"You Crossed the Fog Line!" Kansas, Pretext, and the Fourth Amendment

Abstract

This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer typically makes no mention of the reasons for selecting this particular car for careful scrutiny. Given the limited data, there is no way to know whether Kansas police are engaging in lawful, but controversial, pretextual stops or, conversely, dishonestly claiming to witness lane drifts that never occurred. In either event, Kansas officers appear to be acting on unreliable stereotypes, such as skin color and out-of-state status, in choosing which cars to stop. In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth; it overlooked the cost of under-enforcement of the laws; and it ignored the consequences to the criminal justice system of race and ethnicity based discrimination. Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes no difference that every driver occasionally crosses the fog line or that an individual driver left his lane without presenting any danger to another person, object, or animal. As long as a Kansas officer can credibly testify that the weather and road conditions made it practicable to stay within a single lane but that the defendant/driver did not, the officer has grounds for a stop, which gives the officer a chance to ask to search.