A federal judge effectively struck down a routine traffic stop practice performed by Kansas Highway Patrol that allowed state troopers to detain motorists without cause or reasonable suspicion.
The judge’s order came down on July 21 in the cases Shaw vs. Jones and Erich v. Jones, which were filed in court in 2020 against now-former Kansas Highway Patrol Superintendent Col. Herman Jones over his department’s “Kansas Two-Step” traffic stop practice.
The “two-step” maneuver is the trooper concluding the traffic stop and turning to walk back to his patrol vehicle, only to turn around and re-engage the driver in a “consensual” conversation until a K-9 unit arrives to sniff the driver’s vehicle for drugs.
Joshua Bosire is one of the five plaintiffs who were suing KHP over the troopers’ unconstitutional practices of profiling drivers in cars with out-of-state license plates. His involvement stems from a 2019 traffic stop where he was pulled over driving a rental car with Missouri plates by Trooper Brandon McMillan for driving 7 mph over the speed limit on I-70 in Kansas.
McMillan didn’t cite Bosire for speeding, but before the stop, he had observed Bosire, a Black man, at a gas station at the same time another with out-of-state plates was at the station, and he testified that made him form the suspicion the two were part of a caravan trafficking drugs from Colorado to Kansas. Bosire just happened to be returning to the state from Denver after celebrating his daughter’s birthday.
McMillan began the stop by questioning Bosire about his destination and where he was traveling from. Bosire, who had cameras mounted front and back in the car, replied only that he was traveling east from west and refused to answer any more questions.
The trooper returned to his car and called for backup, then returned to Bosire’s car after several minutes and asked to search the vehicle. Bosire refused McMillan’s request to search his car, but McMillan then told him he was being detained. The K-9 unit called to the scene found no evidence of drugs, and the troopers released Bosire, who was detained for nearly an hour.
Bosire sued McMillan — who did not resort to the actual “two-step” during his stop of Bosire — and accused him of racial profiling. He said the experience impacted his trust in police encounters.
“I sleep with a gun next to my bed. I drive with cameras recording,” Bosire told the Washington Post. “I don’t travel at night because I am scared of what law enforcement people can do to me.”
Bosire is one of the group of five plaintiffs — three drivers and two passengers all represented by the ACLU of Kansas — who claim they were unlawfully detained by the Kansas Highway Patrol in three stops between 2017 and 2019 without cause. He argued that the stop violated his Fourth Amendment right against unlawful search and seizure.
That’s the same right a judge upheld in declaring the unconstitutionality of the two-step practice troopers were using to search for drugs in vehicles of motorists traveling through Kansas from Colorado and Missouri.
“As wars go, this one is relatively easy; it’s simple and cheap, and for motorists, it’s not a fair fight,” U.S. District Judge Kathryn H. Vratil remarked of the case. “The war is basically a question of numbers: Stop enough cars, and you’re bound to discover drugs. And what’s the harm if a few constitutional rights are trampled along the way?”
The separate jury trial in Bosire v. McMillan that preceded this ruling also ruled in favor of Bosire and awarded him $40,000 in damages.
Vratil’s decision includes new demands for the KHP including a requirement that troopers must document all stops, detentions, and searches. Motorists are also allowed to refuse or revoke a search at any time.
The ACLU of Kansas called the ruling a win for motorists:
“This is a huge win—for our clients and for anyone else who travels on Kansas highways. We are gratified that the Court saw the ongoing harms of KHP’s unconstitutional practices and stepped in to stop the department’s widespread misconduct,” the branch’s legal director, Sharon Brett, said.
“Today’s decision validates that motorists’ constitutional rights cannot be cast aside under the guise of a ‘war on drugs’. It also demonstrates that courts will not tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation, and, in some tragic cases, violence.”
The Kansas Highway Patrol sent a statement to The Washington Post, which in part read:
“We are carefully reviewing the Court’s decision and respect the judge’s conclusions and recommendations,” Acting KHP Superintendent Col. Erik Smith said. “Moving forward, KHP will continue its endeavor to ensure that our enforcement operations respect constitutional rights and comply with the law as we carry out our mission of service, courtesy and protection.”
