KHP’s ‘two-step’ technique for launching vehicle searches challenged on constitutional grounds

KANSAS CITY, Kansas — Mark Erich, Shawna Maloney and their two children set off in good spirits for the first family vacation in a newly acquired recreational vehicle, traveling from Colorado to Alabama via Interstate 70.

In central Kansas before dawn in March 2018, their camper caught the attention of Kansas Highway Patrol trooper Justin Rohr. He whipped his cruiser across the median to head east at high speed to track down the RV bearing temporary Colorado tags. The trooper briefly paced the Erich-Maloney camper in the left lane before sliding to the right and lighting them up on the pretext Erich’s right rear tire touched the white fog line.

“I just wanted to make sure you weren’t sleepy,” Rohr told Erich to open the roadside stop. Rohr’s dash camera and an audio feed from troopers on the scene created a vivid record of dialogue and imagery.

Rohr asserted he could see paint on Erich’s hand and claimed to sense the presence of fresh paint or car body putty when he approached the vehicle. Erich and Maloney, as well as two other troopers, said they couldn’t smell anything odd. But Rohr pushed a theory someone had sealed a secret compartment within the RV to hide illegal drugs.

Rohr, who joined the KHP in 2006 with Badge No. 232, was building a case of investigation borne of suspicion. He still lacked cause to order a search of the camper by the drug-sniffing dog waiting in his cruiser’s rear seat. In the interim, he handed Erich a warning for nicking the highway’s white line.

“You guys have a safe trip,” Rohr said. “Drive careful.” The video shows Rohr took a few steps toward the rear of the RV before spinning back to engage Erich again. It’s known as the Kansas Two-Step — a technique taught KHP personnel to signal termination of a routine traffic stop and initiation of a separate effort to elicit information and gain entry to a vehicle to search for contraband.

The officer’s request sounded simple: “Hey, sir, can I ask you more questions?” Erich, who thought the trooper’s inquiry had gone on long enough and was leery of what might transpire next, said he’d prefer not to engage in more conversation.

At that point, Rohr announced he was detaining the family pending a drug-dog assessment and possible deep dive by troopers. He later reported Erich refused KHP access to the RV, but admitted in the deposition that wasn’t true. Erich said he wanted to leave, but wasn’t directly asked about a search.

“I think you might have a false compartment in this vehicle,” Rohr said. He ordered both parents and the children out of the RV into freezing weather. He paraded his police dog around the camper’s exterior before declaring the animal signaled presence of marijuana, cocaine, heroin or methamphetamine.

He said the canine’s sensitive nose gave him reasonable suspicion to explore the vehicle’s interior as other cars and trucks continued to zoom past on the interstate.

Kansas troopers on the scene dismantled parts of the RV’s dash, smashed smoke detectors, dumped clothes on the floor, ransacked the refrigerator, damaged the restroom door and towel rack, broke a panel under the shower and disabled the toilet. The law enforcement officers’ search included exploration of external storage bins. They crawled under the vehicle to tap metal panels, peered under the hood and climbed a ladder off the bumper to examine the roof.

They found nothing illegal. No drugs. No guns. No cash.

“I was fearful. I didn’t know what to expect,” said Maloney, who testified she still suffered anxiety from the experience. “I was scared and nervous. I was mad. I was very upset. I felt it was a waste of our time. I don’t feel save driving through Kansas anymore.”

Constitutional challenge

As the sun started rising to the east, Rohr told Maloney and Erich he was sorry for wasting their time.

He didn’t apologize for what Maloney, Erich and other plaintiffs contend was the KHP’s practice of violating Fourth Amendment protections against unreasonable search and seizure. A group of attorneys serving the plaintiffs, including representation by the American Civil Liberties Union of Kansas, named KHP superintendent Herman Jones as defendant in this week’s trial contesting KHP policy on the two-step searches. Plaintiffs seek a court order prohibiting the two-step system crafted to work around motorists’ constitutional protections.

In a brief interview at the federal courthouse, Jones said KHP “made some adjustments” in response to legal objections to the Kansas two-step. He declined to comment on troopers’ abuse of the RV. In a deposition, Rohr said he didn’t recall harming the camper but said he had damaged property in other searches.

Two other plaintiffs in the consolidated case against KHP, Wichita resident Joshua Bosire and Oklahoma City resident Blaine Shaw, already prevailed in jury trials accusing KHP troopers Douglas Schulte and Brandon McMillan of improperly detaining them. Searches of their vehicles failed to uncover evidence of drug trafficking.

On Monday, it was the turn of Erich and Maloney to take the stand and plead their case at the Robert Dole Courthouse in Kansas City, Kansas.

They’re all contesting KHP’s reliance on the two-step method to question motorists in anticipation of building reasonable suspicion and compelling involuntary searches of suspect vehicles. KHP policy has clashed with a 2016 decision in the 10th Circuit of the U.S. Court of Appeals that instructed the Kansas law enforcement agency to cease reliance on unreliable methods of detaining motorists for criminal searches.

In a deposition played for the court, Rohr defended his approach to sorting out who should be placed under a microscope as a possible drug trafficker. He said he relied on extensive training and experience when making subjective determinations, which depended on “more than a hunch.”

The trooper said he was drawn to out-of-state vehicles, especially from drug production states such as California and Colorado or motorists headed toward high drug consumption cities such as St. Louis and Cleveland. He tuned into individuals who appeared nervous or were pulling trailers with no load. He said it was meaningful when vehicles were doused with air freshener to obscure odor or had interiors littered with fast-food wrappers, which was a sign of guilt among people exceptionally eager to keep moving.

Rohr said he was convinced, at least when his deposition in the suit was taken in 2021, Erich and Maloney were indeed hiding drugs in their RV despite his unsuccessful effort to find evidence of that claim.

“This is a crucial case for our clients, but also for anyone else who travels on Kansas highways,” said Sharon Brett, legal director of the ACLU of Kansas. “For too long, the Highway Patrol has run roughshod over the rights of motorists. People should be free to travel through our state without the fear that they will be unlawfully shaken down based simply on the small fact that they are coming from or are going to states that have legalized drug use in some capacity.”

She said Jones hadn’t taken steps to halt KHP’s impermissible reliance on motorists’ travel agenda or state of residence when deciding whether to retain a person for a canine sniff. Plaintiffs contended KHP’s transformation of a traffic stop into a search was an egregious practice that preyed on motorists who didn’t appreciate their constitutional rights and people who understood their rights but thought it risky to drive away, she said.

“At its core, this case is about what it means for police to target certain people for intrusive questioning and suspicionless detention,” Brett said. “To turn something minor, like a traffic violation, into a degrading and lengthy roadside detention or something even worse.”

She said the KHP litigation reflected the public’s desire to push back against misuse of law enforcement authority.

“When we give police the power to conduct pretextual stops, to assume people to be drug traffickers, and to use flimsy justifications to get inside their vehicles to prolong traffic stops, we turn a simple ticket-release scenario into something longer, fraught and complicated,” Brett said.

State’s attorney 0-2, so far

U.S. District Court Judge Kathryn Vratil, who was assigned to preside over the three trials, denied KHP’s motion for summary judgement. The U.S. Court of Appeals in Denver rejected KHP’s request for qualified immunity from the lawsuits.

In February, a federal court jury founding in favor of Shaw’s claim against Schulte. Shaw was awarded nominal damages when the jury determined Schulte violated Shaw’s rights during a 2017 stop. Shaw and a brother, members of the Osage Nation from Oklahoma City, were on their way to Denver when pulled over near Hays for speeding. Schulte issued the ticket and wished them well before relying on the two-step maneuver to pose additional questions leading to a drug-dog search of their van.

In the second trial, Bosire’s jury determined McMillan violated Bosier’s rights during a traffic stop in 2019. Bosire was awarded punitive and compensatory damages.

Arthur Chalmers, an attorney representing KHP employees in the trials, said troopers sued by Shaw and Bosire leaned on years of training to formulate reasonable suspicion of possible crimes. He said in court documents KHP respected Fourth Amendment rights of motorists. He argued KHP hadn’t infringed on constitutional rights of people to travel from state to state through Kansas.

On Monday, Chalmers declined to offer opening remarks at start of the bench trial aimed at Jones, who serves as the state law enforcement agency’s colonel and superintendent. He is scheduled to retire this summer.

Chalmers did raise objections to showing video of Rohr’s deposition and the admission of RV photographs taken by plaintiffs. He alleged plaintiffs’ lawyers were introducing “inadmissible hearsay” and information lacking relevance to the case. When he objected to testimony by Maloney, the judge sought to deter him.

“I’d like to hear what she has to say,” Vratil said. “So, there’s no need to keep objecting.”

Roots of the case trace to Peter Vasquez, who filed suit against KHP troopers Richard Jimerson and Dax Lewis alleging they lacked reasonable suspicion in 2011 to detain and search his vehicle in Wabaunsee County. Five years later, his case made it to the Court of Appeals’ 10th Circuit in Denver.

Vasquez had been a resident of Colorado and was driving on I-70 through Kansas during the night in a recently acquired older-model car. Vasquez refused to voluntarily allow troopers to search his BMW. Jimerson, suspecting Vasquez was transporting illegal drugs, detained him before calling in a trained drug dog. Subsequent inspection of the vehicle didn’t turn up anything illegal.

Vasquez filed suit against KHP in 2012 alleging violation of search-and-seizure rights. The U.S. District Court in Kansas granted the troopers summary judgment on the basis of qualified immunity, concluding Vasquez’ asserted right wasn’t clearly established in law.

“We disagree,” the Court of Appeals said. “We conclude that the officers acted without reasonable suspicion and violated clearly established precedent. In particular, we conclude that the officers impermissibly relied on Vasquez’ status as a resident of Colorado to justify the search of his vehicle.”

KHP and Vasquez settled the case in 2017 after the U.S. Supreme Court declined the state’s request to hear an appeal. Vasquez was paid $67,100 by the state. He told The Topeka Capital-Journal the conflict exposed KHP’s corrupt practices and lack of respect for constitutional rights.

“It’s about accountability,” Vasquez said.