State v. Joshua Allan Vitek, 2015AP421-CR, District 3, 10/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, police may reasonably assume the driver of a car is likely to be the owner, and may stop the car if they know the owner’s operating privileges are invalid. But what if more than one person owns the car, but only one of the owners has an invalid license? The state claims that a traffic stop is still justified by the fact that one of the owners has an invalid license. The court of appeals disagrees, at least when—as in this case—the state presents no evidence as to the number of registered owners and the validity of their operating privileges.
An officer stopped the car Vitek was driving after a “warrant check” revealed that the operating privileges of “one of the registered owners” was suspended. The officer couldn’t recall how many registered owners there were, but knew the suspended owner was a male. The officer couldn’t see whether a male was driving, so she pulled the car over to find out. (¶3). Relying on Newer, the state argued this information was sufficient to justify the stop. (¶¶4, 9).
While Newer held it is reasonable for an officer to assume that the person driving a particular vehicle is that vehicle’s owner, in that case there was only one registered owner. 306 Wis. 2d 193, ¶¶3, 7. Thus, the court of appeals says, “a more-precise articulation” of Newer’s holding is that “when a vehicle has only one owner, and that owner has a revoked or suspended license, a police officer may reasonably infer, for purposes of initiating a traffic stop, that the driver operating the vehicle is the owner with the revoked or suspended license, as opposed to, for example, a permissive user of the vehicle.” (¶9).
So Newer doesn’t answer the question in this case: “Is there reasonable suspicion to initiate a traffic stop where there is more than one owner of a vehicle, but it is unclear precisely how many owners there are, and only one of the owners has a suspended license?” (¶10). The court concludes the answer is”no”:
¶11 Under these facts, we cannot properly evaluate the reasonableness of the inference that the suspended owner was the person driving without knowing how many other owners could have been lawfully operating the vehicle. There could have been one other owner, there could have been two, there could have been four, or whatever number. The record is silent in this regard. At some point the inference underlying Newer becomes unreasonable when there are registered owners of the same vehicle who do not have a suspended license.
¶12 We need not decide in this case where that point is. The State has the burden of establishing that an investigative stop of a particular individual was reasonable. [State v.] Post, [2007 WI 60,] 301 Wis. 2d 1, ¶12[, 733 N.W.2d 634]. Given the record, including its failure to establish the actual number of people who owned the vehicle Vitek was driving (and, furthermore, how many of those people had valid licenses), the State has failed to satisfy its burden in this case. We can and do reject the notion that regardless of the number of a vehicle’s registered owners (unless, of course, that number is one and Newer controls), a traffic stop is justified only by the fact that one of those owners has an invalid license. The State has cited no authority for that broad proposition. ….
Because the court doesn’t decide the point at which the Newer inference becomes unreasonable, proof that there were (for example) only two owners, one of whom is suspended, might change the result. And, of course, reasonable suspicion is judged based on the totality of the circumstances, so there might be additional facts that support the inference the suspended owner is driving (for instance, knowledge by the police about the schedules or driving habits of the different owners, e.g., State v. Hamic, 129 P.3d 114, 119-20 (Kan. Ct. App. 2006)).
In this case the state did try to bolster the justification for the stop by pointing to other circumstances—namely, the fact the officer couldn’t see who was driving and the time of the stop (1:24 a.m.). But not being able to see the driver certainly can’t help the officer match the driver’s characteristics to the description of the suspended driver, a practice that court encourages in any event, “as it diminishes the probability of erroneous deprivations of individual liberty, such as the seizure of a registered owner with a valid driver’s license.” (¶14). Nor does the time of the stop help. The state says that’s relevant because of the prevalence of drunk-driving cases at that hour, but the officer didn’t suspect drunk driving; she made the stop based only on the suspended license of one of the owners. (¶15).
Finally, the court doesn’t adopt the reasoning of People v. Galvez, 930 N.E.2d 473 (Ill. Ct. App. 2010), on which Vitek relied. There, police stopped a car with two co-owners, one male and one female, because the male was suspended; the officer didn’t first determine the gender of the driver. Galvez held that “[t]he presence of a vehicle on the road is not suspicious merely because one of two co-owners is prohibited from driving.” Id. at 475. The state argued Galvez is wrong and shouldn’t be followed, but the court of appeals decides “it is neither necessary nor proper for us to address whether the Illinois court’s view of the law should also be the law in this state” because it failed to prove the number of the vehicle’s owners, and that is itself sufficient to warrant reversal. (¶12).
