A Step in the Right Direction: The District of Kansas says the Kansas Two-Step violates the 4th Amendment.

Shaw v. Jones, No. 19-cv-1343, 2023 WL 4684682 (D. Kan. July 21, 2023).

Jack Roberts, Staff Editor

Issue: Does the “Kansas Two-Step”—where an officer concludes a traffic stop and immediately begins a casual conversation with the driver to attempt to develop reasonable suspicion—violate the 4th Amendment?

Answer: Yes. The Kansas Highway Patrol (KHP) Superintendent established a policy of extending traffic stops with the Two-Step without obtaining knowing, intelligent, and voluntary consent. This policy violates motorists’ 4th Amendment rights.

Facts: Multiple plaintiffs sued Trooper Herman Jones in his official capacity under § 1983, claiming that the Kansas Two-Step violates motorists’ 4th Amendment rights. Troopers conducted these searches without reasonable suspicion, citing pretextual reasons such as out-of-state plates and travel origin or destination. The court emphasized a 10th Circuit decision holding that travel plans deserve minimal weight in the reasonable-suspicion calculus and that merely traveling from a state that legalized marijuana is “so broad to be indicative of almost nothing.”¹ In the bench trial, the court found that the KHP stops out-of-state drivers nearly 70% more often than their in-state counterparts. The court also found that more than 90% of canine sniffs were conducted on out-of-state residents.

Discussion: The KHP primarily argued that by stepping away from the vehicle and returning, the trooper established a new and consensual encounter with the motorist. However, the court stated that a five-second break “does not create a clear ‘end’ to a traffic stop in the mind of a reasonable driver.” The court further emphasized that merely stepping away does not cause a reasonable driver to feel free to leave or “disregard the police and go about his business.”² The court ultimately issued a show-cause order, asking the KHP to show cause why the court shouldn’t grant a sweeping injunction against the agency.

Key Authorities: U.S. Const. amend. IV; United States v. Mosley, 743 F.3d 1317, 1324–25 (10th Cir. 2014) (explaining that consent is not voluntary if citizen submits to an officer’s showing of authority).

1. Vasquez v. Lewis, 834 F.3d 1132, 1137–38 (10th Cir. 2016) (quoting United States v. Guerrero, 472 F.3d 784, 787 (10th Cir. 2007)). ↩︎
2. Florida v. Bostick, 501 U.S. 429, 434 (1991). ↩︎