Police 'Stop-and-Frisk' Illegal?

[newyorkguy]

The New York Times (and other media outlets, community groups and politicians ) have questioned the New York City Police Department's 'stop-and-frisk' policing strategy. It is currently the basis for a federal trial in Manhattan.

Critics say

about 4 percent of police officers’ stops resulted in an arrest or summons, an unusually low rate....Critics cite it as evidence that the police stop people without legal ground in minority neighborhoods and use the stops as an opportunity to search for contraband.

The police disagree:

The department, however, interprets declines in the hit rate as evidence that the tactic works: as more stops deter criminals from carrying guns, there are fewer guns on the street, leading to fewer arrests.

The Supreme Court has held that the reasonable suspicion standard “accepts the risk that officers may stop innocent people” as officers “resolve ambiguities in their conduct,” according to one 2000 decision.

Does a low rate suggest that the police have watered down the meaning of reasonable suspicion — the legal standard officers must meet before stopping someone? Or does it reveal nothing more than the challenging nature of police work?

Link

 

[newyorkguy]

While I understand completely the reason for the stop-and-frisk and also sobriety-checkpoints, I agree with a defense lawyer's comment I read once, that both are clear violations of the Fourth Amendment.

He said the sobriety checkpoint -- where drivers are stopped by police who have absolutely no grounds to suspect them of drinking -- is about as clear an example of unreasonable police search as you're going to get.

I understand the Rehnquist Court allowed it as a permissible intrusion on Fourth Amendment rights. Only some lawyers argue, in strict Constitutional terms, there's no such thing as "permissible intrusion."

 

[casebro]

I believe 'rousting' has been bannished by the SCOTUS already.

 

[newyorkguy]

I'm not sure what you mean by rousting but stop-and-frisk is still used by NYPD. In fact there's a class action suit in New York City against it. Closing arguments are to be presented today. Link

I believe SCOTUS ruled many years ago on Terry v. Ohio, that police could stop and frisk someone based on reasonable suspicion. This expanded the right beyond 'probable cause' and gives police officers a lot of leeway in deciding when they can stop someone and pat them down.

Here's link to a 97-page look at SCOTUS on stop-and-frisk from a St. John's University Law School review. Link

 

[Bikewer]

If there's one thing you learn in police work, it's that search/seizure law is amazingly complex and constantly changing to boot.
We work on the Terry principal.... If we have reason to stop someone then we may "frisk" (a light, external pat-down to discover potential weapons) the person while we're talking to them.
This does not imply a more extensive search.
What the NYPD (and other jurisdictions) are accused of is conducting the "frisk" without any probable cause. Being a young black male on the street corner....

They will argue that "young black males on street corners" are the ones dealing drugs and shooting each other....And that these shakedowns remove a lot of weapons and drugs, even if they don't result in good convictions.

The other side will argue the lack of probable cause.... And they are likely right....

So, what's to be done?

 

[newyorkguy]

It's a complex issue. Made much more complex by that pesky Constitution our Founding Fathers foolishly wrote. (Why couldn't they have settled for a nice FAQ? )

Where I live in New York, there was an increase in gun violence in a nearby neighborhood. Mostly involving youth congregating in the street. The community, largely African-American, held a open meeting at a church to which local police were invited.

A police commander showed up. He said that while he could promise to assign additional officers, he could not promise to have officers "stop the thugs and search them," as people at the meeting were suggesting. He said police needed to have some lawful reason to search people.

A number of the people at the meeting said that, "They're our kids, you have our permission!"

The commander diplomatically suggested they would "patrol more aggressively."

Now a friend of mine who is a police officer told me, when officers working a given area know there is community outrage over street crime, then individual officers often do get a bit more aggressive. Because they feel the community will support it.

 

[Nessie]

I would like this claim

"There, in the final months of 2012, about 4 percent of police officers’ stops resulted in an arrest or summons, an unusually low rate."

to be evidenced. What are the rates of success in stop search?

 

[newyorkguy]

I would like this claim

"There, in the final months of 2012, about 4 percent of police officers’ stops resulted in an arrest or summons, an unusually low rate."

to be evidenced.

I'm not entirely sure what you mean by "evidenced." Did you look at the Times article I linked? The quote itself is in the second paragraph. The percentage was apparently provided by the witness on the stand, Inspector Kenneth C. Lehr, commanding officer of the 67th Precinct, which covers East Flatbush, Brooklyn.

Or do you mean you want the raw NYPD data that the numbers are based on? I doubt that's available anywhere on-line.

 

[JoeTheJuggler]

I'm very interested in these kinds of cases, but find that the news articles leave out lots of important information. Can anyone point me to the name of this case (or even better yet any of the briefs)?

One key question I have is whether or not these stops are being done like sobriety checkpoints--either stop everyone in a given stream or stop every nth person in the stream--or are they being done at the whim of the officer (which introduces the possibility of bias, racial/ethnic profiling, etc.)? In other words, if they're really not stopping anyone for cause (but only to establish a deterrent), they really have to take it out of the hands of officers to do the picking.

Even so, you'd still have the issue of the location of these checkpoints. . . .

 

[Nessie]

I'm not entirely sure what you mean by "evidenced." Did you look at the Times article I linked? The quote itself is in the second paragraph. The percentage was apparently provided by the witness on the stand, Inspector Kenneth C. Lehr, commanding officer of the 67th Precinct, which covers East Flatbush, Brooklyn.

Or do you mean you want the raw NYPD data that the numbers are based on? I doubt that's available anywhere on-line.

I mean is 4% an unusually low rate for success? I would like to see stop search success rates from elsewhere to see if that is true or not.

 

[newyorkguy]

Nessie I think the point the civil liberties advocates are making is, not whether the searches are as successful or less successful compared to other police department's searches, but if in 93%-96% of the stops the person is found to be without contraband then how is the officer acting on 'reasonable' suspicion?

If the odds are 19-1 that the officer is stopping and frisking a person who is innocent of any wrongdoing, is not carrying weapons or contraband of any kind, is that the kind of search the Fourth Amendment was intended to prohibit?

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...link

I confess, however, I see the logic on both sides.

 

[Professor Yaffle]

I found this article, giving some rates for comparison:

Local papers in Croydon reported that the police have increased their success rate, where an illegal item is discovered, from about seven per cent to 19 per cent. However, it seems that some generous manipulation of the statistics has occurred. The seven per cent referred to relates to the arrest rate recorded in June 2011, but in June 2012 the arrest rate was had risen to only 11.3%, a slight improvement but certainly not claimed 19%.

http://www.stop-watch.org/news-comment/story/changing-how-you-measure-but-not-what-you-do

And here's an EHRC report mainly focusing on disproportionality:

http://www.equalityhumanrights.com/uploaded_files/raceinbritain/ehrc_stop_and_search_report.pdf

 

[newyorkguy]

That is a good article because it brings out one of the problems here.

For quite a lot of young people, being stopped and searched by the police is humiliating. Finding one self in the control of police, even for a few minutes, when you know you haven't done anything can be very difficult to deal with emotionally. I'm surprised from police officers I know (and a law enforcement message board I visit), a lot of police officers understand that.

But for many cops on patrol it is something they are required to do. It's not like they have much choice.

 

[PhantomWolf]

I'm very interested in these kinds of cases, but find that the news articles leave out lots of important information. Can anyone point me to the name of this case (or even better yet any of the briefs)?

One key question I have is whether or not these stops are being done like sobriety checkpoints--either stop everyone in a given stream or stop every nth person in the stream--or are they being done at the whim of the officer (which introduces the possibility of bias, racial/ethnic profiling, etc.)? In other words, if they're really not stopping anyone for cause (but only to establish a deterrent), they really have to take it out of the hands of officers to do the picking.

Even so, you'd still have the issue of the location of these checkpoints. . . .

While I do understand that there is a whole PC thing around this, honestly, if one location and the people there are causing the issues, surely that is where you park your cops to be on the lookout. The cops have a pretty good idea of who is likely to be carrying a gun or dealing in drugs, and it's not likely to be your 89-year old grandmother from Manhattan. Non-profiling is a joke that stops actual effective policing where it is needed. When you go into battle, you don't tell your troops to shoot everyone they see and not just those posing a threat or in enemy uniforms, you tell them to pick their targets based on profiling them.

It should be the same for cops. Now that does not just mean “see a black kid, pull him over”. There is far more to proper profiling that just a skin colour. You have to consider the whole picture, look at the person's demeanour, what they are wearing (e.g. do they have gang colours, are they wearing clothing in a way to conceal items, are they acting suspiciously, for instance hanging around on a street corner for hours without apparently going anywhere or trying to avoid the officers, hiding their faces, etc.) It could also mean stopping that apparently rich white lady who just drove her beamer out of a well know drug neighbourhood that she likely had no business in being in. It's about using your brain to pick up all of the signals a person is putting out and targeting them because of that, not just picking random people because that is PC, and not just picking people of one or two minorities regardless of anything else just because they tend to have higher rates of crime committing.

It also increases the ability to give a reason for probable cause.

"Why did your stop my client and frisk him? Was it just because he was hispanic?"

"No, we have been experiencing a lot of trouble with young hispanic kids wearing loosely fitted hood sweatshirts standing around on street corners for several hours for the purpose of selling drugs though. We noted your client on that corner over the course of two hours and due to the neighbourhood, his dress, and his actions, determined that he was a acting very similarly to those who have been causing trouble there."

 

[JoeTheJuggler]

I mean is 4% an unusually low rate for success? I would like to see stop search success rates from elsewhere to see if that is true or not.

From what I read of the articles describing this trial, both sides want to use this as evidence in support of their position. The side against this stop-and-frisk policy argue that it's evidence that the practice isn't justified (and therefore unreasonable). The other side says that it's evidence that the practice works (as a deterrent) and therefore continuing it is justified.

I don't think a lower or higher number would change this fact. So what's left is argumentation. There's not going to be an easy solution based on any objective fact.

 

[JoeTheJuggler]

While I do understand that there is a whole PC thing around this, honestly, if one location and the people there are causing the issues, surely that is where you park your cops to be on the lookout. The cops have a pretty good idea of who is likely to be carrying a gun or dealing in drugs, and it's not likely to be your 89-year old grandmother from Manhattan. Non-profiling is a joke that stops actual effective policing where it is needed. When you go into battle, you don't tell your troops to shoot everyone they see and not just those posing a threat or in enemy uniforms, you tell them to pick their targets based on profiling them.

It should be the same for cops. Now that does not just mean “see a black kid, pull him over”. There is far more to proper profiling that just a skin colour. You have to consider the whole picture, look at the person's demeanour, what they are wearing (e.g. do they have gang colours, are they wearing clothing in a way to conceal items, are they acting suspiciously, for instance hanging around on a street corner for hours without apparently going anywhere or trying to avoid the officers, hiding their faces, etc.) It could also mean stopping that apparently rich white lady who just drove her beamer out of a well know drug neighbourhood that she likely had no business in being in. It's about using your brain to pick up all of the signals a person is putting out and targeting them because of that, not just picking random people because that is PC, and not just picking people of one or two minorities regardless of anything else just because they tend to have higher rates of crime committing.

It also increases the ability to give a reason for probable cause.

"Why did your stop my client and frisk him? Was it just because he was hispanic?"

"No, we have been experiencing a lot of trouble with young hispanic kids wearing loosely fitted hood sweatshirts standing around on street corners for several hours for the purpose of selling drugs though. We noted your client on that corner over the course of two hours and due to the neighbourhood, his dress, and his actions, determined that he was a acting very similarly to those who have been causing trouble there."

This isn't a matter of being PC--it's a matter of the Constitution. You are now arguing that these would be done for cause (because we know this area is a trouble spot, or these kinds of people are troublesome). If that's what they're doing (and I believe it's not), they'd have to get a warrant by convincing a judge that they have evidence that rises to the appropriate standard that a crime has been committed.

Terry stops are an exception in recognition of the fact that some types of evidence is ephemeral and would be long gone if the officer had to stop and get a warrant first.

But what you're arguing is that they do have evidence to justify the searches. Are they arguing these are the same as Terry stops? They have some level short of probable cause to conduct a stop and search (a traffic stop is a seizure, FWIW)? They can point to specific articulable reasons for wanting to stop and frisk someone?

The way I read this news article, that's not what proponents are arguing. They're arguing that the stops are not based on suspicion or probable cause at all.

But again, I'm basing this only on the news article. Does anyone have the name of this case? It's been my experience that news articles oversimplify legal cases to the point of missing the actual issues involved at least some of the time.

 

[newyorkguy]

<snip>
The cops have a pretty good idea of who is likely to be carrying a gun or dealing in drugs..
<snip>

Congratulations, you managed to miss the entire point here.

What you describe is the problem. Apparently the police don't have a pretty good idea of who's likely to be carrying a gun. In New York City only one search in every twenty turns up anything at all. In London it's not much better. In Croydon they're claiming a 20% ratio of successful searches....only nobody believes them!

 

[newyorkguy]

<snip>
Does anyone have the name of this case?..

It's Floyd et al v. City of New York. Here's a link to the Center for Constitutional Rights, with a pretty good explanation of the case. Link

 

[JoeTheJuggler]

It's Floyd et al v. City of New York. Here's a link to the Center for Constitutional Rights, with a pretty good explanation of the case. Link

Thank you!

ETA: And at first glance, I see I was right. These are "suspicion-less" stops. You can't simultaneously argue that you have a good reason for stopping people and that you don't. So PhantomWolf's approach is out of the question. They're also unlike Terry stops, in which case there is some reasonable suspicion (a lower standard than is normally required without a warrant in consideration of the fact that the evidence would otherwise disappear before you could get a warrant). These are more like sobriety checkpoints, I think.

 

[PhantomWolf]

This isn't a matter of being PC--it's a matter of the Constitution. You are now arguing that these would be done for cause (because we know this area is a trouble spot, or these kinds of people are troublesome). If that's what they're doing (and I believe it's not), they'd have to get a warrant by convincing a judge that they have evidence that rises to the appropriate standard that a crime has been committed.

I seriously doubt a judge would give you a warrant to frisk an individual because they have been standing on a corner in a known drug area for the past two hours, yet it is certainly enough to raise suspicions.

Terry stops are an exception in recognition of the fact that some types of evidence is ephemeral and would be long gone if the officer had to stop and get a warrant first.

Which is why they need to be available. Seeing a person wandering around a neighbourhood and suddenly taking a profound interest in the wall each time you drive by isn't enough to get a warrant, and even if it was, the odds are that by the time you get it, the person will be gone, or have completed whatever it was they set out to do.

But what you're arguing is that they do have evidence to justify the searches. Are they arguing these are the same as Terry stops? They have some level short of probable cause to conduct a stop and search (a stop is a seizure, FWIW)? They can point to specific articulable reasons for wanting to stop and frisk someone?

I don't know what they are arguing, I know what I am arguing for.

The way I read this news article, that's not what proponents are arguing. They're arguing that the stops are not based on suspicion or probable cause at all.

But again, I'm basing this only on the news article. Does anyone have the name of this case? It's been my experience that news articles oversimplify legal cases to the point of missing the actual issues involved at least some of the time.

If they want to stop people totally at random, then fine it should be at random, but there should be the ability to stop and frisk based on a reasonable suspicion, even if that suspicion is because they meet the profile of those known to be trouble.