Writing that the Kansas Highway Patrol “waged war on motorists,” U.S. District of Kansas Senior Judge Kathryn H. Vratil ordered the KHP to stop the so-called “Kansas Two-Step” in its effort at drug interdiction.
The technique involves a trooper, ending a conversation with a driver in a traffic stop, beginning to walk back to their patrol car, only to re-approach the vehicle to ask more questions. The delay in releasing the motorists allows time for the arrival of a drug-sniffing dog to indicate the presence of marijuana, for example.
In Shaw v Jones, with KHP Superintendent Herman Jones listed as defendant, Plaintiff Blaine Shaw, represented by the American Civil Liberties Union (ACLU) of Kansas, argued his Fourth Amendment right against unreasonable search and seizure was violated by the trooper’s action. Shaw was one of three drivers with out-of-state license plates stopped for a traffic violation between 2017 and 2019, all of whom either heading toward, or returning from, Colorado on I-70. All drivers and two passengers were subjected to the “Kansas Two-Step”. None was ultimately found in possession of illicit drugs.
Colorado legalized recreational marijuana in 2014, and Missouri followed suit last year. Both states had earlier legalized medical cannabis, but Kansas has not legalized either.
In her ruling in the bench trial, Judge Vratil upheld the motorists’ complaint, and found:
“KHP has waged war on motorists—especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas.”
The Court ruled:
“The Fourth Amendment to the United States Constitution protects citizens from “unreasonable searches and seizures,” which is why KHP troopers must have reasonable suspicion to search an individual’s person or property.
“The KHP has developed a work-around, however, which exploits fundamental precepts of the American legal system, along with the ignorance and timidity of the motoring public. Kansas has hundreds or thousands of traffic laws on the books. These traffic laws give KHP troopers innumerable reasons to stop motorists for violations which may involve public safety, but the stops actually intended to investigate drug crimes for which they have little or no evidence.
“Once the vehicle is detained, the trooper can look inside the car for drugs or other contraband in plain view. If no drugs or contraband are in plain view, the trooper cannot search the vehicle without “reasonable suspicion” to believe that a crime has been, is being or is about to be committed.”
The order now changes the interaction between trooper and motorist:
“When a trooper seeks to re-engage with a driver or occupant of the vehicle, after a traffic stop has concluded, the trooper shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, and document the subject’s consent on a written form which explains these rights. The written form shall include separate signature lines for the trooper to certify that the trooper has read and explained these rights to the subject, and for the subject to affirm that he or she understands the right to refuse and to revoke consent to the search.”
In the wake of the ruling, the KHP issued this statement to the media:
The Kansas Highway Patrol is reviewing the Court’s decision and respects the Judge’s conclusions and recommendations. Moving forward, KHP will continue its endeavor to ensure that our enforcement operations respect constitutional rights and comply with the law as we carry out our missions of Service, Courtesy, and Protection.
The Kansas Highway Patrol understands that many within the public wish to express their concerns and complaints to the agency regarding the lawsuit and the ruling in the case. KHP would like to direct the public to the online complaint forum within our Professional Standards Unit. The forum can be found here: https://kansashighwaypatrol.org/about-us/compliments-complaints/.
“I remain committed to the Kansas Highway Patrol and the employees that are serving within the agency. The administration and all agency members will continue to be held to the highest levels of integrity and professionalism”, said Colonel Erik Smith, Superintendent of the Kansas Highway Patrol.
The ACLU-Kansas statement was delivered by Legal Director Sharon Brett:
“This is a huge win—for our clients and for anyone else who travels on Kansas highways. We are gratified that the Court saw the ongoing harms of KHP’s unconstitutional practices and stepped in to stop the department’s widespread misconduct.
“Today’s decision validates that motorists’ constitutional rights cannot be cast aside under the guise of a ‘war on drugs’. It also demonstrates that courts will not tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation, and, in some tragic cases, violence.”