ACLU, motorists challenge roadside detention, dog searches triggered by ‘trooper two-step’
Lawsuit asserts Kansas Highway Patrol unconstitutionally targets drivers on I-70
The ACLU of Kansas on behalf of four clients allege at trial in federal court the Kansas Highway Patrol engages in unconstitutional detention of motorists on Kansas highways before conducting improper vehicle searches by drug-sniffing dogs. Two KHP troopers and KHP Col. Herman Jones, in uniform at the Capitol, were named as defendants. (Tim Carpenter/Kansas Reflector)
KANSAS CITY, Kansas — Detention of Blaine Shaw after stopped for speeding on Interstate 70 while on a trip from Oklahoma to Colorado snowballed Monday into a trial challenging constitutionality of the Kansas Highway Patrol’s policy of targeting out-of-staters and other suspicious people for vehicle searches by drug-sniffing dogs.
Shaw and his brother, members of the Osage Nation and residents of Oklahoma City, were on their way to Denver to visit family and friends in December 2017 when pulled over near Hays. KHP trooper Doug Schulte reported he clocked Shaw driving 91 mph in the 75-mph zone. The trooper wrote a ticket for the infraction to conclude the stated purpose of the stop and told the brothers to have a safe trip. Schulte began to walk away, but executed a maneuver cynically known as the “trooper two-step” and returned to Shaw’s open window.
“Hey Blaine,” his lawyer recounted during opening argument of Blaine Shaw’s lawsuit against Schulte, “can I ask you another question?”
What happened over the next 45 minutes or so, much of it recorded on Shaw’s cellular telephone or by KHP vehicle or body cameras, became grist for a jury trial in U.S. District Court challenging the state patrol’s approach to securing “reasonable suspicion” necessary to detain motorists and compel vehicle searches by K-9 units.
Sharon Brett, legal director of the American Civil Liberties Union of Kansas, told the eight-person jury in the Robert J. Dole Federal Courthouse that Schulte violated the Fourth Amendment of the U.S. Constitution with the rogue search of her client’s vehicle.
“The evidence will show trooper Schulte was going off no more than a hunch,” Brett said. “Did trooper Schulte have reasonable suspicion to detain Blaine Shaw for a K-9 sniff? Was he playing by the rules he was sworn to follow?”
ACLU times three
This trial was the first of possibly three constitutional challenges inspired by comparable stops by KHP of Shaw, Wichita resident Joshua Bosire and Ohio residents Mark Erich and Shawna Maloney.
Court documents show Bosire’s suit, scheduled for trial Feb. 13, alleged misconduct was committed by KHP trooper Brandon McMillan when he stopped a rental car with Missouri license plates being driving on I-70 in February 2019. Bosire said in court documents he was on his way home after visiting his daughter in Colorado when pulled over for speeding.
McMillan said he wouldn’t issue Bosire a speeding ticket but called in the canine unit because Bosier refused to clarify his travel plans and might be hauling something illegal. The dog didn’t alert to possible presence of illegal drugs and Bosire was released after 45 minutes.
In the other case, Erich and Maloney of Willowick, Ohio, were traveling eastbound on I-70 in a recreational vehicle with Colorado temporary tags when stopped by KHP trooper Justin Rohr because he observed a wheel touch a painted line on the side of the highway. Rohr issued a warning, took a couple steps away before turning to ask about their travel plans. Erich said he preferred not to answer any other questions.
Court documents say Rohr detained Erich and Maloney, along with their children 10 and 13 years of age, because there was reasonable suspicion the RV had a false compartment. Rohr ordered a canine sniff of the vehicle, but no concealed drugs were discovered. They were released after 45 minutes.
Erich and Maloney filed a lawsuit against Rohr and named KHP superintendent Herman Jones as a defendant. In pretrial testimony, Rohr said a vehicle’s state of origin was indicative of criminal activity if it was a state such as Colorado and California that legalized recreational marijuana. A trial in federal court related to the third traffic stop by KHP hasn’t been scheduled.
U.S. District Court Judge Kathryn Vratil previously rejected KHP’s motion for summary judgment. In June, the U.S. Court of Appeals in Denver denied a claim by the KHP employees seeking qualified immunity from lawsuits for their actions as law enforcement officers.
Shaw, in a dark suit with long black hair tied in a ponytail, sat at the counsel table with a portion of his legal team, including Patrick McInerny and Madison Perry of a Kansas City, Missouri, law firm. Schulte, in his blue KHP uniform minus a firearm, sat with his attorney at a table further away from the jury. Shaw and Schulte were expected to testify along with a former police chief serving as the plaintiff’s expert witness on law enforcement procedure.
‘Keep an open mind’
Arthur Chalmers, the assistant Kansas attorney general assigned to represent KHP employees in the litigation, said evidence would prove Schulte relied on years of training and field experience to formulate suspicion of a possible crime and justify detention of Shaw for purposes of the dog search. He told the jury in opening statements the traffic-violation portion of the Shaw-Schulte encounter wasn’t at issue.
“This case is about the 28 and one-half minutes when a vehicle was on the side of the road,” Chalmers said. “It’s important from my client’s perspective that you keep an open mind.”
He said the heart of the dispute was what transpired after Schulte delivered the speeding citation to Shaw, took a few steps toward his own vehicle and made the decision to pose more questions to Shaw. It was the out-of-staters’ lack of candor that sealed the decision by Schulte to hold the Shaws on suspicion of engaging in drug trafficking, Chalmers said.
Chalmers said testimony would show Shaw raised suspicion by not pulling over promptly after Schulte activated lights on his cruiser. The “untimely” stop by Shaw could have been related to criminals trying to get a story straight or to an attempt to hide contraband in a vehicle, Chalmers said.
In addition, Chalmers said, Schulte’s antenna went up when he noticed the van contained gear as if the brothers were temporarily living in it while making a quick trip to Colorado to buy marijuana and deliver it to Oklahoma. Chalmers said it was suspicious to the KHP trooper that Shaw was driving his father’s van because traffickers generally didn’t use their own cars or trucks when hauling drugs due to asset forfeiture laws.
Chalmers said Schulte noticed Samuel Shaw, the brother and a passenger in the van, was acting in a peculiar manner and giving off a “nothing-to-see-here” vibe. Finally, Chalmers said Schulte’s reasonable suspicion was reinforced when told by dispatch that Shaw had been charged previously with possession of narcotics.
“The final straw is that they’re not traveling local. It is instead a trip to a place where you can access drugs,” Chalmers said.
In the end, the KHP brought in a dog to join in a search of the Shaws’ 2010 Chrysler van. The dog alerted to the scent of illegal substances, Chalmers said, but troopers didn’t find evidence to charge anyone with possession. 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.
‘Wait right here’
Brett framed for the jury Shaw’s interaction with KHP troopers from a different perspective. She spoke to a jury that included two nurses and an IT specialist, a human resources manager, an accountant and a sales manager from eastern Kansas.
She said Shaw didn’t immediately pull over because Schulte turned on his SUV’s patrol lights while still in front of Shaw’s white van. She said Shaw initially assumed the trooper was after someone else. The van was packed with gear for the pre-Christmas camping trip and had a cot in back, because Shaw needed to stretch after long periods sitting due to a back injury sustained in a 2009 traffic accident, Brett said.
Brett said Blaine Shaw. who earned a criminal justice degree at college, videotaped much of the communication with KHP. She said he accepted the speeding ticket from KHP, but didn’t believe he should drive away while Schulte peppered him with additional questions. The recording revealed Schulte scolded Shaw for driving too fast and not pulling over quickly. It also confirmed Schulte performed the trooper two-step.
Brett said the technique taught KHP troopers called for breaking off the initial traffic detention and reengaging with the driver to gain possibly incriminatory information under what could be viewed as a consensual conversation. Schulte asked the Shaws about travel plans. The trooper inquired as to whether they were hauling anything illegal, such as firearms, large amounts of cash or narcotics.
She said Blaine Shaw said no to those questions. But when Schulte asked if he could search the van, Blaine Shaw refused to grant permission.
“Wait right here,” Brett said the trooper told the Shaws.
At this point, Schulte requested the K-9 unit.
Brett said Schulte apparently misinterpreted the behavior of Shaw’s brother, Samuel, as someone being evasive. In fact, Brett said, Samuel Shaw sustained a traumatic brain injury playing football in high school and could get “frequently confused” by strange surroundings or events.
She said Blaine Shaw was unconstitutionally detained because Schulte didn’t come close to a “specific articulable reasonable suspicion” a crime was about to be committed, was occurring or could be expected to transpire. She said Blaine Shaw deserved compensation for the constitutional violation and for generating anxiety and fear in Blaine Shaw that resulted in lost wages after missing work.
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