State v. Glover

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,446

STATE OF KANSAS,
Appellant,

v.

CHARLES GLOVER,
Appellee.

SYLLABUS BY THE COURT

1.
A routine traffic stop is a warrantless seizure under the Fourth Amendment to the
United States Constitution and is therefore unreasonable unless the officer who initiates
the stop has a reasonable and articulable suspicion, based on facts, that the person
stopped has committed, is committing, or is about to commit a crime.

2.
Courts evaluate the existence of a reasonable suspicion under a totality-of-the-
circumstances analysis that requires a case-by-case assessment.

3.
The State bears the burden to justify a warrantless seizure, and it must do so with
actual evidence. In determining whether the State has met its burden, a court cannot draw
inferences in favor of the State from a lack of evidence in the record. Doing so
impermissibly relieves the State of its burden.

1
4.
An officer cannot begin a traffic stop to investigate whether the driver of a vehicle
has a valid license based solely on the fact the vehicle's registered owner has a suspended
or revoked driver's license. The officer must be able to point to specific and articulable
facts from which the officer can rationally infer that the driver of the vehicle—not just
the registered owner—has a suspended driver's license.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 377, 400 P.3d 182 (2017).
Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed July 27, 2018. Judgment of
the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.

Andrew Bauch, assistant district attorney, argued the cause, and John Grobmyer, legal intern,
Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with him on the brief for
appellant.

Elbridge Griffy IV, of Lawrence, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: The United States Supreme Court has determined that the Fourth
Amendment to the United States Constitution allows a law enforcement officer to initiate
a traffic stop only when the officer has an articulable and reasonable suspicion, based on
fact, that the person stopped has committed, is committing, or is about to commit a crime.
Here, the officer stopped a vehicle simply because he assumed the driver was the
registered owner, whose driver's license had been revoked. The officer had no
information to support the assumption that the owner was the driver.

The driver moved to suppress evidence obtained during the stop, arguing the
officer did not have reasonable suspicion of illegal activity when he stopped the car. The

2
district court agreed, finding unreasonable the officer's assumption that the car's driver
was the registered owner. The State appealed that ruling, and the Court of Appeals
reversed. State v. Glover, 54 Kan. App. 2d 377, 400 P.3d 182 (2017). On review of that
decision, we reverse the Court of Appeals and affirm the district court. We hold the
officer lacked an articulable and reasonable suspicion that the unidentified driver did not
have a valid driver's license; the officer's assumption was only a hunch and was
unsupported by a particularized and objective belief.

FACTS AND PROCEDURAL HISTORY

While on routine patrol, Douglas County Sheriff's Deputy Mark Mehrer observed
a 1995 Chevrolet pickup truck and ran the truck's license plate number through the
Kansas Department of Revenue's database. Deputy Mehrer learned Charles Glover, Jr.,
had registered the vehicle and Glover's Kansas driver's license had been revoked. Deputy
Mehrer did not observe any traffic violations but initiated a traffic stop based on his
assumption that Glover was driving the vehicle. He did not try to confirm the identity of
the driver before initiating the traffic stop.

The State charged Glover with driving as a habitual violator. He filed a motion to
suppress evidence, arguing the officer lacked reasonable suspicion to initiate the traffic
stop. The parties entered into the following stipulation of facts on which the district court
decided the motion:

"1. Deputy Mark Mehrer is a certified law enforcement officer employed by the
Douglas County[,] Kansas Sheriff's Office.

"2. On April 28, 2016, Deputy Mehrer was on routine patrol in Douglas County
when he observed a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ.

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 "3. Deputy Mehrer ran Kansas plate 295ATJ through the Kansas Department of
Revenue's file service. The registration came back to a 1995 Chevrolet 1500 pickup
truck.

"4. Kansas Department of Revenue files indicated the truck was registered to Charles
Glover Jr. The files also indicated that Mr. Glover had a revoked driver's license in the
State of Kansas.

"5. Deputy Mehrer assumed the registered owner of the truck was also the driver,
Charles Glover Jr.

"6. Deputy Mehrer did not observe any traffic violations, and did not attempt to
identify the driver [of] the truck. Based solely on the information that the registered
owner of the truck was revoked, Deputy Mehrer initiated a traffic stop.

"7. The driver of the truck was identified as the defendant, Charles Glover Jr."

The district court granted Glover's suppression motion, finding it was not
"reasonable for an officer to infer that the registered owner of a vehicle is also the driver
of the vehicle absent any information to the contrary." The district court judge relied on
personal experience, stating she has "three cars registered in [her] name. [Her] husband
drives one every day; [her] daughter [is] in [Washington D.C.] with one every day, and
[she] drive[s] the other." The judge believed her situation was much like many other
families.

The State filed an interlocutory appeal. The Court of Appeals reversed, holding:

"a law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to
investigate whether the driver has a valid driver's license if, when viewed in conjunction
with all of the other information available to the officer at the time of the stop, the officer
knows the registered owner of the vehicle has a suspended license and the officer is

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 unaware of any other evidence or circumstances from which an inference could be drawn
that the registered owner is not the driver of the vehicle." Glover, 54 Kan. App. 2d at 385.

We granted Glover's petition for review. Our jurisdiction arises under K.S.A.
20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

Glover correctly notes the State bears the burden of proving the lawfulness of a
warrantless seizure. See State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009). And
he argues the Court of Appeals' owner-is-the-driver presumption impermissibly relieves
the State of its burden of proof and shifts the burden to the driver. He argues that without
the presumption the State did not sustain its burden to justify the traffic stop—a
warrantless seizure—because the stipulation of facts showed no attempt by the officer to
identify the driver or otherwise obtain corroborating information to show he was driving.
We essentially agree with Glover's arguments. To explain that conclusion, we begin with
some general principles about reasonable searches and seizures.

The Fourth Amendment requires law enforcement officers who seize an individual
or who conduct a search to have either a warrant or a basis for relying on one of the
specific and well-recognized exceptions to the warrant requirement. Riley v. California,
573 U.S. ___, ___, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014); State v. Neighbors,
299 Kan. 234, 239, 328 P.3d 1081 (2014). One exception allows an officer to stop and
briefly detain an individual without a warrant when the officer has an articulable and
reasonable suspicion, based in fact, that the detained person is committing, has
committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968); State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). A
warrantless traffic stop can fall within this exception if the officer has reasonable

5
suspicion of a traffic violation or other criminal activity. See State v. Smith, 286 Kan.
402, 406, 184 P.3d 890 (2008).

To have reasonable suspicion to detain an individual, "[a] police officer must be
able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21. The
suspicion must have "'a particularized and objective basis'" and be something more than
"an unparticularized suspicion or hunch." State v. DeMarco, 263 Kan. 727, 735, 952 P.2d
1276 (1998) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134
L. Ed. 2d 911 [1996], and citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,
104 L. Ed. 2d [1989]). Although the United States Supreme Court has recognized that
"the concept of reasonable suspicion is somewhat abstract," it has "deliberately avoided
reducing it to '"a neat set of legal rules."'" United States v. Arvizu, 534 U.S. 266, 274, 122
S. Ct. 744, 151 L. Ed. 2d 740 (2002).

The United States Supreme Court applied these principles in the context of a case
in which a law enforcement officer initiated a traffic stop to check the driver's license and
registration. The officer did not know who was driving and had not observed any traffic
violations before the stop. The Court held: "[E]xcept in those situations in which there is
at least articulable and reasonable suspicion that a motorist is unlicensed[,] . . . stopping
an automobile and detaining the driver in order to check his driver's license . . . [is]
unreasonable under the Fourth Amendment." Delaware v. Prouse, 440 U.S. 648, 663, 99
S. Ct. 1391, 59 L. Ed. 2d 660 (1979).

In essence, according to the district court, that is what Deputy Mehrer did. Thus,
the district court granted Glover's motion to suppress. Generally, to review such a
conclusion, an appellate court would review the district court's ruling on a suppression
motion to determine whether the district court's factual findings are supported by
6
substantial competent evidence and would review the ultimate legal conclusion drawn
from those factual findings de novo. State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512
(2016). But when, as here, the parties submit the case to the district court on stipulated
facts, appellate courts need determine only the question of law of whether the district
court should have suppressed the evidence. This presents an issue subject to unlimited
review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).

Here, the stipulated facts are somewhat distinguishable from Prouse. Deputy
Mehrer knew the vehicle was properly registered in Glover's name but was also aware
Glover did not possess a valid license. Deputy Mehrer did not know whether Glover was
driving but "assumed the registered owner of the truck was also the driver, Charles
Glover Jr." In other words, Deputy Mehrer had some suspicion of a specific crime—
driving while revoked. But Deputy Mehrer, who had not observed a traffic violation,
needed reasonable suspicion Glover was driving, not just some suspicion. See Prouse,
440 U.S. at 663; Smith, 286 Kan. at 407.

Deputy Mehrer did not seek to confirm the identity of the driver, and the
stipulation provides no additional facts supporting an inference that Glover was driving.
Under these limited facts, the district court had to determine whether spotting a vehicle
owned by an unlicensed driver provides reasonable suspicion that an unlicensed motorist
is driving the car. Under the totality of the circumstances, we note that a person with a
revoked driver's license commits no crime by simply owning and registering a vehicle.
Nor does that person commit a crime by allowing another licensed driver to use the
registered vehicle. The crime occurs if an unlicensed driver operates the vehicle, making
the determinative question whether the driver of the vehicle, not its owner, has a revoked
license.

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 The State asserts, and the Court of Appeals held, reasonable suspicion can arise
because an officer may presume the owner is the driver absent contrary information. We
find this presumption legally erroneous for two reasons. First, the owner-is-the-driver
presumption implicitly requires applying and stacking unstated assumptions that are
unreasonable without further factual basis. Second, the presumption rests, in part, on
what the officer does not know. And in evaluating whether the State has met its burden to
prove the lawfulness of a search or seizure, courts cannot "draw inferences from the lack
of evidence in the record" because doing so may relieve the State of its burden and shift
the burden to the defendant to establish why reasonable suspicion did not exist. Porting,
281 Kan. at 327-28. To explain, we will discuss in more detail the reasons we reject the
Court of Appeals holding.

Applying and Stacking Assumptions

Here, the parties presented narrow, stipulated facts. One of those stipulations
stated: "Deputy Mehrer assumed the registered owner of the truck was also the driver,
Charles Glover Jr." (Emphasis added.) Notably, the stipulation did not speak of an
inference. And, as our discussion will show, assumed is an accurate word for what
Deputy Mehrer did here. A distinction exists between an assumption and an inference,
and this distinction is especially significant in the context of determining whether an
officer had reasonable suspicion. See Terry, 392 U.S. at 21 (reasonable suspicion requires
specific and articulable facts from which rational inferences can be drawn); DeMarco,
263 Kan. at 735 (citing Sokolow, 490 U.S. at 7, for the principle that an officer cannot
rely on an "unparticularized suspicion or hunch").

According to a dictionary published about the time of the United States Supreme
Court's decision in Terry, an assumption is "[a] statement accepted or supposed true
without proof or demonstration." American Heritage Dictionary, 80 (1969). In contrast,
8
an inference is "[s]omething inferred; a conclusion based on a premise," and to infer is
"[t]o conclude from evidence; deduce" or "[t]o have as a logical consequence." American
Heritage, 673. This means, by definition, a true inference fits with the Terry standard—it
is a conclusion or deduction based on an evidentiary premise, i.e., specific and articulable
facts. See Terry, 392 U.S. at 21; American Heritage, 673. An assumption has no basis in
proof or demonstration, so it is only an inarticulate hunch or an unparticularized
suspicion. See American Heritage, 80. Accordingly, an assumption will not satisfy
reasonable suspicion under the Terry standard. See DeMarco, 263 Kan. at 735.

Here, the panel overlooked the assumption and held:

"[A] law enforcement officer has reasonable suspicion to initiate a stop . . . if, when
viewed in conjunction with all of the other information available to the officer at the time
of the stop, the officer knows the registered owner of the vehicle has a suspended license
and the officer is unaware of any other evidence or circumstances from which an
inference could be drawn that the registered owner is not the driver of the vehicle."
Glover, 54 Kan. App. 2d at 385.

Although the panel used the phrase "when viewed in conjunction with all of the
other information available to the officer at the time of the stop," Deputy Mehrer had no
information beyond the fact that Glover, the registered owner, had a revoked driver's
license. For example, Deputy Mehrer did not have personal knowledge of Glover or his
driving habits. See Glover, 54 Kan. App. 2d at 385. Given the lack of other evidence, to
accept the owner-is-the-driver presumption as valid, the panel necessarily had to accept
two unstated assumptions.

First, it had to assume the registered owner was likely the primary driver of the
vehicle. As the district court stated, however, common experience in Kansas communities
suggests families may have several drivers sharing vehicles legally registered in the
9
names of only one or two of the family members. See Ornelas, 517 U.S. at 695
("Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not
possible. They are commonsense, nontechnical conceptions that deal with '"the factual
and practical consideration of everyday life on which reasonable and prudent men, not
legal technicians, act."'"). Unless the officer is familiar with the registered owner and his
or her driving habits or has another factual foundation, the officer can only assume, not
infer, the owner is the driver. And an assumption does not satisfy the Terry standard. See
DeMarco, 263 Kan. at 735.

Even if, for the sake of argument, we accept that it is reasonable to believe the
registered owner is likely the primary driver of a vehicle, we cannot accept the owner-is-
the-driver presumption because it ultimately turns on the second assumption that the
owner will likely disregard the suspension or revocation order and continue to drive. This
assumption is flawed because it presumes a broad and general criminal inclination on the
part of suspended drivers. Yet officers cannot assume criminal conduct is taking place
and detain someone without "specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at
21. The clear implication of Terry is that absent specific and articulable facts rationally
suggesting criminal activity, officers and courts should presume that citizens are engaged
in lawful activities and have a right to remain free from police interference. In this way,
this case varies from State v. Hamic, 35 Kan. App. 2d 202, 129 P.3d 114 (2006), a case
cited by the State and relied on by the panel.

In Hamic, before initiating a traffic stop, the officer remembered his prior contact
with the vehicle owner. He knew she had been stopped twice in the previous two months
for driving while suspended—once by him and once by another officer. Thus, the facts
established the unlicensed owner drove the vehicle and had repeatedly disregarded her

10
suspension order. In other words, the officer had specific and articulable facts to infer the
owner was likely driving the vehicle in violation of her suspension order.

In contrast, Deputy Mehrer merely assumed Glover was driving while revoked. He
did not corroborate the identity of the driver and had no knowledge of Glover having
previously disregarded the revocation order. Without this information (or other facts),
Deputy Mehrer should have presumed Glover was obeying the revocation order and was
therefore not the driver. See Prouse, 440 U.S. at 663; Terry, 392 U.S. at 21. The fact
Glover's vehicle was being driven was not readily indicative of a crime because Glover
could legally allow another licensed driver to operate his vehicle. Without further factual
support, it was not reasonable for Deputy Mehrer to believe Glover was disregarding the
revocation order simply because his vehicle was being driven.

Even if we were to accept the two assumptions as valid inferences, the State's
theory requires one assumption to be stacked on another. The assumption that an
unlicensed driver is likely to continue driving supports the presumption that it is the
registered owner who is driving the vehicle. Kansas law does not allow this type of
inference stacking. As we held in State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195
(2017): "Where the State relies on such inference stacking, i.e., where the State asks the
jury to make a presumption based upon other presumptions, it has not carried its burden
to present sufficient evidence." The same logic applies when an officer must state facts to
support an articulable and reasonable suspicion.

In summary, we explicitly reject the owner-is-the-driver presumption because it
assumes the registered owner is likely disregarding his or her suspension or revocation
order based on only the general fact his or her vehicle is being driven. Yet the
determinative question is not the status of the registered owner's license; it is the status of
the actual driver's license. Thus, we find the officer must have specific and articulable
11
facts suggesting the owner is driving the vehicle or is otherwise likely to violate the
suspension order based on other corroborating information, such as the officer's prior
encounters in Hamic. See Prouse, 440 U.S. at 663; Terry, 392 U.S. at 21.

Impermissible burden shifting

The owner-is-the-driver presumption is also invalid because it relieves the State of
its burden by eliminating 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. By creating a bright-line rule,
the State no longer has to prove the officer had particular and individualized suspicion
that the registered owner was driving the vehicle. Instead, in a sense, the rule motivates
officers to avoid confirming the identity of the driver because learning facts that suggest
the registered owner is not driving undermines reasonable suspicion. Such an application
is far afield from the reasonableness requirements of Terry and its progeny.

As we already discussed, the underlying assumptions are a necessary component
of the presumption. But without appropriate factual foundation, they are only that—
assumptions akin to unparticularized suspicions or inarticulate hunches and thus invalid
for purposes of reasonable suspicion. The owner-is-the-driver presumption is a form of
judicial gap-filling where courts use a lack of contrary evidence to convert an assumption
to an inference. This is a result we cannot accept because an assumption is something
without basis in fact or proof. A lack of proof to the contrary does not prove something
that lacked proof to begin with. Simply put, absence of evidence is not evidence of
absence.

This court has repeatedly held the State has the burden to justify a warrantless
seizure. See Morlock, 289 Kan. at 985. In determining whether the State has met its
12
burden, "[i]t [is] improper [for a court] to draw inferences from the lack of evidence in
the record." Porting, 281 Kan. at 328. In Porting, we held an inference based on a lack of
evidence improperly relieves the State of its burden of proof and shifts it to the defendant
to disprove the inference. 281 Kan. at 327-28.

Porting dealt with a warrantless search of a home based on the third-party consent
of a parolee, Eugene Hanson, who had just been released from an 18-month prison
sentence. Before his imprisonment, he and his former girlfriend, Sandra Porting, resided
in his mother's home. Porting continued to live with Hanson's mother while he served his
prison sentence. After he was released but before going to his mother's home, Hanson
asked a parole officer to sweep the house for drugs because he had heard rumors Porting
was using drugs in the house. The parole officer accompanied Hanson to the home, and
Hanson gave the officer permission to search. Although Hanson's mother was present, the
officer did not request her additional consent. During the search, the officer found
methamphetamine and drug paraphernalia in the home and in Porting's pockets.

Porting moved to suppress, arguing Hanson lacked authority to consent to the
search. The trial court denied her motion, finding Hanson had authority because he was a
resident of the home based on his physical presence and intent to remain there
permanently. On appeal, Porting argued that although Hanson was a former and
prospective resident of the home, he was not a resident at the time of the search. The
Court of Appeals found Hanson had authority to consent based on a lack of evidence that
he had permanently surrendered control of the residence, his mother had restricted his
access, or he was otherwise not welcome. See State v. Porting, 34 Kan. App. 2d 211,
214-15, 116 P.3d 728 (2005). This court reversed, holding the facts did not show Hanson
had authority and the inferences drawn from a lack of evidence in the record
impermissibly shifted the burden of proof to Porting. See Porting, 281 Kan. at 326-28.

13
 The Court of Appeals' reasoning here is highly analogous to its reasoning in
Porting. An inference is being drawn that Glover was the driver based on a lack of
evidence that he was not. See Glover, 54 Kan. App. 2d at 385. And while Porting related
to a warrantless search and this case involves a warrantless seizure, the State has the
burden of proof to justify both. See Morlock, 289 Kan. at 985; Porting, 281 Kan. at 324;
DeMarco, 263 Kan. at 732. In both cases, the inferences drawn based on a lack of
evidence constitute improper burden shifting. See Porting, 281 Kan. at 327-28.

While these reasons cause us to reject the panel's position, we note that the panel
supported its holding by citing several out-of-state decisions. See Glover, 54 Kan. App.
2d at 382-83 (citing Armfield v. State, 918 N.E.2d 316, 321-22 [Ind. 2009]; State v.
Vance, 790 N.W.2d 775, 781 [Iowa 2010]; State v. Tozier, 905 A.2d 836, 839 [Maine
2006]; State v. Pike, 551 N.W.2d 919, 922 [Minn. 1996]); State v. Neil, 350 Mont. 268,
271, 207 P.3d 296 [2009]; State v. Richter, 145 N.H. 640, 641-42, 765 A.2d 687 [2000];.
State v. Edmonds, 192 Vt. 400, 404, 58 A.3d 961 [2012]). In our reading of these
decisions, none of them discuss the underlying assumptions that the district court needed
to make here nor do they discuss the problems with inference stacking or with the lack of
evidence being produced by the State. Nor do those decisions justify the reasonableness
of the assumptions.

Instead, many of the decisions rest on the conclusion that common sense tells us
that a registered owner is the primary driver of all vehicles registered in his or her name.
But as the district court indicated, common experience suggests otherwise. And, as we
have discussed, even if we accept that assumption, common sense does not say that
someone who cannot legally drive will continue to do so. We cannot assume someone is
breaking the law. Finally, we note that some decisions rest on public policy. But we
cannot set aside principles of Kansas law simply because valid policy reasons exist for a

14
course of conduct. As a result, we find these decisions unpersuasive, at least as applied to
this case.

CONCLUSION

We reject the Court of Appeals' bright-line, owner-is-the-driver presumption
because reasonable suspicion must be based on specific and articulable facts from which
rational inferences can be drawn that the detained individual is committing, has
committed, or is about to commit a crime. The State has the burden to prove the officer
had reasonable suspicion, and this burden cannot be shifted to the defendant. When a
court draws inferences in favor of the State based on a lack of evidence in the record, it
impermissibly relieves the State of its burden.

To be clear, reasonable suspicion is a low burden. The State does not need
overwhelming evidence to satisfy its burden, but it must affirmatively produce evidence
showing the officer rationally inferred criminal activity based on specific and articulable
facts. See Terry, 392 U.S. at 21; Morlock, 289 Kan. at 985; Porting, 281 Kan. at 327-28.
Here, the problem is not that the State necessarily needs significantly more evidence; it
needs some more evidence. What more is required turns on the totality of the
circumstances, which courts must determine case by case. See DeMarco, 263 Kan. at
734-35. In plain terms, it does not matter if the evidentiary gap is an inch or a mile; if the
State has the burden to fill it, it must do so with evidence. A court cannot engage in
judicial gap-filling based on a lack of evidence. See Porting, 281 Kan. at 327-28.

Today, we decline to delineate the type of corroborating evidence that will satisfy
the State's burden. We cannot imagine all the ways the gap could be filled. But we
recognize that in other cases, the State, by presenting some more evidence, may meet its
burden.
15
 But the State did not present any such evidence here, so the question of what
evidence is necessary is not before us. Also, we stress that the reasonable suspicion
analysis is not amenable to checklists. Courts must determine the quantity and quality of
the evidence supporting an officer's actions on a case-by-case basis under a totality-of-
the-circumstances analysis. See DeMarco, 263 Kan. at 734-35. "Anything less would
invite intrusions upon constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches, a result [the United States Supreme] Court has
consistently refused to sanction." Terry, 392 U.S. at 22.

The judgment of the Court of Appeals is reversed. The judgment of the district
court is affirmed.

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