Motorists shouldn’t fear the cops. Let’s make sure the Kansas ‘two-step’ is left behind for good.

September 17, 2023 3:33 am
Police car rooftop strobe lights

There is indeed a war against Kansas motorists, writes Max McCoy, and it’s a profitable one for law enforcement. (Getty Images)

Imagine you’re driving on Interstate 70 across Kansas in a used Winnebago you’ve just bought. It’s before dawn and you’re outside Salina and your spouse and your two kids are passengers in the RV, and you’re passing through on a family vacation. Everything seems normal until a car comes up behind you and pulls over into the passing lane but then stays there for an uncomfortably long time, even with your rear bumper, headlights blinding in your side view mirror.

Concerned that the driver behind you might be drunk or otherwise impaired, you nudge the RV toward the shoulder of the road. But as your right wheels cross the white “fog line” the car behind you lights up in flashing red and blue, and you realize the suspicious car was actually a state trooper.

That’s just what happened to Mark Erich and his family in March 2018.

Erich was driving and Shawna Maloney, his wife, was in the passenger’s seat. Their children, ages 10 and 13, were in the back.

A federal judge later ruled that the state trooper, Justin Rohr, had created a pretext for the traffic stop by following the Winnebago so closely and that briefly crossing the white line was insufficient cause anyway for a traffic stop. After examining Erich’s driver’s license and other paperwork, the Coloradan was given a warning instead of a ticket. Rohr took a few steps toward his patrol car, then stopped and came back to the RV.

“Hey, sir, can I ask you some questions?” the trooper asked.

Rohr had just executed the “Kansas two-step,” a technique formerly taught to troopers to extend a traffic stop in order to search a vehicle. Motorists don’t have to consent, but many will, either because they don’t know the law or because of the intimidating presence of law enforcement. The goal is to keep a conversation going with motorists in the hope they will either consent to a search or that the trooper will gather enough evidence to establish probable cause for a search.

And that’s just what Rohr did with Erich.

“You said you guys are heading to Alabama?” Rohr asked, according to court documents.

Erich said they were.

“And how long are you guys gonna be out there?”

“Do I have to answer these questions?” Erich asked.

“You don’t have to,” Rohr said.

“I’d prefer not to.”

“OK,” Rohr said. “Can I talk to you any further, or … ?”

“I’m free to go, right?” Erich asked.

“You are free to go.”

“OK. I’d rather go.”

“OK,” Rohr replied. “Here’s what I’m gonna do, OK. I’m gonna detain you now, OK, because I think that you might have a false compartment in this vehicle.”

Rohr said he had reasonable suspicion because there was a discolored patch on the back of the Winnebago that matched some paint on Erich’s hand, that he could smell fresh paint or body putty (no other officer later on the scene could), that the hour of travel was unusual and that Erich was traveling from a known drug destination, Colorado, where recreational marijuana was legal.

What the court documents don’t say is that Rohr had perhaps watched one too many episodes of “Breaking Bad.”

While Erich and his family waited in the cold on the side of the road, Rohr led a drug-sniffing drug around the RV. Rohr said the dog “alerted” to the presence of contraband. For the next 40 minutes, Rohr and other officers climbed over and under the RV and ransacked the interior.

“Troopers had disassembled the radio, taken the dashboard apart, taken the domes off the light fixtures and smoke detectors and broken some of them, gone through the refrigerator and the cupboards, dumped all of the family’s clothes out of their backpacks, moved the mattress and ‘messed up’ equipment under the bed, damaged the bathroom door to the point that it was hanging off the frame, broken the towel rack, removed and broken the panel underneath the shower and broken the toilet,” Maloney noted, according to court documents.

The administration of Gov. Laura Kelly said an inquiry had been launched into allegations of a state employee and "concerned taxpayer" about potential misuse of aircraft by the Kansas Highway Patrol's aviation unit. The allegations center on pilots obtaining flight credentials of little use to the KHP and of using a helicopter for trips to Kansas City restaurants. (Tim Carpenter/Kansas Reflector)
A judge found that that Kansas Highway Patrol’s procedures violated the U.S. Constitution. (Tim Carpenter/Kansas Reflector)

The troopers found nothing. No marijuana, no contraband, no illicit cash.

Because of the damage to the RV, the family couldn’t use it to camp when they reached Alabama. On their return trip, they drove through Texas to avoid Kansas.

The Kansas Highway Patrol, a federal judge concluded, had “waged war on motorists.”

The judge, Kathryn Vratil, found in July that the Kansas Highway Patrol’s use of the “two-step” violated the Fourth Amendment protection against unreasonable search and seizure.

“As wars go, this one is relatively easy,” Vratil wrote in her decision. “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?”

Motorists with out-of-state tags were disproportionately targeted for stops. The judge noted that because both Colorado and Missouri have legalized recreational marijuana, anyone traveling along the 425 miles of I-70 in Kansas were either traveling to or away from a known drug distribution point, so all motorists were regarded with undue suspicion.

The KHP’s zeal for drug interdiction reminds me of former Kansas Attorney General Vern Miller, who in 1972 raided Amtrak trains passing through Kansas because they were serving alcohol and threatened to prosecute airlines for offering drinks above the Sunflower State. Miller, an establishment cultural cowboy who vowed in a campaign promise “to land in the middle of the drug-ridden hippie commune at Lawrence with both feet,” was known to pop out of the trunks of cars to raid dorms.

Vratil, the judge who found the KHP’s “two-step” tactic unconstitutional, proposed but did not yet order an injunction that would require, among other things, the patrol to better inform motorists of their rights, keep more careful records of traffic stops and increase training for troopers. The proposed injunction would last for four years, and the judge might appoint a “special master” to ensure compliance.

The case was brought by the American Civil Liberties Union on behalf of Erich and several other motorists. Early this month, the ACLU and the KHP submitted briefs to the federal court in response to the proposed injunction. The patrol argued that “micromanagement” in the proposed injunction was unnecessary because there were already adequate protections in place and that some aspects of the injunction would place an undue burden on troopers. The ACLU endorsed the judge’s list of procedural changes but said a court monitor, instead of a special master, would be sufficient to provide oversight.

The judge has yet to announce her decision.

Let’s hope it includes a special master. The KHP’s flagrant constitutional abuses deserve the highest level of scrutiny and compliance. Under the pretext of reducing the flow of contraband in the United States, the troopers trampled the Constitution and made out-of-state motorists afraid to drive through Kansas. This is something a Vern Miller-esque cowboy may approve of, but it has no place in modern policing.

While there have been notable drug busts along I-70 — one arrest in February netted more than half a million dollars’ worth of marijuana and magic mushrooms — the erosion of civil rights caused by the “two-step” cannot be tolerated.

There is another incentive besides drug interdiction that may play into the trooper's desire to find drugs: When cash is found that is associated with criminal activity, the patrol can keep some of the dough to cover its operational costs, even if the driver is never convicted of a crime.

– Max McCoy

There is another incentive besides drug interdiction that may play into the trooper’s desire to find drugs: When cash is found that is associated with criminal activity, the patrol can keep some of the dough to cover its operational costs, even if the driver is never convicted of a crime.

In a recent op-ed published by the Topeka Capital-Journal, the chief of the Kansas Bureau of Investigation defended the state’s civil asset forfeiture laws as helping keep Kansas safe.

“(Forfeiture is) one of law enforcement’s most valuable tools for dismantling criminal enterprises like human trafficking organizations or the cartels that import deadly drugs like fentanyl into Kansas,” wrote Tony Mattivi, director of the KBI.

Those who believe the laws may be unconstitutional because no individual must be convicted of a crime are misleading others, he asserted.

“When the cartel flies 200 kilos of cocaine across the country, they use a jet registered to a fake company to avoid criminal charges,” Mattivi wrote. “Law enforcement can significantly interrupt cartel operations by not only seizing the drugs but also seizing the jet.”

Five years ago, Kansas began requiring all law enforcement agencies in the state to report asset seizure and forfeiture information and for this information to be made public. In a search of the Kansas Asset Seizure and Forfeiture Repository database, I could find no jets that had been seized thus far in 2023. The annual report for 2022 listed $3.4 million in forfeited cash and property, most coming from vehicle stops.

Not all of the seizures were evenly distributed across the state. Departments in Neosho County, with a population of only 16,000, led the state with 83 seizures. In comparison, Sedgwick County, with a population of more than half a million, had 79. But departments in Neosho County for years have been tops in seizing property. In 2021, the Chanute Police Department alone accounted for 41 of 48 vehicle seizures in the state.

This cannot be justice. I’ve been to Chanute. It’s no Marrakesh.

There is indeed a war against Kansas motorists, and it’s a profitable one for departments that abuse the state’s forfeiture laws. The way forfeiture is routinely used does little to hurt the drug cartels, as Mattivi claims, but instead terrorizes innocent motorists who become inadvertently scooped up in the cat-and-mouse game of drug interdiction.

The reason the Erich-Maloney family found themselves in freezing weather at the side of a busy interstate while troopers tore apart their Winnebago is because the troopers were doing just what Kansas had trained them to do. They also did it because there was a monetary incentive to do so. The more cash and drugs the troopers find, the more the agency profits.

We must end monetary incentives for policing. The system invites abuse, from the largest agency in the state right down to the Chanute Police Department. And Judge Vratil should throw the book — or at least a special master — at the KHP for violating the constitutional rights of motorists in our state.

Max McCoy is an award-winning author and journalist. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Max McCoy
Max McCoy

Max McCoy is an award-winning author and journalist. A native Kansan, he started his career at the Pittsburg Morning Sun and was soon writing for national magazines. His investigative stories on unsolved murders, serial killers and hate groups earned him first-place awards from the Associated Press Managing Editors and other organizations. McCoy has also written more than 20 books, the most recent of which is "Elevations: A Personal Exploration of the Arkansas River," named a Kansas Notable Book by the state library. "Elevations" also won the National Outdoor Book Award, in the history/biography category.