Lawrence, Douglas County law enforcement agencies contest ongoing lawsuit stemming from prolonged traffic stop, illegal search
photo by: Journal-World File Photos
A police maneuver known as the “Kansas Two Step” is at the heart of a lawsuit against local law enforcement alleging that an officer detained a man for an unlawfully prolonged traffic stop, which then led to an illegal search.
The “Two Step” is when an officer stops a vehicle for a traffic infraction and gives the driver a ticket or warning. The officer then takes a few steps away from the vehicle, turns back and asks the driver to answer a few more questions, thus engaging the driver in a new and voluntary encounter.
But attorneys for the Lawrence Police Department and Douglas County Sheriff’s Office say that the plaintiff in the lawsuit has not shown that a pattern exists of officers violating people’s rights sufficient to support the claims. They responded last week to a second amended complaint in a lawsuit filed by Orlando Calvo-Pino, who was stopped by Lawrence police officer Matthew R. Weidl on Interstate 70 on Feb. 2, 2018.
As the Journal-World has reported, Calvo-Pino’s lawsuit argues that he was stopped and detained for an unreasonably long time, told he was free to go with a warning, but then he was searched and arrested after the officer reengaged him.
Calvo-Pino’s attorney, Jamie Lansford of the Law Office of Arthur Benson II, wrote in recent court documents that she now has depositions and documentation to support that leaders of both law enforcement agencies were or should have been on notice of cases throughout Kansas that challenged officer conduct similar to Weidl’s, yet they did nothing to stop Weidl or other officers from those practices. She also noted that forfeited assets fund the Drug Enforcement Unit, which is a joint operation of LPD, the sheriff’s office and the district attorney’s office.
But attorneys for Interim Chief of Police Anthony Brixius, Weidl and the City of Lawrence say that Calvo-Pino has “failed to plead any other incident of any alleged constitutional violation” by LPD officers, nor has he shown that the city should be liable. An attorney for Douglas County Sheriff Randy Roberts wrote that Calvo-Pino’s complaint lacks the factual basis to support the notion that a failure to train had caused “constitutional injury” to others.
The stop and ‘Kansas Two Step’
A Douglas County District Court judge already ruled in Calvo-Pino’s 2018 criminal case that his constitutional rights — specifically, his Fourth and Fourteenth Amendment rights — were violated. Now-retired Judge Peggy Kittel granted a motion to suppress all evidence seized from the stop; the case, a charge of “unlawful acts involving proceeds” derived from drugs, was dismissed shortly thereafter.
However, the city’s answer to the complaint states that Calvo-Pino had no constitutional rights violated by any of the defendants.
Weidl pulled Calvo-Pino over because Calvo-Pino had used his turn signal late, after he had already made an initial move into the left lane, according to court documents. Weidl said he saw this occur behind him; then, when Calvo-Pino had passed the police vehicle, he signaled and moved back into the right lane right in front of Weidl, court documents state. Weidl then followed Calvo-Pino for about 2 miles before initiating a traffic stop.
Kittel, in a decision filed June 24, 2019, ruled that the officer did not have sufficient reasonable suspicion to believe that Calvo-Pino was engaged in illegal activity that would have warranted an extended traffic stop. Instead, Weidl was suspicious because Calvo-Pino had a Rottweiler puppy, a 50-pound bag of dog food, a new horse saddle and a cowboy hat in the vehicle, which was a rental car, the ruling stated.
But Calvo-Pino had nothing illegal in the vehicle, according to court documents. There was a substantial amount of cash, and Calvo-Pino told officers it came from the sale of some horses a few days prior. The officers also found a pistol in a satchel, along with a notebook containing some numbers, according to court documents.
“After the defendant was told he was free to go and started walking back to his car, the officer re-engaged the defendant in conversation which led to a consensual search of the vehicle,” Kittel wrote in the ruling. “No illegal items were found, although the officer found a ledger with some numbers in it and also found $12,000 cash stashed in a large bag of dog food.”
It was not clear from the documents what led law enforcement to believe the cash was connected to drugs.
“Officer Weidl testified that the defendant did not appear nervous or scared,” Kittel’s decision stated. “The defendant was cooperative. There were no illegal items in plain view, and there was no odor of illegal drugs.”
Lansford wrote that the defendants “can hardly claim to be uninformed about the maneuver employed by Weidl” that is referred to as the “Kansas Two Step.”
photo by: Richard Gwin/Journal-World File Photo
The maneuver is actually included as part of an ongoing lawsuit the American Civil Liberties Union has filed against the Kansas Highway Patrol on behalf of multiple plaintiffs.
The Kansas Court of Appeals explained it in a November 2019 opinion, which concluded with an order to suppress evidence obtained in a search:
“After telling [the driver] to have a safe trip [the trooper] turned his body, took two steps toward his patrol vehicle, turned back around, and through the Escalade’s still open passenger window, asked [the driver] if he would answer a few more questions,” the opinion states. “This maneuver is known as the ‘Kansas Two Step’ and is taught to all Kansas Highway Patrol officers as a way to break off an initial traffic detention and attempt to reengage the driver in what would then be a consensual encounter.”
In the complaint, Lansford wrote: “As Calvo-Pino was walking to his car, Weidl got out of his vehicle and reengaged Calvo-Pino as Calvo-Pino was approaching the rear of his vehicle. Weidl asked Calvo-Pino if he was willing to stay and talk to him and Calvo-Pino responded that he was.”
In an answer on behalf of Brixius, Weidl and the city, attorney Jana Richards wrote that “These Defendants deny the allegations set forth” in that paragraph.
The lawsuit states that Calvo-Pino, a Colorado resident at the time, had to travel to Kansas 11 times for court appearances at a cost of approximately $500 per trip, and that he and his wife had their credit destroyed because of the seizure of currency. Calvo-Pino also had to pay attorneys’ fees for his defense, and he was humiliated and embarrassed by his arrest and subsequent night in jail, the complaint states.
In the complaint, Lansford wrote that LPD officers in the Drug Enforcement Unit are cross-deputized so they are also sheriff’s deputies. The DEU’s sheriff’s office deputies work undercover in unmarked cars, but the LPD officers are on patrol in uniforms and marked vehicles, and they make traffic stops “for purposes of interdicting illegal drug activities.” She also noted that forfeited property and proceeds awarded through the courts fund Lawrence and Douglas County law enforcement.
Sheriff Roberts’ motion to dismiss the case includes as an exhibit the memorandum of understanding between LPD and the sheriff’s office about the Drug Enforcement Unit.
The MOU states that in uncontested forfeitures, LPD gets 40%, the sheriff’s office 20%, the DEU 25% and the Douglas County DA’s office gets 15%, plus expense of advertisement, of forfeitures. In contested forfeitures, the percentages are 35%, 20%, 25% and 20%, plus expense of advertisement, respectively.
Outside law enforcement agencies that assist with the investigation will receive 10% of the awarded forfeiture, equitably distributed from the awarded forfeited funds as agreed by the sheriff, chief of police and DA, according to the MOU.
Is there a case?
The question now is whether Calvo-Pino’s claims are enough to substantiate the lawsuit against the city, law enforcement supervisors and Weidl.
Overall, the second amended complaint accuses Weidl of unlawful detention, search and arrest, and it alleges that Brixius, Roberts and the City of Lawrence failed to adequately train DEU officers to avoid prolonged traffic stops and coercive tactics.
But the defendants argue that Calvo-Pino still hasn’t shown a pattern of similar violations by other officers that would justify a claim that there are departmentwide problems. A motion to dismiss the counts against Brixius and the city notes that the allegations surround “one single incident with one single officer.”
The sheriff’s new motion to dismiss says Calvo-Pino’s complaint states that Roberts never asked whether DEU officers were engaging in prolonged traffic stops, but it offered no facts showing that he needed to ask. It also says the complaint is “devoid of any facts demonstrating the necessity for monitoring or supervision of professional law enforcement officers.”
Benson, reached via email Friday, said the law firm would soon file oppositions to the motions to dismiss. Spokespeople for LPD and the sheriff’s office declined to comment on the pending litigation.
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