Saying she wants something that’s “fair” and “workable,” U.S. District Judge Kathryn Vratil started putting together a plan for overseeing the Kansas Highway Patrol after finding that the agency violated the constitutional rights of motorists.
During a roughly two-hour hearing Monday, Vratil walked attorneys for the American Civil Liberties Union and the attorney general’s office through a possible injunction that would be imposed on the Highway Patrol.
The judge is considering bringing the Highway Patrol under court supervision after finding in July that a technique used by troopers to detain drivers and sniff out drugs violated the Fourth Amendment rights of motorists.
Civil rights advocates said troopers would use what’s called the “Kansas two step” to break off an initial traffic stop and attempt to reengage the driver in what would then be considered a consensual encounter and give them more time to search for drugs.
Vratil tried resolving disagreements between the state and the ACLU over what the injunction would be like, such as whether it should only apply to traffic stops on Interstate 70 and whether drivers should consent to a search in writing.
The judge asked both sides to arrive at an agreement by last Friday, but they ended up at an impasse.
Here’s a look at the areas where they disagreed that the court took up Monday. The Highway Patrol objected to the areas highlighted in yellow.
After the hearing, the injunction started taking shape, although it will be more than 1 1/2 months before the oversight plan will be completed.
Components of the injunction settled so far include:
- A trooper seeking consent to search a vehicle must inform drivers of their right to refuse and revoke consent at any time. The consent must be documented on a written form explaining the drivers’ rights. The Highway Patrol argued that the U.S. 10th Circuit Court of Appeals and the U.S. Supreme Court held that a law enforcement officer is not required to inform an individual — verbally or in writing — that they have the right to refuse to consent to a search and have the right to revoke it at any time.
- A trooper seeking to reengage with a driver or a passenger in a vehicle after a traffic stop has ended must inform them of their right to refuse and to revoke consent at any time. The consent must be documented on a written form. The Highway Patrol argued in this situation that the U.S. 10th Circuit Court of Appeals and the U.S. Supreme
Court have held that a law enforcement officer is not required to inform an individual — verbally or in writing — that they have the right to refuse to consent to a search and have the right to revoke it at any time. - The KHP would be prohibited from using the so-called “Kansas two step” to extend traffic stops of motorists without reasonable suspicion or without the motorists’ voluntary consent. The Highway Patrol says this was not in the court’s original order or proposed injunction, a point that Vratil disagreed with.
The Highway Patrol won a key concession when the judge agreed to modify a provision requiring KHP supervisors to work the same days and hours as the troopers they supervise to ensure compliance with motorists’ constitutional rights.
The injunction will still require supervisors to provide “close and effective” supervision to ensure compliance but will not require them to work the same shift as their troopers.
The patrol says it would have needed to hire 172 supervisory level troopers meet that mandate.
A key issue that still needs to be settled is whether any injunction should cover only Interstate 70.
Vratil proposed limiting the coverage to I-70 since the evidence at trial only established constitutional violations on the interstate.
The ACLU wants the injunction to cover all Highway Patrol practices regardless of the highway they’re patrolling.
The ACLU’s attorney, Sharon Brett, said it would be inequitable to treat one highway differently from others, especially since the Highway Patrol makes stops for drugs on other highways that connect to Kansas from other states.
Brett further argued that an analysis done by the plaintiff’s expert found that constitutional violations occurred on Interstate 35 as well as I-70.
She also noted that the Highway Patrol already applies all of its policies statewide – not just to certain areas – so a statewide injunction wouldn’t make a difference.
