Kansas highway police have "waged war on motorists" for years, a federal judge says, in a ruling which draws back the veil on routine police practices that victimize innocent drivers.
Kansas Cops Have 'Waged War on Motorists' by Subjecting Them to Pretextual Traffic Stops, a Federal Judge Says | Reason | Jacob Sullum:
July 24, 2023 - "A cop pulls you over for a minor traffic violation. After giving you a warning or a ticket, he says, 'Drive safe!' and starts walking away. But he immediately turns around and walks toward your car again, saying, 'Hey, can I ask you something?' That maneuver, known as the 'Kansas Two-Step,' is aimed at evading the Fourth Amendment's constraints on searches and seizures. Police are not supposed to continue detaining you after the ostensible purpose of the stop has been accomplished unless they reasonably suspect you are involved in criminal activity. The two-step is designed to extend the encounter by making it notionally voluntary....That trick, which Kansas Highway Patrol (KHP) troopers commonly use based on training that recommends it, is undeniably convenient for cops who hope to find contraband or seizable cash. According to a federal judge in Kansas, it is also unconstitutional.
"'Troopers occupy a position of power and authority during a traffic stop,' U.S. District Kathryn Vratil observes in a decision published on Friday, 'and when a trooper quickly reapproaches a driver after a traffic stop and continues to ask questions, the authority that a trooper wields — combined with the fact that most motorists do not know that they are free to leave and KHP troopers deliberately decline to tell them that they are free to leave — communicates a strong message that the driver is not free to leave'.... 'In such circumstances,' Vratil says, "the theory that a driver who remains on the scene gives knowing and voluntary consent to further questioning is nothing but a convenient fiction; in the circumstances present in this case, troopers unlawfully detained drivers, without reasonable suspicion, for further questioning.'
"The case, Shaw v. Jones, involves several drivers represented by the American Civil Liberties Union (ACLU) of Kansas who objected to stops that they argued were illegally extended after they had received warnings or citations. In addition to agreeing with the plaintiffs on that point, Vratil found that KHP troopers improperly considered drivers' destinations or starting points as a significant reason to detain or search them. Her strongly worded rebuke pulls back the veil on pretextual traffic stops, which police routinely use to harass, detain, and search innocent motorists in the name of enforcing drug prohibition....
"The KHP 'has waged war on motorists — especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas,' Vratil, a George H.W. Bush appointee, writes. 'As wars go, this one is relatively easy; it's simple and cheap, and for motorists, it's not a fair fight. The war is basically a question of numbers: stop enough cars and you're bound to discover drugs. And what's the harm if a few constitutional rights are trampled along the way?'... 'Kansas has hundreds or thousands of traffic laws on the books,' Vratil observes. 'These traffic laws give KHP troopers innumerable reasons to stop motorists for violations which may involve public safety, but the stops [are] actually intended to investigate drug crimes for which they have little or no evidence'....
"Interstate 70 connects Colorado and Missouri, where marijuana is legal, through Kansas, where it is not.... 'Now that both states have legalized recreational marijuana,' Vratil notes, 'any traveler on I-70 between Colorado and Missouri — that is, anywhere on I-70 in Kansas, traveling in either direction—is by definition traveling both to and from a "drug source" state. And it doesn't stop there: according to KHP troopers, all major cities are also drug sources. As a result, all drivers on I-70 have moving targets on their backs'.... In the 2016 case Vasquez v. Lewis, the U.S. Court of Appeals for the 10th Circuit, which includes Kansas, ruled that a KHP trooper had 'impermissibly relied' on a driver's 'status as a resident of Colorado' to justify a search of his car....
"Based on the training received by KHP troopers and the details of the traffic stops experienced by the plaintiffs, Vratil concludes that the KHP has flouted Vasquez.... In some of those stops, she notes, troopers relied on 'an absurd and tenuous combination of factors,' such as driving on Interstate 70, driving a rental car, driving a car with out-of-state plates, 'seeming nervous while interacting with law enforcement,' 'going on a trip with one's nephew,' 'having fingerprints on the trunk lid,' and 'having a bag in the passenger seat.' In one case, a trooper deemed it 'extremely suspicious' that a woman with an autoimmune disorder 'chose to drive instead of fly during the COVID-19 pandemic.' He also thought it was suspicious that she was driving a Mercedes....
"In several cases, troopers who suspected drivers for such tenuous reasons used drug-detecting dogs to justify fruitless vehicle searches. The Supreme Court has approved the use of such dogs during routine traffic stops, provided it does not 'unreasonably' prolong the driver's detention. And the Court has said an alert by a properly trained dog is enough to provide probable cause for a search, notwithstanding substantial evidence that such alerts are often erroneous, imagined, invented, or triggered by the handler's subconscious cues.... Based on the KHP's account of what an alert actually signifies, that assumption seems unjustified, even when a dog is properly trained, actually reacts to a car, and is not responding to the handler's cues.
"For the plaintiffs in Shaw v. Jones, this confluence of factors — broad police power to stop cars, the fiction that interrogation during those stops is consensual, frivolous rationales for 'reasonable suspicion,' and excessive faith in canine narcs — turned alleged traffic violations that could have been addressed in 10 minutes or so into ordeals lasting 40 minutes or more. Those encounters included unjustified grilling, baseless accusations of wrongdoing, and humiliating searches that turned up nothing incriminating. They left a lasting impression on the plaintiffs, who report that they are now wary of the police, highly anxious about being pulled over, and disinclined to report crimes or otherwise seek police assistance....
"The abuses documented in this case are by no means limited to the Kansas Highway Patrol. Based on the leeway that the Supreme Court has given them, police officers across the country routinely use alleged traffic violations as an excuse to conduct criminal investigations that otherwise would not be permitted. Assuming that the Court is not prepared to revisit the precedents that created this situation, the best remedy may be public education about Fourth Amendment rights and the importance of asserting them even when it is psychologically difficult."
'Kansas Two-Step' KHP maneuver declared unconstitutional by federal judge | KSN TV | July 22, 2023:
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