"The Kansas Highway Patrol has waged war on motorists -- especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70," a federal judge declared on Friday in a scathing condemnation of tyrannical practices embedded in police training.
Among those practices is something cops call the "Kansas Two-Step." After pulling you over for a traffic violation and dispensing either a warning or a ticket, a cop starts walking away, but then turns back and asks, "Hey, can I ask you something?"
What feels like a friendly conversational question is actually intended to trick you. As Reason's Jacob Sullum explains:
"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."
Troopers are taught the technique in their training, but US District Judge Kathryn Vratil said, "the theory that a driver who remains on the scene gives knowing and voluntary consent to further questioning is nothing but a convenient fiction."
"Troopers occupy a position of power and authority during a traffic stop," wrote Vratil, an appointee of George H.W. Bush, "and when a trooper quickly re-approaches 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."
The Kansas Two-Step is just one piece of a policing regime that Vratil rightly found objectionable. In her decision, Vratil also criticized pretextual traffic stops, in which police contrive some reason to pull people over merely on the hope that they'll discover something they can arrest them for.
"As wars go, this one is relatively easy; it’s simple and cheap, and for motorists, it’s not a fair fight," wrote Vratil. "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?"
The thicket of traffic and vehicle equipment regulations, including the ability for cops to pull drivers over for actions subjectively deemed "imprudent," means anyone can be pulled over on a whim.
"Even the most cautious driver would find it virtually impossible to drive for even a short distance without violating some traffic law," writes University of Pittsburgh law professor David Harris, whom Vratil cited in her ruling. "A police officer willing to follow any driver for a few blocks would therefore always have probable cause to make a stop."
Kansas state troopers disproportionately preyed on those with out-of-state license plates. "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...represent[ing] roughly 50,000 traffic stops," wrote Vratil.
She found the KHP has been violating tenets set down by the 2016 case of Vasquez v Lewis, which rejected searches based on flimsy pretexts such as "status as a resident of Colorado." Vratil said troopers applied "an absurd and tenuous combination of factors" to conclude that individuals were suspicious, such as:
- Having a car with out-of-state plates
- "Seeming nervous while interacting with law enforcement"
- "Having fingerprints on the trunk lid"
- "Going on a trip with one's nephew"
- "Having a bag in the passenger seat"
Many fruitless vehicle searches were initiated by the use police dogs, whose purported alerts are determined solely by their dog handlers. That's problematic enough, but even genuine alerts are triggered by mere odors, not drugs per se. That means a dog could very well alert simply because someone who smoked pot -- maybe a car mechanic or the previous user of your rental car -- touched your door handle.
In the coming weeks, Judge Vratil, who was arrested in 2019 on suspicion of driving under the influence, will impose an injunction. Her ruling includes a draft with provisions that would, among many other things, require troopers to:
- Communicate to drivers when they've reached the point where the traffic stop has concluded and they are free to go
- Inform drivers of their right to refuse or revoke search consent
- Obtain supervisory approval before commencing purportedly consensual searches
- Maintain better traffic-stop documentation and electronic records
Plaintiffs in the the case, Shaw v Jones, are represented by the American Civil Liberties Union. Yes, on rare occasion, the ACLU -- which increasingly throws its principles to the wind to please leftist donors -- still manages to occasionally do some good.