May I See Your License? Terry Stops and License Verification

Robert Leider, Yale Law School


When are police justified in detaining someone engaging in an activity requiring a license in order to investigate whether that person, in fact, has a valid license? The answer to this question is surprisingly varied. In Delaware v. Prouse, the Supreme Court held that police officers generally need reasonable suspicion that a motorist is unlicensed before conducting a forcible stop. But the rules on other licenses vary widely. For example, in the hunting context, many courts have allowed either suspicionless stops of suspected hunters or, at most, required reasonable suspicion that a person is a hunter—not that the person is an unlicensed hunter. And in cases involving individuals carrying weapons, many courts have engaged in a formalistic inquiry that looks to whether non-licensure is an element of the offense or having a license to carry a gun is an affirmative defense. If the non-licensure is an element of the offense, some courts have required reasonable suspicion both that the person is carrying a gun and that he lacks a valid license; but most courts have held that if having a license to carry is an affirmative defense, then police may stop anyone suspected of carrying a gun until the person proves that he fits within the defense (i.e., he has a license).

This Article suggests a unified framework for analyzing license-related Terry stops, and discusses how that standard interacts with the statutory structure of licensure laws. In this Article, I make two primary arguments. First, under current Supreme Court doctrine, there are only two ways to justify a forcible stop to check the validity of a license: either (1) a person must have a significantly diminished expectation of privacy by engaging in the underlying activity; or (2) officers must have reasonable suspicion that the particular individual is unlicensed. Second, I argue that (2) is true no matter how the law is structured—that is, regardless of whether non-licensure is an element of the offense or having a license is an affirmative defense. In other words, how the legislature structures a criminal statute is irrelevant for determining what truth conditions constitute “reasonable suspicion of criminal activity.”

My second argument leads to a major theoretical question: What is the function of the element/defense distinction in criminal procedure? I argue that the distinction serves no function in Fourth Amendment criminal procedure; the only function of the element/defense distinction is to divide evidentiary burdens of production at trial. “Reasonable suspicion of criminal activity” (or “probable cause”) occurs only when there is reasonable suspicion (or probable cause) both that a person has satisfied the elements of the offense and that the person has no relevant defense making the action permissible.