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University of Kansas Law Review

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In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and 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 driver did not, the officer has grounds for a stop, which gives him a chance to ask to search.

Despite Kansas officers' apparent practice of stopping certain cars and certain people, claiming that the cars left their primary lane of travel, and notwithstanding that federal and Kansas law make fog-line infractions easy to prove, judges in the District of Kansas have granted 40% of motions to suppress evidence in recent fog-line cases. The relative success of defendants at suppressing evidence in these cases should cause Kansas police to question the effectiveness of pretextual fog-line stops, especially given the risk that the public will perceive pretextual stops as motivated by skin color and ethnicity and considering the evidence from other states that discriminatory searches are counterproductive in uncovering crime.



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