For the last three years, the ACLU of Kansas has been fighting what they call the "Kansas Two-Step" — a maneuver where state troopers make a stop for a traffic infraction, then, after the initial interaction, return to the vehicle for further questioning. Attorneys say the tactic is used to obtain more information in the hopes of determining probable cause to conduct a search for illegal drugs or weapons.
Sharon Brett, legal director for the Kansas ACLU, says the practice is a violation of drivers' constitutional rights and that troopers are targeting drivers from states where cannabis is legal, like Colorado.
"What's actually happening in these roadside detentions is that the trooper doesn't have reasonable suspicion to detain the driver," said Brett. "So they're going back for a second bite at the apple to try to drum up more information and then in their mind, have enough to justify the detention for a canine to come out and sniff around the car for drugs."
Brett's organization is representing a family that has sued a Kansas state trooper superintendent for such a stop. In 2018, the family, then living in Loveland, Colorado, was stopped in Kansas for crossing the white line on the right shoulder of I-70. Their RV was eventually detained for 45 minutes for a search in which Brett said no drugs were found. The trial resumes today, Wednesday, May 10, with a ruling expected later this week.
In an interview with Colorado Matters senior host Ryan Warner, Brett discussed how the "Kansas Two-Step" could potentially escalate into use-of-force confrontations, and offered advice for drivers should they find themselves pulled over for stops in the state.
This transcript has been edited for length and clarity.
Ryan Warner: You are representing the plaintiff Shawna Maloney in a civil lawsuit. In 2018, she and her family lived in Loveland, Colorado, and were traveling across Kansas. Give us a quick synopsis: what happened, and how does this so-called “Two-Step” come into play?
Sharon Brett: We're actually representing three different sets of plaintiffs in this lawsuit and Shawna Maloney and her husband, Mark Erich, are one of those three sets. They were living in Colorado. They had bought a new RV. It was a used RV, but new to them, and they were driving it with their kids on a road trip to visit some family in Alabama. They were stopped by the highway patrol on I-70 about halfway through Kansas and then subjected to an unconstitutional roadside detention.
The “Two-Step” comes into play where the trooper basically does all the business of the traffic stop, writes up a warning or a citation, comes back to the window, hands over your paperwork, says, "Here's your ticket, have a safe trip."
It seems like the stop is over, in other words.
Exactly. I think the move is designed to make you think everything is over and then they take two steps away, turn right back to the window and say, "Hey, I got a couple more questions for you." The highway patrol thinks that that maneuver, that “Two-Step” basically turns the traffic detention into a consensual encounter where they can continue to get information from the driver in hopes of getting a canine sniff of the vehicle and eventually a search of the car.
So, it is buying the officer, the trooper, time to some extent. Is it to call in reinforcements?
I think it's not necessarily about just buying them time, it's about buying them access to additional information. It's really trying to get the driver to give up more information about the purpose of their trip and what they're up to, which then the trooper wants to use to justify detaining them for a canine sniff. In order to detain for a canine sniff, the trooper has to have something called reasonable suspicion. That's what's required under the Fourth Amendment of the Constitution. What's actually happening in these roadside detentions is that the trooper doesn't have reasonable suspicion to detain the driver so they're going back for a second bite at the apple to try to drum up more information and then in their mind, have enough to justify the detention for a canine to come out and sniff around the car for drugs.
Differently put, isn't that good policing? Isn't that good investigative work?
Well, according to the Supreme Court, you need to have suspicion to detain the person even for those questions unless the conversation is completely consensual. The point of our lawsuit, and I think what the evidence is showing, is that those conversations aren't consensual. The highway patrol thinks that they are, but the reality on the ground is that they're not. These are people detained on the side of the road with a highway patrol trooper who just wrote them a ticket or threatened to write them a ticket, standing right next to their window, often with a service weapon right there on display, wanting to ask them more questions. People in that situation don't feel free to say no, don't feel like they can just drive off. In fact, practically speaking, they can't drive off without risking injury to the trooper. We're talking about the side of I-70 here and merging right back into ongoing traffic on a highway.
In this case, your client, the client from, at the time Loveland, Colorado, they'd been pulled over because I guess they had veered across a white shoulder line. Is that right?
The reason for the traffic stop was that they had crossed the fog line, right. These are what we call pretextual traffic stops. Very minor violations that the Kansas Highway Patrol is then pulling people over for with the hopes of going beyond that traffic violation and looking for evidence of drug trafficking, for example.
Let's get to the sniff. The assumption I suppose is that this is happening to Coloradans especially because they come from a state where marijuana is legal. Kansas meanwhile is one of just three states where cannabis, medical, or recreational remains illegal. Is that a fair assumption Sharon?
It's a fair assumption and I think it's what the evidence shows in this case. We had a statistician, a political science professor from Princeton University, do an analysis of the highway patrol's stop practices and canine sniff practices. What his analysis showed was that out-of-state drivers are disproportionately targeted for these traffic stops and then once targeted for the traffic stops, they are held for canine sniffs at disproportionate rates. That means they're held at a much higher rate than we would expect for their share of the total population on the road. It indicates that the highway patrol is deliberately targeting out-of-state motorists. We know from their training and from testimony that we've heard from the troopers, they find people coming from or going to Colorado to be suspicious because Colorado is a drug source state as they call it.
When we first published a story about the “Kansas Two-Step” to our website, CPR.org, it drew emails from several Coloradans who say they have experienced this as well, driving across Kansas. Just back to Shawna Maloney and her experience, was there a sniff then eventually?
Yes. The Erich-Maloney family was detained on the side of the road at about 5:30 in the morning for a K-9 sniff. The K-9 allegedly alerted on the car and once a canine alerts, then the officer has probable cause to search the entire vehicle, so that's what happened to them. The troopers ended up searching their vehicle, sort of tossing it from head to toe, actually causing some damage to the inside of their RV, and ultimately they found nothing.
Ultimately they found nothing. How long was the total encounter?
They were on the side of the road for about 45 minutes, and that's the case with the other plaintiffs that we represent in this case as well. We're showing this is not just one officer that did this, not just happening once or twice. This is something rather systematic and pervasive throughout the highway patrol. Across troops, across troopers, across different parts of the state. This is something they're actively engaging in across I-70.
A hypothetical here. Let's say the “Kansas Two-Step” leads an officer to find a cache of weapons, someone who's planning something nefarious. Is that worth the embarrassment, the inconvenience of 100 other people?
I guess the only response I can give to that is that constitutional rights have meaning and we don't give up our constitutional rights on the off chance that a violation of those rights has some public safety outcome down the line. If we justified the violation of constitutional rights in the way that you're suggesting, then our constitutional rights would be meaningless. They might as well not exist.
I understand you've been fighting the “Two-Step” for years now. Have there been other cases like this? Has there been other precedent? Are you the only one fighting this practice?
Well, our case came out of a 2016 case called Vasquez v. Lewis, which was also against a highway patrol trooper from Kansas. Basically about the exact same conduct, the roadside detention of a motorist without reasonable suspicion in large part because that driver was engaged in travel to or from Colorado. So our case really builds on the Vasquez decision, which came down from the 10th Circuit in 2016.
We've had a number of different claims in our case and a number of different plaintiffs. We tried a case before a jury in February that involved the stop of Blaine Shaw and one Kansas Highway Patrol Trooper. We won that claim in front of the jury. A couple weeks ago we tried a second claim for damages in front of another jury that involved Mr. Josh Bosire, another plaintiff and Trooper Brandon McMillan of the Highway Patrol. Again, won that claim and in that case, the jury even awarded punitive damages, said that the highway patrol trooper was recklessly disregarding Mr. Bosire's constitutional rights. This trial that we're in the middle of right now is the sort of final stage of these proceedings. What we're hoping for is an order that actually ends this practice for good.
In this current trial, there's not a jury, correct?
That's correct. This one's a bench trial.
If indeed the Kansas Patrol is doing this with intention, what are the reasons they'd be doing this? Is there a revenue stream?
I think that certainly has to be part of it. There's certainly an incentive for the highway patrol to engage in what they themselves call a high volume practice of car stops. The more cars that you stop, the more chances you have of searching vehicles, the more chances you have of uncovering drugs or large sums of money. Part of this is likely driven by financial incentives to stop as many cars as possible and have the greatest chance of uncovering large amounts of cash that the highway patrol can then seize and retain through the asset forfeiture process.
The drugs get destroyed though. The drugs wouldn't be a revenue source.
That's my understanding, yes.
A spokesperson for the Kansas Highway Patrol declined to comment to the Kansas City Star, citing current litigation. The attorney for the head of the patrol has argued that training, "Strives to engage in best law enforcement practices, including formal instruction on the Fourth Amendment." (so searches and seizures at traffic stops.) The spokesperson added that the constitutional right to travel, presumably the 14th Amendment, is not infringed, even if as you allege out of state motorists are disproportionately stopped and detained relative to Kansas. What advice would you have to Coloradans listening who may have occasion to drive in or through Kansas?
The ACLU of Kansas has a great resource on our website for individuals to know their rights when interacting with law enforcement, particularly on Kansas highways. My biggest piece of advice is to be informed, to know your rights, to know that you don't have to consent to a search of your vehicle and you don't have to consent to answering additional invasive questions by the highway patrol following a traffic stop. Let them complete the business of the traffic stop and then ask them if you're free to leave and you should be able to. If they don't let you leave, they better have a really good reason and they better be able to document it and justify it.
Goodness Sharon, it occurs to me that that interaction might go very differently depending on the color of your skin.
That's 100 percent right, and that's been a big part of this case. Two of our other plaintiffs, Mr. Blaine Shaw is Native American, and Mr. Joshua Bosire is Black. For them, what happens during those roadside interactions with the Kansas Highway Patrol is deeply influenced by their racial and ethnic identities. It's a reason why this case is so important to us. We know what law enforcement can do with the tremendous amount of power that they hold in these situations. It's a small amount of space between an interaction that goes okay and an interaction that goes south.
Have you experienced what we have experienced, which is that when you talk about the “Kansas Two-Step,” more people come out of the woodwork?
Yes. I have probably heard from half a dozen people in the last week alone who've heard about our case in the news recently and are writing to us, calling me, saying, "This exact same thing happened to me." I think part of the problem, and it's something that's a big part of our lawsuit, is that we have no way of knowing how widespread this is and just how many people are being detained every single day without reasonable suspicion because the Kansas Highway Patrol isn't documenting it. We are entirely reliant on people learning about this, all of a sudden becoming aware that what happened to them was wrong, and then reaching out to us and telling us their stories. It's how we became involved in this in the first place, and it's how a lot of the witnesses that we've put on in this case first came to our attention.
Well, thanks for this conversation.
Thanks for having me.
