Kansas State Police Tell Court It’s Too Much To Ask For Troopers To Respect The Constitution
Given enough time and attention, informal parlance just becomes... parlance. And so it is for the Kansas State Police. For years, troopers have evaded the Constitution and applicable Supreme Court decisions to make the Fourth Amendment irrelevant.
There's a term for this: Kansas two step." Enough drivers have encountered it that it is no longer deniable. Enough courts have dealt with the resulting lawsuits to make this informal term part of the national parlance. And, most recently, a federal court judge blew past all the reasonable" explanations for the unlawful extension of pretextual traffic stops (ones that inordinately targeted drivers with out of state plates) to call bullshit on the KSP's reliance on ignorance of law (by those they stopped) to perform unlawful searches.
Here's how the Kansas two step" works: following a traffic stop (often for pretextual reasons), the trooper will hand a citation/warning to the driver and say something noncommittal like We're good here." A noncommittal phrase is essential. It does not affirmatively state the driver is free to go.
The driver, hearing this statement, may assume they're free to go. That's when the second step kicks in. Troopers will then say something like, Oh, hey, one more thing..." and move on towards more questioning of the driver. The driver at this point isn't sure what their legal rights are. They have never been advised of them by the troopers. And despite being told something that somewhat equates to you're free to go," they've never been told in plain English they're free to go.
So, they re-engage (despite having no desire to) with the trooper. The questions become more direct. The push towards obtaining consent for a search escalates from conversational to the law enforcement equivalent of a hard sell.
As they say, that's where they get you.
But this is no longer acceptable. A lawsuit brought against the state police resulted in a judge calling out every bit of this unconstitutional two step.
[T]he KHP has not satisfied its burden of proving that its policies and practices satisfy the Fourth Amendment; troopers unlawfully detain motorists based on factors which do not satisfy the low bar of reasonable suspicion, and the KHP has not shown that such motorists give constitutionally valid consent to the prolonged periods of detention which they confront. Such policies and practices must be condemned as unlawful.
Not only does this tactic thumb its nose at the restrictions placed on law enforcement by the Supreme Court's 2015 Rodriguez decision, it thumbs its nose at long-held Fourth Amendment standards. As a result, the court ordered the Kansas State Police to engage in thorough documentation of traffic stops in hopes of deterring troopers from abusing citizens and their rights when traveling in or through a state (conveniently) surrounded by states that have legalized marijuana possession.
The changes ordered did not prevent KSP from performing stops or even engaging in prolonged questioning of drivers. All it did was ask the State Police to document the interactions and provide a narrative that articulated the reasonable suspicion or probable cause used to extend stops and engage in searches.
The KSP has not implemented any of this yet. Instead, it has ushered its resources (read: tax dollars) to argue it should not have to justify anything about these stops, much less generate a paper trail that might be used against it in court when it decides to go back to doing the unconstitutional thing.
[I]n the court filing, Assistant Attorney General Stanley Parker argued that Vratil's proposed requirements were much too onerous.
Requiring troopers seek supervisory approval for a consensual stop, he argued, was impractical" as it would unduly lengthen the amount of time a driver is detained while waiting for supervisory approval."
Other requirements, such as informing motorists that they can revoke consent for a search at any time, impairs troopers ability to do their job."
And Parker wrote that a special master would be a step too far. The court's finding that four vehicle stops were unconstitutional, as well as data on a disproportionate number of out-of-state vehicle stops, were not sufficient to establish that the agency systematically violated the constitutional rights of drivers.
What's the phrase the kids are using on the internet these days? Oh, yeah. Rights don't care about your feelings. That the KSP feels complying with the Constitution might be a burden sucks for the KSP only. Compliance is the minimum the law requires. Crying about the costs or burdens" rings pretty hollow when it's coming from an agency that placed the burden on drivers to show their rights had been violated repeatedly by opportunistic two-steppers.
What's the other phrase used so often these days? Oh. Right. Go fuck yourselves.
As the report from the Topeka Capital-Journal notes, this is far from unsettled law. KSP troopers have already been found to be on the wrong side of the law twice.
Earlier this year, two separate federal juries found that individual troopers violated constitutional rights during traffic stops.
The court system has already (twice!) found troopers' actions to be unconstitutional. That it's going to be a pain in the ass for the KSP to police itself is a direct result of its own actions. That it might be difficult to achieve this doesn't matter. If the KSP doesn't like the situation it's in now, it maybe should have tried to deter unlawful behavior by troopers using all the time and resources it had in apparent excess years before it started getting sued on the regular.
The court has yet to respond to the KSP's desire to separate itself from any form of accountability. But if you'd like to read its whining in its unabridged form, here's the filing [PDF]. Suffice it to say, this is something the Kansas State Police could have prevented. That it never cared to do so doesn't mean it should be able to dodge the (minimal) obligations placed on it by a federal court.