Shaw v. Jones, 2023 U.S. Dist. LEXIS 126478 (D. Kan. July 21, 2023):
XI. Kansas Two-Step
KHP troopers intentionally use the Kansas Two-Step to pressure drivers to submit to extended detentions on the side of the road in order to develop reasonable suspicion and to develop “further” reasonable suspicion even if they claim it already exists. The KHP maintains that all of these encounters are consensual, but the manner in which troopers perform the Two-Step creates highly coercive encounters in which reasonable drivers do not feel free to leave.
The KHP teaches its troopers how to perform the Two-Step, and many KHP troopers perform it at the conclusion of traffic stops. The Two-Step is a maneuver in which, at least nominally, a trooper ends the traffic stop by returning the driver’s license and registration papers and saying “have a good day,” “travel safe” or something similar; the trooper steps away from the vehicle; and the trooper quickly—here, between less than one second to five seconds later—re-engages with the driver. According to KHP training, if the driver re-engages after the Two-Step, it begins a new encounter which is consensual: the driver voluntarily stays to speak with the trooper, knowing (or believing) that he or she is free to leave. Troopers are trained that two steps are not physically necessary to end the non-consensual phase of the encounter. In fact, the KHP teaches that it is “[n]ot mandatory to disengage, as long as a reasonable person in the suspect’s position would feel free to leave. Even if they are not.”
The KHP trains troopers on the Kansas Two-Step as part of pre-service training at the KHP Academy, and further trains on the Two-Step as part of its training on consensual encounters. In 2021, the KHP Academy provided the following training to troopers:
. If a trooper uses the Two-Step to initiate a consensual encounter, consent must be knowingly, intelligently and voluntarily made.
. There must be a “sufficient break in time between the enforcement encounter and the consensual encounter.”
. The Two-Step is not enough by itself to purge the taint of the coercive nature of the traffic stop.
. The following factors may render an encounter non-consensual:
– The trooper did not return all the driver’s documentation.
– The trooper went straight from the traffic stop to the consensual encounter without a sufficient break.
– The trooper’s tone of voice was accusatory.
– The trooper was still in his patrol car.
– The trooper made physical contact with the vehicle or subject.
The KHP does not require troopers to perform the Two-Step, and not all troopers perform it. Jirak testified that instead of performing the Two-Step at the end of a traffic stop—i.e. instead of disengaging, stepping away from the vehicle and then re-engaging with the driver—he remains at the driver’s window, waits until the driver makes a motion to put the car in gear or step on the brake, and then asks the driver if he can “ask a few more questions before the driver leaves.”
The KHP trains troopers not to inform a motorist that he or she is free to go. It trains them to conclude the traffic stop by using a different phrase like “Have a safe trip” or “Take care” or “Have a good day.” In the traffic stops at issue, unless the motorist explicitly asked whether he was free to go, no KHP trooper informed the motorist that he was free to leave.
Troopers frequently perform the Two-Step to search for more information to develop reasonable suspicion for an extended detention, vehicle search or canine sniff. Other times, they do it even if they believe that they already possess reasonable suspicion, basically because it makes their lives easier: it is more convenient to perform a vehicle search if the trooper can obtain consent from the motorist.
Despite evidence that the break in time created by the Two-Step is extremely brief—five seconds or less—Jones and KHP troopers maintain that the Two-Step maneuvers in these cases terminated the coercive nature of the initial stop and created new, independent and consensual encounters that were knowing, voluntary and intelligent on the part of the motorists. In the Dunn and Martinez stops, Troopers Rule and Proffitt waited less than one second between disengaging and re-engaging with the driver; in the Kelly stop, McCord waited less than two seconds; in the Shaw traffic stop, Schulte waited three and a half seconds; and in the Erich and Maloney traffic stop, Rohr waited four and a half seconds. The troopers took between one and four steps from the vehicle before turning to re-engage with the drivers. While most troopers did not touch the vehicles after they re-engaged, Rule leaned through Dunn’s passenger window, and Dunn did not feel free to leave because Rule’s head and arms were inside her vehicle.
Based on this evidence, the Court finds that KHP troopers conduct the Kansas Two-Step under circumstances where reasonable drivers do not feel free to leave and do not knowingly, voluntarily and intelligently consent to re-engage with the trooper. In the traffic stops examined at trial, a reasonable driver would not believe that the coercive aspect of the original traffic stop had ceased. See Schneckloth, 412 U.S. at 227 (consent must not be product of express or implied coercion); Mosley, 743 F.3d at 1324-25 (not willing and voluntary consent if driver submits to trooper’s show of authority); Bostick, 501 U.S. at 434 (voluntary consent means reasonable person must feel free to “disregard the police and go about his business”).
Troopers occupy a position of power and authority during a traffic stop, and when a trooper quickly reapproaches 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. A reasonable driver could not knowingly and intelligently believe otherwise. In such circumstances, the theory that a driver who remains on the scene gives knowing and voluntary consent to further questioning is nothing but a convenient fiction; in the circumstances present in this case, troopers unlawfully detained drivers, without reasonable suspicion, for further questioning.
. . .
As explained above, in videotapes of the Kansas Two-Steps that the Court reviewed during trial, viewed in light of the overall circumstances, the periods of disengagement were not sufficient for reasonable drivers to feel free to leave. A one-second break in contact with a trooper, or even a three-second or five-second break, does not create a clear “end” to a traffic stop in the mind of a reasonable driver. Further, the troopers who performed these maneuvers remained very close to the detained vehicles when they performed the Two-Step, taking four or fewer steps away. When a trooper remains in close proximity to the vehicle without truly walking away from the driver, a reasonable driver does not feel that he or she is free to leave.
KHP troopers know that they are in positions of authority during traffic stops. They also know that when they fail to tell drivers that they are free to leave, consistent with KHP training, most drivers will feel coerced into remaining on the scene after troopers perform the Two-Step. Troopers insist that drivers give knowing, intelligent and voluntary consent. They do not. See Mosley, 743 F.3d at 1324-25 (not willing and voluntary consent if citizen submits to officer’s show of authority). Faced with a KHP trooper who has performed the Two-Step, a reasonable person would not feel free to “disregard the police and go about his business.” Bostick, 501 U.S. at 434.
Based on the evidence presented at trial, the Court finds that Jones failed to meet his burden of showing that plaintiffs gave free and voluntary consent. The KHP is engaged in a pattern or practice of prolonging traffic stops by using the Kansas Two-Step to coerce drivers into answering questions when the troopers do not have reasonable suspicion and the drivers do not feel free to leave. This practice violates the Fourth Amendment by extending traffic stops without reasonable suspicion and without the knowing, intelligent and voluntary consent of the drivers. Plaintiffs have succeeded on the merits of this claim.
. . .
The KHP encourages troopers to search as many cars as possible, and the number of seizures a trooper performs is one metric that it uses to assess trooper performance. KHP training slides from an advanced interdiction training course state that a successful KHP trooper “must make high volume traffic stops,” and troopers must “STOP A LOT OF CARS!”
Update: techdirt: Federal Judge Says State Troopers’ ‘Kansas Two Step’ Bullshit Violates The Rights Of Drivers by Tim Cushing (“For years, Kansas Highway Patrol troopers have stopped motorists on interstate highways. That’s the job. But the job became much more interesting when neighboring states legalized marijuana. Colorado led the way, with others following, but Colorado’s actions have had the most impact on the KHP. Missouri’s more recent legalization has only compounded the problem facing drivers on Kansas highways.”)
