GOVERNMENT
Kansas Highway Patrol says it is documenting driver detentions. Its records say otherwise.
Andrew Bahl
Topeka Capital-Journal
Agency data shows that Kansas Highway Patrol troopers infrequently file reports documenting traffic stops, despite a change in departmental policy last year.
Last fall, the Kansas Highway Patrol quietly began requiring troopers to document every time they detain a motorist, even if it doesn't lead to an arrest, amid ongoing controversy about how the agency conducts traffic stops.
The revelation was disclosed by KHP Superintendent Herman Jones amid an ongoing trial over agency policy, which critics say is unconstitutional and targets out-of-state residents.
The new procedures were seemingly enacted as a response to the legal troubles, and the agency said it will better allow the highway patrol to track stops and intervene if a trooper veered outside their legal authority.
"This form allows supervisors to monitor the legality of detentions, track the frequency of detentions, show training deficiencies, and improve transparency," the policy document introducing the new form said.
But agency data shows that troopers infrequently file the reports, raising questions about their effectiveness. Under figures obtained under the Kansas Open Records Act, the highway patrol reported only 22 Vehicle Detention Reports were filed between September 2022 — when the policy took effect — and mid-May.
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The exact number of vehicle detentions conducted by the highway patrol each year is uncertain. But KHP data shows in the first eight months of 2021, there were 195 significant seizures of contraband on Kansas highways.
The highway patrol policy said the form was intended to provide "a record of events that occur when a subject or subjects are detained based on articulable reasonable suspicion or probable cause for the purpose of a canine sniff" following a traffic stop or other detention.
It is required to be filled out regardless of whether an individual was arrested or had drugs, cash or other property seized. It even would need to be used in the cases where a canine unit couldn't be brought in and a motorist was allowed to leave the scene.
"Detaining a driver after the completion of a traffic stop is not a common occurrence compared to the thousands of public contacts the Kansas Highway Patrol has each year," Lt. Candice Breshears, a KHP spokesperson, said in an email.
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Policy change comes amid legal battle on Kansas Highway Patrol stops
The Kansas Highway Patrol under the leadership of Superintendent Herman Jones quietly began requiring troopers document all vehicle detentions. But that form rarely gets used, agency data shows.
Attorneys representing motorists detained by the highway patrol have challenged the so-called "Kansas two-step," a common tactic where a state trooper will pull an individual over for a traffic infraction and, after issuing a ticket, takes steps back toward their vehicle.
They will then turn around and initiate a new interaction with a driver, which the highway patrol classifies as a voluntary stop. It can also be used as a way of delaying a stop until a canine unit can be dispatched.
The ACLU of Kansas has argued that, in practice, this has been part of an abuse of traffic stops targeting out-of-state motorists, notably those from Colorado, where recreational marijuana was legalized in 2012. The highway patrol maintains its policy is that a motorist's state of residence isn't enough to pull them over.
Jones said the new forms were in the works for some time but only began being used in September. He acknowledged the lawsuit was part of the reason for the change in policy.
"It started that process, but this augmented that change," he said during his testimony.
A blank copy of the form was included in the voluminous material covered during the trial over the suit against Jones, which was set to wrap up Friday.
It dictates that troopers document any perceived signs of criminal activity, as well as the origin and destination of a driver's trip and other details, and a written summary of the detention from the officer.
The document must be reviewed by a supervisor, though a review of dashboard camera footage wouldn't necessarily be viewed as part of the process. Critics said the only time a supervisor would more thoroughly review details of the stop would be if a complaint were filed.
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In a court filing May 22, the ACLU and attorneys representing the motorists argued that Jones didn't provide effective details in his testimony earlier this month about how troopers have been using the new forms.
"The new policy also does not contain any requirements that KHP leadership track and report on the completion of these forms, or any of the information contained therein," the attorneys wrote.
An attempt to obtain the actual forms filed by troopers under the Kansas Open Records Act was unsuccessful.
An attorney for the KHP denied a request for the documents, arguing that they were criminal investigation records and thus not subject to disclosure — even though the report could be filled out even if no crime was committed and no seizure or arrest stemmed from a traffic stop.
The highway patrol's general counsel, Luther Ganieany, also said the request for records was denied because the supervisory review portion of the form was tantamount to a personnel document.
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Max Kautsch, president of the Kansas Coalition for Open Government, said the agency should have redacted the part of the documents that pertain to individual trooper training, acknowledging that portion of the document was likely a personnel record.
But the reliance on the criminal investigation exception, Kautsch added, was more clearly objectionable.
"To blanketly claim criminal investigation records applies to records not clearly associated with a particular case is a questionable use of that authority," he said.
The highway patrol also didn't disclose how many of the reports resulted in further mandated training or discipline. Breshears said KHP "is unable to make any comments regarding personnel or disciplinary matters."