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, giving the officer a chance to elicit incriminating information, ask for permission to search your car, and/or walk a drug-sniffing dog around the vehicle.
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."
KHP troopers often reinforce that message by standing so close to a car, sometimes touching it or placing their arms inside, that driving off is not a realistic option. "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.
"This is a huge win—for our clients and for anyone else who travels on Kansas highways," said Sharon Brett, legal director of the ACLU of Kansas. "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."
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, like other states, enforces myriad rules regarding the maintenance and operation of motor vehicles. Police therefore can always find an excuse to stop a car they deem suspicious. "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."
Vratil underlines how vulnerable all drivers are to pretextual traffic stops, which the U.S. Supreme Court blessed in the 1996 case Whren v. United States, by quoting University of Pittsburgh law professor David Harris. In addition to moving violations such as speeding, failing to properly signal a lane change, and driving in the left lane except when passing another car, Harris noted in a 1997 law review article, "traffic codes regulate many other aspects of driving-related activity, including some that seem almost wildly hypertechnical."
Some of those offenses—"equipment violations" such as broken tail lights, worn tires, windshield cracks, and excessively tinted windows—"have nothing to do with driving at all," Harris wrote. He added that traffic codes also include "catch-all provisions: rules that allow police to stop drivers for conduct that complies with all rules on the books, but that officers consider 'imprudent' or 'unreasonable' under the circumstances, or that describe the offense in language so broad as to make a violation virtually coextensive with the officer's unreviewable personal judgment."
Because of all this regulation, Harris noted in another law review article, "even the most cautious driver would find it virtually impossible to drive for even a short distance without violating some traffic law. A police officer willing to follow any driver for a few blocks would therefore always have probable cause to make a stop."
How do police officers exercise this vast discretion? In Kansas, Vratil found, they use it to stop and detain drivers they deem suspicious for "absurd" reasons.
Interstate 70 connects Colorado and Missouri, where marijuana is legal, through Kansas, where it is not. As KHP troopers see it, traveling that stretch of highway with out-of-state plates is inherently suspicious.
"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."
That observation is supported by data on KHP traffic stops. "From January of 2018 to November of 2020," Vratil notes, "KHP troopers stopped 70 per cent more out-of-state drivers than would be expected if KHP troopers stopped in-state and out-of state drivers at the same rate. The 70 per cent discrepancy represents roughly 50,000 traffic stops. This disparity is statistically significant, with a roughly one per cent likelihood that these results would arise under circumstances with no actual disparity in stop rates. For this disparity to be explained by out-of-state drivers being more likely to speed, roughly 88 per cent of out-of-state drivers would have to speed at places and times where only 29 per cent of in-state drivers speed. No evidence supports the existence of such a disparity in driving habits."
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. The fact that a driver is "traveling from a drug source city" or a "drug source state," it noted, quoting an earlier case, "does little to add to the overall calculus of suspicion" and is "so broad as to be indicative of almost nothing."
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 by placing undue weight on this omnipresent factor in forming suspicions that troopers wrongly deemed "reasonable." 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 she had rented, although she explained that she had requested a less expensive car but it was not available. Vratil notes that "an expensive rental vehicle" is "not even remotely suspicious." The idea that "a drug trafficker is especially likely to drive an unusually expensive (and more noticeable) rental vehicle is untested and illogical," she says. In fact, another trooper "testified that drivers who are engaged in criminal activity are more likely to drive less expensive vehicles."
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.
Vratil mentions some of the problems with using dogs to justify vehicle searches. "The record contains no evidence about the training, accuracy or track record of any canine involved in this case, or whether that training complied with established industry standards of dog training and utilization," she notes. "A dog's 'alert' or 'indication' only establishes probable cause if the dog is reliable, and since troopers discovered no contraband in any canine sniff in this case, the reliability of these particular canines is open to question."
Assuming a dog was properly trained, how do we know it actually alerted to a car? A trooper "testified that an 'alert' is untrained behavior that a dog [displays] when
he is smelling a trained odor, but the 'handler is typically the only one who would notice the alerting behavior,'" Vratil writes. "In other words, an alert may not be apparent from objectively observable facts. The KHP asks the Court to rely on the ipse dixit of the handler, whose credentials and expertise are themselves unaddressed by the evidence, and cross its fingers that the handler did not cue the allegedly alerting behavior."
When a purported alert results in a search that does not discover contraband, police dog handlers typically argue, that does not necessarily mean the dog made a mistake. Perhaps it was reacting to an odor left by a previous driver of the car. But that excuse casts further doubt on the assumption that an alert provides probable cause to believe that drugs are currently present in a vehicle.
"The record contains little information about whether and to what extent canines alert or indicate to drug odors which are remote in time," Vratil writes. "Such information is critical in this case because all plaintiffs were driving rental cars, cars which belonged to other people or second-hand vehicles which they recently purchased."
One trooper, Vratil notes, "explained that canines are trained to alert on drug odors, not drugs," and "a dog can alert to a 'very minimal' residual odor of marijuana; even where no drugs are present, the odor 'could have been there at one time' (for example, 'somebody could have drug odor on their hands and touch a door handle'). Therefore, when Nico [one of the dogs] reacted as he did in [one of the traffic stops], it only meant that 'there was drug odor present at one time.' On these facts, canine behavior contributes little to nothing in the reasonable suspicion calculus."
Although Vratil does not draw the connection, that observation casts serious doubt on the Supreme Court's conclusion that a dog's alert indicates a "fair probability" that a car contains illegal drugs. 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.
Because the KHP does not collect the relevant data, it is not clear how often this sort of thing happens. But Vratil questions the cost-effectiveness of KHP tactics that can so easily victimize innocent people. "From 2016 to 2021," she notes, "the KHP conducted between 124,387 and 211,531 traffic stops per year, and only recovered contraband in 0.16 per cent to 0.28 per cent of them. Further, the KHP presented no evidence on the volume of innocent people who have been subjected to pretextual traffic stops or unlawful searches, or the percentage of traffic stops that were too pretextual to warrant a traffic warning, let alone a traffic citation."
Vratil has not yet issued an injunction based on her findings. But she outlines a proposed order that would, among other things, require better and more extensive documentation of KHP traffic stops; a supervisor's approval for purportedly consensual searches; explicit notice to drivers that they have a right to refuse or revoke permission for a search; consent forms signed by the trooper and driver; and a similar procedure "when a trooper seeks to re-engage with a driver or occupant of the vehicle" after "a traffic stop has concluded."
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.
"Pretextual policing only works…if drivers are ignorant of their rights or fail to assert them," Vratil notes. "KHP training materials acknowledge that pretextual policing strategies depend on ignorant, timid drivers, and joke that more informed and assertive drivers might identify themselves with bumper stickers that say, 'WARNING! OCCUPANT KNOWS THEIR 4TH AMENDMENT RIGHTS.'"