Blaine and Samuel Shaw were heading west on Interstate 70 on their way to Colorado in December 2017 when the Kansas Highway Patrol stopped their minivan for driving 14 miles over the speed limit.
Master Trooper Doug Schulte noted that the vehicle looked like it had been “lived in.”
After issuing a ticket, Schulte turned to walk away and then came back to ask where the two were going.
“Denver, headed to see family,” Blaine Shaw responded.
Schulte then detained the brothers as they waited for a drug-sniffing dog to search the vehicle. Blaine Shaw declined the search, but the dog’s alert outside of the vehicle gave the trooper a legal basis to go ahead with the search.
Troopers found no illicit drugs — only plastic bags with a marijuana smell and a medical marijuana card prescribed to Blaine Shaw.
The brothers were then required to drive to Kansas Highway Patrol headquarters in Hays, a 700-mile detour from their trip to Denver, so that the troopers could make copies of the medical marijuana paperwork and contact Colorado authorities. Once this was done, the brothers were allowed to go on their way.
That stop and similar ones are now the subject of a class-action suit being litigated by the ACLU of Kansas, which accused the Kansas Highway Patrol of profiling cars with business in Colorado, where marijuana is legal, and unlawfully detaining drivers by using a strategy called the “Kansas Two Step.”
The ACLU claimed that the Kansas Two Step is part of a strategy to get drivers to talk to them without a lawyer present. Troopers in both stops and the head of the Highway Patrol are being sued personally for damages and the ACLU is asking the patrol for injunctive relief — in other words, to change its practices.
On Monday, the 10th Circuit Court of Appeals allowed the class action suit to continue, and the case will be tried in February in Wichita.
The Kansas Attorney General’s Office, which represents the defendants, told the 10th Circuit Court that the Shaws’ detention did not violate their Fourth Amendment rights.
“Shaw consented to a 30-second conversation and Schulte had reasonable suspicion to extend the traffic stop for a dog sniff,” the state argued. “Schulte had probable cause to search the minivan from a drug dog alert.”
The state also argued that the rights the ACLU claimed were violated were not “clearly established.”
In addition, the state acknowledged that knowing Denver was the destination mattered because of Colorado’s legalization of marijuana use.
“Denver destination was relevant to Schulte because, based upon his experience and knowledge, I 70 was a corridor to Colorado (i.e., a source state for marijuana),” the state said.
Possession of marijuana in any amount is illegal in Kansas, which borders Colorado. Recreational and medical marijuana have been legal in Colorado for 10 years.
In its lawsuit, the ACLU claimed that the Kansas Highway Patrol has designated I-70 as a drug-trafficking corridor and trained troopers to scrutinize motorists traveling to and from Colorado because the Centennial State has legalized medical and recreational marijuana.
The lawsuit said Kansas Highway Patrol routinely detains drivers on I-70 after the initial purpose of a traffic stop has been resolved to question drivers about their travel plans “absent consent or reasonable suspicion of criminal activity.”
Those actions, the lawsuit argued, are illegal.
The 10th Circuit Court already held that detaining drivers because of their travel origin or destination, and a combination of other facts consistent with “innocent travel,” violates the Fourth Amendment.
The lawsuit also claimed that drivers with out-of-state plates made up 93% of Kansas Highway Patrol stops in 2017.
A KMBC-TV investigation found that in 2017, only 7% of Kansas drivers had their property seized. Most of the cars that had property seized by state troopers were either from Missouri or Colorado.
In 2019, nearly all of the highway patrol’s property seizures were initiated on non-Kansans driving on I-70, according to statistics compiled by the Kansas Bureau of Investigation.
Josh Pierson, the lawyer who is handling the case for the ACLU, told The Denver Gazette that there’s plenty of evidence that troopers stop out-of-state cars that they suspect are carrying marijuana. They then use The Kansas Two Step to get the driver to have a conversation with them, Pierson said.
“That particular tactic is a ploy to get people to consent. For them to continue asking questions like that, they need a freely engaged consensual conversation, and the Two Step tricks motorists into answering,” said Pierson.
Schlagel, Long, Rivera LLC, a Kansas-based law firm, described the tactic this way: After a traffic stop, a trooper tells the driver, “You’re free to leave.”
The officer then takes two steps to the rear of the car, turns around and comes back to engage the driver in a conversation.
By doing so, the situation now becomes a “voluntary encounter,” in which the officer no longer needs reasonable suspicion or probable cause.
The law firm advises motorists to ask troopers one question: “Am I free to leave?”
Pierson’s case involves two separate incidents. The first deals with the Shaw brothers’ encounter with Schulte.
In the second instance, Joshua Bosire was stopped on his way back from visiting his daughter for her birthday. A similar incident occurred, except the dog did not alert for the presence of any illegal substance.
“In both cases, the officers failed to find any drugs,” said Pierson.
“We believe the evidence will demonstrate there’s an obsession on the part of the Kansas Highway Patrol with” stopping out-of-state vehicles.