Updated on September 1, 2023
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).