State v. Drew A. Heinrich, 2015AP1524-CR, District 4, 2/25/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The stop of the car Heinrich was driving was reasonable under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, because one of the two owners of the car had an occupational license and the vehicle was being operated outside the times allowed by that license.
An officer ran a registration check on a car around 11 o’clock one evening, and was informed the car had two registered owners, both male, born about four years apart. One had an unrestricted license, the other had an occupational license prohibiting driving after 11:00 p.m. The officer couldn’t make out the gender or age of the driver, so he stopped the car to determine if the driver was the owner with the occupational license. It was, and he was eventually charged with OWI. (¶¶2-4).
Newer holds 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 and they have no information that would suggest the owner is not driving (e.g., because the driver is a different gender or or age than the registered owner). 306 N.W.2d 193, ¶¶8-9. The court of appeals isn’t persuaded by Heinrich’s two arguments that Newer doesn’t apply if more than one person owns the car, but only one of the owners has an invalid (or, as in the case, restricted) license.
First, Heinrich argued that reasonable suspicion requires a greater than 50% chance the driver of the vehicle is violating the law, but with two registered owners the probability is lower than that. This misunderstands the reasonable suspicion standard, for even probable cause, a standard distinctly higher than reasonable suspicion, need not be established at a level exceeding 50% probability. State v. Tompkins, 144 Wis. 2d 116, 123-26, 423 N.W.2d 823 (1988) (proof that contraband was located at any one of three separate locations sufficient to establish probable cause). Rather than setting a specific percentage standard, reasonable suspicion is a “commonsense nontechnical conception(s) that deal[s] with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” State v. Eason, 2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625 (citations omitted). Thus, the court says, the reasoning supporting reasonable suspicion in Newer can apply to a vehicle with two registered owners when only one is not properly licensed to drive. (¶11).
Second, Heinrich argued that the fact one owner was licensed to operate the vehicle at 11:00 p.m. is, in the words of Newer, ¶2, a fact that “would suggest that the owner is not driving,” thus dissipating reasonable suspicion. The court disagrees, noting that Newer was referring to more salient facts like age or gender:
¶12 …. When an officer has an objective basis to conclude that the particular person who is not properly licensed to drive is not in fact behind the wheel, that necessarily directly undermines a reasonable suspicion that the disqualified person is driving. However, at issue here is the merely somewhat increased possibility that a person other than the disqualified person might be driving. There is a large qualitative difference between observing that the person behind the wheel does not resemble the disqualified driver and being aware of a fact that only marginally increases the possibility that the disqualified driver is not behind the wheel.
A variation on this issue was addressed in State v. Vitek, a recent unpublished case involving a car with multiple owners, one of whose license was suspended. Vitek agreed that “[a]t some point the inference underlying Newer becomes unreasonable when there are registered owners of the same vehicle who do not have a suspended license”—though it didn’t decide what that point is because in that case the record didn’t show how many owners there were, making it impossible to evaluate the reasonableness of the stop. (¶¶11-12).
Note, however, that in Vitek the defendant relied on People v. Galvez, 930 N.E.2d 473 (Ill. Ct. App. 2010), where police stopped a car with two co-owners, one male and one female, because the male was suspended, but without first determining the gender of the driver. Galvez reasoned that “[t]he presence of a vehicle on the road is not suspicious merely because one of two co-owners is prohibited from driving; it is to be expected that the co-owner whose license is in force would continue to operate the vehicle.” Thus, arguing there’s reasonable suspicion just because one of two owners can’t be driving “turns the ‘reasonable suspicion’ standard on its head by starting with the assumption that defendant is likely to have committed a criminal act and working backward from that assumption to glean suspicion from otherwise innocuous circumstances.” Id. at 475. Given the facts before it, the Vitek court didn’t decide whether Galvez is correct (¶12), and Galvez wasn’t cited or discussed in this case. Galvez supports Heinrich’s second argument, however, so it could be useful in future two-registered-owner cases—though, of course, there’s no guarantee our court of appeals will agree with it.