At Techdirt, Tim Cushing makes a good point.

A law enforcement activity doesn’t get a catchy nickname unless it’s pervasive. And the “Kansas two-step” is not only pervasive, it’s becoming known nationwide despite being a local phenomenon.

Kansas state troopers are taught this one cool trick that, they were told, enabled them to circumvent the Fourth Amendment and turn a seizure into a consensual stop and, well, whatever follows once consent is tacitly obtained. From Senior U.S. District Judge Kathryn Vratil’s decision holding it unconstitutional, the description of the dance is too cute by half.

So how do troopers elicit consent? Sometimes—actually, in a surprising number of cases—the troopers need only ask. Most drivers do not know that they have a right to deny consent, and troopers are more than happy to exploit their lack of knowledge of their legal rights. Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way.

For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent—a maneuver colloquially known as the “Kansas Two-Step.” If the driver persists in refusing to consent, the trooper has a fallback position: search the vehicle anyway and claim that he had reasonable suspicion all along.

Tim connects this to the old TV show “Columbo,” where disheveled and confused Peter Falk in his wrinkled raincoat finishes his questioning with “Oh, one more thing” and then nails the perp to the wall. It made for fun TV, and was never intended as an instructional video.

The concept behind the dance is that by ending the initial stop, handing back papers and wishing the motorist a “nice day,” and then taking a step away to break the chain of events such that the subsequent return constitutes an entirely new interaction, the police can circumvent the limits on police extending the seizure beyond the time needed to complete the traffic stop.

The overall strategy behind pretextual policing is legal—and that fact is not likely to change any time soon. In the meantime, the law has two primary checks on pretextual policing: (1) it limits the “tolerable duration” of a traffic stop and (2) if troopers do not have reasonable suspicion, it requires drivers’ consent to extend the duration of the stop. In Rodriguez v. United States, 575 U.S. 348 (2015), the Supreme Court made clear that the traffic stop may last no longer than necessary to effectuate its purpose: “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns . . . . Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’”

Beyond that time, if the trooper lacks reasonable suspicion, he may extend the stop to ask questions unrelated to the stop, or to wait for other officers or a drug dog to arrive—but only with the driver’s consent. If a driver merely submits to a trooper’s show of authority, the driver has not given willing and voluntary consent and the trooper has committed a seizure for which he must have reasonable suspicion.

The cool part of the trick is that the driver, whether being polite or realistically concerned that if he does anything other than engage with the cop after the traffic stop is over, has no clue that his remaining and engaging in further questioning is consensual because, as the Kansas troopers are taught, a reasonable person would know he’s free to go and thus, by not going, the interaction is consensual.

This is, of course, unmitigated malarkey, which is why the troopers do this and why no driver without a death wish tells the cop “bite me, asshole” as he blithely drives off. And, as Judge Vratil notes, even if the driver does disengage after the “have a nice day…oh wait” scam, the cops will either use that as an excuse to seize or just make something up.