Kansas Highway Patrol Superintendent Erik Smith inherited a lawsuit challenging the agency’s reliance on the “Kansas two-step” to trigger trooper or canine searches of vehicles. A U.S. District Court judge ruled the KHP policy violated constitutional rights of motorists. KHP and the ACLU of Kansas offered insight into the judge’s proposed strategy for bringing KHP into constitutional compliance. (Tim Carpenter/Kansas Reflector)
TOPEKA — U.S. District Court Judge Kathryn Vratil proposed unprecedented court oversight of the Kansas Highway Patrol to break the law enforcement agency’s affinity for unconstitutional searches of vehicles and perpetuation of what the judge likened to a war on motorists traveling in Kansas.
The American Civil Liberties Union of Kansas and KHP submitted to the federal court written briefs arguing for and against remedies contemplated by the judge.
In July, Vratil released a list of her ideas for interdiction of KHP’s reliance on the “Kansas two-step” to gain entry by troopers or drug dogs into vehicles stopped along Kansas roads in the quest to find illegal drugs. Her decision finding KHP acted unconstitutionally during traffic stops came at conclusion of a trial initiated by lawsuits filed by ACLU of Kansas.
She made made it clear in her written decision she was driven to thwart KHP’s infringement of rights against unreasonable searches and seizures contained in the Fourth Amendment to the U.S. Constitution. She proposed KHP be placed under the watchful eye of a special court master for as many as four years.
“Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way,” Vratil said. “For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent.”
“If the driver persists in refusing to consent, the trooper has a fallback position. Search the vehicle anyway and claim that he had reasonable suspicion all along,” the judge said in her opinion. “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?”
Stakes are high for civil rights activists, the law enforcement community and drivers in Kansas, especially people with out-of-state license plates on Interstate 70 headed to or returning from recreational marijuana states of Missouri and Colorado who have been targeted by KHP.
Vratil asked both sides in the dispute to submit briefs in response to her consideration of traffic-stop reporting mandates, retention of audio and video evidence of stops, clearance from a supervisor for searches, mandatory retraining of troopers and appointment of a special master to conduct compliance reviews of KHP.
The judge said she was inclined to require KHP personnel to affirmatively inform drivers of their right to refuse a law enforcement search and to terminate consent at any time. Vratil found objectionable the training of troopers to avoid telling drivers they were free to go at conclusion of the initial stop. KHP exploited the population’s lack of knowledge about their constitutional right to end a voluntary detention, the judge said.
The ACLU’s perspective
ACLU of Kansas filed lawsuits against KHP that outlined cases in which motorists were victimized by the two-step maneuver. The organization’s court filings contended the agency ignored established judicial precedent regarding vehicle searches and disregarded constitutional rights of motorists by failing to secure reasonable suspicion before invading vehicles without owners’ consent.
KHP troopers were taught to end the initial traffic stop with benign statements such as “have a good day,” walk a couple of paces toward a patrol car and turn back to engage in a secondary conversation to fish for probable cause enabling a vehicle search, the ACLU said.
Sharon Brett, legal director of the ACLU in Kansas, said the judge’s proposed remedies illustrated the federal court wouldn’t “tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation, and, in some tragic cases, violence.”
Brett said ACLU endorsed the judge’s roster of KHP procedural changes and initiation of a plan to bring accountability to the agency’s handling of traffic stops. ACLU lawyers did recommend Vratil appoint a court monitor rather than a special master to provide oversight of KHP.
She said failure to impose precise standards on KHP would place Kansas motorists at risk of “exposure to future constitutional violations constitutes irreparable harm sufficient to justify injunctive relief.”
In the ACLU’s brief, attorneys argued KHP’s leadership remained hostile to the 10th Circuit U.S. Court of Appeals decision in Vasquez v. Lewis. In that 2016 decision, the appellate court denied qualified immunity to KHP troopers who had unconstitutionally detained an out-of-state motorist. The federal court said it was “time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.”
KHP’s rebuttal argument
A lawyer with the Kansas attorney general’s office, which is representing KHP, said in a written brief there was no good reason for the judge to order years of micromanagement at the statewide policing agency.
Stanley Parker, an assistant attorney general working on behalf of KHP Superintendent Erik Smith, said the judge’s plan for an injunction against KHP wasn’t needed. Parker said the U.S. legal system contained well-established safeguards for rejecting improperly obtained evidence and afforded people opportunity through lawsuits to seek monetary damages for unconstitutional searches by law enforcement.
“The fact that these plaintiffs experienced distress, humiliation, anger and other non-monetary harm does not mean that available legal remedies are inadequate, nor does it mean that such harm is irreparable,” Parker said.
Vratil’s draft injunction wasn’t narrowly tailored to address constitutional violations identified by the court and would hinder KHP’s law enforcement mission, Parker said.
Parker argued it would be unjust for Vratil to issue an injunction establishing a court-appointed observer and said procedural changes envisioned by the judge would be a financial and administrative burden.
It would be impractical, Parker said, to expect troopers to inform a supervisor and receive approval from a superior before engaging in vehicle searches. He said this would inappropriately lengthen detention of motorists at traffic stops.
He said it wasn’t reasonable to require troopers to submit documentation of stops by the end of their shift and to mandate supervisors review those reports in 12 hours. He suggested troopers submit documentation within 48 hours after end of a shift and supervisors be given 72 hours to review reports.
Parker also objected to Vratil’s notion of requiring KHP personnel to be transparent about the right of motorists to decline a search or withdraw consent for a search. He said it would be an undue burden on troopers to document in writing what they determined to be consent given for each search.
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