Tulsa Attorney BlogKansas Two-Step Ruled Unconstitutional; So What About OHP’s Consensual Encounters?

Oklahoma’s Consensual Encounters: Unconstitutional Traffic Stops

Unconstitutional Traffic Stops

Kansas’ two-step ruled unconstitutional so what about Oklahoma’s consensual encounters? I’m James Wirth, an attorney in Tulsa. That is a topic that we have. It has to do with a new case coming out of Texas. It is in the United States District Court for the District of Kansas. The case number is 19-1343-KHV and that is regarding specifically a traffic stop that they are contending and a violation of their Fourth Amendment rights that they contended from that and it talks about the Kansas two-step.

So what is the Kansas two-step? Well essentially that is a policy and procedure that is utilized in Kansas by their Highway Patrol in order to prolong a traffic stop to do a further investigation than would otherwise be allowed and in this case the court ruled that it is unconstitutional and that’s pretty interesting for criminal defense attorneys in Oklahoma because the Oklahoma Highway Patrol uses that exact same method although they don’t call it the Oklahoma two-step they usually call it a consensual encounter.

What is a Consensual Encounter?

So what is it and how does it work? So typically if we’re talking about Highway Patrol in Oklahoma they are stopped along the highway at certain places. You see it very frequently here in Bonita right by where the toll booths are and they decide to target certain things. They’re watching all those cars go by through the toll booth. They see them perhaps slow down a little bit. They see ones that don’t have the pike pass to go to a different lane and they’re looking generally speaking from my experience they’re looking for a couple different things. One we see what looks to be a little bit of racial profiling. We look for them looking for out-of-state tags and we look for them potentially seeing cars that may be rental vehicles because they’re targeting vehicles that they think may be trafficking in drugs because one they want to crack down on that sort of thing, war on drugs, but two there’s a financial incentive to do so.

If they find large amounts of cash from the trafficking of drugs they forfeit those and they have the state keep those. A portion of those funds get to go to law enforcement and the prosecutor. So there’s a lot of money potentially involved and that is what funds these projects to push for these stops.

How Does a Consensual Encounter Work?

One, they’re stopped. They want to see who they want to pull over. They look for a traffic violation in order to do so. What we see in Bonita is they look for when the person goes through. It’s really questionable whether there’s a lane change because the additional lane adds on. You don’t actually move over but there’s an argument that there’s a lane change there even though you’re not moving over. So they assert that you were supposed to signal for that so when there’s no signal they use that as a basis to pull you over.

So they determine they want to pull you over. They pretty much automatically have a basis to do so because virtually nobody uses a turn signal at that location and then they can stop you. At that point, they have to be investigating this crime that they saw because that’s the only one they have reasonable suspicion of a probable cause of. So they pull you over and detain you for that.

They’re writing you a ticket for failing to signal but they are not allowed to prolong that stop any longer than is necessary to investigate that traffic stop and to write that citation. Anything beyond that is a violation of your Fourth Amendment rights and lawful and reasonable detention or search and seizure.

So usually what they do as part of this two-step method is they write you a warning citation. They don’t actually write you a citation. They write you a warning. They hand that back to you. They say you’re free to go and then they take one or two steps away and then they immediately turn back around and ask, hey can I ask you a few more questions? So the idea was that the traffic stop ended, you’re free to go, but they want to be super quick so you feel like you’re not free to go so that you have to answer those questions.

So they do that in order to get almost virtually everybody to stop and continue asking questions, ask you where you’re coming from, coming true because they’re trying to develop an investigation to see if they can get a search of your vehicle to see if they can find large amounts of cash or other contraband, CDS, drugs. So from that point forward because you voluntarily answered additional questions after they told you the traffic stop was over, they’re going to say that that is voluntary, that you consented to that detention so it is not a Fourth Amendment concern.

The Ruling and Implications

The federal court in Kansas was reviewing this and essentially they noted that in order to do a further stop after they give you that warning citation, there has to be reasonable suspicion of a crime, articulable reasonable suspicion that they’re investigating, or voluntary consent. They’re saying that this is voluntary consent, that it is a sufficient break in contact with the driver for a reasonable driver to believe that he or she is free to leave. They note that Kansas has the burden of showing that under the totality of the circumstances.

But as the court notes in the videotapes showing the Kansas two-step, the court reviewed during the trial, the periods of disengagement were not sufficient for reasonable drivers to believe they were free to go. A one-second break in contact with the trooper or even a three and five-second break does not create a clear end to the traffic stop in the mind of a reasonable driver. Then walking away and taking four or fewer steps does not create a sufficient break. It notes that faced with a Kansas trooper who has performed the two-step, a reasonable person does not feel free to disengage the police and go about his business.

Of course, being you know a defense attorney seeing all these cases, it’s always the same every time with OHP at this location. Give you the warning, walk away for half a second. Sometimes they keep their you know arm or foot and put it back in the car to stop a closing of the door. Sometimes I’ve seen that. A long story short, we know that people do not feel like they are free to go in those circumstances. But Kansas Highway Patrol and the Oklahoma Highway Patrol believe that that is a technicality that they can say that there was a break there and everything after that point was consent. And in Oklahoma, they have continued to get away with this over and over again. But we’re seeing something a little bit different and new here in Kansas from this case where the federal court there, the lower level federal court has ruled that this is unconstitutional. So we’re gonna be following this very closely to see where it goes because the policies used by the Kansas Highway Patrol that is ruled unconstitutional are exactly the same as what Oklahoma Highway Patrol does and what many defendants face when they are unlawfully stopped and detained further beyond what was necessary to do that initial ticket without reasonable articulable suspicion to do a further investigation.

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If you’ve got questions regarding the case in Oklahoma you’re probably gonna want to talk to an intern about that privately and confidentially. To get that scheduled with a traffic ticket lawyer in Oklahoma at my office you go online to MakeLawEasy.com.

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