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After rights violations, KS troopers will need written consent for some car searches

Kansas Highway Patrol troopers will be required to obtain written consent from some drivers if they want to continue an interaction after the initial cause of a traffic stop has concluded.

The requirement will appear in an injunction federal Judge Kathryn Vratil will eventually issue against the agency following a July ruling in which she determined the agency had “waged war on motorists” and violated their Fourth Amendment rights through the use of the “Kansas two-step.”

In the practice, troopers would take a couple of steps away from a stopped driver’s car at the end of a traffic stop before returning to begin a “voluntary” interaction with the driver — continuing to probe them and buy time for backup and drug sniffing dogs to arrive.

Last month the Kansas Highway Patrol argued against an extensive injunction Vratil suggested in order to ensure future abuses did not occur. They argued that many of the requirements, including notifying drivers of their rights and ensuring supervisors work identical hours to those they supervise, were overly burdensome. The American Civil Liberties Union of Kansas, representing drivers whose rights were violated, responded that the injunction was essential.

In a response order last month Vratil rejected the Patrol’s argument that the injunction was unnecessary, but offered an alternative proposal in response to the patrol’s concerns. The new proposal still required documentation of traffic stops, that officers obtain consent for searches and training for troopers and supervisors. She asked the Kansas Highway Patrol and ACLU to come together and suggest changes to her proposal.

In a Monday hearing, Vratil reviewed the proposal and remaining disputes. While the Highway Patrol, once again, objected to retrieving written consent from drivers for searches or continued interaction.

In a filing last week the patrol had argued federal law did not require written consent for continuation of traffic stops and recommended a review of video recordings as an alternative.

Vratil said reviewing video would be too burdensome. And while federal law doesn’t require written consent she said the Highway Patrol stands “in a different position” following her ruling.

Her proposed injunction also requires troopers to get permission from supervisors before initiating a search following a traffic stop.

It will be several months before details of the injunction are finalized. Vratil is still considering several details.

During Monday’s hearing she asked the Highway Patrol and ACLU to submit briefs on whether the terms of the injunction should apply to the patrol’s practices statewide or just to interactions on Interstate 70.

“I’m not inclined to order any changes with regards to policing any place other than I-70,” Vratil said, noting that the interactions that led to the lawsuit all occurred on the same highway.

In a written filing the Kansas Highway Patrol said they may apply the practices statewide as a practical matter but Stanley Parker, an assistant Kansas attorney general representing the agency, told Vratil Monday that he saw no reason to expand the injunction past her proposal.

Sharon Brett, legal director for the ACLU of Kansas, said Monday that drivers should not be subjected to different practices based on where they are driving.