The ACLU of Kansas filed a class action lawsuit last month against the Kansas Highway Patrol, accusing them of a practice of intentionally and unconstitutionally prolonging traffic stops using what they call the “Kansas Two-Step” and other tactics to detain motorists without probable cause.
Do police trick motorists into giving up their rights during a traffic stop? Do they intentionally prolong traffic stops, detain motorists, and search their vehicles without probable cause?
As a defense attorney who regularly handles traffic violations and drug cases that arise from traffic stops, I can tell you that not all police trick motorists into giving up their rights and not all law enforcement agencies employ tactics designed to prolong traffic stops.
But many do.
Highway patrol officers in SC and other states are trained in Fourth Amendment law – not only to protect the rights of motorists, but so the officers know how to “get around it,” what to write in their reports, and how to testify in court.
Which police officers are doing this? If their primary function is traffic enforcement, a ticket is a ticket. If they see or smell something funny, they will investigate further – that’s how it’s supposed to be done. If their primary function is looking for drugs and money, however, a ticket is not just a ticket. A ticket is an excuse to search your car…
What’s the story behind the “Kansas two-step” lawsuit? And what does SC law say about prolonged traffic stops when there is no probable cause?
The “Kansas Two-Step” – How Police Trick Motorists into Giving Up Their Rights
Once an officer has written a ticket and completed the legitimate purpose of the traffic stop, the motorist must be released unless 1) there is reasonable suspicion of further crime like drug activity or 2) the driver gives consent to stay and chat (or have their car searched).
What the ACLU is calling the “Kansas Two-Step” is the practice of handing the driver their ticket or warning, taking two steps toward their patrol car, then turning around again and asking the driver if they don’t mind answering a few more questions:
After a trooper makes a stop and resolves the traffic violation, the trooper takes two steps towards their patrol vehicle, turns back around and asks the driver to answer a few more questions.
The idea is that, if the driver says, “sure,” then the traffic stop turns into a consensual encounter. It is no longer a detention because the driver is now agreeing to hang around a bit longer. Therefore, there is no Fourth Amendment violation.
Most people, unwilling to rock the boat and risk making the guy with a gun mad at them, will simply agree. When a person doesn’t agree, the officer detains them anyway and calls for a K-9 unit if one is not already there.
“This technique is used to break off an initial traffic detention and attempt to reengage the driver in what would then be considered a consensual encounter,” the ACLU said, adding that the maneuver is included in KHP training.
In some instances, troopers have asked if the driver consents to a search of the car. If the driver denies permission, the trooper will detain them and call for a canine drug search, the lawsuit said.
The ACLU is representing three men who were detained along Interstate 70. After canine searches, no drugs were found.
If drugs or money are found, the motorist can’t challenge the search because they consented to it. If no drugs or money are found, no harm done, right? The motorist goes on their way and the officer moves on to the next black or brown person in a rental car with out of state tags…
When the officer completes the legitimate traffic stop and attempts to initiate a second, consensual encounter, they will usually give some version of “the speech.”
“We’ve been having a lot of trouble out here on the interstate with drugs and guns, you don’t have anything like that in your car, do you?” (No, sir, I don’t) “Well, then, you won’t mind if we have a look, would you?”
At this point, with few exceptions, the officer is going to search the person’s car. The only questions are 1) Does the officer have probable cause to search, or 2) did the person consent to the search?
If a motorist refuses consent to search their vehicle, the officer will probably either 1) wait for a drug dog to arrive that will give him probable cause to search or 2) search anyway. Then it will be a matter for the courts as to whether the officer had a “reasonable, articulable suspicion” that justified searching the vehicle.
Manufacturing Probable Cause
The officer will usually ask questions, not to be friendly and chit-chat, but to manufacture probable cause to support their search of your vehicle. Where are you from? Where are you headed? How long are you staying there?
These sound like normal, conversational icebreakers. Except, if you answer [insert any large city], and that you stayed a few days, the officer will make a note that you are traveling either to or from a “major drug hub,” and that they did not observe any luggage in your vehicle – this will later somehow become probable cause that you are a drug trafficker.
If there is a passenger in the car, they might ask them questions separately – any deviation in their response from your responses will be seen as probable cause to search.
What are some facts cited by SC police as probable cause to search?
- The driver appeared nervous;
- The passenger appeared nervous;
- I observed the driver’s heartbeat pulsing through his shirt;
- I observed the driver’s pulse beating in his neck;
- Air fresheners were hanging on the rear-view mirror;
- They were driving a rental car;
- They were driving a car with out of state tags;
- The driver and passenger’s stories didn’t match;
- There was no luggage in the vehicle; or
- The driver was traveling either to or from a “major drug hub” (any large city in the United States).
All of this is conduct that describes ordinary, law-abiding citizens just as it could describe a drug trafficker.
What Does SC Law Say About Unconstitutional Second Detentions?
South Carolina law says that an officer can pull you over for a traffic violation and detain you there on the side of the road just long enough to write a traffic citation, check your license, and check for warrants. That takes around 8-12 minutes in most cases, but there is no hard-and-fast rule as to how long it should take.
After that, the officer must 1) have an articulable, reasonable suspicion that there is criminal activity or 2) you must consent to any continued detention and search. If the officer uses a tactic like the Kansas two-step to get you to keep talking as they attempt to manufacture probable cause, that is a second, unconstitutional detention and the consent is not valid.
Why Does it Matter?
Why does it matter? We’re just talking about drug traffickers, right?
No. We’re talking about all of us.
The purpose of the Fourth Amendment is to prevent government agents from detaining and searching us without a valid reason. We have the Fourth Amendment because, when the Fourth Amendment was written, that was happening.
We have the Fourth Amendment because our nation’s founders knew that, if we did not have a Fourth Amendment, it would happen again. It has always been the nature of government and law enforcement – when they are unconstrained, a nation’s citizens have no rights.
Despite the Fourth Amendment, every day, across the United States, innocent people are detained and harassed on the roadside by law enforcement officers who are looking for drugs or looking for money. The ACLU’s lawsuit contains specific examples of citizens who were targeted in Kansas because 1) they were traveling with out of state tags and 2) they were people of color.
That’s not America.
Drug Crime Defense Lawyers in Myrtle Beach, SC
If you were charged with a drug crime after a traffic stop, there may be constitutional issues that could result in suppression of the evidence when the police did not follow the rules. Get an experienced drug defense lawyer on your case immediately who can review the evidence, spot the constitutional issues in your case, get your case dismissed, negotiate on your behalf, or try your case to a jury.