“The war is basically a question of numbers: stop enough cars and you’re bound to discover drugs.”
By Rachel Mipro, Kansas Reflector
The Kansas Highway Patrol has been ordered to stop its infamous “two-step” technique by a federal judge, in what the American Civil Liberties Union of Kansas calls a “huge win” for all motorists using state highways.
The U.S. district court ruled KHP’s policies and practices violate the Fourth Amendment, releasing a Friday opinion that the KHP “has waged war on motorists—especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas.”
The trial challenged the constitutionality of the KHP’s policy of targeting out-of-staters and other “suspicious” people for vehicle searches by drug-sniffing dogs, along with the “Kansas two-step” maneuver. The “ two-step” is a technique taught to KHP personnel, in which they end a routine traffic stop and begin a separate effort to dig for information and gain entry to a vehicle to search for contraband.
The experiences of being held on the side of the highway by the KHP were harmful and traumatic for our clients. We cannot overstate how these experiences affected them, and we are gratified the Court saw the unconstitutional harms of KHP’s conduct and intervened.
— ACLU of Kansas (@aclukansas) July 21, 2023
The opinion said the KHP’s actions weren’t “a fair fight.” KHP spokespeople couldn’t be reached for comment on the situation.
“The war is basically a question of numbers: stop enough cars and you’re bound to discover drugs,” the opinion added.
The court case came after Blain Shaw, an Oklahoma City resident, was pulled over near Hays while on his way to visit family and friends in Denver with his brother. He was stopped for speeding on Interstate 70 by Kansas Highway Patrol trooper Doug Schulte, who reported he clocked Shaw driving 91 mph in a 75 mph zone. Schulte ticketed Shaw and then walked away, before doubling back in a “trooper two-step” and returning to Shaw.
The trooper then asked Shaw and his brother if they were hauling anything illegal, such as firearms or narcotics. Shaw answered in the negative, but refused to grant permission to Schulte when he asked to search his van. The trooper then called in a K-9 unit to search Shaw’s vehicle.
Though troopers didn’t find evidence of drugs, the KHP required Shaw to report to a nearby law enforcement office so copies could be made of his medical records, Colorado identification card and medical marijuana registration.
When we give police the power to make pretextual stops, assume people to be drug traffickers, and use flimsy justifications to search their vehicles and hold them on the roadside, we turn what a simple ticket-release scenario into something lengthy, degrading, and fraught.
— ACLU of Kansas (@aclukansas) July 21, 2023
The incident snowballed into a trial challenging the Kansas Highway Patrol’s policy, with legal defense arguing Schulte violated the Fourth Amendment of the U.S. Constitution by searching Shaw’s vehicle.
Shaw and other plaintiffs, represented by the American Civil Liberties Union of Kansas and Spencer Fane LLP, filed Shaw v. Jones in 2020 to challenge KHP’s practice of detaining motorists with out-of-state license plates and the “two-step” maneuver. The defendant in the case was Herman Jones, in his official capacity as KHP Superintendent.
The lawsuit was consolidated with a separate suit brought by Mark Erich and Shawna Maloney, who had their family’s RV ransacked by KHP troopers in 2018 in another “two-step” incident.
The ruling comes after two weeks of trials.
The court found Jones responsible for the practice of unlawfully detaining motorists in Kansas without reasonable suspicion or consent, especially those out of state, and decreed that the Kansas Two-Step violates the Fourth Amendment, extending traffic stops “without reasonable suspicion and without the motorists’ knowing, intelligent and voluntary consent.”
“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,” said Sharon Brett, legal director of the ACLU of Kansas.
“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,” Brett added.
Spokespeople from the governor’s office didn’t immediately respond to Reflector inquiries for comment.
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