Kansas Highway Patrol 'two-step' tactic ruled unconstitutional

A federal judge has ruled that the Kansas Highway Patrol’s (KHP) ‘two-step’ tactic is unconstitutional. In a federal lawsuit filed in the U.S. District Court for Kansas on January 2020 by the American Civil Liberties Union (ACLU) of Kansas, the KHP were accused of targeting out-of-state drivers and prolonging traffic stops.

When it comes to traffic stops, a motorist must be released after the officer has written the the ticket and completed the purpose of the traffic stop. However, the officer may stay with the driver if there is reasonable suspicion of further crime—like drug activity, or the driver gives consent to stay and chat, including allowing the officer to search their vehicle.

When the Kansas two-step tactic is employed, an officer takes a couple steps to their vehicle after finishing their traffic stop. They then turn back around and ask the driver to answer a few more questions.

Due to the traffic stop having been completed, the driver is not obligated to answer any further questions. However, the idea is that the driver will comply with the armed government official, and it is no longer considered a detention because the driver is agreeing to stay a bit longer. Furthermore, if the driver does not agree to stick around, the officer detains them anyway, calling for a K-9 unit if one is not already there as highlighted in the ACLU of Kansas’ lawsuit. This tactic, which is part of KHP’s training, is meant to be used as a workaround to the Fourth Amendment which protects citizens from unreasonable searches and seizures.

In an order filed on Friday, July 21, U.S. District Judge Kathryn Vratil wrote:

“To date, 23 states and the District of Columbia have legalized recreational marijuana. To the west, Colorado legalized recreational marijuana in 2014. To the east, Missouri legalized recreational marijuana in 2022. Meanwhile, in the name of drug interdiction, the Kansas Highway Patrol (“KHP”) has waged war on motorists—especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas. 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?”

Court documents show that moving forward, if the injunction stands, a trooper who seeks consent to search or wishes to reengage with a driver or occupant of a vehicle after a traffic stop has concluded “the officer shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, and document the subject’s consent on a written form which explains these rights. The written form shall include separate signature lines for the trooper to certify that the trooper has read and explained these rights to the subject, and for the subject to affirm that he or she understands the right to refuse and to revoke consent to the search.”

The ACLU of Kansas took to Twitter, calling the ruling a “huge win.”

VICTORY: A federal court judge has found the Kansas Highway Patrol "waged war on motorists" and struck down KHP's unconstitutional practices of prolonged detention, and the infamous Kansas Two-Step.

This is a huge win for our clients—and anyone else traveling on Kansas highways.

— ACLU of Kansas (@aclukansas) July 21, 2023