Memorandum and Order To Show Cause

Case 6:19-cv-01343-KHV Document 539 Filed 07/21/23 Page 1 of 79
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
BLAINE FRANKLIN SHAW et al., )

)
Plaintiffs, ) CIVIL ACTION
)
v. ) No. 19-1343-KHV
)
HERMAN JONES, in his official capacity as the )
Superintendent of the Kansas Highway Patrol, )
et al., )
)
Defendants. )
)
MARK ERICH et al., )
)
Plaintiffs, ) CIVIL ACTION
)
v. ) No. 20-1067-KHV
)
HERMAN JONES, in his official capacity as the )
Superintendent of the Kansas Highway Patrol, )
et al., )
)
Defendants. )
MEMORANDUM AND ORDER

AND ORDER TO SHOW CAUSE
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
1
Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New
Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of
Columbia have legalized recreational marijuana. Kansas is one of the only states that has not
legalized any form of medical or recreational marijuana, along with Idaho, Nebraska, North
Carolina, South Carolina and Wyoming.
2
Colorado legalized medical marijuana in 2000, and Missouri did so in 2016.
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
3
The KHP’s goal in criminal interdiction is to reduce the flow of contraband into all
areas of the United States, disrupt terrorist activities and reduce crimes associated with the drug
trade. Contraband can include drugs, drug money, weapons and other items, but trial testimony
focused almost entirely on drugs. When troopers intercept currency tied to drugs, the KHP keeps
some of it to cover operational costs, even if the driver is not charged with or convicted of a crime.
Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. § 60-4101 et seq.
4
U.S. Const. amend. IV. “Reasonable suspicion” requires a “particularized and
objective basis” for suspecting that the particular person stopped has committed, is committing or
is about to commit a crime. Naverette v. California, 572 U.S. 393, 396 (2014).
5
In Whren v. United States, 517 U.S. 806, 815–19 (1996), the Supreme Court held
that when officers witness traffic violations, they are authorized to make traffic stops even if the
stops are pretextual, i.e., the motivation for the stop is not to enforce traffic laws but to investigate
other possible crimes. Since Whren, the state traffic codes have become “extremely powerful tools”
in the war against drugs. Shortly after Whren, one author noted as follows:
(continued . . .)
-2-
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
5
( . . . continued)
These codes regulate the details of driving in ways both big and small, obvious and
arcane. In the most literal sense, no driver can avoid violating some traffic law during
a short drive, even with the most careful attention. Fairly read, Whren says that any
traffic violation can support a stop, no matter what the real reason for it is; this makes
any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of
police . . . .
....
. . . There is no detail of driving too small, no piece of equipment too insignificant,

no item of automobile regulation too arcane to be made the subject of a traffic
offense. Police officers in some jurisdictions have a rule of thumb: the average
driver cannot go three blocks without violating some traffic regulation. Reading
the codes, it is hard to disagree; the question is how anyone could get as far as three
blocks without violating the law.
When we think of traffic offenses, we think of “moving violations”—exceeding the

speed limit, crossing dividing lines, and the like. But in fact traffic codes regulate
many other aspects of driving-related activity, including some that seem almost
wildly hypertechnical. And some of these offenses have nothing to do with driving
at all. Rather, they are “equipment violations”—offenses in which driving with
incorrect, outdated, or broken equipment constitutes the violation. And then there
are catch-all provisions: rules that allow police to stop drivers for conduct that
complies with all rules on the books, but that officers consider “imprudent” or
“unreasonable” under the circumstances, or that describe the offense in language
so broad as to make a violation virtually coextensive with the officer’s
unreviewable personal judgment.
David A. Harris, “Driving While Black” And All Other Traffic Offenses: The Supreme Court And
Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 545, 557–58 (Winter 1997).
6
Texas v. Brown, 460 U.S. 730, 737–44 (1983) (officer may seize contraband in
plain view inside vehicle during lawful traffic stop).
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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
7
KHP troopers routinely describe their drug interdiction efforts as ones which
involve “developing” reasonable suspicion. Their word choice is telling. “Developing”
reasonable suspicion is not about evaluating whether the circumstances yield reasons to suspect
unlawful behavior. It is about extracting information from innocent motorists in hopes that they
will make inconsistent statements which call their honesty into question, and that such statements,
combined with body language, travel plans, nervousness, behavior of passengers, etc., will
generate reasonable suspicion to search their vehicles for drugs. Although “hundreds of traffic
stops might occur with no arrests being made,” the KHP trains its officers to “look past the traffic
violation(s) for indicators of criminal activity” and cultivate an “ability to use the entire vehicle
law book” to “make high volume traffic stops.” The KHP promises that drug interdiction not only
gets criminals off the road but “puts excitement into routine patrol.”
8
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 (1973) (consent is exception
to rule that officer must have warrant or reasonable suspicion to conduct search, and consent must
be “voluntarily given”).
9
Id. at 231–32 (police need not inform drivers of right to refuse search).
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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
10
Ordinary citizens are no match for a trooper who wants to talk his way into a search.
The KHP trains its troopers to “Be nice!” because “the less robotic you are, the easier it will be for
the innocent motoring public to relax.” One commentator noted as follows:
Their goal, plain and simple, is to get people to agree to a search. They are
accomplished at the verbal judo necessary to subjugate their “opponents,” they have
the authority of their office behind them, and they make it their business to get what
they want. The officer starts with innocuous sounding questions . . . [t]hen the
questions often get more personal. They are designed to find contradictions that
show the driver might have something to hide, and to put the driver in the frame of
mind of responding to the officer’s authority. Police call it “sweet talk,” and it
almost always leads to a consensual search. None of this is accidental; rather it is
a well-honed, calculated psychological technique that police departments teach
their officers. And it works.
Harris, supra note 5, at 574.

11
The KHP has presented no evidence that its war on motorists is necessary for
effective enforcement of drug laws, or even that such law enforcement tactics are effective: the
record evidence is scarce, but it indicates that from 2016 to 2021, the KHP conducted between
124,387 and 211,531 traffic stops per year, and only recovered contraband in 0.16 per cent to
0.28 per cent of them. Further, the KHP presented no evidence on the volume of innocent people
who have been subjected to pretextual traffic stops or unlawful searches, or the percentage of traffic
stops that were too pretextual to warrant a traffic warning, let alone a traffic citation.
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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 (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,
12
As a result, all motorists on I-35 between Kansas City and Wichita are also suspect.
13
For out-of-state motorists, it is more challenging to appear for court dates, to put up
a legal fight to contest KHP actions and, because they cannot vote in Kansas elections, to effect
political reform of KHP drug interdiction practices
14
For those who object to pretextual policing, the power to curb it lies with elected
officials who set law enforcement policy and motorists who are empowered to assert their rights.
One can scarcely fault the KHP for using all legally available tactics to achieve its mission.
Pretextual policing only works, however, if drivers are ignorant of their rights or fail to assert them.
KHP training materials acknowledge that pretextual policing strategies depend on ignorant, timid
drivers, and joke that more informed and assertive drivers might identify themselves with bumper
stickers that say, “WARNING! OCCUPANT KNOWS THEIR 4TH AMENDMENT RIGHTS.”
-6-
it may ‘last no longer than is necessary to effectuate th[at] purpose.’” Id. at 354 (citations omitted);
see also Bailey v. United States, 568 U.S. 186, 194 (2013) (citing Florida v. Royer, 460 U.S. 491,
500 (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 (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.
“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 (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 (quoting United States v. Brignoni-Ponce,
15
Because it extends a traffic stop, a trooper requires reasonable suspicion to conduct
a canine sniff of a vehicle after the completion of a traffic stop. Rodriguez, 575 U.S. at 354–57.
-7-
422 U.S. 873, 878 (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 official
capacity as Superintendent of the KHP. Plaintiffs allege that Jones maintains a policy and practice
of detaining drivers in violation of the Fourth Amendment and seek injunctive and declaratory relief
to remedy practices allegedly (but not exclusively) undertaken in the course of drug interdiction:
(1) consideration of a driver’s out-of-state residence, origin or destination as a factor contributing to
reasonable suspicion to detain or search the vehicle, and (2) troopers’ use of the Kansas Two-Step
to prolong roadside detentions under circumstances where reasonable drivers would not feel free to
leave.
16
At most, the motorists in this case acquiesced to shows of official authority by
armed KHP troopers. Being ignorant of their rights, KHP troopers were able to effectively seize
them without much fuss.
-8-
Plaintiffs are three drivers (Blaine Shaw, Joshua Bosire and Mark Erich) and two passengers
(Samuel Shaw and Shawna Maloney) who were involved in three separate traffic stops by KHP
troopers in 2017, 2018 and 2019. In all three traffic stops: (1) plaintiff’s vehicle had an out-of-state
license plate; (2) plaintiff was traveling to or from Colorado; (3) the driver committed a traffic
violation; (4) a KHP trooper witnessed the traffic violation, pulled the vehicle over and gave the
driver a citation or warning; (5) the trooper further detained plaintiff for a canine sniff of the vehicle;
and (6) the trooper did not discover drugs or other contraband.
In the Shaw and Erich/Maloney traffic stops, the trooper performed the Kansas Two-Step by
saying goodbye to plaintiff after issuing the ticket or warning, taking a few steps away from the vehicle,
immediately spinning around and returning to the vehicle, asking plaintiff if he could ask a few more
questions, and seeking more information about plaintiff’s travel plans, whether plaintiff had drugs in
the vehicle, whether plaintiff consented to a search of the vehicle, etc. In both stops, plaintiffs denied
having contraband and refused consent to search, but the troopers continued to detain them to procure
dogs for canine sniffs of the vehicles. In the Bosire traffic stop, the trooper detained plaintiff for a
canine sniff after the initial stop had concluded—without performing a Kansas Two-Step—in part
because plaintiff declined to answer his questions about whether he was traveling from Colorado.
Plaintiffs bring suit against Jones as Superintendent and ultimate policymaker of the KHP.17
Plaintiffs allege that as a state official acting in his official capacity, in violation of their Fourth
Amendment rights, Jones maintains a policy and practice of detaining drivers based on state residency
and innocent travel plans. Specifically, plaintiffs allege that in violation of Vasquez v. Lewis, 834 F.3d
17
On July 1, 2023, Jones retired as Superintendent of the KHP. On July 7, 2023,
Kansas Governor Laura Kelly appointed Colonel Erik Smith to Superintendent of the KHP.
Accordingly, the Court will order the parties to show cause why Smith should not be substituted
as defendant in this case.
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1132 (10th Cir. 2016), in developing reasonable suspicion to detain drivers, the KHP permits troopers
to consider their state of residence and travel plans. Plaintiffs further allege that in violation of their
Fourth Amendment rights, the KHP allows troopers to use the Kansas Two-Step to unlawfully detain
drivers to ask questions that will hopefully elicit incriminating information amounting to reasonable
suspicion for a canine sniff, or to procure consent for such a search.18
Under 42 U.S.C. § 1983, Blaine Shaw, Samuel Shaw and Bosire brought damage claims
against the individual troopers who conducted their traffic stops. Samuel Shaw settled his damage
claim against Trooper Douglas Schulte prior to trial. Blaine Shaw and Bosire went to trial in
February and April of 2023, and each received a jury verdict that the individual KHP trooper in
question had violated his Fourth Amendment right to be free from unreasonable searches and
seizures. Prior to the bench trial against Jones, the parties stipulated that evidence from the Blaine
Shaw and Bosire trials would be incorporated as part of the record in this case.
II. Disparities In KHP Traffic Stops
At least since 2014, when Colorado legalized the recreational cultivation, sale and possession
of marijuana, KHP troopers have routinely considered a driver’s travel plans (out-of-state travel
origin and destination) as factors contributing to reasonable suspicion of drug possession or drug
trafficking, and they have routinely detained out-of-state drivers for traffic stops and canine sniffs at
disproportionately high rates compared to drivers who are Kansas residents.
Jonathan Mummolo is an assistant professor of politics and public affairs at Princeton
University and co-owner of Knox & Mummolo LLC, which provides statistical consulting services
18
Even if they claim to already have reasonable suspicion for a search, troopers
sometimes detain drivers to ask more questions to “further” develop reasonable suspicion or,
because consensual searches are easier to handle than non-consensual searches, solicit consent for
a search.
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in lawsuits that involve law enforcement. Mummolo conducted a quantitative analysis of KHP
traffic enforcement policies to determine whether the KHP enforces traffic laws differently against
Kansas motorists and out-of-state motorists.19 According to Mummolo, KHP troopers are far more
likely to stop out-of-state drivers than Kansas drivers. From January of 2018 to November of 2020,
KHP troopers stopped 70 per cent more out-of-state drivers than would be expected if KHP troopers
stopped in-state and out-of-state drivers at the same rate. The 70 per cent discrepancy represents
roughly 50,000 traffic stops. This disparity is statistically significant, with a roughly one per cent
likelihood that these results would arise under circumstances with no actual disparity in stop rates.
For this disparity to be explained by out-of-state drivers being more likely to speed, roughly 88 per
cent of out-of-state drivers would have to speed at places and times where only 29 per cent of in-state
drivers speed. No evidence supports the existence of such a disparity in driving habits.
Once a motorist has been pulled over for a traffic stop, out-of-state motorists are much more
likely than in-state motorists to be subjected to canine sniffs of their vehicles. Mummolo analyzed
430 canine deployment reports and found that 399 (more than 90 per cent) were conducted on
out-of-state motorists, even though out-of-state drivers represented only about 35 per cent of the
drivers on the road at the measured times and locations. Further, although out-of-state drivers
represented more than 90 per cent of the analyzed canine sniffs, they represented only about 77 per
19
To conduct this analysis, Mummolo reviewed (1) a dataset created from KHP traffic
enforcement records reflecting the reason for a given stop, the state identified on the vehicle’s
license plate, and the date, time and location of the stop; (2) Kansas Department of Transportation
(“KDOT”) records measuring traffic volume by hour of the day and the speed of that traffic
volume; (3) a commercial dataset, purchased from the vendor SafeGraph, measuring the home
locations of visitors to businesses in Kansas, which Mummolo used to determine the approximate
composition of Kansas drivers versus out-of-state drivers on the road; (4) reports from KHP and
other law enforcement agencies documenting canine sniffs conducted during KHP traffic stops;
and (5) data from the Centers for Disease Control and Prevention regarding traffic fatalities by
location in Kansas and Colorado.
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cent of the total traffic stops at the times and places studied.20 In other words, even accounting for
the disparity in initial traffic stops, out-of-state drivers are disproportionately subjected to canine
sniffs once they are stopped. Defendant presented no evidence which explains this disparity on
grounds that are unrelated to out-of-state residency or travel plans.21
Aside from this statistical evidence, the Court heard conflicting evidence regarding whether
and to what extent the KHP permits troopers to rely on a driver’s out-of-state residence or license
plates as factors in developing reasonable suspicion. On paper, KHP policy does not permit troopers
to rely solely on out-of-state license plates to justify a traffic stop or canine sniff, and the Court did
not review any traffic stops where a trooper clearly relied solely on that factor. The statistics,
however, cannot be explained except by the inescapable inference that KHP troopers routinely
consider out-of-state license plates, in combination with other factors, in developing reasonable
suspicion. Based on the significant statistical disparity between stops and searches of in-state versus
out-of-state motorists, it is clear that KHP troopers target out-of-state drivers for traffic stops and
canine sniffs. As noted, Jones has not presented evidence which explains this disparity on grounds
unrelated to drivers’ out-of-state residency and/or travel plans.
III. Trooper Douglas Schulte’s Traffic Stop Of Blaine And Samuel Shaw
On December 20, 2017, KHP Trooper Schulte stopped Blaine and Samuel Shaw on I-70,
near Hays, for traveling 91 miles per hour in a 75 mile per hour zone. Blaine Shaw was driving the
vehicle, a 2010 Chrysler with Osage Nation license plates. His brother Samuel was in the passenger
20
Further, Mummolo found that of the canine searches analyzed, barely half resulted
in the discovery of illegal drugs, drug residue or drug paraphernalia. This means that almost half
of all KHP canine searches result in either (1) no canine alert or (2) a canine alert that is a “false
positive,” i.e., the troopers search the vehicle and do not recover drugs or other contraband.
21
Defendant objected to Mummolo’s methodology and attacked his conclusions on
various grounds, none of which are persuasive.
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seat. The Shaws were traveling from their residence in Oklahoma City, Oklahoma to visit family
and friends in Colorado.
Schulte approached the vehicle, spoke to Blaine Shaw about speeding, took his driver’s
license and registration, and returned to the patrol vehicle to write a speeding citation. Schulte gave
Blaine Shaw the citation, license and registration and told him to have a safe trip. Schulte then took
three steps away from the vehicle, but pivoted within three and a half seconds and returned to the
driver’s window to ask, “Hey Blaine, can I ask you a question real quick?” Blaine responded “yeah.”
He did not feel free to leave because Schulte was too close to his car to do so safely. Schulte asked
him more questions about his travel destination and whether any contraband was in the car. Blaine
denied having any contraband. Schulte asked for permission to search the vehicle and Blaine Shaw
refused. Schulte nonetheless detained the Shaws for a canine sniff. The canine allegedly alerted and
Schulte searched the vehicle but did not recover any narcotics.22 The Shaws’ initial traffic stop
22
The Supreme Court has held that where plaintiff does not challenge the canine’s
training or certification, a canine alert or indication can generally provide probable cause to search
a vehicle. Illinois v. Caballes, 543 U.S. 405, 409 (2005). Here, however, plaintiffs did challenge
canine training and reliability, and the record is woefully lacking on the extent to which canine
deployment in drug interdiction is reliable under Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993).
The record contains no evidence about the training, accuracy or track record of any canine
involved in this case, or whether that training complied with established industry standards of dog
training and utilization. Only two canine handlers testified, and their testimony on this issue was
cursory. Trooper Justin Rohr, who handled the Erich/Maloney sniff, testified generically that the
KHP has weekly training and certification requirements for canines, and conducts “several tests .
. . to ensure that the dog is indicating or alerting to only drug odor . . . within the search area.” He
added that his dog (Nico) was certified and had passed that sort of testing. Trooper Chandler Rule,
who handled the Dunn sniff, testified that the KHP has a ten-week dog training program, and that
canine handlers train every week for at least eight hours. He had no estimate of how often his dog
(Cain) had alerted to a drug odor but the ensuing search revealed no contraband. The record
contains no further evidence on how any of the KHP canines were trained or certified, or on their
actual performance records. A dog’s “alert” or “indication” only establishes probable cause if the
dog is reliable, and since troopers discovered no contraband in any canine sniff in this case, the
reliability of these particular canines is open to question.
(continued . . . )
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(before Schulte performed the Two-Step) lasted 12 minutes, and Schulte detained the Shaws at least
28 minutes longer to perform a Two-Step, ask more questions, perform a canine sniff and search
their vehicle.23
Schulte testified that based on the following factors, he had reasonable suspicion to extend
the traffic stop: (1) Blaine Shaw took too long to pull over; (2) in 2009 (eight years earlier), Blaine
Shaw had a charge for possession of marijuana with intent to distribute; (3) the minivan was
registered to Blaine Shaw’s father; (4) the Shaws were traveling on I-70, which was a “known drug
corridor;” (5) the Shaws were traveling to Denver, Colorado, which was a known drug source state;
(6) the Shaws were from Oklahoma, which was a known destination state for marijuana; (7) the
22
( . . . continued)
Another problem: Rule testified that an “alert” is untrained behavior that a dog elicits when
he is smelling a trained odor, but the “handler is typically the only one who would notice the
alerting behavior.” In other words, an alert may not be apparent from objectively observable facts.
The KHP asks the Court to rely on the ipse dixit of the handler, whose credentials and expertise
are themselves unaddressed by the evidence, and cross its fingers that the handler did not cue the
allegedly alerting behavior.
What’s more, the record contains little information about whether and to what extent
canines alert or indicate to drug odors which are remote in time. Such information is critical in
this case because all plaintiffs were driving rental cars, cars which belonged to other people or
second-hand vehicles which they recently purchased. Rohr explained that canines are trained to
alert on drug odors, not drugs, and according to Rohr, a dog can alert to a “very minimal” residual
odor of marijuana; even where no drugs are present, the odor “could have been there at one time”
(for example, “somebody could have drug odor on their hands and touch a door handle”).
Therefore, when Nico reacted as he did in the Erich/Maloney sniff, it only meant that “there was
drug odor present at one time.” On these facts, canine behavior contributes little to nothing in the
reasonable suspicion calculus.
Given the inadequate state of the record, this opinion should not be read to suggest that
canine deployment is reliable or probative under Daubert. In fact, this Court joins District Judge
Clark Waddoups in suggesting that the Tenth Circuit Court of Appeals revisit its “broad
proclamations and comfort in canine sniffs and their certifiers.” United States v. Esteban, 283 F.
Supp. 3d 1115, 1134 (D. Utah 2017).
23
For unknown reasons, the dash camera footage of this traffic stop ends 40 minutes
into the traffic stop. It is unclear exactly how long the Shaws’ detention lasted in total.
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vehicle was “crammed full of stuff” and had a “lived in look;” (8) Samuel Shaw did not look at or
speak to Schulte; and (9) Blaine Shaw “claimed to be a criminal justice major at his age,” but he
refused to consent to a search.
On February 8, 2023, a jury found Schulte liable and awarded Blaine Shaw $1.00 in
compensatory damages. The jury concluded that for the purpose of conducting a canine sniff,
Schulte had extended Blaine Shaw’s detention without reasonable suspicion.
In developing reasonable suspicion, Schulte relied in part on the Shaw brothers’ plan to travel
to Colorado, which he considered to be a drug source state, and their travel origin in Oklahoma,
which he considered to be a drug destination state. The rest of the factors on which Schulte
relied—Blaine Shaw’s delay in pulling over, his marijuana charge in 2009, the vehicle being owned
by the Shaws’ father, the vehicle traveling on I-70, the “lived-in” appearance of the vehicle, Samuel
Shaw’s behavior and Blaine Shaw’s criminal justice major—did not provide meaningful indicia of
criminal activity. Further, when Schulte executed the Kansas Two-Step and returned to the vehicle,
a reasonable driver in Blaine Shaw’s position would not have felt free to leave. Less than four
seconds elapsed between Schulte disengaging and re-engaging Blaine Shaw in conversation. This
fact, combined with Schulte’s proximity with the Shaws’ vehicle, would have caused a reasonable
driver to believe that he was still detained and was not free to leave.
Consistent with the jury verdict, the Court finds that (1) in developing reasonable suspicion,
Schulte gave undue weight to the Shaws’ out-of-state residence and travel plans, in violation of the
Fourth Amendment; and (2) in an effort to procure consent for a search, elicit incriminating
information and conduct a canine sniff, Schulte impermissibly extended the Shaws’ detention by
performing the Kansas Two-Step under circumstances where a reasonable driver would not have felt
free to leave.
- 15 -
The KHP never disciplined Schulte for violating the Shaws’ Fourth Amendment rights or
instructed him to undergo corrective action such as re-training with legal counsel. Although Blaine
Shaw’s encounter with Schulte makes him anxious about the prospect of being detained by the KHP,
he continues to drive through Kansas to visit friends and family in Colorado.
IV. Trooper Justin Rohr’s Traffic Stop Of Mark Erich And Shawna Maloney
On March 9, 2018, at about 6:00 A.M., KHP Technical Trooper Justin Rohr was patrolling
I-70 near Salina, Kansas, when he observed a white Mini Winnebago Chalet recreational vehicle
(“RV”) traveling eastbound. Although the RV had not committed any traffic violations, Rohr
decided to follow it because the time of day was suspicious, March was an uncommon time for
camping and RVs are used to traffic narcotics.
Mark Erich was driving the RV and his wife Shawna Maloney was in the passenger seat.
Two of their children, aged 10 and 13, were in the back. The family lived in Colorado and was
traveling to Alabama to visit family.
Erich was driving the RV in the right lane. Rohr came up behind the RV in the left lane and
drove less than one car-length behind it, virtually on its bumper, for about 15 seconds. Rohr claimed
that he drove in that position to “observe the tag, and observe the Winnebago,” but the RV and its
license plate were more visible from a position directly behind it in the other lane. Rohr’s headlights
were blindingly bright in Erich’s rear view mirror and distracted him. When Rohr tailed him in that
position for about 15 seconds, Erich became concerned that Rohr was a drunk or aggressive driver.
To avoid Rohr’s vehicle, Erich headed the RV toward the shoulder of the road. In the process, the
RV’s right-side wheels crossed the fog line. Rohr had seen that the RV had temporary tags from
Colorado and a discolored spot on the back of the vehicle, and he immediately pulled directly behind
- 16 -
it, activated his lights and stopped the RV for crossing the fog line.24
Trooper [FNU] Gleason was in the patrol vehicle with Rohr. As they approached the RV on
foot, Rohr stated that he smelled bondo or paint and asked Gleason if he also smelled it. Gleason
stated that he did not.25 Rohr asked for Erich’s driver’s license and insurance and asked him whether
the vehicle had just been painted, because “it smells like paint out here.” Erich said they had not
painted the RV, that they had just bought it and that they didn’t know if it had been recently painted.
Rohr noticed that Erich had a small amount of white paint on his hand, similar to the color of the
RV.26 Rohr did not ask Erich about the paint on his hand, but because of the discolored spot on the
back of the RV, the paint on Erich’s hand and the alleged smell of paint, Rohr testified that he
believed that the RV had a painted-over false compartment in the rear. Rohr ran Erich’s driver’s
license and learned that Erich had been arrested in 2004 (13 years earlier) for possession of drug
paraphernalia.
Rohr returned to the RV, gave Erich a warning and told Erich and Maloney to “have a safe
trip” and “drive careful.” Rohr took four steps away from the vehicle. Four and a half seconds later,
he returned to the driver’s window and asked, “Hey sir, can I ask you some questions?” Erich and
24
K.S.A. § 8-1522(a) (“A vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the driver has first ascertained
that such movement can be made with safety.”). The Kansas Supreme Court has held, however,
that a violation of this statute “requires more than an incidental and minimal lane breach.” State
v. Marx, 289 Kan. 657, 674, 215 P.3d 601, 612 (2009). In Marx, the court held that a single
instance in which a vehicle crossed the fog line did not allow for a reasonable suspicion of a traffic
violation. Id. at 675–76, 215 P.3d at 612–13. Rohr observed Erich cross the fog line only once,
which under Marx is insufficient to establish a violation of § 8-1522(a).
25
Erich and Maloney never smelled bondo or paint in or around the vehicle. Shawna
Maloney was pregnant at the time and suffering from nausea and sensitivity to smells. She testified
that due to that sensitivity, she would have noticed any smell of bondo or paint in or around the
RV.
26
Erich had painted trim at work the day earlier.
- 17 -
Maloney did not feel free to leave because Rohr was too close to the vehicle to do so. Maloney also
felt that because of Rohr’s position of authority, she was obligated to stay and answer his questions.
Rohr and Erich had the following exchange:
Rohr: Hey sir, can I ask you some questions? You said you guys are heading to
Alabama?
Erich: Yeah.
Rohr: And how long are you guys gonna be out there?
Erich: Do I have to answer these questions?
Rohr: You don’t have to. Okay.
Erich: I’d prefer not to.
Rohr: Okay. Can I talk to you any further, or…?
Erich: I’m free to go, right?
Rohr: You are free to go.
Erich: Okay. I’d rather go.
Rohr: Okay. Here’s what I’m gonna do, okay. I’m gonna detain you now, okay,
because I think that you might have a false compartment in this vehicle.
Even before the Kansas Two-Step, Rohr had decided to extend the traffic stop based on the following
factors: (1) drug traffickers sometimes travel in older-model RVs; (2) drug traffickers sometimes
travel in the early morning or late at night; (3) he smelled paint or bondo; (4) Erich had paint on his
hand; (5) the RV had a discolored spot, which suggested a false compartment; (6) because Erich had
paint on his hand, Rohr believed that Erich and Maloney were dishonest about their travel plans and
their knowledge whether the RV had been painted; and (7) the RV was traveling from Colorado, a
known source state for drugs.
After Rohr informed Erich that he was detaining them, Rohr asked Erich if they had drugs
in the car, which Erich denied. Rohr asked why Erich had paint on his hand. Erich told him “I’m a
- 18 -
construction worker” and “I painted today.” Rohr told the family to get out of the RV. The weather
was “very, very cold,” and the children were shivering on the side of the road, even with down
comforters around them. Maloney was concerned for the safety of her children because of their
proximity to the highway at night.
Rohr was a canine handler. His canine was in the back of the patrol vehicle, and he began a
canine sniff of the RV. Rohr testified that when he started the sniff, he believed that the RV had a
false compartment where the discolored spot was. Rohr began the canine sniff at the back of the RV
and pointed at the discolored spot. The canine did not alert. Rohr had the canine sniff around the
entire RV, returned to the back of the RV, and again pointed at the discolored spot. This time, the
canine allegedly alerted.27
After the canine sniff, the troopers entered the RV and searched it for about 20 minutes. Two
more troopers, Troopers Dylan Frantz and Phil Hendrickson, arrived. In the dashcam footage, Rohr
can be heard asking one of the troopers if he can smell paint and the trooper replies “not yet.” Rohr
asked another trooper to “smell in here” and asked if he could smell anything; the trooper responded
in the affirmative but did not know what the smell was and could not identify it as paint. The troopers
27
The dashcam video from Rohr’s patrol vehicle does not show a visible alert, but Rohr
testified that the canine started sniffing more intensely and “bracketing,” i.e., changing the location
of his head or nose from wider to narrower. Rohr also testified that after alerting, the canine
“indicated” by freezing at the back of the vehicle. The dashcam video does not show visible alerting
or freezing. Where videotapes do not objectively and visibly confirm their testimony, the Court
generally declines to afford meaningful weight to KHP trooper testimony about canine
“bracketing,” “freezing,” “indicating” or “alerting” as reasonable grounds to detain a vehicle.
Neither side produced evidence that these behaviors are reliable indicia of contraband under
Daubert. Moreover, the record contains evidence that canine behavior which indicates drugs is
not detectable except to officers who are conducting a given search. Rohr and Trooper Chandler
Rule, both canine handlers, testified that a canine’s alerting behavior often is not noticeable to
anyone except a canine handler who has trained with that specific canine. Evidence of the canine
behavior is problematic for these reasons and those stated above, in addition to the fact that the
troopers did not eliminate cuing as an explanation for the dog’s behavior.
- 19 -
found no narcotics or other contraband during the search. After searching the vehicle, Rohr told
Erich and Maloney that they could get back in the RV. As Erich approached the RV, Rohr stated,
“Hey sir, hold on just one second, all right?” He detained the family once again, climbed the ladder
on the back of the RV, and searched the top of the vehicle. After finding nothing, he again returned
and told the family that they were free to go.
The family’s encounter with the KHP lasted about 40 minutes in total: about nine minutes
for the initial traffic stop (before Rohr performed the Two-Step), and an additional 31 minutes in
which Rohr performed the Two-Step, conducted a canine sniff and searched the RV.28 Because the
troopers had damaged the RV, the family could not camp in it as they had planned and instead had
to stay with family members. On their trip back to Colorado, they drove through Texas instead of
Kansas because they did not want to risk getting pulled over again.
Maloney experienced so much anxiety from the traffic stop that she sought mental health
therapy, was unable to drive her personal vehicle for three months and dropped from full-time to
part-time work. Erich was angry and felt violated and anxious as a result of the stop. The family
did not take another vacation for three years because their children were too scared. They ultimately
sold the RV. Erich and Maloney now distrust law enforcement and have experienced multiple
situations, such as an attempted burglary, where they could have called the police but chose not to
because they feared the police. Erich and Maloney have driven on I-70 through Kansas multiple
times since the traffic stop, but experience anxiety when doing so and avoid bringing their children
28
When Maloney re-entered the RV, she noticed that the troopers had disassembled
the radio, taken the dashboard apart, taken the domes off the light fixtures and smoke detectors
and broken some of them, gone through the refrigerator and the cupboards, dumped all of the
family’s clothes out of their backpacks, moved the mattress and “messed up” equipment under the
bed, damaged the bathroom door to the point that it was hanging off the frame, broken the towel
rack, removed and broken the panel underneath the shower and broken the toilet.
- 20 -
when possible.
Rohr completed a KHP report which detailed the traffic stop and canine sniff. The report did
not detail all of Rohr’s ostensible bases for reasonable suspicion. In his report, Rohr claimed that he
smelled a strong odor of paint or bondo, that the vehicle had a temporary tag and that the driver had
white paint on his hand. He also discussed the canine sniff and claimed that his canine “began to
sniff intensely high on the back of the vehicle” and “froze with his feet on the rear bumper and starred
[sic] at the rear of the vehicle,” which was “his prescribed behavior when locating the source of an
odor trained on.” In 2020, the KHP promoted Rohr to Lieutenant, a position where he supervises
and evaluates other troopers.
During the traffic stop, Rohr unlawfully detained Erich and Maloney in violation of their
Fourth Amendment rights. Rohr decided to follow Erich and Maloney’s RV because it was morning,
March was an uncommon time for camping and RVs are commonly used to transport drugs. He
closed in and saw Colorado tags. Rohr’s patrol car was dangerously close to the RV, and his head
lights blinded and distracted Erich because they reflected in the RV’s rear-view mirrors. For no
legitimate law enforcement reason, Rohr followed so closely that he forced Erich to take evasive
action and drive over the fog line. A reasonable driver in Erich’s position would have feared that
Rohr was a dangerous driver who presented a high risk of causing a collision or road rage incident
and would have steered away to create a safer distance. In response, Rohr detained Erich for crossing
the fog line.
The Court recognizes that a justified traffic stop, even when pretextual, does not violate a
driver’s Fourth Amendment rights. United States v. Swan, No. 21-8071, 2022 WL 1763392, at *5
(10th Cir. June 1, 2022). Whether a traffic stop is valid turns on whether the officer had a reasonable
suspicion that the motorist violated a traffic law. United States v. Vercher, 358 F.3d 1257, 1261
- 21 -
(10th Cir. 2004). Here, Erich did not commit a traffic violation, and Rohr did not have an objectively
reasonable belief that he had done so. First, Kansas law requires a driver to stay “as nearly as
practicable within a single lane.” K.S.A. § 8-1522(a) (emphasis added). Under these circumstances,
with Rohr driving so closely behind and to the left of the RV, it was not practicable or reasonable
for Erich to stay in the right lane. By moving to the side of the road, Erich attempted to put a safe
distance between himself and Rohr’s vehicle, which he did not know was a KHP patrol vehicle, and
which was dangerously close to him. Second, even if Erich did not have such an obvious and
justifiable reason for veering away from Rohr’s vehicle, the Kansas Supreme Court has established
that a single instance of a driver crossing the fog line does not amount to reasonable suspicion of a
traffic violation because a violation of K.S.A. § 8-1522(a) “requires more than an incidental and
minimal lane breach.” Marx, 289 Kan. at 674, 215 P.3d at 612. Third, KHP policy does not permit
troopers to initiate traffic stops based on such a minimal lane breach. In 2020, KHP training material
stated that when a trooper evaluates whether to initiate a traffic stop based on a vehicle crossing the
fog line, “a single tap on the fog line is not going to cut it.”29 The stop was pretextual from its
inception: Rohr followed an RV with Colorado tags in hopes of provoking a traffic violation, and
his conduct caused the very traffic violation that he was hoping for.30
29
The record contains no evidence that the training material in 2020 reflects a
different approach from training conducted in 2018, when this stop occurred.
30
Traffic stops for trivial traffic violations are a time-honored pretextual policing
tradition. As far back as 1967, a police officer explained: “You can always get a guy legitimately
on a traffic violation if you tail him for a while, and then a search can be made.” Another officer
stated: “You don’t have to follow a driver very long before he will move to the other side of the
yellow line and then you can arrest and search him for driving on the wrong side of the highway.”
A third officer explained: “In the event that we see a suspicious automobile . . . [that we] wish
to search . . . we will usually follow the vehicle until the driver makes a technical violation of a
traffic law. Then we have a means of making a legitimate search.” Harris, supra note 5, at 559
(quoting Lawrence F. Tiffany et al., Detection of Crime 131 (1967)).
- 22 -
The Court finds that Rohr provoked the traffic violation and that the initial traffic stop cannot
be deemed reasonable under that circumstance. The Tenth Circuit has not squarely addressed
whether, when the traffic violation that provides the basis for the stop is provoked by the officer’s
own conduct, the “minimum level of objective justification” for the stop falls away and the stop
becomes unreasonable. Two district courts in this Circuit have answered that question in the
affirmative. United States v. Ochoa, 4 F. Supp. 2d 1007, 1009 (D. Kan. 1998); Esteban, 283 F.
Supp. 3d at 1127–30. The Tenth Circuit has considered and distinguished Ochoa in later cases
without disavowing its reasoning. See United States v. Worthon, 520 F.3d 1173, 1180 (10th Cir.
2008); United States v. Rodriguez, 215 F.3d 1338, 2000 WL 639581, at *4; United States v. Ozbirn,
189 F.3d 1194, 1199 (10th Cir. 1999). The Court agrees with the well-reasoned opinions of Judge
Marten and Judge Waddoups and finds that because Rohr induced the traffic violation by Erich, the
initial traffic stop was invalid.
If Rohr had not induced the traffic violation, Rohr’s traffic stop might have been justified if
Rohr had a reasonable but mistaken belief that Erich had committed a violation. United States v.
Walraven, 892 F.2d 972, 975–76 (10th Cir. 1989) (reasonable suspicion may be supported by
“objectively reasonable” and “good faith belief” of traffic violation even if premised on factual
error). In the totality of the circumstances, however, Rohr could not have reasonably believed that
Erich had violated K.S.A. § 8-1522(a) or any other traffic law. Marx has been clearly established as
the law in Kansas since 2009, and the Court assumes that Rohr received training consistent with
Marx and with KHP policy that troopers may not initiate traffic stops based on a “single tap on the
fog line.” Even disregarding Marx and KHP policy, a reasonable officer in Rohr’s position would
have known that driving so closely to another vehicle would cause a reasonable and prudent driver
to move off the road to avoid a collision or road rage incident. Kansas v. Glover, 140 S. Ct. 1183,
- 23 -
1190 (2020) (officer may not stop driver for conduct “no different from any other driver’s”). “Like
all seizures, ‘the officer’s action [in conducting a traffic stop] must be justified at its inception.’” Id.
at 1191 (quoting Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 185 (2004)).
Rohr’s actions were not justified and he did not have reasonable suspicion to initiate the traffic stop.
Id. (reasonable suspicion standard takes totality of circumstances into account and presence of
additional facts might dispel reasonable suspicion).
If the original traffic stop had been valid, Rohr might have had reasonable suspicion to extend
the detention for a canine sniff, based on the alleged smell of fresh paint, the discolored spot on the
back of the RV and the fact that Erich had white paint on his hand. On the other hand, no one except
Rohr ever claimed to smell paint. Rohr asked Gleason whether he smelled paint, and Gleason stated
that he did not. After Rohr performed the canine sniff and began searching the RV, he repeatedly
asked Frantz and/or Hendrickson if they smelled paint, and neither trooper did.31 Erich and Maloney
credibly testified that they never smelled bondo or paint, that Maloney’s pregnancy made her
hypersensitive to smells and that such a smell would have made her sick. Further, Erich explained
to Rohr that he had paint on his hand because of his construction work. While Rohr was not required
to accept this at face value, nothing in the circumstances indicated that Erich was being
deceptive—or for that matter, that Rohr actually smelled paint or bondo.
The other factors that Rohr relied on in developing reasonable suspicion—Erich and
31
Troopers Gleason, Frantz and Hendrickson did not testify at trial and the record is
not explicitly clear that they worked for the KHP. Based on the circumstances, the Court assumes
that all three were KHP troopers and that their statements that they did not smell paint are
admissible as statements, offered against defendant, that the troopers made in a representative
capacity. Fed. R. Evid. 801(d)(2)(A). Furthermore, Trooper Gleason is audible on the dash camera
footage stating that he detected wet paint on the discolored spot on the back of the RV. This
statement, however, is offered against plaintiff, not defendant, and therefore is inadmissible
hearsay under Rule 801(c) and Rule 802, Fed. R. Evid., rather than an admissible statement offered
against an opposing party under Rule 801(d)(2)(A).
- 24 -
Maloney traveling from Colorado, in an RV, early in the morning, and Erich having a criminal
history—can only contribute minimally, if at all, to reasonable suspicion. Traveling from a state that
has legalized marijuana “does little to add to the overall calculus of suspicion,” and is “so broad as
to be indicative of almost nothing.” Vasquez, 834 F.3d at 1137–38 (quoting United States v.
Guerrero, 472 F.3d 784, 788, 787 (10th Cir. 2007)). While the Court credits Rohr’s testimony that
drug traffickers sometimes travel early in the morning and in older-model RVs, these factors alone
are not sufficient to establish reasonable suspicion; a vast number of innocent drivers also drive early
in the morning and/or in older-model RVs.
Finally, the fact that Erich had an aged criminal charge for possession of drug paraphernalia
could contribute only minimally to the reasonable suspicion calculus of a reasonable officer. See
Shaw v. Schulte, 36 F.4th 1006, 1016 (10th Cir. 2022) (passage of time since criminal arrest
decreases weight as reasonable suspicion factor); United States v. Santos, 403 F.3d 1120, 1132 (10th
Cir. 2005) (“Even people with prior convictions retain Fourth Amendment rights; they are not roving
targets for warrantless searches.”). In these circumstances, this factor could contribute minimally, if
at all, to reasonable suspicion.
This is a closer case than the Shaw and Bosire traffic stops. Based largely on the discolored
spot on the back of the RV and the matching paint on Erich’s hand, the Court concludes that if the
original traffic stop had been valid—which, to reiterate, it was not—Rohr had reasonable suspicion
to detain Erich and Maloney for a canine sniff. The fact that the RV had a discolored spot in the
location where some RVs in other model years had a spare tire, and the fact that the RV’s paint color
matched the paint on Erich’s hand, provided marginally sufficient reasonable suspicion that the RV
- 25 -
had a hidden compartment and that Erich had recently painted over the compartment to conceal it.32
Finally, even if Rohr had reasonable suspicion for the original traffic stop and reasonable
suspicion to extend the detention for a canine sniff, Rohr clearly did not have reasonable suspicion
to further extend the detention—a second time—to climb the ladder on the back and search the roof
of the RV. Rohr had exhaustively searched the interior of the RV and found no contraband or any
indication of criminal activity. He confirmed with every other trooper on the scene (as well as Erich
and Maloney) that no one smelled paint. He returned to Erich and Maloney and told them that they
could get back in the RV, clearly indicating that the traffic stop was over, then immediately detained
them for a third time to search the roof of the RV. At this moment, Rohr no longer had a shred of
reasonable suspicion. The only significant factors that could have justified the canine sniff and
original search of the RV were the painted-over spot on the back of the RV and the matching paint
on Erich’s hand. Rohr’s hunch that this spot concealed a hidden compartment was disproved. The
canine sniff resulted in a false positive. Rohr had no reason to detain Erich and Maloney to search
the roof of an RV, an area completely unconnected to the discolored spot on the back of the RV, and
he offered no justification for this further search. See United States v. Moore, 795 F.3d 1224, 1228
(10th Cir. 2015) (police detention must last no longer than necessary to effectuate purpose of stop).
The fact that the final detention was brief is irrelevant. See United States v. Mayville, 955 F.3d 825,
830 (10th Cir. 2020); United States v. Cates, No. 22-8038, 2023 WL 4411853, at *7 (10th Cir. 2023)
32
If Rohr had developed sufficient reasonable suspicion to detain Erich and Maloney
for a canine sniff before he performed the Two-Step, he did not need to initiate a consensual
encounter. However, it is still important for the Court to note that Rohr performed the Two-Step
in circumstances where a reasonable driver would not feel free to leave. Four and a half seconds
elapsed between Rohr disengaging and re-engaging Erich in conversation. The short length of the
“break” in contact and Rohr’s proximity with the RV would have caused a reasonable driver to
believe that he was still detained and was not free to leave.
- 26 -
(even de minimis delays violate Fourth Amendment). After evaluating the totality of the
circumstances, the Court finds that Rohr (1) violated Erich and Maloney’s Fourth Amendment rights
by initiating a traffic stop without reasonable suspicion, and (2) even if the traffic stop had been
permissible, Rohr violated Erich and Maloney’s Fourth Amendment rights by detaining them
without reasonable suspicion to search the roof of their RV.
V. Trooper Brandon McMillan’s Traffic Stop Of Joshua Bosire
On February 10, 2019, Bosire drove eastbound on I-70 to his residence in Wichita, Kansas
after visiting his daughter in Colorado. Bosire stopped at a Love’s gas station in Ellis, Kansas to get
gas, and entered the gas station to ask an attendant for help with the gas pump. KHP Troopers
Brandon McMillan and Douglas Schulte were inside the gas station, along with gas station
customers. McMillan testified that as he walked toward the exit of the gas station, he smelled
marijuana.
McMillan saw Bosire’s vehicle by the gas pump. Bosire was driving a rental car with Missouri
license plates.33 McMillan saw a second rental vehicle at the gas station, a Dodge Charger, and
concluded that the two vehicles were a caravan to deliver or acquire drugs. McMillan saw Bosire at
the pump with another person and concluded that the second person was the driver of the second car.
McMillan drove east on I-70 and parked on the median to wait for Bosire’s vehicle. When
Bosire drove past, he was going seven miles over the speed limit, and McMillan detained him for
speeding. During the stop, McMillan asked Bosire where he was going. Bosire said that he was
coming from the west and heading east. Bosire declined to answer McMillan’s other questions, such
as whether he was coming from Colorado.
33
Bosire was in a rental car because it was winter and his personal vehicle did not
have all-wheel drive.
- 27 -
McMillan did not smell marijuana in the vehicle, but saw that Bosire only rolled the driver’s
side window down about one-third of the way, had cameras mounted on the dashboard and rear seat
headrest and had a notebook partially covered by a blanket on the back seat. McMillan returned to
his patrol vehicle to run Bosire’s information. He also radioed for Schulte to join him. When Schulte
arrived several minutes later, McMillan told him “I don’t think I can hold him for a dog.”
McMillan learned from dispatch that Bosire had no outstanding warrants. He returned to
Bosire’s driver-side window and gave him a warning for speeding. McMillan did not perform a
Kansas Two-Step but told Bosire that he was suspicious and asked to search his vehicle. Bosire
refused. McMillan then detained him and called a canine unit. The canine did not alert and
McMillan allowed Bosire to depart. Bosire’s detention lasted about 42 minutes in total.
McMillan testified that he had reasonable suspicion to extend the traffic stop for a canine
sniff based on the following factors: (1) he smelled marijuana at the gas station; (2) Bosire was
driving a rental vehicle and appeared to be part of a drug caravan; (3) at the gas pump, Bosire spoke
to another man who McMillan believed was the driver of the second rental car; (5) Bosire had
cameras mounted in his vehicle, which was suspicious in a rental vehicle; (6) Bosire refused to
answer questions about his travel plans; (7) Bosire did not completely roll down his window; and
(8) Bosire had a notebook on the back seat which could have been a drug ledger.
McMillan lacked reasonable suspicion to detain Bosire for a canine sniff. McMillan did not
admit that Bosire’s travel from Colorado contributed to his suspicion, but McMillan in fact relied
upon his belief that Bosire was traveling from Colorado. One of the first questions McMillan asked
Bosire was whether he was traveling from Colorado. McMillan clearly believed that Bosire was
trafficking drugs from Colorado. Based on an absurd and tenuous combination of various
factors—namely, the odor of marijuana inside the gas station, the presence of another rental vehicle
- 28 -
at the gas station and Bosire’s interactions with a third party at the gas pump—McMillan concluded
that Bosire was a drug trafficker. These factors, taken in context, did not give McMillan reasonable
suspicion to extend Bosire’s traffic stop for a canine sniff.
On April 27, 2023, a jury concluded that McMillan not only violated Bosire’s Fourth
Amendment rights, but did so with knowing or reckless disregard to Bosire’s rights. The Court
agrees and finds that McMillan did not have reasonable suspicion to detain Bosire for a canine sniff
at the end of his traffic stop. The Court also finds that McMillan relied heavily on Bosire’s
out-of-state travel origin in developing reasonable suspicion, in violation of the Fourth Amendment.
See Vasquez, 834 F.3d at 1137–38 (travel from state with legalized marijuana contributes only
minimally to reasonable suspicion).
Bosire complained to the KHP and its Professional Standards Unit (“PSU”) investigated his
complaint. Brent Hogelin, Captain of Troop N,34 reviewed the video and documents generated
during the PSU investigation and concluded that McMillan had impermissibly extended Bosire’s
detention almost from its inception. Hogelin provided his opinion to Jones, who agreed that
McMillan did not have a reason to detain Bosire for a canine sniff, and that McMillan had detained
Bosire for longer than legally acceptable. The KHP reported these findings to Bosire and informed
him that McMillan’s failure would be handled in accordance with KHP policies and procedures. The
34
Troop N includes some 30 KHP troopers. Troop N specializes in criminal
interdiction and troopers in Troop N focus on patrolling and performing interdiction work on
highways. Troopers in Troop N are not the only troopers who perform interdiction work on
highways, but they generally receive more interdiction training than troopers who are not in Troop
N. The troopers who conducted the traffic stops involved in this case are in the following troops:
• Troop C: Trooper Scott Proffitt (Martinez traffic stop).
• Troop D: Trooper Douglas Schulte (Shaw traffic stop).
• Troop N: Trooper James McCord (Kelly traffic stop).
• Troop S: Trooper Justin Rohr (Erich/Maloney traffic stop) and Trooper Chandler
Rule (Dunn traffic stop).
• Troop T: Trooper Brandon McMillan (Bosire traffic stop).
- 29 -
KHP ordered corrective action rather than discipline for McMillan, however, even though the KHP’s
policies state that corrective action is only supposed to be used for minor rule violations, and a
constitutional violation is more significant than a minor rule violation.
McMillan’s corrective action consisted of one hour of additional training with Sarah
Washburn, former KHP legal counsel, and a ride-along with another trooper. Hogelin instructed
McMillan to complete a ride-along with Trooper Greg Jirak, Lieutenant of Troop N. Jirak asked
about the reason for the ride-along and Hogelin told him that “it should be business as usual.” The
ride-along lasted for about four hours. Jirak and McMillan did not discuss proper procedures for
stops or searches, and McMillan did not learn anything from his additional training or ride-along.
The traffic stop damaged Bosire’s trust in law enforcement and causes him significant fear
and anxiety around police. He continues to regularly drive to Colorado to see his daughter.
VI. Trooper James McCord’s Traffic Stop Of Daniel Kelly
At trial, the Court heard evidence of KHP traffic stops of non-parties Daniel Kelly, Suzanne
Dunn and Curtis Martinez, over the last three years.
On May 27, 2020, KHP Trooper James McCord saw Daniel Kelly driving eastbound on I-70
in Russell County in a vehicle with California license plates. He followed Kelly for a short distance,
then pulled him over—ostensibly for following too closely behind a pickup truck in violation of
K.S.A. § 8-1523.35 McCord approached the vehicle and asked Kelly about his travel plans. Kelly
stated that he was traveling to Shawnee, Kansas to pick up his nephew. Kelly gave McCord his
35
The dashcam footage does not credibly substantiate McCord’s claim that Kelly
followed the pickup truck too closely. By the time Kelly’s vehicle is visible in the footage, it is
multiple car lengths behind the pickup truck. McCord testified that he observed Kelly following
too closely behind the pickup truck when McCord was “approximately a quarter mile behind him.”
It is unclear how McCord could have observed this from so far behind Kelly’s vehicle.
- 30 -
license and registration, and McCord learned that the vehicle was a rental. McCord contacted
dispatch to request information about Kelly’s criminal history and learned that Kelly had prior
charges for drug possession and a weapons charge for a sawed-off shotgun.36 McCord did not ask
for or receive the dates of these prior charges. McCord re-approached the vehicle, gave Kelly a
warning for following too closely, waved goodbye and performed a Kansas Two-Step by taking two
steps away from the vehicle, returning less than two seconds later, and saying “Oh, by the way sir,
can I ask you just a few more questions?”
McCord testified that before he performed the Kansas Two-Step, he believed that he had
reasonable suspicion to extend the traffic stop based on the following factors: (1) Kelly had California
license plates; (2) Kelly was driving on I-70, a primary drug corridor; (3) Kelly was driving a rental
vehicle; (4) Kelly had prior charges for drug possession and a weapons charge for a sawed-off
shotgun; (5) Kelly appeared nervous; (6) Kelly stated that he was traveling from California to pick up
his nephew in Shawnee, Kansas, which was suspicious to McCord because “I would not let my kids
travel with their uncle;” (7) fingerprints were on the back lid of the car’s trunk; (8) a bag or suitcase
was on the passenger seat;37 and (9) Kelly was driving instead of flying from California to Kansas.
McCord asked Kelly if he had any contraband in his vehicle, which Kelly denied. McCord
asked for consent to search and Kelly refused. McCord then detained Kelly and called for a canine
unit. The canine trooper performed a sniff of the vehicle and informed McCord that the canine had
36
McCord testified that he does not request this information on every traffic stop, but
did so in this case because he already believed that Kelly was a possible drug smuggler, based on
Kelly driving on I-70 in a rental vehicle with California tags and intending to pick up his nephew.
37
McCord testified that when drug traffickers transport large quantities of drugs, they
place their personal belongings on the passenger seat or back seat of the vehicle so that they do
not have to open the trunk.
- 31 -
alerted. The troopers searched the vehicle. McCord recovered a vape pen that said “THC” on the
cartridge but did not have it tested. McCord did not recover any contraband. Consistent with KHP
policies at the time, McCord did not write a report about the traffic stop.
McCord lacked reasonable suspicion to detain Kelly for a canine sniff. Like McMillan’s
detention of Bosire, McCord based his reasonable suspicion that Kelly had contraband in his vehicle
on an absurd and tenuous combination of factors. The majority of these factors—having California
license plates, driving on I-70, driving a rental vehicle, seeming nervous while interacting with law
enforcement, going on a trip with one’s nephew, having fingerprints on the trunk lid, having a bag
in the passenger seat and driving instead of flying—are so ordinary and benign that thousands of
innocent drivers on Kansas highways every day likely share many or all of these factors.38 The
Tenth Circuit forbids the KHP from basing reasonable suspicion on factors that “would justify the
search and seizure of the citizens of more than half of the states in our country.” Vasquez, 834 F.3d
at 1138 (referring to residency in state with legalized marijuana as reasonable suspicion factor). By
the same logic, it is inappropriate for KHP troopers to develop reasonable suspicion based on an
amalgamation of overwhelmingly common and mundane factors. None of these factors contribute
more than minimally to reasonable suspicion, if at all.
The last factor, Kelly’s criminal history, does not cure the defects in McCord’s reasonable
suspicion. As stated above, this factor may contribute to reasonable suspicion. “In conjunction with
38
See Vasquez, 834 F.3d at 1136–37 (“[KHP troopers] argue the following factors
created reasonable suspicion: (1) Vasquez was driving alone late at night; (2) he was travelling on
I-70, ‘a known drug corridor’; (3) he was from Colorado and was driving from Aurora, Colorado,
‘a drug source area’; (4) the back seat did not contain items the Officers expected to see in the car
of someone moving across the country; (5) the items in his back seat were covered and obscured
from view; (6) he had a blanket and pillow in his car; (7) he was driving an older car, despite
having insurance for a newer one; (8) there were fresh fingerprints on his trunk; and (9) he seemed
nervous. Such conduct, taken together, is hardly suspicious, nor is it particularly unusual.”)
- 32 -
other factors,” it may even contribute “powerfully” to the reasonable suspicion calculus. Simpson,
609 F.3d at 1147 (emphasis added). Here, however, Kelly did not base his reasonable suspicion
calculus on other objectively reasonable factors. Furthermore, he did not bother to ask dispatch
about Kelly’s past criminal charges or how recent they were, which indicates that he did not weigh
this information heavily when developing reasonable suspicion. See Shaw, 36 F.4th at 1016
(passage of time since criminal arrest decreases weight as reasonable suspicion factor).
After evaluating the totality of the circumstances, the Court finds that McCord did not have
reasonable suspicion to detain Kelly for a canine sniff. See United States v. Archuleta, 619 F. App’x
683, 690 (10th Cir. 2015) (“Having conducted a totality-of-the-circumstances analysis, we conclude
that the government has failed to meet its burden of establishing reasonable suspicion. The strongest
piece of evidence in the government’s favor (i.e., supporting reasonable suspicion) is [plaintiff’s]
criminal history. But, neither standing alone, nor in combination with all of the other circumstances,
is [plaintiff’s] criminal history sufficient to provide the basis for reasonable suspicion here.”).
Further, when McCord executed the Kansas Two-Step and returned to Kelly’s vehicle, a
reasonable driver in Kelly’s position would not have felt free to leave. Two seconds elapsed between
McCord disengaging and re-engaging Kelly in conversation, and McCord took only two steps away.
The short length of the “break” in contact, and McCord’s proximity with Kelly’s vehicle, would
have caused a reasonable driver to believe that he was still detained and was not free to leave. The
Court finds that McCord impermissibly extended Kelly’s detention by performing the Kansas
Two-Step under circumstances where a reasonable driver would not feel free to leave.
VII. Trooper Chandler Rule’s Traffic Stop Of Suzanne Dunn
On February 5, 2021, KHP Trooper Chandler Rule saw Suzanne Dunn, who was driving a
black Mercedes west on I-70, drive in the left lane, pass two trucks and continue to drive in the left
- 33 -
lane for about 50 seconds after passing the second truck. He then stopped her for lingering in the left
lane in violation of K.S.A. § 8-1522(c), which provides that all vehicles “shall be driven in the right
lane except when . . . [o]vertaking and passing another vehicle.”39 Rule ran Dunn’s license plate and
learned that Dunn was driving a rental vehicle. Rule approached Dunn’s vehicle and told her that he
had pulled her over for driving in the left lane. Rule also claimed that Dunn was driving too fast.40
Dunn told Rule that she was driving from her residence in Arlington, Virginia to Denver to
pick up a camper van that she had purchased on line. Dunn told Rule that she was driving a rental
vehicle because she intended to drive the van back to Virginia. Rule questioned why she would rent
such an expensive vehicle, and she explained that she had requested a different vehicle, but that the
rental company did not have any of those vehicles available. Rule asked her why she was driving
rather than flying, and Dunn explained that she had an autoimmune disease, was not fully vaccinated
for COVID-19, and because of the pandemic, she did not feel safe flying.
Rule took Dunn’s information and walked back to his patrol vehicle. He returned, handed
her documents back and gave her a warning. Rule told Dunn to have a safe trip, then took one step
away from the vehicle, re-approached it less than one second later, and asked, “Hey ma’am, do you
mind if I ask you a couple questions?” Dunn responded “yeah,” and Rule asked her more questions
39
During these 50 seconds, Rule’s patrol vehicle passed Dunn in the right lane and
then fell back behind her vehicle again, meaning that the right lane was not entirely clear for Dunn
to merge back into the right lane. For about 25 seconds within this period, Dunn could have
merged into the right lane free and clear of Rule’s patrol vehicle. K.S.A. § 8-1522(c), however,
did not explicitly require her to do so within 25 seconds. The record is insufficient for the Court
to definitively find that Dunn did or did not commit a traffic violation. The Court will find,
however, that Dunn’s traffic stop was exceedingly pretextual.
40
Dunn disputes that she was speeding and testified that before Rule pulled her over,
she had checked her speed and she was not speeding.
- 34 -
about where she bought the van, where she lived, the price of the van and what she did for a living.41
Dunn did not feel free to leave, in part because Rule had put his head and arms inside her vehicle
through the passenger-side window as he questioned her.
Rule asked Dunn if she had any contraband in the vehicle and she said no. He asked if he
could search the trunk of her car, and she said no. Rule asked why Dunn said no, and whether he
could run his canine around the outside of her vehicle. Dunn consented because she thought that she
would remain inside the vehicle and that the canine would simply run around her vehicle.
Rule told Dunn to exit the rental car and deployed his canine around the vehicle for a drug
sniff. During the sniff, the canine scratched the car and cracked one of the door handles. Rule
testified that the canine alerted when he deviated from his “typical searching pattern,” displayed
“deep nasal breathing” and “very frantic” behavior at the passenger door, and would not leave the
passenger door area as Rule attempted to lead him around the vehicle.42 Rule then searched the
41
With regard to interrogation of motorists, KHP training materials in 2020 instructed
troopers: “DON’T OVERTHINK IT!!! Highway interdiction is nothing more than asking
questions until you have none.” The training continued as follows:
We need to do a better job investigating all crimes during traffic stops . . . . If we

take the time to just ask a few questions during a stop, we can get a feel for who
and what we are dealing with. If all we are doing is writing tickets, is there really
a need for Troopers? Technology today is capable of mailing tickets.
42
The dash camera footage of this traffic stop shows more persuasively visible canine
alerting than the footage in the Erich/Maloney traffic stop. The footage does not clearly confirm
Rule’s testimony that the canine exhibited deep nasal breathing or unusually frantic behavior at the
passenger door, as the canine appeared consistently high-energy before and throughout the traffic
stop. The footage also shows, however, that the canine suddenly stopped following Rule around the
vehicle and returned to the right-side passenger door, in a clear deviation from his former behavior.
Nevertheless, the Court again notes that neither side produced evidence that these behaviors are
reliable indicia of contraband under Daubert. Moreover, Dunn’s car—like the Shaws’ car, Bosire’s
car, Kelly’s car and Martinez’s car—was a rental car or was owned by a third party. The record is
devoid of evidence regarding how long drug odors are detectable after drugs have been removed
(continued . . . )
- 35 -
vehicle, did not recover any contraband and permitted Dunn to leave.
Rule testified that he had reasonable suspicion to detain Dunn because (1) she was “traveling
1,677 miles to pick up a van,” and it was “very odd that the only place she could find a van to camp
in” was in Denver; (2) Arlington was a “known narcotics hub” and Denver was a “known narcotics
distribution hub;”43 (3) Dunn was nervous and hesitant; (4) Dunn was driving an expensive rental
car; (4) it was “extremely suspicious” that Dunn chose to drive instead of fly during the COVID-19
pandemic; and (5) Dunn was 52 years old traveling halfway across the country by herself with
inclement weather in the forecast.44
Dunn believed that Rule had given her paperwork to explain how to file a complaint with the
KHP, but discovered that he had simply returned her driver’s license and rental agreement. Dunn
made multiple calls to the KHP and eventually reached Trooper Justin Rohr, Rule’s supervisor. Rohr
told Dunn that according to Rule, he had reasonable suspicion to detain her because (1) she was
driving across the country and (2) referring to seaweed, carrots and water bottles, Dunn had “copious
snacks” in her vehicle.
Rule completed a KHP report detailing the traffic stop and canine sniff. In the report, Rule
listed the factors that contributed to his suspicion, although KHP policies at the time did not require
him to do so: (1) Dunn was traveling from Arlington, a known narcotics hub; (2) Dunn was traveling
43
( . . . continued)
from a vehicle which is subject to a canine sniff. Without such information, the Court has concerns
about whether reasonable suspicion can be fairly attributed to particular drivers. Those concerns are
exacerbated because in all of these stops, the canines gave false positive results.
43
In Rule’s opinion, any large metropolitan area is a narcotics hub.
44
Rule admitted that if Dunn were 25 years old, he still would have found her
suspicious.
- 36 -
to Denver, a known narcotics distribution hub; (3) Dunn appeared nervous and hesitant; (4) Dunn’s
rental vehicle was expensive; (5) Dunn drove instead of flew; and (6) Dunn was a 52-year-old
woman traveling halfway across the country by herself with inclement weather in the forecast.
Rule lacked reasonable suspicion to detain Dunn for a canine sniff.45 This thought process
was based on an absurd and tenuous combination of innocent factors that were not objectively
suspicious. These factors—traveling a long distance to pick up a new vehicle, traveling to and from
“narcotics hubs” (i.e., any large metropolitan areas), nervousness when interacting with law
enforcement, driving instead of flying during a pandemic, traveling a long distance even with
possible inclement weather and taking “copious snacks” on a road trip—are so ordinary and benign
that singly and in combination, they contribute only minimally, if at all, to the reasonable suspicion
calculus. Even if Dunn’s travel plans were unusual, they were not unusual in a way which gave rise
to a reasonable suspicion of criminal activity. See United States v. Salzano, 158 F.3d 1107, 1112–13
(10th Cir. 1998) (though uneconomical, fact that defendant was driving across country in large motor
home instead of flying or renting smaller vehicle did not support reasonable suspicion that large RV
engaged in drug trafficking); United States v. Wood, 106 F.3d 942, 947 (10th Cir. 1997) (decision
to take time and expense to drive, rather than fly or use other mode of transportation, cannot support
reasonable suspicion, even where alternate form of travel would make more sense financially and
defendant is not currently employed).
The last factor, Dunn’s expensive rental vehicle, is not even remotely suspicious. The
proposition that a drug trafficker is especially likely to drive an unusually expensive (and more
45
Although Dunn ostensibly consented to the canine sniff, Rule detained Dunn from
the moment that he performed a Two-Step maneuver because, as explained below, he performed
the Two-Step in circumstances where a reasonable driver would not have felt free to leave.
- 37 -
noticeable) rental vehicle is untested and illogical. In fact, Trooper Scott Proffitt testified that drivers
who are engaged in criminal activity are more likely to drive less expensive vehicles. Jones provided
no evidence that an expensive rental vehicle is more likely to contain contraband than other rental
vehicles.46 The fact that a driver or a vehicle is unusual or uncommon in some respect does not
reasonably or necessarily mean that criminal activity has occurred, is occurring or is about to occur.
Further, when Rule executed the Kansas Two-Step and returned to Dunn’s vehicle, a
reasonable driver in her position would not have felt free to leave. Less than one second elapsed
between Rule disengaging and re-engaging with Dunn. The extremely short length of the “break” in
contact and Rule’s proximity with Dunn’s vehicle would have caused a reasonable driver to believe
that she was still detained and not free to leave. In fact, Rule made physical contact with Dunn’s
vehicle by putting his head and arms through her passenger window as he talked to her. Even the KHP
agrees that making physical contact with a vehicle “may render an encounter non-consensual.”
In summary, (1) Rule performed the Kansas Two-Step under circumstances where a
reasonable driver would not feel free to leave, and (2) Rule did not have reasonable suspicion to
extend Dunn’s detention when he performed the Two-Step.
VIII. Trooper Scott Proffitt’s Traffic Stop Of Curtis Martinez
On September 5, 2022, KHP Lieutenant Scott Proffitt was patrolling I-70 near Fort Riley
when his radar registered two vehicles speeding. He began to follow the vehicles and activated his
46
Jones actually produced no evidence that any factors which troopers routinely intone
as grounds for reasonable suspicion are scientifically reliable, data-based or even consistent with
generally accepted policing standards. On this record, it is hard to see how any particular stop or
search could be justified by opinions that could pass muster under Daubert. Troopers routinely
justify their behavior by invoking the mantra of their “training and experience” as law enforcement
officials; yet, as this case demonstrates, they frequently lack specific, data-tested or even logical
grounds for finding reasonable suspicion to detain or search a motorist.
- 38 -
lights. One of the vehicles, driven by Curtis Martinez, took an off ramp.47 Proffitt followed
Martinez’s vehicle and saw it take a left turn at the end of the off ramp. Proffitt followed, but when
he caught up to the vehicle, it promptly stopped. Proffitt testified that he was suspicious that the
vehicle got off the highway when he activated his lights, which he believed was an evasive
maneuver.48 Proffitt approached the vehicle, which had a Colorado license plate, and spoke to
Martinez. An unidentified passenger was also in the vehicle. The occupants were playing loud
music, and Proffitt asked them to turn it down. Proffitt stated that this highway exit was not one that
he was accustomed to seeing people take. Martinez explained that he was looking for a restroom.
Proffitt asked Martinez for his driver’s license and insurance and saw that he had a Colorado
driver’s license. He also saw that the car was registered to a different name and that the registration
had expired 11 months earlier. Martinez told him that the car belonged to his wife and that his
mother-in-law’s name was on the insurance. Martinez also stated that he was traveling to Missouri
for work. Proffitt asked the passenger for his name, which he declined to provide.
Proffitt requested the vehicle’s registration paperwork. Martinez informed Proffitt that they
had just gotten new license plates, that he did not have the current registration for the car, and that
they could call his wife, but she was at the pool with their son.
47
The record provides no information about the other speeding vehicle, or—aside
from the inference that Martinez would be easier for Proffitt to catch and pull over because he took
the off-ramp—why Proffitt chose to follow Martinez’s vehicle instead of the other speeding
vehicle.
48
The dash camera footage of Martinez’s traffic stop does not substantiate Proffitt’s
belief that Martinez made an evasive maneuver. When Proffitt activated his police lights an d
began to pursue Martinez, the two vehicles were a considerable distance away from each other, far
enough that Martinez’s vehicle is not visible in the footage, and multiple other vehicles on the road
were closer to Proffitt than Martinez. A reasonable driver in Martinez’s position would not have
immediately realized that Proffitt was pursuing him. When it became clear that Proffitt was
following him, i.e., when Proffitt followed him on the off ramp and through the left turn, Martinez
immediately pulled over (within ten seconds).
- 39 -
Proffitt returned to his patrol vehicle and, although he does not normally do so, he requested
information on Martinez’s criminal and drug history. The dispatcher informed Proffitt that Martinez
had no criminal history. Proffitt testified that at this point, he believed that he had reasonable
suspicion to detain the vehicle based on the following factors: (1) Martinez had exited the highway
in an evasive maneuver; (2) Martinez stated that he exited the highway because he was looking for
a restroom, but Proffitt knew that there were no restrooms at that exit; (3) Martinez denied that he
was speeding; (4) Martinez and his passenger acted defiant and argumentative; (5) Martinez was
playing loud music, which was also defiant; (6) Martinez was driving a car that belonged to a third
party (his wife) and was insured by another third party (his mother-in-law); (7) Martinez’s
registration was expired; (8) the passenger refused to identify himself; and (9) Proffitt believed that
Martinez had an image of El Chapo or Jesus Malverde in Martinez’s wallet.49 Proffitt also stated
that he was concerned for his personal safety on the scene and that the vehicle occupants gave him
an “officer safety vibe” because they were defiant and the passenger refused to identify himself.
Proffitt returned to the vehicle and gave Martinez a citation for having an expired registration
in violation of K.S.A. § 8-142. Proffitt told Martinez to “have a safe one,” took two steps away,
returned to the vehicle less than one second later and stated, “Can I ask you something?” When
Proffitt re-engaged, Martinez was already pulling his car away. Martinez stopped his car and Proffitt
told him that taking the highway exit was “overly suspicious.” He asked if Martinez had any
contraband in the vehicle, which Martinez denied. Proffitt asked for consent to search and Martinez
refused. Proffitt then detained the vehicle and called for a canine unit.
When calling for a canine unit, Proffitt explained to Officer [FNU] Childs, the canine
49
The Court takes judicial notice of the facts that El Chapo is a Mexican former drug
cartel leader and Jesus Malverde is a Mexican folk hero who is celebrated by many drug traffickers.
- 40 -
handler, that the vehicle occupant had tattoos; the vehicle had Colorado tags; Martinez refused
consent to search and had attempted to elude; the occupants were “wanting to put on a show and be
bullies;” he was watching their hands; the vehicle was registered to Martinez’s wife and insured by
his mother-in-law; and he was unsure whether Martinez and his wife were legally married because
“they’re both Hispanic,” they did not share a surname and “their lifestyle can be different.”
Officer Childs arrived and performed a canine sniff. The canine allegedly alerted and Proffitt
searched the vehicle. Proffitt did not recover any contraband. He did recover a “piece of vegetation”
but did not test it, and permitted Martinez and his passenger to leave.
Proffitt had reasonable suspicion to detain Martinez for a canine sniff. Unlike the other traffic
stops examined at trial, Proffitt had multiple, reasonable and significant factors that contributed to
reasonable suspicion. Martinez denied that he was speeding when Proffitt had objective proof that
he was speeding, giving Proffitt reasonable grounds to believe that Martinez was being deceptive.
While Proffitt did not have objectively reasonable grounds to believe that Martinez took an “evasive
maneuver,” Martinez committed multiple traffic violations by both speeding and having an expired
registration, and Proffitt credibly testified that drug traffickers commonly drive vehicles owned
and/or insured by third parties. The fact that Martinez and his wife had different last names
contributed to Proffitt’s difficulty in determining whether Martinez was being truthful about his wife
being the vehicle’s owner. Proffitt saw an image in Martinez’s wallet that he believed to be either
El Chapo or Jesus Malverde, which—unlike factors such as “having an expensive rental vehicle” or
“taking a road trip with one’s nephew”—directly and logically contributes to the suspicion that a
driver may be engaged in drug trafficking or other drug-related offenses. Finally, Martinez and his
passenger acted agitated and defiant, a factor that may contribute to reasonable suspicion. United
States v. McHugh, 639 F.3d 1250, 1258 (10th Cir. 2011). Furthermore—and crucially, for purposes
- 41 -
of this traffic stop’s constitutionality—all of these factors were present before Proffitt performed the
Kansas Two-Step, meaning that he had reasonable suspicion to detain Martinez for a canine sniff
before he performed the Two-Step. The fact that Proffitt had reasonable suspicion to detain Martinez
for a canine sniff does not foreclose the possibility that Proffitt targeted Martinez for the initial traffic
stop because of his out-of-state license plate. Even so, plaintiffs have presented insufficient evidence
for the Court to reach a finding in this regard.
Nevertheless, Proffitt performed the Kansas Two-Step in circumstances where a reasonable
driver would not feel free to leave. Less than one second elapsed between Proffitt disengaging and
re-engaging Martinez in conversation. The extremely short length of the “break” in contact and
Proffitt’s proximity with Martinez’s vehicle would have caused a reasonable driver to believe that
he was still detained and was not free to leave. The fact that Martinez was obviously agitated and
defiant throughout the entire detention further underscores the coercive nature of the Kansas
Two-Steps examined at trial: Martinez could not have communicated more clearly that he did not
want to engage with a KHP trooper and that he intended to leave at the earliest opportunity. When
Proffitt performed the Two-Step and stopped Martinez from leaving, Martinez was not “knowingly,
intelligently and voluntarily” agreeing to keep speaking to Proffitt.
Because Proffitt had reasonable suspicion to extend Martinez’s detention before he
performed the Two-Step, however, his Two-Step maneuver did not render the extended detention
unconstitutional. Proffitt did not need to initiate a “consensual encounter” because he already had
reasonable suspicion to further detain Martinez. While it is important to note that this Two-Step
maneuver—like the other Two-Steps examined at trial—would not have led a reasonable driver to
feel that he was free to leave, Proffitt’s encounter with Martinez was ultimately constitutional.
- 42 -
IX. Vasquez And KHP’s Use Of Out-Of-State Travel As A Reasonable Suspicion Factor
KHP troopers detain a disproportionate number of out-of-state motorists in part because the
KHP trains and permits them to evaluate a driver’s out-of-state residency and travel plans when
developing reasonable suspicion.50 In other words, the KHP permits troopers to find that a driver is
suspicious when the driver is an out-of-state resident or is traveling to or from a state that has
legalized marijuana.51
In Vasquez, the Tenth Circuit tried to curtail the KHP’s ability to detain motorists based on
out-of-state residency and travel origin or destination. The Tenth Circuit held that KHP troopers had
impermissibly relied on Vasquez’s status as a Colorado resident to justify a search of his vehicle.
834 F.3d at 1137–38. The troopers listed nine factors that allegedly contributed to the reasonable
suspicion calculus but relied “heavily” on plaintiff’s state of residency because Colorado is known
as a drug source state. Id. at 1137.
The Tenth Circuit stated that the fact that a driver is traveling from a “drug source” city or
state such as Colorado “does little to add to the overall calculus of suspicion,” and is “so broad as to
be indicative of almost nothing.” Id. at 1137–38 (quoting Guerrero, 472 F.3d at 787–88). The Court
stated that it is “time to stop the practice of detention of motorists for nothing more than an
out-of-state license plate.” Id. at 1138. Regarding out-of-state residency, the Tenth Circuit held that
50
Defendant strenuously claims that KHP troopers are not permitted to develop
reasonable suspicion based on a driver’s out-of-state residency. The Court heard conflicting
testimony regarding the KHP’s policies and training on this point. Regardless of the KHP’s formal
policies, however, evidence at trial indicates that in practice, KHP troopers frequently make traffic
stops—with or without reasonable suspicion—based at least in part on out-of-state residency.
51
Because Missouri and Colorado have both legalized marijuana, they border Kansas
on the east and west and I-70 is the major east-west traffic corridor through Kansas, all motorists
on I-70 are traveling toward or away from known drug source states. Under KHP logic, all
motorists on I-70 can be reasonably suspected of drug trafficking activity.
- 43 -
it is “wholly improper to assume that an individual is more likely to be engaged in criminal conduct
because of his state of residence” and “[a]bsent a demonstrated extraordinary circumstance, the
continued use of state residency as a justification for the fact of or continuation of a stop is
impermissible.” Id.
In response to Vasquez, Randy Moon, Assistant Superintendent of the KHP, stated publicly
that it would be unreasonable to expect troopers to ignore the fact that drivers are coming from a
state such as Colorado that has legalized marijuana. The KHP did send an email informing troopers
of Vasquez, but until 2020, when the KHP implemented policy changes in response to this litigation,
it did not change any of its policies. Washburn, former legal counsel for the KHP, testified that she
did not believe Vasquez constituted a substantive change in the law because it merely reiterated the
principle that a driver’s out-of-state residency, origin or destination cannot be the “sole” factor
forming the basis of reasonable suspicion. The KHP trains its troopers consistent with this
understanding but appears to permit them to consider a driver’s out-of-state origin or destination as
“a” factor which contributes to reasonable suspicion, in conjunction with other factors. Plaintiffs,
however, argue that under Vasquez, a driver’s out-of-state residence and travel plans cannot be
considered even as “a” reasonable suspicion factor in conjunction with other factors.
In 2020, in response to this lawsuit, the KHP updated its trooper training materials on
Vasquez. At that time, it revised its training material to include the following quotes from Vasquez:
• “‘[T]hat the defendant was traveling from a drug source city—or a drug source
state—does little to add to the overall calculus of suspicion.’ The Court in
Vasquez found that this factor was so ‘broad as to be indicative of almost
nothing.’”
• “‘It is wholly improper to assume that an individual is more likely to be engaged

in criminal conduct because of his state of residence, and thus any fact that would
inculpate every resident of a state cannot support reasonable suspicion.’”
The KHP apparently continues to train its troopers that they may consider a driver’s
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out-of-state origin or destination as “a” reasonable suspicion factor in conjunction with other factors.
Multiple KHP troopers testified that they continue to rely on a driver’s state of origin or destination
in developing reasonable suspicion. Trooper Ryan Wolting testified that the state on a license plate
can be a factor in deciding who to pull over, and that the fact that a driver is traveling from Denver
can contribute to reasonable suspicion because marijuana is legal in Denver. Lieutenant Jirak
testified that a driver’s state of origin is appropriate to consider in forming reasonable suspicion
because drug production and distribution occur in states such as California, Colorado, Oklahoma and
Missouri. Jirak acknowledged that all large population centers are drug source locations because
drugs can come from anywhere. Lieutenant Rohr testified that a driver’s state of origin indicates
criminal activity because large amounts of drugs originate in states such as California and Colorado.
Trooper Rule testified that he uses a driver’s state of origin or destination as a factor in forming
reasonable suspicion, and that the KHP has trained him to use travel on I-70 as a factor in forming
reasonable suspicion because it is a primary drug corridor. No trooper testified that he does not use
a driver’s state of origin or destination as a factor in forming reasonable suspicion.
The KHP’s current policies are as follows:
• Troopers may not conduct or direct a canine sniff of a vehicle based solely on the
trooper’s belief that the driver is traveling to or from Colorado.
• Troopers may not extend a vehicle stop or search a vehicle based only on a
driver’s travel origin or destination.
• Troopers may not include a driver’s state citizenship as a factor contributing to

reasonable suspicion.52
52
As noted above, it appears that KHP policy or training is inconsistent regarding
whether troopers may use out-of-state residency as a factor contributing to reasonable suspicion.
For example, Hogelin testified both that (1) KHP policy does not permit troopers to use a driver’s
out-of-state residency as the sole factor contributing to reasonable suspicion (suggesting that
troopers may use that factor in conjunction with other factors), and (2) KHP policy does not permit
troopers to use a driver’s out-of-state residency as a factor contributing to reasonable suspicion
(suggesting that troopers may not use that factor at all).
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• Troopers may not detain motorists for nothing more than an out-of-state license plate.
X. KHP Data Collection Practices
Before September of 2022, the KHP did not train or require its troopers to list the bases for
reasonable suspicion in post-detention reports unless the traffic stop involved an accident, arrest,
seizure or canine deployment. If a motorist filed a complaint or a lawsuit, and the trooper had not listed
the bases for reasonable suspicion in a report, that trooper would document the traffic stop after the
fact—sometimes long after the fact—and try to reconstruct the basis for reasonable suspicion.
Even before September of 2022, the KHP required canine troopers to fill out reports
whenever they deployed a canine to sniff a vehicle, but did not require them to explain why they
claimed reasonable suspicion to do so. Further, while canine troopers often initiated their own traffic
stops, they frequently performed canine sniffs at traffic stops initiated by other troopers. The trooper
who initiated the traffic stop often did not fully explain the basis for reasonable suspicion to the
canine trooper, so the canine trooper could not provide a detailed basis for reasonable suspicion in
his canine report. Canine deployment reports frequently provided no detail about grounds for the
canine sniff. Trooper Ryan Wolting, a member of Troop N, testified about many traffic stops in
which he called for a canine handler to perform a sniff of the vehicle. In all of these stops, the canine
handlers’ canine deployment reports omitted identification of any reasonable suspicion for the sniff.
Wolting did not know of a way that anybody could find out what factors he relied on in developing
reasonable suspicion during those stops.
Due in part to lack of documentation, supervising troopers and command staff at the KHP
have rarely learned about traffic stops that do not result in recovery of narcotics. Wolting’s
supervisors never talked with him about why he decided to call for a canine in stops that did not
result in a drug seizure. Jones never requested information about the number of canine sniffs
conducted each month, or how many detentions for canine sniffs resulted in discovery of narcotics.
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In 2022, after plaintiffs filed this lawsuit, Jones ordered command staff to change KHP policy
and begin documenting detentions even when no arrest or seizure occurred. On September 19, 2022,
in response to Jones’ order, the KHP implemented Form HP-141. KHP troopers must fill out Form
HP-141 to document traffic stops even when the stop does not result in an arrest or seizure. The first
page of the new Form HP-141 provides a list of different indicators of criminal activity, with a
checkbox for each indicator. The form also has fields at the top of the first page directing the trooper
to list the driver’s origin and destination. The form appears as follows:
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As noted, the HP-141 form directs troopers to provide the vehicle’s state of registration and the
driver’s origin and destination. The form also provides checkboxes where troopers can list
reasonable suspicion factors, such as unusually nervous behavior, a drug odor, masking odor, a
newly registered vehicle, a third-party or one-way rental vehicle, conflicting stories, a lived-in
appearance, a rental vehicle, vehicle alterations, etc.
HP-141 was the first time the KHP required troopers to document grounds for reasonable
suspicion for roadside detentions that did not involve an arrest, seizure or accident. Hogelin testified
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that the purpose of HP-141 is to provide a record of events during detentions and allow KHP
supervisors to monitor the legality of detentions, track their frequency, show training deficiencies
and improve transparency. Because Jones voluntarily initiated the form, he or his successor could
rescind its use at any time.
Hogelin testified that a trooper’s immediate supervisor must review each HP-141 for policy
violations and training or equipment issues, and that the form ultimately comes to Troop N and to
the PSU for review and historical filing. Hogelin testified that by collecting HP-141 forms, the KHP
gathers data from traffic stops, including (1) the trooper who made or participated in the detention,
(2) the date, time and location, (3) vehicle information and (4) reasonable suspicion factors. He
testified that the KHP has internal databases which collect this data and that the KHP uses the
database to look for trends, such as common tactics used by drug traffickers and new methods used
to hide contraband. The KHP does not use those databases to monitor the proportion of in-state
versus out-of-state drivers that KHP troopers pull over for traffic stops; how many traffic stops lead
to post-traffic stop detentions for vehicle searches; how many of these detentions do or do not result
in contraband seizures; how frequently troopers perform the Kansas Two-Step; how often civilians
lodge complaints against particular troopers arising out of traffic stops; or how often particular
troopers violate the constitutional rights of drivers.
Because the KHP does not collect this data, it does not analyze its traffic enforcement
practices to identify disparities and practices that need correction. Jones does not require his
executive staff, commanders or supervisors to collect data on KHP traffic enforcement policies or
report those data trends to him. Moreover, lack of data has made it difficult to determine the extent
to which KHP practices have led to ongoing violations of drivers’ Fourth Amendment rights, how
frequently violations occur and whether those violations have factors in common. Accordingly,
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while defendant strenuously objects to Mummolo’s conclusions and methodology, Mummolo’s
analysis is the best available evidence on the extent to which KHP troopers routinely consider a
driver’s out-of-state residence and travel plans in developing reasonable suspicion to prolong their
traffic stops. In preparation for trial, plaintiffs experienced considerable difficulties collecting
relevant data, such as how many traffic stops and canine sniffs result in KHP troopers finding
narcotics in a vehicle, what reasonable suspicion factors the troopers relied upon in those traffic
stops, and how many in-state and out-of-state motorists are detained for traffic stops by the KHP in
any given time period or location.
XI. Kansas Two-Step
KHP troopers intentionally use the Kansas Two-Step to pressure drivers to submit to
extended detentions on the side of the road in order to develop reasonable suspicion and to develop
“further” reasonable suspicion even if they claim it already exists. The KHP maintains that all of
these encounters are consensual, but the manner in which troopers perform the Two-Step creates
highly coercive encounters in which reasonable drivers do not feel free to leave.
The KHP teaches its troopers how to perform the Two-Step, and many KHP troopers perform
it at the conclusion of traffic stops.53 The Two-Step is a maneuver in which, at least nominally, a
trooper ends the traffic stop by returning the driver’s license and registration papers and saying “have
a good day,” “travel safe” or something similar; the trooper steps away from the vehicle; and the
trooper quickly—here, between less than one second to five seconds later—re-engages with the
53
The KHP does not collect data on use of the Two-Step, and it is therefore impossible
to ascertain exactly how frequent it is. Troopers do not document or report instances in which they
use the Two-Step and the KHP does not analyze or track the Two-Step’s use among troopers, even
after implementing HP-141. The KHP also does not collect data on the number of traffic stops in
which a trooper has performed the Two-Step and the driver has complained or filed a lawsuit
against the KHP as a result of the traffic stop.
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driver. According to KHP training, if the driver re-engages after the Two-Step, it begins a new
encounter which is consensual: the driver voluntarily stays to speak with the trooper, knowing (or
believing) that he or she is free to leave. Troopers are trained that two steps are not physically
necessary to end the non-consensual phase of the encounter. In fact, the KHP teaches that it is “[n]ot
mandatory to disengage, as long as a reasonable person in the suspect’s position would feel free to
leave. Even if they are not.”
The KHP trains troopers on the Kansas Two-Step as part of pre-service training at the KHP
Academy, and further trains on the Two-Step as part of its training on consensual encounters. In
2021, the KHP Academy provided the following training to troopers:
• If a trooper uses the Two-Step to initiate a consensual encounter, consent must

be knowingly, intelligently and voluntarily made.
• There must be a “sufficient break in time between the enforcement encounter and
the consensual encounter.”
• The Two-Step is not enough by itself to purge the taint of the coercive nature of
the traffic stop.
• The following factors may render an encounter non-consensual:
o The trooper did not return all the driver’s documentation.
o The trooper went straight from the traffic stop to the consensual encounter
without a sufficient break.
o The trooper’s tone of voice was accusatory.
o The trooper was still in his patrol car.
o The trooper made physical contact with the vehicle or subject.
The KHP does not require troopers to perform the Two-Step, and not all troopers perform it.
Jirak testified that instead of performing the Two-Step at the end of a traffic stop—i.e. instead of
disengaging, stepping away from the vehicle and then re-engaging with the driver—he remains at
the driver’s window, waits until the driver makes a motion to put the car in gear or step on the brake,
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and then asks the driver if he can “ask a few more questions before the driver leaves.”
The KHP trains troopers not to inform a motorist that he or she is free to go. It trains them
to conclude the traffic stop by using a different phrase like “Have a safe trip” or “Take care” or
“Have a good day.” In the traffic stops at issue, unless the motorist explicitly asked whether he was
free to go, no KHP trooper informed the motorist that he was free to leave.
Troopers frequently perform the Two-Step to search for more information to develop
reasonable suspicion for an extended detention, vehicle search or canine sniff. Other times, they do
it even if they believe that they already possess reasonable suspicion, basically because it makes their
lives easier: it is more convenient to perform a vehicle search if the trooper can obtain consent from
the motorist.
Despite evidence that the break in time created by the Two-Step is extremely brief—five
seconds or less—Jones and KHP troopers maintain that the Two-Step maneuvers in these cases
terminated the coercive nature of the initial stop and created new, independent and consensual
encounters that were knowing, voluntary and intelligent on the part of the motorists. In the Dunn
and Martinez stops, Troopers Rule and Proffitt waited less than one second between disengaging
and re-engaging with the driver; in the Kelly stop, McCord waited less than two seconds; in the Shaw
traffic stop, Schulte waited three and a half seconds; and in the Erich and Maloney traffic stop, Rohr
waited four and a half seconds. The troopers took between one and four steps from the vehicle before
turning to re-engage with the drivers. While most troopers did not touch the vehicles after they
re-engaged, Rule leaned through Dunn’s passenger window, and Dunn did not feel free to leave
because Rule’s head and arms were inside her vehicle.
Based on this evidence, the Court finds that KHP troopers conduct the Kansas Two-Step
under circumstances where reasonable drivers do not feel free to leave and do not knowingly,
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voluntarily and intelligently consent to re-engage with the trooper. In the traffic stops examined at
trial, a reasonable driver would not believe that the coercive aspect of the original traffic stop had
ceased. See Schneckloth, 412 U.S. at 227 (consent must not be product of express or implied
coercion); Mosley, 743 F.3d at 1324–25 (not willing and voluntary consent if driver submits to
trooper’s show of authority); Bostick, 501 U.S. at 434 (voluntary consent means reasonable person
must feel free to “disregard the police and go about his business”).
Troopers occupy a position of power and authority during a traffic stop, and when a trooper
quickly reapproaches a driver after a traffic stop and continues to ask questions, the authority that a
trooper wields—combined with the fact that most motorists do not know that they are free to leave
and KHP troopers deliberately decline to tell them that they are free to leave—communicates a strong
message that the driver is not free to leave. A reasonable driver could not knowingly and intelligently
believe otherwise. In such circumstances, the theory that a driver who remains on the scene gives
knowing and voluntary consent to further questioning is nothing but a convenient fiction; in the
circumstances present in this case, troopers unlawfully detained drivers, without reasonable
suspicion, for further questioning.
XII. KHP Training And Supervision
Jones relies on Lieutenant Colonel Jason DeVore, who functions as chief operating officer of
the KHP, to relay information from Jones to other KHP staff, and vice versa. Jones entrusts KHP legal
counsel and commanders to ensure that troopers comply with legal requirements in traffic enforcement.
Troopers review legal updates in one of three ways: a software program called PowerDMS,
emails and in-service training.54 Because KHP is a decentralized agency where KHP troopers have
54
Every year, KHP troopers are required to complete 40 hours of continuing law
enforcement education or training, called in-service training.
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flexibility in their work hours, in-person trainings are infrequent, and the KHP relies heavily on email
and PowerDMS to communicate updates to troopers.
When KHP supervisors or command officers inform troopers of new Fourth Amendment
court decisions through email, the KHP relies on troopers to read those emails and generally does
not test or quiz them regarding the content. When the KHP implements a new policy or changes an
existing policy, the policy is available on line to all troopers through PowerDMS. Troopers are
required to access the new policy through PowerDMS and check a box to certify that they have read
and reviewed the policy. Sometimes, albeit rarely, troopers must answer a few questions to confirm
that they have read and understood the policy change.
Washburn testified that when she led legal training sessions with KHP troopers, her
presentation would include “pop quizzes” to review the training materials with troopers immediately
after presenting material to them. Outside of these pop quizzes, the KHP rarely if ever tests troopers
to determine whether they understand Fourth Amendment law or KHP policies.
Hogelin testified that troopers have annual performance reviews with their supervising
troopers. In those reviews, the KHP does not require supervising troopers to consider how many
roadside detentions a trooper has performed that did not yield any contraband, or the number of times
that courts have sustained motions to suppress involving that trooper. Hogelin requires supervisors
in Troop N to perform random reviews of traffic stops and detentions on a quarterly basis. Troop N
constitutes approximately five per cent of all KHP troopers, however, and Troop N appears to be the
only troop in the KHP that performs that random review.
The KHP encourages troopers to search as many cars as possible, and the number of
seizures a trooper performs is one metric that it uses to assess trooper performance. KHP training
slides from an advanced interdiction training course state that a successful KHP trooper “must
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make high volume traffic stops,” and troopers must “STOP A LOT OF CARS!”
The PSU investigates allegations of misconduct by KHP troopers. The PSU is a fact-finding
unit that receives and processes complaints against KHP employees. The commander of the PSU
reports directly to Jones and sends the results of all PSU investigations to Jones to make a final
decision about whether to impose discipline or corrective action. Jones may impose harsher or more
lenient consequences than the PSU recommends. Jones is ultimately responsible for all KHP
policies, disciplinary actions and patterns of misconduct. Jones relies on direct supervisors and
commanders to review information on the frequency with which KHP troopers commit misconduct,
such as detaining drivers without reasonable suspicion. Jones only receives that information,
however, if it involves “aberrant behavior.”
CONCLUSIONS OF LAW
I. 42 U.S.C. § 1983
Plaintiffs bring suit pursuant to 42 U.S.C. § 1983, which states in part as follows: “Every
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.” Under this statute, plaintiffs sue Jones
in his official capacity for declaratory and injunctive relief, alleging an ongoing practice of Fourth
Amendment violations.
II. Ex parte Young
Under Ex parte Young, 209 U.S. 123 (1908), plaintiffs seek prospective relief against Jones
in his official capacity. An official-capacity suit against a state officer is “not a suit against the
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official but rather is a suit against the official’s office,” and as such, it is treated as a “suit against the
State itself.” Hafer v. Melo, 502 U.S. 21, 26 (1991) (quoting Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989)). While the Eleventh Amendment sovereign immunity doctrine deprives the
federal courts of jurisdiction in most suits brought against states, Ex parte Young permits plaintiffs
to sue state officials in their official capacities for prospective relief. See Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 102 (1984).
To fall within the Ex parte Young exception, plaintiffs must (1) establish an ongoing
violation of federal law, (2) show that the named state official has “some connection” with the
enforcement of the act, and (3) seek relief properly characterized as prospective. Ex parte Young,
209 U.S. at 157; see Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1214 (10th Cir. 2022). The Ex parte
Young test is a threshold analysis to determine whether sovereign immunity applies, before the Court
reaches the merits of the underlying claim. Whether state officials are actually violating federal law
is a merits question. 17A Moore’s Fed. Practice ¶ 123.40[3][A][iii], at 123-116.1 (3d ed. 2023).
Plaintiffs have satisfied the requirements of Ex parte Young. For both of their claims,
plaintiffs have established that KHP troopers are engaged in ongoing violations of federal law.
Further, plaintiffs have established that Jones is a state official who is responsible for KHP practices
and policies in that regard. As the final authority in the KHP, Jones has the ultimate authority to
authorize or prohibit any KHP practice. Finally, plaintiffs seek relief which is properly characterized
as prospective, i.e. injunctive and declaratory relief to enjoin the KHP’s continuation of these
practices. Sovereign immunity does not bar plaintiffs’ suit against Jones.
III. Standing
To bring suit against Jones, all plaintiffs must have standing. To satisfy the standing
requirements of Article III, plaintiffs must demonstrate that they have suffered an injury in fact, that
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a causal connection exists between the injury and the conduct complained of, and it is likely that the
injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992).
Plaintiffs have demonstrated an injury in fact by establishing violations of their Fourth
Amendment constitutional rights, and have shown a causal connection between their injuries and the
complained-of conduct by Jones. Jones argues, however, that KHP troopers present no appreciable
risk of violating plaintiffs’ constitutional rights in the future, so their injuries will not be redressed
by a favorable decision and they therefore lack standing. See Collins v. Daniels, 916 F.3d 1302,
1314–15 (10th Cir. 2019) (plaintiffs lack standing to seek injunctive relief where plaintiffs do not
allege “appreciable risk” of future harm).
Jones presented evidence that the probability of a random motorist being stopped by a KHP
trooper is about 0.41 per cent. This estimate divides the total number of KHP traffic stops by the
number of KDOT traffic sensor activations.55 This estimate ignores the substantial disparity in KHP
troopers’ traffic enforcement practices with regard to out-of-state drivers, however, and is further
flawed because a single motorist often activates multiple KDOT sensors during a single trip, thus
inflating the number of traffic sensor activations compared to the number of unique individual
motorists. According to Mummolo, the KHP estimate is likely miscalculated by several orders of
magnitude. The true likelihood that the KHP will stop a given driver is difficult to estimate, however,
because the KHP does not collect or analyze that data.
All plaintiffs continue to travel through Kansas on Kansas highways, and they fear that they
will be detained by KHP troopers in the future. Although it is difficult to precisely determine the
mathematical likelihood that KHP troopers will detain these plaintiffs in the future, it is clear that
55
KDOT traffic sensors are embedded in roadways and record data from passing cars.
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KHP troopers stop out-of-state drivers at a highly disproportionate rate, and that once a trooper stops
an out-of-state driver, a canine sniff (and its attendant delay) is disproportionately likely to ensue.
See Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 979 (D. Ariz. 2011) (standing exists to
challenge police stop even if likelihood that particular named plaintiff will again be stopped may not
be high). It is also undisputed that Jones permits troopers to consider a driver’s out-of-state residence
and travel plans as—at the very least—“a” factor contributing to reasonable suspicion. See City of
Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983) (plaintiff would have standing for prospective
relief if he “allege[d] that he would have another encounter with the police” and “that the City
ordered or authorized police officers to act in such a manner”).
Regarding the likelihood that plaintiffs will again be subjected to unconstitutional Kansas
Two-Steps, evidence at trial indicates that the Kansas Two-Step is a common practice within the
KHP, so during any given traffic stop, a motorist (especially an out-of-state motorist) faces a
meaningful likelihood that the trooper will perform a Two-Step maneuver. Due to lack of KHP data,
the Court cannot determine exactly how prevalent the Two-Step is, or how frequently troopers
perform it in circumstances where a reasonable driver would not feel free to leave. The record is
clear, however, that troopers perform the Two-Step to create highly coercive circumstances and that
they are very successful in pressuring motorists to remain after traffic stops without knowing,
intelligent and voluntary consent. Because the Two-Step is so successful in pressuring motorists to
remain on the scene to answer further questions, the Court has no doubt that KHP troopers regularly
employ this tactic. In fact, Jones does not pretend that only a handful of rogue troopers abuse their
power by engaging in the Two-Step. Plaintiffs have therefore established an appreciable risk that
they will be subjected to an unconstitutional Kansas Two-Step in the future.
Further, an order from this Court which abrogates the KHP’s ability to consider residency and
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travel plans in developing reasonable suspicion and limits the circumstances in which troopers can
perform the Kansas Two-Step would reduce plaintiffs’ risk of future injury. Plaintiffs therefore have
standing to seek injunctive relief. To establish standing for prospective relief, a future injury does not
need to be certain; “even a small probability of injury is sufficient to create a case or controversy.”
Massachusetts v. EPA, 549 U.S. 497, 525 n.23 (2007) (quoting Village of Elk Grove v. Evans, 997
F.2d 328, 329 (7th Cir. 1993)). Here, based on the evidence at trial, plaintiffs have demonstrated a
sufficiently realistic threat that the KHP will violate their Fourth Amendment rights in the future.
Plaintiffs therefore have standing. See Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004)
(plaintiff has standing when she shows “realistic threat” of experiencing similar situation in future).
IV. Plaintiffs’ Request For Injunctive Relief
For plaintiffs to obtain a permanent injunction, they must prove (1) actual success on the
merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs
the harm that the injunction may cause the opposing party; and (4) that the injunction, if issued, will
not adversely affect the public interest. Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818,
822 (10th Cir. 2007). An injunction is a drastic and extraordinary remedy which should not be
granted as a matter of course. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). A
district court’s decision to grant or deny permanent injunctive relief is discretionary. Weinberger v.
Romero-Barcelo, 456 U.S. 305, 319–20 (1982).
In the pretrial order, plaintiffs request the following injunctive relief:
• Requiring Defendant Jones to implement improved policies and programs with

respect to training, supervision, monitoring, and discipline that will eliminate the
policy, practice, pattern, and custom of suspicionless detentions and seizures.
Including, but not limited to, the cessation of consideration of the following
factors when forming reasonable suspicion:
o Out of state license plates;
o Travel origin or destination;
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o Travel to or from so-called “drug source” locations or along so-called

“drug source” corridors; and
o Any other factor the Tenth Circuit Court of Appeals or Kansas appellate
courts have determined to be unreliable in forming reasonable suspicion.
• Requiring Defendant Jones to implement appropriate measures for supervision

and discipline of KHP troopers who conduct detentions and seizures lacking
reasonable suspicion or in violation of KHP policy;
• Requiring Defendant Jones to implement appropriate measures to ensure that

KHP troopers document the following, and to do so in sufficient detail as to
permit supervisory review for compliance with Article IV and the Fourth and
Fourteenth Amendments:
o all canine drug searches, including the location, the basis for each such
search, the residency and demographics—including the state issuing the
license plate on the vehicle—of each individual stopped, regardless of
whether the encounter is followed by the use of force, consent search,
citation, warning or arrest;
o all detentions, including the location, the basis for each such detention,
the residency and demographics—including the state issuing the license
plate on the vehicle—of each individual stopped, regardless of whether
the encounter is followed by the use of force, consent search, citation,
warning or arrest; and
o all citations and arrests, including the location, the basis for each such
search, the residency and demographics—including the state issuing the
license plate on the vehicle—of each individual stopped, issued and or
conducted as a result of a canine drug search.
• Requiring Defendant Jones to implement appropriate measures to ensure that

documentation of all roadside detentions and/or searches is retained in a single,
searchable, up-to-date computerized database;
• Requiring Defendant Jones to make publicly available, on a semiannual basis,

data on all roadside detentions and/or searches conducted by the KHP, including
information on location, the basis for each detention and/or search, the license
plate of the vehicle, and the residency and demographics of each individual
stopped; [and]
• Requiring Defendant Jones and/or an independent, court-appointed neutral to

monitor and audit canine drug search policies, practices, and customs, to ensure
that such searches comport with constitutional and statutory requirements,
including by, among other things, periodically reviewing forms documenting
these searches and analyzing data on such searches.
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Pretrial Order (Doc. #290) filed August 19, 2022 in D. Kan. No. 19-1343 at 47–48.
Caution in granting an injunction is especially warranted when the type of injunction sought
is mandatory rather than prohibitory. Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d
1258, 1269 (10th Cir. 2002). Here, plaintiffs seek a mandatory injunction because the relief they
seek would require Jones to affirmatively take action to amend policies, change trooper training
and/or increase or alter his supervision over KHP troopers performing traffic stops. See Trial Laws.
Coll. v. Gerry Spence Trial Laws. Coll. At Thunderhead Ranch, 23 F.4th 1262, 1275 (10th Cir. 2022)
(citing Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (characterizing order to remove
content from YouTube as mandatory because order required party to take action)).
At a hearing on January 3, 2023, the Court expressed reservations about the feasibility of the
injunctive relief which plaintiffs requested and ordered them to show cause why the Court should not
enter judgment on the pleadings for defendant on plaintiffs’ request for injunctive relief. Minute Entry
For Status Conference (Doc. #355) filed January 3, 2023 in D. Kan. No. 19-1343 at 1. In response,
plaintiffs modified their request for injunctive relief to include “any or all of the following:”
• Defendant “is hereby enjoined from continuing his practice of permitting KHP
troopers to prolong detentions of drivers without reasonable suspicion of criminal
activity, in violation of the Fourth Amendment;”
• Defendant “is hereby enjoined from his practice of targeting out-of-state

motorists for roadside detentions without adequate reasonable suspicion;”
• “The parties are ordered to confer regarding any additional operational changes
that must be made to KHP practices to effectuate the two terms of the injunction
listed above, and submit those proposals to the Court.”
• “If, after a bench trial, the Court finds that the KHP’s use of the Two Step
maneuver results in constitutional violations, the Court could include another
term prohibiting the KHP from engaging in that practice.”
Plaintiffs’ Response To Court’s Order To Show Cause Regarding Plaintiffs’ Claim For Injunctive
Relief (Doc. #358) filed January 7, 2023 in D. Kan. No. 19-1343 at 12–13.
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A. Actual Success On The Merits
To obtain equitable relief against Jones, plaintiffs must prevail on the merits of their
underlying claims that the KHP violated their constitutional rights, and that under Jones’ supervision,
the KHP is engaged in a pattern or practice of violating drivers’ Fourth Amendment rights for reasons
stated above. Plaintiffs have done so.
i. Plaintiffs’ First Claim: Innocent Travel Indicia
The KHP bears the burden of showing that troopers have reasonable suspicion to detain
plaintiffs. United States v. Carhee, 27 F.3d 1493, 1496–97 (10th Cir. 1994). Plaintiffs argue that in
violation of the Fourth Amendment, in developing reasonable suspicion, KHP troopers consider a
driver’s out-of-state residence, origin or destination. Jones denies that KHP troopers consider
residency and argues that Vasquez permits KHP troopers to consider out-of-state travel plans if they
are implausible or contradictory or if they are not the sole factors cited to support reasonable
suspicion. The latter observation may be correct, but it is not relevant; this case does not involve
any stop in which a trooper detained a motorist solely because the driver was an out-of-state resident,
was traveling to or from another state, or offered travel plans that were implausible or contradictory.
Furthermore, contrary to Jones’ argument, it is obvious that as a whole, troopers do consider
residency in stopping disproportionate numbers of out-of-state motorists.
Under Vasquez, KHP troopers cannot consider a driver’s out-of-state residency as a factor
contributing to reasonable suspicion. Vasquez, 834 F.3d at 1138 (“wholly improper to assume
that an individual is more likely to be engaged in criminal conduct because of his state of
residence”). KHP troopers may consider a driver’s travel plans (out-of-state origins or
destinations) as factors contributing to reasonable suspicion, but are required to give those factors
very minimal weight. Id. at 1137–38 (quoting Guerrero, 472 F.3d at 787–88) (travel from drug
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source state “does little to add to the overall calculus of suspicion” and is “so broad as to be
indicative of almost nothing”). On paper, KHP training appears to be consistent with Vasquez,
but Mummolo’s testimony proves that KHP troopers engage in a pattern or practice of
impermissibly giving residency and travel plans significant weight when calculating reasonable
suspicion; his data-based conclusions cannot be (or at least have not been) otherwise explained.
Jones correctly argues that Vasquez does not outright prohibit KHP troopers from
considering travel plans in developing reasonable suspicion. In Vasquez, the Tenth Circuit held
that travel from a drug source city or state does “little” to add to reasonable suspicion and is “so
broad as to be indicative of almost nothing.” Vasquez, 834 F.3d at 1137 (quoting Guerrero, 472
F.3d at 787–88) (emphasis added). The Tenth Circuit made it clear, however, that such factors
must be afforded minimal weight. The evidence presented at trial shows that collectively, KHP
troopers place far more than minimal weight on these factors. For all practical purposes,
Mummolo’s statistical evidence is unrefuted, and it shows that KHP troopers target out-of-state
drivers at a highly disproportionate rate. Furthermore, the evidence regarding the individual traffic
stops in this case shows that in their quest to “STOP A LOT OF CARS!”, some troopers detain
out-of-state drivers based on flimsy or contrived evidence of criminal activity.
Plaintiffs provided evidence of multiple instances where troopers detained motorists based
in part on travel plans which were not inherently implausible, and the additional factors cited in
support of reasonable suspicion would not lead a reasonable officer to suspect that the motorist
had committed, was committing or was about to commit a crime.56 Notwithstanding its formal
56
In Dunn’s traffic stop, two bases for Rule’s reasonable suspicion were that Dunn
was an older woman traveling alone and had “copious snacks” in her car. Rule also testified that
he found it “extremely suspicious” that Dunn would choose to drive rather than fly to pick up her
(continued . . . )
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training and written policies, Mummolo’s statistical evidence indicates that disregard of Vasquez is
pervasive within the ranks of the KHP, and the KHP’s deficient data collection regarding traffic
enforcement and drug interdiction practices (1) makes it impossible to determine how pervasive this
problem is, and (2) has likely enabled this disregard to escape the KHP’s attention for many years.
The Court does not suggest that a trooper may not inquire about a driver’s state of residency
or travel plans during the course of a traffic stop. Also, the Court does not suggest that implausible
travel plans, or indicators of deceptiveness in a driver’s answers, cannot contribute to reasonable
suspicion. In the traffic stops examined during trial, however, none of the motorists articulated travel
plans that would have appeared implausible or suspicious to a reasonable officer.57 Simply because
the trooper would not have chosen a particular route or mode of travel does not make those choices
57
( . . . continued)
camper van, despite the fact that Dunn had explained that she was immunocompromised and
unwilling to fly due to the COVID-19 pandemic. Likewise, in Kelly’s traffic stop, McCord found
it “highly suspicious” that Kelly might travel to Kansas to pick up his nephew for a trip, because
McCord personally would not let his son travel with his uncle. In the Shaw traffic stop, Schulte
testified that one basis for reasonable suspicion was that Blaine Shaw claimed to be a criminal
justice major and yet would not consent to a search of his vehicle—implicating the clearly illegal
position that troopers may base their reasonable suspicion upon a driver invoking his or her
constitutional right to refuse consent for a search. See United States v. Santos, 403 F.3d 1120,
1125–26 (10th Cir. 2005). Likewise, in Bosire’s traffic stop, a large part of McMillan’s stated
basis for reasonable suspicion was Bosire’s reluctance to answer McMillan’s questions about his
travel plans, even though Bosire had a constitutional right to not answer McMillan’s questions.
Id. at 1131–32.
57
Blaine Shaw informed Schulte that he and Samuel Shaw were traveling to Denver
to visit family. Bosire informed McMillan that he was coming from the west, and headed east.
(While Bosire was reluctant to answer McMillan’s questions about his travel plans and McMillan
perceived him to be “evasive,” motorists are not required to disclose their travel plans during traffic
stops, and a motorist’s refusal to disclose such information cannot furnish a basis for reasonable
suspicion. See Santos, 403 F.3d at 1131–32.). Erich and Maloney informed Rohr that they were
traveling to Alabama. Kelly informed McCord that he was traveling to Kansas to pick up his
nephew. Dunn informed Rule that she was traveling to Denver to pick up a purchased camper
van. Martinez informed Proffitt that he was traveling to Missouri for work. None of these travel
plans were implausible or indicative of deception.
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indicative of criminal activity. Salzano, 158 F.3d at 1112. KHP troopers give disproportionate
weight to out-of-state residency or travel plans, and this is obvious because the other factors
articulated to demonstrate reasonable suspicion were entitled to little or no weight under any
objective standard of plausibility. Plaintiffs have prevailed on the merits of this claim.
ii. Plaintiffs’ Second Claim: Kansas Two-Step
For a police officer to engage with a driver after a traffic stop ends, the trooper must either
have reasonable suspicion to further detain the vehicle or must obtain the voluntary consent of the
driver to remain and continue answering questions. See United States v. Wallace, 429 F.3d 969, 974
(10th Cir. 2005). Jones and the KHP troopers who testified at trial maintain that as a matter of law,
the Kansas Two-Step provides a sufficient break in contact for a reasonable driver to believe that he
or she is free to leave. Jones argues that if a driver remains after the trooper performs the Two-Step,
the driver necessarily remains with intelligent, voluntary and knowing consent. The KHP carries the
burden of showing that in the totality of the circumstances, plaintiffs gave free and voluntary consent.
See Schneckloth, 412 U.S. at 227.
As explained above, in videotapes of the Kansas Two-Steps that the Court reviewed during
trial, viewed in light of the overall circumstances, the periods of disengagement were not sufficient
for reasonable drivers to feel free to leave. A one-second break in contract with a trooper, or even a
three-second or five-second break, does not create a clear “end” to a traffic stop in the mind of a
reasonable driver. Further, the troopers who performed these maneuvers remained very close to the
detained vehicles when they performed the Two-Step, taking four or fewer steps away. When a
trooper remains in close proximity to the vehicle without truly walking away from the driver, a
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reasonable driver does not feel that he or she is free to leave.58
KHP troopers know that they are in positions of authority during traffic stops. They also
know that when they fail to tell drivers that they are free to leave, consistent with KHP training,
most drivers will feel coerced into remaining on the scene after troopers perform the Two-Step.
Troopers insist that drivers give knowing, intelligent and voluntary consent. They do not. See
Mosley, 743 F.3d at 1324–25 (not willing and voluntary consent if citizen submits to officer’s
show of authority). Faced with a KHP trooper who has performed the Two-Step, a reasonable
person would not feel free to “disregard the police and go about his business.” Bostick, 501 U.S.
at 434.
Based on the evidence presented at trial, the Court finds that Jones failed to meet his burden
of showing that plaintiffs gave free and voluntary consent. The KHP is engaged in a pattern or
practice of prolonging traffic stops by using the Kansas Two-Step to coerce drivers into answering
questions when the troopers do not have reasonable suspicion and the drivers do not feel free to
leave. This practice violates the Fourth Amendment by extending traffic stops without reasonable
suspicion and without the knowing, intelligent and voluntary consent of the drivers. Plaintiffs
have succeeded on the merits of this claim.
B. Irreparable Harm Unless Injunction Is Granted
Irreparable injury and the inadequacy of legal remedies are the bases for federal injunctive
relief. Weinberger, 456 U.S. at 312. Harm is “irreparable” if plaintiffs can show a “significant risk
that he or she will experience harm that cannot be compensated after the fact by money damages.”
58
Blaine Shaw, Erich, Maloney and Dunn testified that when the trooper
reapproached the vehicle after performing the Two-Step, they did not feel free to leave because of
the trooper’s position of power, and because his close proximity made them feel that it would be
dangerous to drive away.
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Fish v. Kobach, 840 F.3d 710, 751 (10th Cir. 2016) (quoting RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1210 (10th Cir. 2009)). Adequate legal remedies foreclose injunctive relief. N. Cal. Power
Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306 (1984).
The Tenth Circuit has stated that “[w]hen an alleged constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.” Fish, 840 F.3d at 752 (quoting
Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001)). Accordingly, while the Court must engage
in its traditional equitable inquiry as to the presence of irreparable harm in such a context, “the
violation of a constitutional right must weigh heavily in that analysis.” Id. Here, plaintiffs
established that constitutional violations by KHP troopers caused them profound distress,
humiliation, anger and other non-monetary damages.59 The risk that they will experience future
harm cannot be compensated after the fact by money damages. Drivers who experience illegal
roadside detentions have some remedies at law, such as bringing suit under 42 U.S.C. § 1983 and
through the Kansas Tort Claims Act, K.S.A. § 75-6101 et seq., but these remedies are not sufficient
to abate the significant risk that plaintiffs will again experience irreparable harm. Individual lawsuits
against KHP troopers have not persuaded and evidently will not persuade the KHP to adopt
permanent and comprehensive changes that are necessary to protect plaintiffs and similarly situated
59
All plaintiffs in this case provided credible testimony regarding how the
constitutional violations impacted them. All plaintiffs continue to travel through Kansas when
necessary but experience significant anxiety and distress about the prospect of future encounters
with the KHP. Bosire is a naturalized United States citizen, and his traffic stop permanently
damaged his views of law enforcement and the integrity of the Constitution. As a result, he stopped
participating in community volunteer work that required him to interact with law enforcement.
The Shaws, Erich, Maloney and Dunn felt angry, upset and violated. The traffic stop distressed
Maloney and her children so greatly that they refused to use their new RV and did not take
vacations for several years. It caused Maloney such anxiety that she had to seek therapy, stop
driving her own vehicle and reduce her hours at work.
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motorists from constitutional violations in the future.60
In summary, plaintiffs have succeeded in showing a significant risk that if the Court does not
grant injunctive relief, they will experience harm that cannot be compensated after the fact by money
damages.
C. Balance Of Harms
The third injunction factor requires the Court to balance the irreparable harms identified by
plaintiffs against the harm that an injunction would cause. Fish, 840 F.3d at 754. Because plaintiffs
seek a mandatory injunction, they seek a “disfavored” form of relief that the Court subjects to a
heightened standard of scrutiny. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). Under the
heightened disfavored-injunction standard, plaintiffs must make a strong showing that the balance
60
Damage suits under Section 1983 are especially unavailing in most cases, thanks to
the doctrine of qualified immunity. Under this doctrine, as long as officers acted in good faith and
believed that their actions were lawful, they can be shielded from liability under Section 1983 if
they violated plaintiffs’ constitutional rights. See Pierson v. Ray, 386 U.S. 547, 555 (1967). Since
the inception of the doctrine, the Supreme Court has “evolved” the qualified immunity defense to
spread its protection “to all but the plainly incompetent or those who knowingly violated the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). In part, qualified immunity is intended to protect law
enforcement officers from personal liability and the “ordeal of litigation.” Apodaca v. Raemisch,
864 F.3d 1071, 1075 (10th Cir. 2017) (citing Plumhoff v. Rickard, 572 U.S. 765, 771–73 (2014)).
Here, qualified immunity is not necessary to achieve that goal because the State defends and
indemnifies KHP troopers—perhaps even as to punitive damages—so the qualified immunity
defense inures to the benefit of the State and the threat of litigation for individual troopers is purely
hypothetical. It certainly does not initiate institutional reform.
The Supreme Court has also given qualified immunity “sweeping procedural advantages”
by (1) allowing courts to grant qualified immunity at the summary judgment stage because “the
law is not reasonably clear,” even when the official “is not entitled to summary judgment on the
merits;” (2) permitting courts to grant qualified immunity at the earliest possible procedural stage,
especially before discovery has been taken “and necessarily before a plaintiff has obtained all the
relevant facts;” and (3) allowing a court order denying qualified immunity to be immediately
appealed. Jamison v. McClendon, 476 F. Supp. 3d 386, 405 (S.D. Miss. 2020) (citing Mark R.
Brown, The Fall and Rise of Qualified Immunity: From Hope to Harris, 9 Nev. L.J. 185, 195
(2008); Elder v. Holloway, 510 U.S. 510, 516 (1994)). In short, drivers who have their Fourth
Amendment rights violated by KHP troopers face a vanishingly small chance of finding an
adequate legal remedy under Section 1983.
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of harms tips in their favor. Id. at 1131. The Tenth Circuit holds that provisions of an injunction
that do “no more than require [defendant] to obey the law” must be stricken. Keyes v. Sch. Dist.
No. 1, Denver, 895 F.2d 659, 668 & n.5 (10th Cir. 1990).
Plaintiffs argue that the balance of harms weighs in their favor because the threatened
injury—deprivation of constitutional rights of those who travel across Kansas—outweighs the harm
that an injunction may cause to the KHP. Defendant argues that the balance of harms does not weigh
in favor of plaintiffs because the proposed injunction would be unduly burdensome to defendant and
would not comport with the principles of comity and equitable restraint articulated in O’Shea v.
Littleton, 414 U.S. 488 (1974).
In O’Shea, residents of Cairo, Illinois brought a class action against a magistrate and a
circuit court judge who allegedly engaged in illegal bond-setting, sentencing and jury-fee practices
that discriminated against African-American and impoverished people, in violation of the Equal
Protection Clause. Plaintiffs sought an injunction, which the district court denied but the Seventh
Circuit Court of Appeals directed the district court to grant. Id. at 490–92. The United States
Supreme Court reversed, holding that the injunction “would require for its enforcement the
continuous supervision by the federal court over the conduct of the petitioners in the course of
future criminal trial proceedings involving any of the members of the respondents’ broadly defined
class.” Id. at 501. It ruled that “a federal court should not intervene to establish the basis for future
intervention that would be so intrusive and unworkable.” Id. at 500. It also noted that the
injunction would empower any member of the plaintiff class who was a defendant in a case before
the judges in question to bring suit in federal court to complain that the judge had violated the
federal injunction. Id.
While O’Shea largely concerns an issue of abstention under Younger v. Harris, 401 U.S. 37
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(1971), the Supreme Court’s concerns in O’Shea inform the balance of harms in this case. The Court
will not fashion injunctive relief that will require this Court to supervise in perpetuity every traffic
stop that KHP troopers perform. Further, the Court will not fashion relief that will permit every
driver subjected to a KHP traffic stop to come directly to federal court and allege that the stop
violated the injunction. Such an injunction could force the Court to micromanage and second-guess
all KHP traffic stops to determine whether the driver’s out-of-state travel plans were sufficiently
implausible or contradictory to contribute to reasonable suspicion, whether the trooper gave these
indicia impermissible weight, whether each Kansas Two-Step stayed within permissible
constitutional bounds and whether—in violation of the Court’s injunction—any violations were
fairly traceable to insufficient training, supervision or record-keeping by Jones. Such relief would
be unworkable for the Court and impermissibly intrusive upon the KHP.
Plaintiffs’ amended request for injunctive relief raises additional concerns. The amended
injunction is broad and lacking in detail, leaves unstated exactly how Jones should train or supervise
troopers and has no objective boundaries for Jones to know that he has complied or failed to comply
with the injunction. By omitting this information, plaintiffs’ proposed injunction would fall short of
fulfilling the “two important functions performed by [Rule 65]: (1) to prevent confusion on the part
of those faced with injunctive orders and (2) to aid the appellate court in defining the bounds of the
injunctive relief.” New Mexico v. Trujillo, 813 F.3d 1308, 1319 n. 7 (10th Cir. 2016) (quoting
Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 371 (10th Cir. 1996)); see also
Shook v. Board of Cnty Comm’rs of El Paso, 543 F.3d 597, 603, 605–06 (10th Cir. 2008) (affirming
denial of injunction that would require jail to “provide sufficient numbers of mental health and
custody staff, with adequate training” because court not equipped to determine what constitutes
“adequate” training or “sufficient” number of employees).
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Furthermore, three provisions of the amended request would merely enjoin Jones from
violating the Constitution. Provisions of an injunction that do “no more than require [defendant] to
obey the law,” however, must be stricken. Keyes, 895 F.2d at 668 & n.5 (striking injunction
prohibiting defendants “from discriminating on the basis of race” and directing defendants to
“comply with the constitutional requirement of equal education opportunity for all” because
injunctions simply requiring defendant to obey law are too vague to satisfy Rule 65).
Narrower and more specific injunctive relief could remedy unconstitutional practices within
the KHP while tipping the balance of harms in favor of plaintiffs. Plaintiffs have a clear interest in
preventing future violations of constitutional rights. Plaintiffs have also established particular KHP
practices and deficiencies in KHP data collection that a well-tailored, narrow injunction could
remedy and protect plaintiffs from future harm while not inflicting undue harm on KHP operations.
Such an injunction would require the KHP to (1) improve its data collection practices to better track
the disparities between traffic stops of in-state and out-of-state drivers, the reasonable suspicion
factors that troopers rely upon and the frequency and manner with which troopers perform the
Two-Step; (2) require troopers to transition from traffic stops to consensual encounters with
motorists in a manner which ensures that further engagement is actually knowing, voluntary and
intelligent, i.e. consensual in the letter and spirit of the law; (3) work with a court-appointed monitor
to decrease the amount of weight that KHP troopers place upon innocent travel plans, in compliance
with Vasquez; (4) amend trooper training materials and procedures consistent with the Court’s
findings; and (5) regularly report to either the Court or the court-appointed monitor to demonstrate
its compliance with all of the requirements listed above.
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D. Adverse Public Interest
The fourth injunction factor requires the Court to determine whether an injunction, if granted,
would be adverse to the public interest. It is “always in the public interest to prevent the violation
of a party’s constitutional rights.” Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792,
807 (10th Cir. 2019) (citations omitted).
Throughout this case, plaintiffs have presented robust evidence that the KHP is engaged in
an ongoing war against motorists in Kansas, which unconstitutionally subjects them to prolonged
detentions without reasonable suspicion or consent. Injunctive relief would serve a dual purpose in
this case: requiring the KHP to better document its troopers’ traffic enforcement practices and
eradicating unconstitutional practices from Kansas highways.
The public has a “profound and long-term interest in upholding an individual’s constitutional
rights.” Awad, 670 F.3d at 1132 (citations omitted). Injunctive relief in this case would protect the
constitutional rights of all motorists who travel through Kansas. The Court finds that injunctive
relief would not be adverse to the public interest.
V. Declaratory Relief
In addition to injunctive relief, plaintiffs request declaratory relief under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202. The Declaratory Judgment Act states that “[i]n a case
of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). A
declaratory judgment plaintiff must present the Court with a suit based on an “actual controversy,”
meaning that the Court must determine “whether the facts alleged, under all the circumstances, show
that a substantial controversy exists, between parties having adverse legal interests, of sufficient
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immediacy and reality to warrant the issuance of a declaratory judgment.” Surefoot LC v. Sure Foot
Corp., 531 F.3d 1236, 1244 (10th Cir. 2008) (quoting Md. Cas. Co. v. Pac. Coal & Oil, 312 U.S.
270, 273 (1941)).
Although a request for declaratory relief often accompanies a request for injunctive relief,
they are separate remedies. Steffel v. Thompson, 415 U.S. 452, 467 (1974). A declaratory judgment
lacks the enforcement mechanisms of an injunction but still binds the parties, and a public official
who loses a declaratory judgment claim is expected to correct his or her unlawful conduct. Poe v.
Gerstein, 417 U.S. 281, 282 (1974).
In determining whether to grant declaratory relief, the Court should inquire (1) whether a
declaratory action would settle the controversy; (2) whether it would serve a useful purpose in
clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the
purpose of “procedural fending” or “to provide an arena for a race to res judicata;” (4) whether use of
a declaratory action would increase friction between our federal and state courts and improperly
encroach upon state jurisdiction; and (5) whether an alternative remedy would be better or more
effective. Bell Helicopter Textron, Inc. v. Heliqwest Int’l., Ltd., 385 F.3d 1291, 1299 (10th Cir. 2004).
Plaintiffs seek a declaration that the KHP’s practice of extending roadside detentions of
motorists based in part on travel to and from “drug source states,” and without reasonable suspicion,
violates motorists’ Fourth Amendment rights to be free from unreasonable searches and seizures,
and renders the KHP liable for constitutional violations under 42 U.S.C. § 1983.61 Alternatively,
plaintiffs seek a declaration that extending roadside detentions based in part on travel to and from
drug source states is inconsistent with prevailing Tenth Circuit law and the Fourth Amendment.
61
Plaintiffs do not seek declaratory relief regarding their claim that KHP troopers are
engaged in a practice of violating motorists’ rights by performing coercive Kansas Two-Step
maneuvers.
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The Court declines to grant plaintiffs a declaratory judgment that extending roadside
detentions “in part” on travel to and from drug source states is wholesale unconstitutional. This
statement of the law is inconsistent with Vasquez, which permits officers to consider travel to and
from drug source states as a factor which supports reasonable suspicion, as long as that factor is
afforded minimal weight or the stated travel plans are implausible or contradictory. When the Tenth
Circuit ruled on Vasquez, however, Kansas was not yet flanked on both sides by states that have
legalized recreational marijuana. Now, every driver on I-70 in Kansas is traveling away from a “drug
source” state and towards a “drug source” state. Accordingly, the fact that a driver is traveling on
I-70 in Kansas gives KHP troopers no indication that a particular driver is engaged in illegal activity.
In Vasquez, the Tenth Circuit held that KHP troopers cannot develop reasonable suspicion based on
factors that “would justify the search and seizure of the citizens of more than half of the states in our
country.” 834 F.3d at 1138. That logic now dictates that when law enforcement officers in Kansas
develop reasonable suspicion with regard to traffic on I-70, they must give no weight to the fact that
a driver is traveling (1) away from a “drug source” state, (2) towards a “drug source” state, or (3) on
a drug corridor; doing so would justify the search and seizure of every single driver traveling on I-70
in Kansas. The Court will grant declaratory relief to that effect.
The Court finds that granting declaratory relief would settle the controversy in this case.
Under the first factor, while uncertainties remain regarding exactly how pervasive the KHP’s
unconstitutional practices are, this ruling definitively establishes that the practices challenged at trial
amount to constitutional violations. Under the second factor, a declaratory judgment would serve a
useful purpose in clarifying the legal relations at issue by establishing that KHP troopers violated
plaintiffs’ Fourth Amendment rights. Under the third factor, the Court has no reason to believe that
plaintiffs are seeking declaratory relief merely for procedural fencing or as a race to res judicata.
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Under the fourth factor, the requested declaratory judgment would not increase friction between
federal and state courts or improperly encroach upon state jurisdiction, as the issues resolved in this
case are federal and constitutional in nature. Finally, under the fifth factor, an alternative remedy
would not be better or more effective. In conjunction with a narrowly tailored injunction, declaratory
relief is a proper and effective remedy in this case.
THE COURT THEREFORE ORDERS, ADJUDGES AND DECREES that in violation
of the Fourth Amendment and Vasquez v. Lewis, 834 F.3d 1132 (10th Cir. 2016), Jones is
responsible for a policy or practice which unlawfully detains motorists in Kansas (especially
out-of-state motorists) without reasonable suspicion or consent, based on out-of-state residency
and—to more than a minimal extent—based on travel plans that are not implausible or inherently
contradictory. When KHP troopers develop reasonable suspicion with regard to motorists on I-70,
they must give no weight to the fact that a motorist is traveling (1) toward a “drug source” or “drug
destination” state, (2) away from a “drug source” or “drug destination” state, or (3) on a drug
corridor.
THE COURT FURTHER ORDERS, ADJUDGES AND DECREES that in violation of
the Fourth Amendment, Jones is responsible for a policy or practice of using the Kansas Two-Step
to extend traffic stops of motorists in Kansas without reasonable suspicion and without the motorists’
knowing, intelligent and voluntary consent.
IT IS FURTHER ORDERED that all parties, no later than 5:00 p.m. on Monday,
August 7, 2023, show cause in writing why the Court should not substitute Erik Smith, the
current Superintendent of the KHP, as defendant in this case. See Hafer v. Melo, 502 U.S. 21,
25 (1991) (when official leaves office, successor automatically assumes his position in official
capacity litigation). No later than 5:00 p.m. on August 14, 2023, each party may respond.
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IT IS FURTHER ORDERED that all parties, no later than 5:00 p.m. on Monday,
August 7, 2023, show cause in writing why the Court should not enter the following injunction.
No later than 5:00 p.m. on August 14, 2023, each party may respond.
Injunction
I. Documentation
A. In any reports which document investigatory stops, detentions, searches or

consents, troopers shall use accurate and specific descriptive language and not rely
on boilerplate or “pat” language or conclusory invocation of their training and
experience as law enforcement officers and their consideration of all the relevant
factors. Articulation of reasonable suspicion, along with consents, shall be clear
and factually specific to particular individuals.
B. Troopers shall document all investigatory stops and detentions, any searches
(including canine sniffs) resulting from or proximate to the stop or detention, and
any consents to search or to engage with troopers after the conclusion of a traffic
stop. Within 60 days, the KHP shall develop an electronic report format to
document all investigatory stops, searches and consent, whether or not they result
in an arrest, issuance of a citation, search or discovery of contraband. The
electronic documentation system shall allow for summarization, reports and
searches, and shall be submitted for review and approval by the Court. The
reporting format shall require troopers to document the following:
a. the trooper’s name and badge number;
b. the date and time of the stop;
c. the location of the stop;
d. the duration of the stop;
e. the identifying characteristics of the vehicle, including its make, model, year,
color and the state that issued its license plate;
f. the presence, names and number of any passengers;
g. the reason for the stop, including a description of all facts on which the trooper
relied in developing reasonable suspicion to justify the initial stop;
h. whether the trooper asked any individual to consent to a search, whether the
trooper advised the subject that he or she had a right to refuse or revoke consent
at any time, whether such advice of rights has been independently documented,
and whether consent to search was given;
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i. whether a search (including a canine sniff) occurred and if so, a description of

all facts on which the trooper relied in developing reasonable suspicion to
search;
j. the nature and duration of the search and, if a canine was deployed, the length
of any delay occasioned by the need to procure a canine unit;
k. whether the trooper seized any drugs or contraband, and the nature and
disposition of any such drugs or contraband;
l. when and how the traffic stop concluded; and
m. after the traffic stop concluded, whether the trooper sought to engage in any
conversation with the driver or occupants of the vehicle and if so, specific steps
which the trooper took to communicate to the driver that the traffic stop was
concluded and that the driver was free to go, the length of time from the
conclusion of the traffic stop to the trooper’s effort to re-engage and—if the
driver re-engaged—the total length of the engagement after the end of the traffic
stop.
C. All documentation shall be submitted to the trooper’s supervisor by the end of the
shift. Absent exceptional circumstances, supervisors shall review such reports
within 12 hours of receiving them. Supervisors shall report and shall document
(1) those investigatory stops and detentions which appear unsupported by
reasonable suspicion; (2) those searches which appear to be without legal
justification; (3) stops, detentions or searches which appear to violate KHP training
or policies; and (4) stops or searches that indicate a need for corrective action or
review of KHP policy, strategy, tactics or training.
D. The supervisor shall take appropriate action to address all violations or deficiencies
in investigatory stops, detentions, searches and consents, including recommending
corrective action for the involved officer and/or referring the incident for
administrative or criminal investigation. For each trooper, the supervisor shall track
each violation or deficiency and any corrective action taken, to identify troopers
who need repeated corrective action.
II. Searches and Continued Questioning
A. Prior to conducting a search which is purportedly based on consent, a trooper shall

notify a supervisor of the plan to conduct a consensual search, and receive approval
from the supervisor before conducting it. As part of the supervisory review, the
supervisor shall document in an auditable format those requests that are legally
unsupported, are in violation of KHP policy or this injunction, or that indicate a
need for corrective action or review of any KHP policy, strategy, tactics or training.
The supervisor shall take appropriate action to address violations or deficiencies,
including recommending corrective action for the involved officer.
B. When a trooper seeks consent for a search, the officer shall affirmatively inform
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the subject of his or her right to refuse and to revoke consent at any time, and
document the subject’s consent on a written form which explains these rights. The
written form shall include separate signature lines for the trooper to certify that the
trooper has read and explained these rights to the subject, and for the subject to
affirm that he or she understands the right to refuse and to revoke consent to the
search.
C. When a trooper seeks to re-engage with a driver or occupant of the vehicle, after a
traffic stop has concluded, the trooper shall affirmatively inform the subject of his
or her right to refuse and to revoke consent at any time, and document the subject’s
consent on a written form which explains these rights. The written form shall
include separate signature lines for the trooper to certify that the trooper has read
and explained these rights to the subject, and for the subject to affirm that he or she
understands the right to refuse and to revoke consent to the search.
D. The KHP shall maintain a log which lists each request for a search, the officer who
requested the search, the supervisor who reviewed the request and the action taken
on the request.
III. The KHP shall develop a protocol for comprehensive analysis, no less frequently than
every six months, of the foregoing data. The report shall analyze the data, identify steps
taken to correct problems and shall be publicly available, served on the parties in this case
and filed with the Court.
IV. No later than September 1, 2024, the KHP shall provide all officers with at least 24 hours
of training, and at least ten hours thereafter on an annual basis, on facts and circumstances
that may be considered in initiating, conducting, terminating and expanding an
investigatory stop or detention; the difference between reasonable suspicion and mere
speculation; and between knowing, voluntary and intelligent consent to engage with law
enforcement, as opposed to seizure and/or mere acquiescence to police authority.
V. KHP supervisors shall be held accountable for providing close and effective supervision
necessary to direct and guide troopers in complying with constitutional requirements. To
this end, all troopers shall be assigned a single, consistent and clearly-identified supervisor.
Supervisors shall work the same days and hours as the troopers they are assigned to
supervise.
VI. The KHP will maintain and operate audio recording and video cameras in all marked and
unmarked vehicles that are assigned to routine patrol duties and shall promptly repair or
replace any non-functioning equipment. Such recordings shall be maintained, reviewed by
supervisors as appropriate and preserved for no less than three years for investigatory and
audit purposes. The KHP shall require
A. activation of in-car cameras for all traffic stops or pursuits until the stop is
concluded and the stopped vehicle departs, or until the officer’s participation in the
vehicle stop ends (whichever is later); and
B. activation of in-car cameras or audio recording to record requests for consent to

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search a vehicle, consent to deployment of drug-detection canines and consent to

engage with a driver after the conclusion of a traffic stop, and all parts of the
driver’s response to said requests.
A trooper must immediately notify a supervisor when an event was not recorded, and
provide a full explanation. Supervisors shall refer for investigation any trooper who fails
to properly make and preserve such recordings.
VII. The Court may appoint a special master to perform compliance reviews and audits and
assess whether this injunction is effective in achieving constitutional policing. The KHP
shall be liable for all fees and expenses of the special master. Within 90 days of his or
appointment, the Special Master shall develop a plan for conducting outcome assessments
and compliance reviews and audits, and shall submit said plan to the parties and the Court,
for review and approval. Two years after appointment, the Special Master shall conduct a
comprehensive assessment to determine whether and to what extent the intent of the plan
has been achieved.
VIII. This injunction will remain in effect for four years unless the KHP has achieved all
objectives of the injunction by an earlier date, no sooner than two years, in which case the
Court may dissolve it at an earlier date. On the other hand, if the KHP has not obtained
full and effective compliance, this injunction may be extended.
IX. The Court retains jurisdiction of this action for all purposes until the KHP has achieved
full and effective compliance for no less than two years, and the Court so certifies.
IT IS SO ORDERED.
Dated this 21st day of July, 2023 at Kansas City, Kansas.
/s Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
- 79 -

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Case 6:19-cv-01343-KHV Document 539 Filed 07/21/23 Page 1 of 79

IN THE UNITED STATES DISTRICT COURT

BLAINE FRANKLIN SHAW et al., )

MEMORANDUM AND ORDER

constitutional rights are trampled along the way?

. . . There is no detail of driving too small, no piece of equipment too insignificant,

When we think of traffic offenses, we think of “moving violations”—exceeding the

So how do troopers elicit consent? Sometimes—actually, in a surprising number of

reasonable suspicion all along.11

Missouri—that is, anywhere on I-70 in Kansas, traveling in either direction—is by definition

Harris, supra note 5, at 574.

reasonableness in all the circumstances of the particular governmental invasion of a citizen’s

(1) consideration of a driver’s out-of-state residence, origin or destination as a factor contributing to

suspicion for a canine sniff, or to procure consent for such a search.18

II. Disparities In KHP Traffic Stops

disproportionately high rates compared to drivers who are Kansas residents.

Jonathan Mummolo is an assistant professor of politics and public affairs at Princeton

grounds that are unrelated to out-of-state residency or travel plans.21

unrelated to drivers’ out-of-state residency and/or travel plans.

and friends in Colorado.

refused to consent to a search.

Schulte had extended Blaine Shaw’s detention without reasonable suspicion.

he continues to drive through Kansas to visit friends and family in Colorado.

camping and RVs are used to traffic narcotics.

traveling to Alabama to visit family.

Rohr and Erich had the following exchange:

Erich: Do I have to answer these questions?

Rohr: You don’t have to. Okay.

Erich: I’d prefer not to.

Rohr: Okay. Can I talk to you any further, or…?

Erich: I’m free to go, right?

Rohr: You are free to go.

Erich: Okay. I’d rather go.

known source state for drugs.

proximity to the highway at night.

canine allegedly alerted.27

and told the family that they were free to go.

and evaluates other troopers.

the fog line.

initial traffic stop was invalid.

additional facts might dispel reasonable suspicion).

in the morning and/or in older-model RVs.

at all, to reasonable suspicion.

without reasonable suspicion to search the roof of their RV.

V. Trooper Brandon McMillan’s Traffic Stop Of Joshua Bosire

as whether he was coming from Colorado.

suspicion to extend Bosire’s traffic stop for a canine sniff.

minimally to reasonable suspicion).

constitutional violation is more significant than a minor rule violation.

VI. Trooper James McCord’s Traffic Stop Of Daniel Kelly

Dunn and Curtis Martinez, over the last three years.

can I ask you just a few more questions?”

more than minimally to reasonable suspicion, if at all.

VII. Trooper Chandler Rule’s Traffic Stop Of Suzanne Dunn

through the passenger-side window as he questioned her.

We need to do a better job investigating all crimes during traffic stops . . . . If we

inclement weather in the forecast.44

snacks” in her vehicle.