KANSAS CITY, Kan. – Attorneys combed through over 700 pages of Kansas Highway Patrol training materials in court Friday, questioning witnesses on whether or not KHP traffic stop policies clearly outline the Fourth Amendment rights of motorists.
“The goal of (interdiction) training is so troopers understand the limitations of the Fourth Amendment” and “what related case law allows them to do,” Sarah Washburn, criminal counsel and former-Fourth Amendment and interdiction instructor for KHP troopers, testified on Friday.
Interdiction refers to the law enforcement practice of using traffic stops as a means to deter other criminal activity, such as the transport of illegal drugs.
The discussion comes out of a class action lawsuit filed against KHP Superintendent Col. Herman Jones, as well as the agency, asking a federal judge to order a stop to a traffic stop strategy known as the “Kansas Two Step.”
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, a 2021 lawsuit filed by the American Civil Liberties Union states.
“It’s like, it’s just demoralizing,” Curtis Martinez, who was stopped and detained by KHP in September, told FOX4 in February. “It makes you feel like less of a human being just because they have a badge and a gun.”
FOX4 requested body camera and dashboard camera footage of Martinez’s stop, as well as KHP training materials related to roadside stops, but we were denied access to the footage.
Both KHP and the Riley County Police Department, who arrived to perform a K-9 search on Martinez’s vehicle, 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.
The highway patrol told FOX4 its training materials could not be released in their entirety.
“I don’t see any problem with releasing the legal trainings, and I should be able to get those to you,” KHP said in an email.
“The practical how-to category though would require some review as there would obviously be things we don’t want to release as confidential law enforcement techniques or procedures not known to the general public.”
KHP procedures and court rulings
The ACLU has argued KHP continues to rely on out-of-state license plates or travel plans to justify detaining a driver for a K-9 search of their vehicle, despite the Tenth Circuit’s holding in 2016 in Vasquez v. Lewis, which found that a driver’s state of origin or destination cannot be used as part of reasonable suspicion.
KHP Trooper Brent Holden took the stand Friday in the U.S. District Court of Kansas, where he testified there were no agency-wide policy changes implemented in KHP after the Vasquez ruling.
Washburn testified KHP does, in fact, allow for a motorist’s destination and state of origin to be considered as a factor for reasonable suspicion, though it cannot be the sole consideration an officer relies on.
She said she began including the Vasquez case in her training with troopers in 2020, as a means of discussing consensual encounters.
Training materials presented in court showed Washburn’s curriculum warned officers not to lie to motorists, such as telling them, “You’re free to go,” when in fact, they are being detained.
But ACLU attorneys pointed out that her training materials related to the Vasquez case don’t highlight the ruling that a motorist’s state of origin and out-of-state license plates cannot be a factor of concern in reasonable suspicion.
Washburn also testified about including Rodriguez v. United States in her training of KHP troopers. The 2015 case found that police cannot extend an otherwise completed traffic stop, without reasonable suspicion of criminal activity, in order to conduct a dog sniff.
The training materials presented in court called the Kansas Two Step a “NOT necessary, but also not prohibited,” training tactic.
“If it’s consensual, the Fourth Amendment isn’t involved at all,” Washburn said.
Reasonable suspicion and roadside detentions
ACLU attorneys questioned Washburn as to whether or not she knows if troopers abide by the training she provides.
She admitted that there’s no way for her to know for certain if her training materials are followed since she does not review body camera or dashboard camera footage of troopers’ traffic stops unless KHP specifically asks.
Holden testified KHP does not have a system in place for maintaining information on troopers who violate motorists rights.
He said remedial training is not required for troopers who are found to have violated motorists’ rights during a traffic stop.
ACLU attorneys pointed out that troopers are required to document any roadside detentions that occur during a traffic stop, a form which maintains a checklist section for officers to note their reasonable suspicion.
ACLU representatives said the form provides a checklist for troopers to mark factors contributing to their reasonable suspicion, such as: origin of license plate, the state the vehicle is registered in, the driver’s destination of travel, whether the driver displays signs of nervousness, if a driver is traveling on a direct route to their destination or not, whether the vehicle has a “lived in” appearance, if the car is a rental or not, among other factors.
Holden testified supervisors are required to review at least three traffic stops per quarter for every trooper under their direct command. He said roadside detentions are not a requirement of the traffic stops they review each quarter.
The ACLU asserted that if roadside detentions are not a requirement for quarterly review, it could be months before a supervisor comes across a traffic stop where a trooper detained someone on the side of the road.
The next hearing for this case is set for Wednesday, May 10 at 8 a.m.