Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded as a roadside chat in Austin, Texas, with Nick, a legal intern for Blue to Gold. The question comes from an officer in New York.
The officer says: “You search a license plate and the registered owner comes back suspended. The vehicle has no probable cause to be stopped, but the plate was searched with your computer, which is legal. Can you pull the vehicle over suspecting that the operator, the registered owner, is suspended?”
Man, isn’t this like a classic example? The classic case is this. Kansas v. Glover. It’s Kansas v. Glover, baby. If the glove don’t fit, you must acquit, but here the glove does fit.
What is the logic behind Kansas v. Glover?
Why is the Supreme Court authorizing us to pull people over when those two things exist? You run the RO. The RO comes back suspended. Well, because it’s presumed that whoever the registered owner is of the car is going to be presumed to be the driver of the car.
Now, also bear in mind, if you are this officer and you run the vehicle’s license plate and you see the registered owner comes back suspended, and you look at the name and it’s John Smith and it’s a male Hispanic or whatever, and you can kind of get a look inside the car and you see that it’s a female driving the car, well, then Kansas v. Glover is not going to work there. Because it’s not presumed that Mr. Smith is driving the car when you can clearly see that that’s a girl driving the car. So it’s not going to be him.
Do you have to drive away if the driver is obviously not the registered owner?
What if you have post-stop? What if post-stop, not post-op, you stopped the car thinking that Smith is driving, you don’t have any reason to believe he’s not driving, you walk up there and it’s a female driving?
Some agencies are telling these officers, once you see the long wavy hair and it’s clearly a female, you’ve got to do a 180 and get back in that black and white and drive away. Is that the rule?
No. You can absolutely still talk to them. What I would do is I would still treat it like a normal traffic stop, but I still explain to the person why I stopped them and kind of explain the misunderstanding, and let’s turn it into a consensual encounter at that point, because you don’t really have your detention. Your suspicion is really dispelled already.
So you kind of have to transition now into a consensual encounter. You can apologize for the mix-up and then say, “Hey, while we’re here, do you mind if I see your license?” They give it to you, great. If not, you go from there.
Can you still demand ID after your reasonable suspicion is dispelled?
Now, some cases, a few, not many, some cases have held, and when I say some, I’m probably being generous, maybe one or two, say that you can still demand their license if it’s not the RO, even though you have no reason to believe she is driving without a license or suspended.
Nick doesn’t like that, and I 100% agree. You’ve dispelled your reasonable suspicion. So why would you still have the authority to be able to demand ID just because you happen to pull this car over and it’s not the registered owner that you thought it was?
And look, it has to be wrong. Because first of all, remember, when we say you can demand, we also mean you can arrest. Because at the end of the day, you can demand whatever you want, but if you’re not going to arrest them, and they’re still not going to give you their ID, and you’re ultimately going to let them go, then I guess no harm, no foul. They’re probably not going to complain, right? They were let go.
We’re talking about the cop out there who says, “No, you have to give me your ID, and if you don’t, you’re going to jail,” for whatever statutory violation, whether it’s failure to identify upon demand, a stop and identify statute. What’s the government’s interest?
Does Terry v. Ohio end the detention once suspicion is dispelled?
In fact, when you read Terry v. Ohio, it’s pretty clear that once the suspicion has been dispelled, the detention has been completed. It’s over.
And I actually think that Terry has some mission creep, and some function creep, over the last decades. I think that cops are kind of using it, they’re kind of abusing it a tad, where this is the situation where they really don’t have any more reasonable suspicion and they just want to linger, or they just want to kind of keep people detained for a little longer.
Just let these people go. Because I’m not sure how you’re going to win if you go to the US Supreme Court and say, “Your Honor, I stopped them under Glover. It wasn’t the person. I demanded their ID. They didn’t give me their ID, and regardless, I want to have the authority to arrest them under the Fourth Amendment.” Why would they say yes to that? I don’t see why they would. There’s no reason for it.
How does the temporary registration rule support this?
Now, a lot of cases I can tell you would not allow this, and this is ancillary and it supports my argument. It’s the whole temporary registration issue, where cops will stop a vehicle because they don’t think they have any registration. Once they get up to the car, they see valid displayed temporary registration. They can see it when they pulled it over.
Courts have said those stops are over. They don’t have to go do a 180. You can go up there and say, “Hey, sir, ma’am, this is why I stopped you.” But they should no longer be detained past that point of explanation.
What if the driver turns out to be drunk, or admits she has no license?
So you go up there, you’re going to explain to them, “Hey, I stopped you,” because it’d be kind of weird to do a 180 and disappear, right? Well, yeah, you’re going to leave them thinking what just happened.
And you go up there, and then of course they’re intoxicated. They’re not the person, but they’re intoxicated. No problem with that at all.
And the last thing is, you tell them, “Hey, ma’am, I thought you were the RO. Is that you?” “Oh, that’s my boyfriend.” Okay, well, that’s why I stopped you. I thought your boyfriend was driving. “But you’re cool. I appreciate you. Can I see your license before you go?” “Oh, I don’t have a license,” or it’s revoked. And then we go from there.
That’s going to be lawful. Because again, you started out with the suspicion with the Kansas v. Glover, with the registered owner. You immediately dispel that, but you still make it a consensual encounter. You say, “Hey, while I’m here, can I get your license?” She says, “No, I don’t have a license.” Well, now you’ve transitioned again back to detention, because her statement, she just admitted that she doesn’t have a license.
And I like what Nick said. You’re transitioning from a detention to a consensual encounter. “Do you have a license?” She says no. Back to a detention, because that’s absolutely lawful.
Why is the Glover presumption allowed in the first place?
The last thing I was going to say to end off this segment is that the US Supreme Court said the reason why we’re allowed to do this, why we can presume that the driver, the RO, is the one driving, is because it’s a rational, reasonable presumption.
Presumptions are things in the law that basically, it’s like an educated guess. Like I presume certain things. And that’s one of the things I presume, that a person who’s lost their license is still driving their vehicle.
The only thing I’ll tell you that I don’t like is when there’s multiple ROs. Because you can’t say which one is the RO. Now you’re 50/50. You’re 50/50 on a presumption, which I think is going to be less than reasonable suspicion.
The short version
- Run the plate, the RO comes back suspended, you can stop the car. That is Kansas v. Glover, and it works because it is presumed the registered owner is the driver.
- If you can clearly see the driver is not the RO, Glover is not going to work there.
- You do not have to do a 180 and drive away. Explain the stop, explain the misunderstanding, and transition into a consensual encounter.
- Once the suspicion is dispelled, the detention is completed. Terry has some mission creep over the last decades.
- A few cases, maybe one or two, say you can still demand ID. It has to be wrong, because when we say demand, we also mean arrest.
- If she then says she has no license, you have transitioned back to a detention, and that is absolutely lawful.
- Multiple registered owners is the one I don’t like. You are 50/50 on a presumption, which I think is going to be less than reasonable suspicion.
Stay safe and make good case law.
Related from Blue to Gold
- What Do We Do if We Make Stop Under KS V Glover and the Driver Refuses to ID
- Can You Stop a Car on a Flock LPR Hit for a Wanted Registered Owner?
- Under a Stop and Identify Law, Can Police Demand More Than a Name?
This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#1063
