RILEY COUNTY, Kan. Curtis Martinez stood on the side of Interstate 70 with his brother, shaking his head as a police dog sniffed out his car.
The Denver, Colorado, resident said he was on his way to Kansas City, Missouri, for work when he was stopped by a Kansas Highway Patrol (KHP) officer over an expired license plate.
He was given a ticket and thought that would be the end of it.
Instead, as Martinez began to walk away, he says the officer returned to Martinez and asked if he could question him further.
“He said, ‘Do you have any drugs or guns in your car?'” Martinez said.
Martinez said he told the officer he didn’t have any drugs in his car.
“‘Well, then you don’t mind if I take a look at your car,'” Martinez the soldier recalled saying. “I said, ‘Yeah, I’m sorry if you take a look at my car. I don’t have time for that,’ and he said, ‘Well, go ahead and pull over. You’ve been arrested.’”
Martinez and his brother were allegedly held for more than an hour after that original stop without paying any additional fees or tickets. That’s why he called FOX4 Problem Solvers in September.
“Kansas Two Step” Class Action Lawsuit
According to a lawsuit filed by the American Civil Liberties Union, the policeman used a tactic dubbed the “Kansas Two Step,” in which soldiers target motorists with out-of-state license plates or those traveling to or from Colorado, where activities recreational marijuana is legal
The “Kansas Two Step” provides for the unlawful detention of drivers with questions about travel plans without consent or reasonable suspicion of criminal activity after the initial purpose of the stop has been resolved, the lawsuit says.
The lawsuit says the technique is designed to disrupt the initial traffic hold and re-engage the driver in what could be construed as a separate consensual meeting.
“They’re using traffic jams to get to bigger problems,” said Jay Norton, a criminal defense attorney in Johnson County, Kansas. “That’s the kind of game they’re playing.”
Eventually, Martinez was given a ticket and released, but said officers never explained their reasonable suspicion that they searched his vehicle in the first place, something he said made him feel targeted and discriminated against.
Martinez said he began recording the encounter on his phone once the canine unit arrived. However, the footage does not show the highway patrol officer who dragged him to carry out the alleged two-step tactic.
“He (one of the officers) wanted to put us in handcuffs and take our phones away so we couldn’t record,” Martinez said. “Fortunately, that didn’t happen.”
FOX4 troubleshooters requested body camera and dashboard camera footage of the traffic stop after Martinez attempted to request it, but was denied.
Both KHP and the Riley County Police Department declined to release the video, claiming the footage is considered a criminal investigative record under the Kansas Open Records Act.
“In particular, if the footage were released, it would reveal classified investigative techniques or procedures that are not known to the general public,” Riley County said in an email.
But what police tactics are Kansas officers using that they don’t want the public to know about? And what is it about these procedures that makes them so confidential?
“It doesn’t make sense to me,” Martinez said. “What are they trying to hide?”
The problem solvers contacted KHP twice via email for a statement, but said they could not comment on the ongoing litigation or the ongoing litigation processes and procedures.
The playing field is uneven
Martinez said the policeman who stopped him said he was concerned because Martinez took an exit onto a desolate country road. Martinez said he was unfamiliar with the area and was simply looking for a place to get gas.
“I felt harassed,” Martinez said. “I felt, you know, demoralized. I felt like he just invaded all my rights, all my personal rights at that point.
He said he was then told to wait another 30 minutes while KHP called the Riley County Police Department for backup, who eventually arrived with canines to perform a search of the vehicle.
Attorney Norton said the traffic law is rigged in favor of law enforcement.
“Freedom is an illusion. It’s a story we tell ourselves about our society, but the bottom line is that it’s a game and the game is completely rigged,” Norton said.
“It’s completely rigged against the little person, the citizen, and the only way an average citizen can hope to get a level playing field is to hire a lawyer and have almost unlimited resources to go and fight the government, which does have unlimited resources, tooth and nail on these minor issues.
Norton said he believes soldiers are anticipating interactions with citizens who don’t fully understand their rights.
“They want to protect the game they’re playing,” he said. “They want to make sure your average citizen is as clueless as possible about what their rights are, and clueless about what techniques and tactics law enforcement will use to try to get them to give up those rights.”
ACLU senior staff attorney Josh Pierson said the level of reasonable suspicion is shockingly low.
“It’s a very low standard, and really courts generally defer to officers,” said Pierson. “But that’s just not what they say it is, and the Fourth Amendment imposes a limitation, as it was designed to do, on officers’ ability to keep people detained without probable cause or without a warrant.”
Norton said the confusion surrounding reasonable suspicion leads to confusion between both parties, the officer and the citizen, during a traffic stop. It’s something he considers dangerous.
“No one really knows what the contours of the Fourth Amendment will be in any given situation, including the police. They don’t always know what they can and can’t do, and I think that’s bad for the Fourth Amendment,” she said.
“There are other constitutional amendments that people adamantly and fiercely protect, such as the Second Amendment. Nobody sits around and says, “Well, that should be nuanced, if you have the right to own and bear arms.” Everyone says it’s a firm, clear, and clear constitutional rule. Why is the Fourth Amendment different?
Kansas Civil Forfeitures
The ACLU lawsuit suggests that the two-step technique serves as a cash-for-fishing expedition.
The lawsuit alleges that 96 percent of KHP’s civilian asset confiscations in 2019 involved out-of-state motorists driving on Interstate 70. In 2017, drivers with out-of-state plates made up 93 percent of KHP traffic stops.
“State troopers in western Kansas know there are people who go to Colorado, buy marijuana and bring it across Kansas to other states or somewhere in Kansas,” Norton said. “When it becomes legal in Missouri, it will be the same situation.”
Norton said traffic stops are a lucrative business for soldiers because when officers confiscate property from a driver’s vehicle, they sell the items and use the money to fund law enforcement.
“They’re fishing, and the idea is to fish and, you know, now they’ve got good bait,” he said.
Pierson said what happened to Martinez is happening to others as well, something that can break the relationship between law enforcement and people.
“I’d like to think we could have a transparent relationship — we, the public, with law enforcement — and that there wouldn’t be a need for tricks and devices and strategies like this to do their job,” he said.
What are my rights during a Kansas traffic stop?
Norton said that every citizen has the right to remain silent and not answer questions during a meeting with law enforcement. But he acknowledged that there’s often a power dynamic that makes people feel like they can’t.
“Nobody feels like they can ignore a police officer and just walk away or walk away from a police officer who asks, ‘Can I talk to you?’” he said.
Pierson said officers must have a reasonable articulable suspicion to detain you, but that doesn’t necessarily mean they have to communicate their suspicion to the driver.
“Is there nothing (in the law) that requires the officer to tell you what reasonable suspicion is and who to ask? If an officer would volunteer that, that would be fine, and in fact it’s not even a subjective standard,” she said.
“What I mean by that is the officer can be wrong or wrong or use factors they shouldn’t even be using, but as long as a lawyer can step in after the fact and objectively say ‘any reasonable officer would have found a reasonable suspect here’ then the courts will generally say that’s okay.
Norton said most drivers will never have the opportunity to seek justice for an illegal detention, as there are too many barriers associated with litigation.
This makes the potential for illegal detention during a traffic stop all the more daunting.
“You can file a lawsuit, but who has time for that?” he said. “Usually people come home and they’re glad they didn’t get thrown in jail, that they didn’t find or plant something or anything.”
Meanwhile, people like Martinez and the other two people represented in the ACLU’s lawsuit are doing just that: spending a lot of time and money trying to figure out a way to reclaim their rights.
“You feel like you’re an ant standing next to a human, you know, because you try to be as calm as possible and try to say what you think is right and it’s never right, you know?” Martínez said.
“The justice system is, unfortunately, backward, you know, and you think you can count on these cops and soldiers to do well and they still want to hit that quota or whatever the case is, you know, to look better and to catch something that’s not there.” really.
“It’s like, it’s just demoralizing. It makes you feel less human just because they have a badge and a gun.