Kansas Highway Patrol detained drivers illegally, ACLU lawsuit alleges

A class action lawsuit filed by the ACLU claims the Kansas Highway Patrol illegally used the "Kansas Two Step" technique to detain drivers.

RILEY COUNTY, Kan. – Curtis Martinez stood on the side of Interstate 70 with his brother, shaking his head as a police canine sniffed out his car. 

The Denver, Colorado, resident said he was commuting to Kansas City, Missouri, for work when he was stopped by a Kansas Highway Patrol (KHP) trooper for an expired license plate. 

He was given a ticket and assumed that would be the end of it.

Instead, as Martinez started to pull away, he says the officer pivoted back to Martinez and asked if he could question him further.

“He said, ‘Do you have any drugs or guns in your car?’” Martinez said. 

Martinez said he told the trooper he did not have any drugs in the car.

“‘Well, you don’t mind if I take a look in your car then,’” Martinez recalled the trooper saying. “I said, ‘Yes, I do mind if you take a look in my car. I don’t have time for that,’ and he said, ‘Well, go ahead and pull over. You’re being detained.’”

Martinez and his brother would be detained for more than an hour after that original stop without yielding any additional charges or tickets. That's why he called FOX4 Problem Solvers in September.

Class action lawsuit against 'Kansas Two Step'

According to a lawsuit filed by the American Civil Liberties Union, the trooper used a tactic referred to as the "Kansas Two Step," in which troopers target motorists with out-of-state license plates or those traveling to or from Colorado, where recreational marijuana is legal.

The “Kansas Two Step” involves unlawfully detaining drivers with questions about travel plans without consent or reasonable suspicion of criminal activity after the initial purpose of the stop was resolved, the lawsuit states.

The lawsuit says the technique is designed to break off the initial traffic detention and re-engage the driver in what could be interpreted as a separate consensual encounter.

“They use traffic stops in order to get to bigger issues,” said Jay Norton, a criminal defense attorney in Johnson County, Kansas. “That’s kind of the game that they’re playing.”

Ultimately, Martinez was given a ticket and released, but he said officers never explained their reasonable suspicion for searching his vehicle in the first place, something he said made him feel targeted and discriminated against.

Martinez said he started recording the encounter on his own phone once the canine unit arrived. However, the footage doesn't show the highway patrol trooper that pulled him over performing the alleged two-step tactic.

“He (one of the officers) wanted to put us in handcuffs and take our phones away so we couldn’t record,” Martinez said. “Luckily, that didn’t happen.”

FOX4 Problem Solvers requested body camera and dashboard camera footage of the traffic stop after Martinez attempted to request it, but was denied. 

Both KHP and the Riley County Police Department refused to release the video, claiming the footage is considered a criminal investigative record under the Kansas Open Records Act.

“Specifically, if the footage were released, it would reveal confidential investigative techniques or procedures that are not known to the general public,” Riley County stated in an email.

But what police tactics are Kansas officers using that they don’t want the public to know about? And what is it about these procedures that makes them so secretive?

“It just makes no sense to me,” Martinez said. “What are they trying to hide?”

Problem Solvers contacted KHP twice via email for a statement but they said they cannot comment on ongoing litigation or the processes and procedures that relate to pending litigation.

The unlevel playing field

Martinez said the trooper who stopped him claimed he was apprehensive because Martinez took an exit onto a desolate country road. Martinez said he was unfamiliar with the area and simply looking for a place to get gas.

“I felt harassed,” Martinez said. “I felt, you know, demoralized. I felt like he just invaded all of my rights, all of my personal rights at that point.”

He said he was then told to wait 30 more minutes as KHP called the Riley County Police Department for backup, who eventually arrived with canines to perform a vehicle search.

Attorney Norton said traffic law is rigged in favor of law enforcement.

“Freedom is an illusion. It's a story that we tell ourselves about our society, but the bottom line is, it is a game and the game is completely rigged," Norton said.

"It’s completely rigged against the little person, the citizen, and the only way that an average citizen can hope to possibly, maybe get a level playing field is to hire an attorney and have next to unlimited resources to go fight the government, who does have unlimited resources, tooth and nail over these minor issues.”

Norton said he believes troopers are anticipating interactions with citizens who don’t fully understand their own rights.

“They want to protect the game that they’re playing,” he said. “They want to make sure that your average citizen is in the dark as much as possible as to what their rights are, and in the dark as to what techniques and tactics law enforcement is gonna use to try to get them to give up those rights.”

Josh Pierson, senior staff attorney with the ACLU, said the bar for reasonable suspicion is incredibly low.

“It's a very low bar, and the courts actually generally defer to the officers," Pierson said. "But it’s not just whatever they say it is, and the Fourth Amendment does impose a limitation, as it was designed to do, on officers’ ability to just keep people detained without probable cause or without a warrant.”

Norton said confusion surrounding reasonable suspicion leads to confusion among both parties, the officer and the citizen, during a traffic stop. It's something he considers dangerous.

“Nobody knows really what the contours of the Fourth Amendment are going to be in any given situation, including the police. They don’t always know what they can and can’t do, and I think that that is bad for the Fourth Amendment,” he said.

“There are other constitutional amendments that people adamantly and fiercely protect, like the Second Amendment. Nobody’s sitting around saying, ‘Well, this should be nuanced, whether you have the right to possess and bear arms.’ Everybody’s saying that’s a firm, clear, bright line, constitutional rule. Why is the Fourth Amendment different?”

Kansas civil forfeitures

The ACLU lawsuit suggests that the two-step technique serves as a fishing expedition for money.

The lawsuit alleges 96% of KHP’s civil asset forfeitures in 2019 involved out-of-state motorists driving on Interstate 70. In 2017, drivers with out-of-state plates comprised 93% of KHP traffic stops.

“The state troopers in western Kansas know that there are people going to Colorado, buying marijuana and taking it through Kansas to other states or to somewhere in Kansas,” Norton said. “When it becomes legal in Missouri, it’ll be the same situation."

Norton said traffic stops are a profitable business for troopers because when officers confiscate property from a driver’s vehicle, they sell the items, and use the money to fund law enforcement.

“They’re fishing, and the idea is to catch fish and, you know, now they’ve got good bait,” he said.

Pierson said what happened to Martinez is happening to others as well, something that can breach the relationship between law enforcement and the people.

“I would like to think that we could have a transparent relationship -- we, the public, with law enforcement -- and that there wouldn’t be need for tricks and devices and strategies like this for them to do their job,” he said.

What are my rights during a Kansas traffic stop?

Norton said every citizen has the right to remain silent and not answer questions during an encounter with law enforcement. But he acknowledged there's often a power dynamic that makes people feel like they can’t.

“Nobody feels like they can ignore a police officer and just drive away or walk away from a police officer that’s asking, ‘Can I talk to you?’” he said.

Pierson said officers have to have an articulable reasonable suspicion to detain you, but that doesn’t necessarily mean they have to communicate their suspicion to the driver.

“There’s nothing (in the law) that requires the officer to tell you what the reasonable suspicion is either and who are you to ask? If an officer were to volunteer it, that would be fine, and in fact, it’s not even a subjective standard,” he said.

“What I mean by that is the officer can be wrong or mistaken or be using factors that they’re not supposed to be using even, but so long as a lawyer can come in after the fact and say objectively ‘any reasonable officer would have found reasonable suspicion here,’ then the courts will generally say that that’s OK.”

Norton said the majority of drivers will never have a chance to seek justice for an illegal detention, as there are too many barriers associated with litigation.

This makes the potential for illegal detainment during a traffic stop all the more daunting.

“You can file a lawsuit, but who has time for that?” he said. “Usually people just go home and are glad they didn’t get thrown into jail, that there wasn’t something found or planted or whatever.”

In the meantime, people like Martinez, and the other two individuals represented in the ACLU’s lawsuit, are doing just that -- spending a lot of time and a lot of money trying to navigate a way to vindicate their rights.

“You feel like you’re an ant standing next to a human, you know, because you try to be as calm as you can and you try to say what you think is right and it’s never right, you know?” Martinez said.

“The justice system is, unfortunately, backwards, you know, and you think you can count on these cops and troopers to do right and they still want to hit that quota or whatever the case may be, you know, to make themselves look better and to catch something that’s not really there.

"It’s like, it’s just demoralizing. It makes you feel like less of a human being just because they have a badge and a gun.”