017). Heavy

traffic may render further investigation difficult, if not

impossible. See, e.g., State v. Vance, 790 N.W.2d 775,

782 (Iowa 2010). Tinted windows can mask the driver’s

identity. See, e.g., Vance, 790 N.W.2d at 782; Armfield,

918 N.E.2d at 317 n.1. Weather, too, can impede the officer’s visibility. See, e.g., Vance, 790 N.W.2d at 782. And

objects within the driver’s vehicle may block the officer’s line of sight. See, e.g., State v. Pike, 551 N.W.2d

919, 921 (Minn. 1996) (defendant “testified that his

truck was elevated on over-sized tires and the headrest

on the back of the seat covered the back of his head”).

Any one or combination of these things could render it

“impossible for an officer to verify that a driver of a vehicle fits the description of the registered owner.”

Vance, 790 N.W.2d at 782.

Absent the ability to conduct a brief, limited investigatory stop, officers in these situations may lack any

independent means to protect the public safety when a

vehicle’s license tag indicates the possibility that a

crime is being or has been committed. For these reasons, the decision below will have a debilitating effect

on law enforcement officials’ ability to keep our streets

safe. As the Iowa Supreme Court warned, “to forbid the

9

police from relying on such an inference to form reasonable suspicion for an investigatory stop would seriously limit an officer’s ability to investigate suspension

violations because there are few, if any, additional

steps the officer can utilize to establish the driver of a

vehicle is its registered owner.” Vance, 790 N.W.2d at

782.

II.

This Petition Presents A Compelling Vehicle To Address The Important Question

Presented.

This Petition uniquely presents a clean question of

law that implicates important public safety concerns,

has divided courts, and has been the subject of careful

consideration by judges across the country. This Court

should grant certiorari.

1. All agree that in this case, “the parties present[ ] narrow, stipulated facts.” Pet. App. 10a. They

have been reduced to seven simple propositions. Pet.

App. 4a-5a, 60a-61a. And they are all specified on

paper, subject to de novo review as to the application

of law. Pet. App. 8a. There do not appear to be any

alternative grounds that would render the certiorari

petition ineffective at altering the judgment, or any

factual issues that threaten to render the case moot.

This case thus presents a question of law with an

elegance rarely seen.

2. The Petition also lays out in a clear fashion the

many decisions issued by courts across the country on

this issue and illustrates the division among these

10

authorities, however lopsided. See Pet. 6-12; White, 496

U.S. at 328 (granting certiorari “[b]ecause of differing

views in the state and federal courts over whether an

anonymous tip may furnish reasonable suspicion for a

stop”); see, e.g., Nutraceutical Corp. v. Lambert, No. 171094 (U.S.) (granting review of outlier decision that

conflicts with seven courts of appeals). Although the

court below is in the minority on the issue, its incorrect

ruling may spread to other states like Oklahoma, Arkansas, Colorado, Georgia, Indiana, Kentucky, Michigan, Nebraska, Ohio, Utah, and Wyoming, where

either the relevant state or federal appellate courts

have not both ruled on the matter. As explained in Part

I, supra, this would have an immediate and significant

effect on public safety because of its implications for

day-to-day law enforcement in an area of often lifeand-death concern. United States v. Arvizu, 534 U.S.

266, 273 (2002) (granting certiorari because of the importance of conducting investigatory stops in particular law enforcement contexts); United States v.

Sokolow, 490 U.S. 1, 7 (1989) (same).

3. Certiorari is especially warranted in this case

because of the untenable division within Kansas,

where the binding rule from the relevant federal appellate court conflicts with the rule set forth by the

state’s highest court on a question of federal law. Pet.

11-12; cf. Virginia v. LeBlanc, 137 S. Ct. 1726, 1729-30

(2017) (granting certiorari to spare courts within one

state from the “legal quagmire” of conflicting decisions

from the federal appellate court and the state’s highest

court). The result of the decision below is that law enforcement officers will be subject to different Fourth

11

Amendment standards within the same state based

solely upon whether the future prosecution ends up in

state or federal court. This Court in the past has affirmatively acted to prevent situations where the application of Fourth Amendment law is dependent on

such vagaries. Ornelas v. United States, 517 U.S. 690,

697 (1996). Thus, not only is the question presented

worthy of certiorari because of the split among courts

on the issue, granting this particular case now, rather

than some future case, is especially important given

the intra-state conflict created by the decision below.

4. Finally, no delay in granting certiorari on this

question is warranted because further percolation of

the issue is unnecessary: The Court has available numerous opinions to draw upon from a great diversity of

courts. Pet. 6-12. The issues have been adequately ventilated on each side. See Pet. App. 47a-116a. In granting the Petition, the Court should heed the numerous

sound judgments from courts across the country on the

reasonableness of these brief investigative stops to correct the error of the court below.

III. The Decision Below Is Wrong.

A. It is reasonable to infer that the registered owner is the driver, absent contrary information.

The court below based its entire opinion on a false

premise: That because there exists a significant chance

the registered owner of a vehicle is not in fact the

driver, any suspicion is unreasonable. See Pet. App.

12

11a-14a (repeatedly requiring the officer have proof

that Glover “likely” was the driver of the vehicle before

conducting an investigatory stop). But this Court has

said that the requisite level of suspicion for a Terry

stop “is considerably less than proof of wrongdoing by

a preponderance of the evidence” and less even than

the standard for probable cause, which is “a fair probability that contraband or evidence of a crime will be

found.” Sokolow, 490 U.S. at 7 (quoting Illinois v. Gates,

462 U.S. 213, 238 (1983)). That standard is amply met

here. In the words of then-Judge Gorsuch, “common

sense and ordinary experience suggest that a vehicle’s

owner is, while surely not always, very often the driver

of his or her own car.” United States v. Cortez-Galaviz,

495 F.3d 1203, 1207 (10th Cir. 2007). For this reason,

Judge Sutton and many other learned jurists have concluded that, “it is fair to infer that the registered owner

of a car is in the car absent information that defeats

the inference.” United States v. Pyles, 904 F.3d 422,

424-25 (6th Cir. 2018) (citing 11 cases). Civil law cases

similarly countenance the inference that a vehicle is

being driven by its owner. Village of Lake in the Hills

v. Lloyd, 591 N.E.2d 524, 526 (Ill. App. 2d Dist. 1992).

1. Basic math should be enough to show how different this case is from Prouse. There, the Court held

that the chance of any vehicle on the road being driven

by an unlicensed driver—which we now know is

around 2%, supra at 6—is insufficient for reasonable

suspicion. Prouse, 440 U.S. at 660. But here even granting, as the court below emphasized, that “in Kansas . . .

families may have several drivers sharing vehicles

13

legally registered in the names of only one or two of the

family members,” Pet. App. 11a, there is still nearly a

30% or 40% chance that the registered owner is driving

the vehicle—in which case he would be committing a

crime. According to U.S. census statistics the average

household in Kansas has 2.53 members.5 If in any

other context an officer knew that there was nearly a

40% chance that a crime was being committed, that

should suffice for “reasonable suspicion.” Cf. State v.

Weber, 139 So.3d 519, 522 (La. 2014) (officers had reasonable suspicion to draw blood of registered owner of

vehicle involved in crash where they “had more than a

random one in three chance that defendant was the

driver of the truck”). At the very least, this case is orders of magnitude closer to epistemological certainty

about the commission of a crime than Prouse. Kansas

policemen “ha[ve] reason, therefore, to pluck this needle from the haystack of cars.” Cortez-Galaviz, 495 F.3d

at 1206.

The court below appears to counter that such a

probability must be discounted by rejecting the “assumption that the owner will likely disregard the suspension or revocation order and continue to drive . . .

because it presumes a broad and general criminal inclination on the part of suspended drivers.” Pet. App.

12a. But unfortunately, while expressing a noble sentiment, this presumption that those with suspended

5

U.S. Census Bureau, QuickFacts, Kansas, available at

https://www.census.gov/quickfacts/ks.

14

licenses are generally law-abiding contradicts empirical reality.

“There have been a number of studies conducted

during the past three decades which show that most

suspended/revoked drivers violate their license action

and continue to drive during their period of disqualification.” David J. DeYoung et al., Estimating the exposure and fatal crash rates of suspended/revoked and

unlicensed drivers in California, 29(1) ACCIDENT ANALYSIS & PREVENTION 17 (1997) (formatting altered).6 In

the words of one researcher at the Texas Transportation Institute of Texas A&M University: “It’s like a

revolving door. These people are being suspended

and suspended and suspended again, and still, they’re

driving.”7

2. Instead of recognizing these commonsense

and empirical probabilities, the court below engaged

in wordplay. It quibbled over whether the officer

“assumed” versus “inferred” that the driver was

unlicensed. Pet. App. 10a. But almost all knowledge is

based on inference. Here, the inferential logic is

straightforward:

6

Available at https://www.sciencedirect.com/science/article/

abs/pii/S0001457596000565.

7

Report: Beware of Unlicensed drivers, ABC NEWS (July 13,

2018), available at https://abcnews.go.com/Travel/story?id=118913

&page=1.

15

•

most vehicles are driven by their registered owners or related family members,

•

most families have only a few members,

•

therefore one can infer that there is a fair

possibility that the driver of the vehicle is

the registered owner.

Such a process is not “the product of a volatile or

inventive imagination, or was undertaken simply as an

act of harassment” of the type the Fourth Amendment

prohibits. Terry v. Ohio, 392 U.S. 1, 28 (1968).

In any event, the Court’s case law eschews the distinction the Kansas Supreme Court drew between inferences and assumptions. See, e.g., Terry, 392 U.S. at

28 (search of those suspected of planning a daytime

robbery was justified because “it is reasonable to assume” the suspected crime “would be likely to involve

the use of weapons” (emphasis added)). It is true that

the officer in this case faced some uncertainty, but inference—and developing reasonable suspicion enough

to warrant further investigation—is all about drawing

tentative conclusions in the face of uncertainty. “The

process does not deal with hard certainties, but with

probabilities.” Sokolow, 490 U.S. at 8 (quoting United

States v. Cortez, 449 U.S. 411, 417 (1981)); see also

Terry, 392 U.S. at 27 (“The officer need not be absolutely certain . . . ; the issue is whether a reasonably

prudent man in the circumstances would be warranted

in the belief. . . .”).

16

B. Where the registered owner of a vehicle is unlicensed to drive, an officer has

a particularized and objective basis for

suspecting legal wrongdoing.

Similarly, the court below misinterpreted this

Court’s requirement that officers have a “particularized and objective basis for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273 (cleaned up). It mistakenly

read this standard to require deductive logic to arrive

at a near-certain conclusion of criminal wrongdoing.

Instead, reasonable suspicion requires exactly what it

says: a (1) particularized suspicion grounded on an (2)

objective basis.

Here, the officer can articulate specific facts particular to the vehicle he is stopping: “I know that the

registered owner of this vehicle is unlicensed to drive,”

“I know that if the owner is in this vehicle now, he is

violating the law,” and “it is sufficiently probable, even

if not certain, that this particular owner is driving and

therefore committing a crime.” This line of reasoning

is particularized to the specific license plate the officer

observed (here, 295ATJ). Pet. App. 51a.

The officer here also has an objective basis for

the stop. It is not the product of subjective hunches,

idiosyncratic biases, or personal emotion. Cf. CortezGalaviz, 495 F.3d at 1206 (an officer is not “merely

viewing the [vehicle] through his windshield, wondering about its insurance status as he might any other

passing vehicle”) (cleaned up). Rather, the suspicion is

grounded in the vehicle’s license plate number, the

17

government records associated with that license plate,

and the registered owner’s status as an unlicensed

driver. If the registered owner is unlicensed to operate

the vehicle, a stop is justified; if the owner is licensed,

no such stop is necessary. That is not idiosyncratic or

subjective; almost every officer will come to the same

decision about whether or not to pull over the vehicle.

That is objective.

All of this amply satisfies the Fourth Amendment’s requirement of “ ‘some minimal level of objective justification’ for making the stop,” Sokolow, 490

U.S. at 7.

C. Reasonable suspicion may be drawn

from otherwise lawful acts.

The court below is also wrong to reason that an

officer lacked reasonable suspicion in this case because

“a person with a revoked driver’s license commits no

crime by simply owning and registering a vehicle” or

“by allowing another licensed driver to use the registered vehicle.” Pet. App. 9a. But that is the type of reasoning this Court has in the past rejected. United

States v. Cortez, 449 U.S. 411, 416-17 (1981) (overturning decision that found Fourth Amendment violation

because officers made “far too many innocent inferences to make the officers’ suspicions reasonably warranted”).

This Court has long recognized that behavior

that is otherwise lawful in itself may nevertheless

give rise to a reasonable suspicion that criminal

18

activity is afoot. Innocent acts may “warrant[ ] further

investigation.” Arvizu, 534 U.S. at 274; see also id. at

277 (although the facts could have “suggested a family

in a minivan on a holiday outing,” “[a] determination

that reasonable suspicion exists, however, need not

rule out the possibility of innocent conduct”); Reid v.

Georgia, 448 U.S. 438, 441 (1980) (“[T]here could, of

course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity

was afoot.”). “[T]he relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree

of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10.

“In allowing such detentions, Terry accepts the

risk that officers may stop innocent people. Indeed, the

Fourth Amendment accepts that risk in connection

with more drastic police action; persons arrested and

detained on probable cause to believe they have committed a crime may turn out to be innocent.” Illinois v.

Wardlow, 528 U.S. 119, 126 (2000). Thus, although observing a vehicle on the road that is registered to an

unlicensed driver “is not necessarily indicative of

wrongdoing[,] . . . it is certainly suggestive of such.” Id.

at 124.

D. Police officers often cannot safely obtain any “additional information” about

the driver without conducting a brief

investigatory stop.

The court below also flouted this Court’s specific

directive that “[t]he reasonableness of the officer’s

19

decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.”

Sokolow, 490 U.S. at 11. Instead, the court below

claimed that officers who run upon suspects like

Glover must take further steps to confirm identity before they may conduct an investigatory stop compliant

with the Fourth Amendment. Pet. App. 18a.

This argument has a superficial appeal, but as a

practical matter officers may be unable to obtain any

corroborating evidence absent the authority to pull

motorists over. See, e.g., Pet. App. 30a; State v. Neil, 207

P.3d 296, 296-97 (Mont. 2009) (officer “was unable to

determine [passengers’] gender, race, or any other obvious characteristics”); State v. Richter, 765 A.2d 687,

689 (N.H. 2000) (“The officer observed nothing that

would indicate that the driver was not the owner.”);

State v. Seward, No. 43658, 2016 WL 5266624, at *1

(Idaho App. Sept. 22, 2016) (“Later that same evening,

the vehicle drove past the officer but the officer could

not see who the occupants were.”); Hess, 648 S.E.2d at

915 (officer “could not determine anything about the

driver from behind that vehicle” including “the sex or

the race of the” driver). As noted above, nightfall, traffic, weather conditions, and other obstacles will often

impede any attempt at identification. Supra at 6.

These obstacles notwithstanding, the sheer distance

between the officer and the driver will rarely permit

anything beyond a rough demographic identification:

perhaps the driver’s sex and race, and maybe whether

the driver is old or young. See, e.g., Pike, 551 N.W.2d at

921 (officer “testified that he saw a ‘lone male occupant

20

in the vehicle that [he] believed to be in th[e] right age

category,’ by which he meant ‘about the age that the

registered owner was’ ”); State v. Tozier, 905 A.2d 836,

837 (Me. 2006) (“trooper . . . noticed that the driver . . .

was male”).

Moreover, even if police officers could maneuver

their cruisers to attempt a visual identification,

the court’s rule requiring such reconnaissance is

counterproductive. “[R]equiring the officer to verify the

driver of the vehicle strikes against basic principles of

safety [because it] puts the onus on the officer to maneuver himself into a position to clearly observe the

driver in the midst of traffic.” Armfield, 918 N.E.2d at

322 (internal quotation omitted). This becomes especially problematic in small or rural communities,

where it is difficult to imagine how an officer would

ever be able to view the driver of a car ahead of it on

a one-lane road—or even a two-lane road, other than

by driving at an elevated speed in the opposite direction of traffic. See, e.g., Chartier, 772 F.3d at 543

(“[T]here was no passing lane that [the officer] could

use to pull up safely alongside the vehicle to identify

the driver.”).

The rule laid down by the court below would force

officers to undertake such daring moves, which would

only stand to jeopardize, rather than “ensure[ ] the

safety of the roadways and of law enforcement,” Vance,

790 N.W.2d at 782—the very things police are trying to

address in the first place. “Certainly it would be unreasonable to require that police officers take unnecessary

risks in the performance of their duties.” Terry, 392

21

U.S. at 23; see also Navarette v. California, 572 U.S. 393,

403-04 (2014) (officer receiving tip of erratic driving

“might eventually dispel a reasonable suspicion of intoxication” by undertaking “[e]xtended observation of

an allegedly drunk driver,” but “[t]his would be . . . particularly inappropriate . . . because allowing a drunk

driver a second chance for dangerous conduct could

have disastrous consequences”).

Ultimately, the suggestion by the court below

about alternative means of investigation only underscores the existence of reasonable suspicion in cases

such as this. Why would an officer go through such efforts, potentially endangering public safety, to obtain

further information about the driver’s identity? It is

because the officer reasonably suspects unlawful behavior that warrants investigation—justifying precisely the type of limited, investigatory stop this Court

has approved in Terry and its progeny. See Wardlow,

528 U.S. at 126 (A Terry stop is a “far more minimal

intrusion” than arrest and “simply allow[s] the officer

to briefly investigate further.”); see also Vance, 790

N.W.2d at 780; State v. Turner, 416 P.3d 872, 873 (Ariz.

Ct. App. 2018).

E. The majority rule adequately protects

the rights of law-abiding citizens.

Finally, the court below failed to acknowledge

the protections to lawful citizens built into this Court’s

existing jurisprudence. This Court has consistently

maintained that an officer’s authority to conduct a

22

Terry stop is only coextensive with the suspicion: once

an officer determines that the suspected criminal activity is not afoot, the search is over. Terry, 392 U.S. at

30. For this reason, courts have recognized that if an

officer pulls over a motorist and immediately sees that

the driver does not match the description of the registered owner, the officer has lost any reasonable suspicion and the seizure must end.

If “for example . . . the vehicle’s driver appears to

be much older, much younger, or of a different gender

than the vehicle’s registered owner, reasonable suspicion would, of course, dissipate” because “[t]here would

simply be no reason to think that the nonowner driver

had a revoked [or suspended] license.” Vance, 790

N.W.2d at 782 (citations omitted). Or take a more specific example: “[I]f the officer knows that the owner of

a vehicle has a revoked license and further, that the

owner is a 22-year-old male, and the officer observes

that the person driving the vehicle is a 50- or 60-yearold woman, any reasonable suspicion of criminal activity evaporates.” Pike, 551 N.W.2d at 922.

Law-abiding motorists therefore enjoy adequate

protection against unreasonable searches and seizures,

because reasonable suspicion dissipates upon seeing a

driver that does not match the suspect’s description. If

this recognition occurs from a distance, the officer may

not stop the driver in the first place. If the officer only

recognizes his mistake upon approaching the driver

during a stop, the officer is left with nothing more to do

except to say: “I pulled you over because this vehicle

was registered to a driver with a suspended license. I

23

can see now that no crime is being committed. You are

free to go. Drive safely.”

------------------------------------------------------------------

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

MIKE HUNTER

Attorney General

of Oklahoma

MICHAEL K. VELCHIK

RANDALL YATES

Asst. Solicitors General

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 522-4392

Mithun.Mansinghani@

oag.ok.gov

November 28, 2018

Counsel for Amici

LESLIE RUTLEDGE

Attorney General of

Arkansas

BILL SCHUETTE

Attorney General of

Michigan

CYNTHIA H. COFFMAN

Attorney General

of Colorado

DOUG PETERSON

Attorney General of

Nebraska

CHRIS CARR

MICHAEL DEWINE

Attorney General of Georgia Attorney General of Ohio

CURTIS T. HILL, JR.

SEAN D. REYES

Attorney General of Indiana Attorney General of Utah

ANDY BESHEAR

Attorney General of

Kentucky

PETER K. MICHAEL

Attorney General

of Wyoming