Shaw v. Jones

683 F.Supp.3d 1205

Blaine Franklin SHAW et al., Plaintiffs, v. Herman JONES, in his official capacity

as the Superintendent of the Kansas Highway Patrol, et al., Defendants.

Mark Erich et al., Plaintiffs, v. Herman Jones, in his official capacity

as the Superintendent of the Kansas Highway Patrol, et al., Defendants.

CIVIL ACTION No. 19-1343-KHV

CIVIL ACTION No. 20-1067-KHV

United States District Court, D. Kansas

Signed July 21, 2023

Herman Jones, Topeka, KS, Pro Se.

Brian M. Hauss, American Civil Liberties Union Foundation, New York, NY, Kunyu L. Ching, Sharon Brett, Joshua M. Pierson, Pro Hac Vice, Kayla DeLoach, ACLU Foundation of Kansas, Overland Park, KS, Leslie A. Greathouse, Madison A. Perry, Olawale O. Akinmoladun, Patrick A. McInerney, Spencer Fane, LLP, Kansas City, MO, for Plaintiffs in 19-1343.

Arthur S. Chalmers, Stanley R. Parker, Kansas Attorney General, Topeka, KS, for Defendants in 19-1343.

Leslie A. Greathouse, Madison A. Perry, Patrick A. McInerney, Spencer Fane, LLP, Kansas City, MO, Sharon Brett, Joshua M. Pierson, Pro Hac Vice, Kayla DeLoach, ACLU Foundation of Kansas, Overland Park, KS, for Plaintiff Mark Erich in 20-1067.

Stanley R. Parker, Arthur S. Chalmers, Kansas Attorney General, Topeka, KS, for Defendant Herman Jones in 20-1067.

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

KATHRYN H. VRATIL, United States District Judge

To date, 23 states and the District of Columbia have legalized recreational marijuana.¹ To the west, Colorado legalized recreational marijuana in 2014. To the east, Missouri legalized recreational marijuana in 2022.² Meanwhile, in the name of drug interdiction, the Kansas Highway Patrol ("KHP") has waged war on motorists—especially out-of-state residents traveling between Colorado and Missouri on federal highway I-70 in Kansas. As wars go, this one is relatively easy; it's simple and cheap, and for motorists, it's not a fair fight. The war is basically a question of numbers: stop enough cars and you're bound to discover drugs.³ And what's the harm if a few constitutional rights are trampled along the way?

The Fourth Amendment to the United States Constitution protects citizens from "unreasonable searches and seizures," which is why KHP troopers must have reasonable suspicion to search an individual's person or property.⁴ The KHP has developed a work-around, however, which exploits fundamental precepts of the American legal system, along with the ignorance and timidity of the motoring public. Kansas has hundreds or thousands of traffic laws on the books. These traffic laws give KHP troopers innumerable reasons to stop motorists for violations which may involve public safety, but the stops actually intended to investigate drug crimes for which they have little or no evidence.⁵ Once the vehicle is detained, the trooper can look inside the car for drugs or other contraband in plain view.⁶ If no drugs or contraband are in plain view, the trooper cannot search the vehicle without "reasonable suspicion" to believe that a crime has been, is being or is about to be committed.

Typically, at the beginning of the initial traffic stop, a trooper does not have reasonable suspicion to search the vehicle or the driver. Therefore, his job is to "develop" reasonable suspicion to do so.⁷ A trooper without reasonable suspicion is a trooper engaged in a fishing expedition for evidence of drug crimes. Fortunately for troopers, the law provides convenient, easy-to-use, virtually fool-proof tools to do so: (1) after the traffic stop is concluded, the trooper can try to keep the driver talking until he or she says something which a trooper considers suspicious; or (2) the trooper can elicit the driver's consent to a search.⁸ In terms of authority to search, consent is the gold standard.

So how do troopers elicit consent? Sometimes—actually, in a surprising number of cases—the troopers need only ask. Most drivers do not know that they have a right to deny consent, and troopers are more than happy to exploit their lack of knowledge of their legal rights.⁹ Even though the law requires that consent be knowing, intelligent and voluntary, troopers don't generally let such niceties stand in their way. For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent—a maneuver colloquially known as the "Kansas Two-Step."¹⁰ If the driver persists in refusing to consent, the trooper has a fallback position: search the vehicle anyway and claim that he had reasonable suspicion all along.¹¹

The KHP trains its troopers that when developing reasonable suspicion, they may consider the fact that a motorist is traveling to or from a "drug source" or "drug destination" state. Before Missouri legalized recreational marijuana in 2022, travelers on federal highway I-70 automatically qualified as traveling either toward or away from a "drug source" state (Colorado). Now that both states have legalized recreational marijuana, any traveler on I-70 between Colorado and Missouri—that is, anywhere on I-70 in Kansas, traveling in either direction—is by definition traveling both to and from a "drug source" state. And it doesn't stop there: according to KHP troopers, all major cities are also drug sources.¹² As a result, all drivers on I-70 have moving targets on their backs. Not surprisingly, even before Missouri legalized recreational marijuana, KHP troopers targeted out-of-state motorists for a disproportionate number of stops¹³ and, once stopped, KHP troopers subjected them to a disproportionate number of canine sniffs and vehicle searches based on their out-of-state residences and their travel to and from "drug sources" and "drug destinations."

The overall strategy behind pretextual policing is legal—and that fact is not likely to change any time soon.¹⁴ In the meantime, the law has two primary checks on pretextual policing: (1) it limits the "tolerable duration" of a traffic stop and (2) if troopers do not have reasonable suspicion, it requires drivers' consent to extend the duration of the stop. In Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), the Supreme Court made clear that the traffic stop may last no longer than necessary to effectuate its purpose: "[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop, and attend to related safety concerns . . . . Because addressing the infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' " Id. at 354, 135 S.Ct. 1609 (citations omitted); see also Bailey v. United States, 568 U.S. 186, 194, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)) ("The scope of the detention must be carefully tailored to its underlying justification.").

Beyond that time, if the trooper lacks reasonable suspicion, he may extend the stop to ask questions unrelated to the stop, or to wait for other officers or a drug dog to arrive—but only with the driver's consent.¹⁵ If a driver merely submits to a trooper's show of authority, the driver has not given willing and voluntary consent and the trooper has committed a seizure for which he must have reasonable suspicion. United States v. Mosley, 743 F.3d 1317, 1324-25 (10th Cir. 2014). The encounter is not consensual unless a "reasonable person" would feel free to "disregard the police and go about his business." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citation omitted).

The KHP bears the burden of showing that reasonable suspicion justified any search and seizure. United States v. Simpson, 609 F.3d 1140, 1156 (10th Cir. 2010). The KHP also bears the burden of showing that in the totality of the circumstances, consent was freely and voluntarily given, and not the product of express or implied coercion. Schneckloth, 412 U.S. at 222, 227, 93 S.Ct. 2041.

"The touchstone of [the Court's] analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." United States v. Morgan, 855 F.3d 1122, 1126 (10th Cir. 2017) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). Reasonableness "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Mimms, 434 U.S. at 109, 98 S.Ct. 330 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). In this case, the Court endeavors to strike the appropriate balance and finds that the KHP does not routinely require or ensure that troopers follow the law with regard to reasonable suspicion and consent, and it has developed a practice of detaining motorists under circumstances which the Fourth Amendment forbids. Stated otherwise, the KHP has not satisfied its burden of proving that its policies and practices satisfy the Fourth Amendment; troopers unlawfully detain motorists based on factors which do not satisfy the low bar of reasonable suspicion, and the KHP has not shown that such motorists give constitutionally valid consent to the prolonged periods of detention which they confront.¹⁶ Such policies and practices must be condemned as unlawful. Furthermore, because traditional legal remedies are inadequate to ensure the KHP's compliance with its constitutional obligations, declaratory and injunctive relief must be awarded to plaintiffs.

FINDINGS OF FACT

I. Introduction

Plaintiffs bring suit under 42 U.S.C. § 1983 against Colonel Herman Jones in his...