Police 'Stop-and-Frisk' Illegal?

[newyorkguy]

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.

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.

I think in the examples you cite there would be no problem with an officer stopping them on the grounds of reasonable suspicion. In fact in New York there is a charge, "Loitering for the Purpose of Using Narcotics."

Here's the statute from New Rochelle NY, a suburban city located outside NY City.

No person shall loaf or loiter on any street or other public place for the purpose of using illegal drugs...

Link

 

[JoeTheJuggler]

Hmmm. . and the facts wrt plaintiff Floyd don't seem to line up with suspicion-less searches either. According to the officer's report, Floyd was stopped and searched because they suspected he was attempting to commit burglary. They were just wrong. Curiously, in the same report they also checked the box to indicate that the subject was not in fact searched. So they were wrong and they lied (or they're tremendously incompetent--or they were covering up racial profiling and are pretty incompetent--take your pick).

In a number of similar cases like this, the officers said they were executing a stated policy of conducting a quota for a number of stop and frisks (or arrests or summonses--which, of course are not the same thing). Now if that policy came with instructions to do so without regard to probable cause, then there's a huge problem. If not, I think it's the officers themselves who are to blame for violating the Constitution.

But I've only just starting reading about the case and haven't yet found any of the parties' briefs.

 

[PhantomWolf]

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!

Not entire true.

Let's say that you have a city with populations of Maggles, Toggles, and Deeps living in it.

You have to help stop crime. You look at the statistics and see that even though they make up only 35% of the popluation of the city, 96% of victims of gun crime are either Maggles or Deeps, and 97% of the perpetrators of gun crimes are also Maggles or Deeps. Who are you most likely to focus on in trying to stop people walking the streets with guns? Would you consider it worth while spending 65% of your time in stopping and checking Toggles, who are only responsible for 3% of gun crime?

Secondly, if 75% of those Maggles or Deeps who commit gun crimes are male, in their late teens to early thirties and are dressed in hoodies, are you going to be stopping those Maggles or Deeps in business suits?

Now let's say that while 80% of the Maggle and Deep population aged in their late teens to early thirties wear hoodies, but only 5% of them are actually responsible for commiting gun crimes, what is going to be your hit rate if you exclusively target male Maggles or Deeps in their late teens to early thirties and are dressed in hoodies?

 

[JoeTheJuggler]

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.

You can raise all the unprovoable suspicions you want; it doesn't make the Fourth Amendment go away.

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.

No they shouldn't. In fact, if they do that, they're breaking the law. Racial profiling is illegal by statute (several of them, in fact) and by the 4th and 14th Amendments.

By definition such "suspicions" are not reasonable. It's not enough for someone to belong to a racial or ethnic category to justify what would otherwise be an unreasonable search or seizure.

 

[JoeTheJuggler]

Not entire true.

Let's say that you have a city with populations of Maggles, Toggles, and Deeps living in it.

You have to help stop crime. You look at the statistics and see that even though they make up only 35% of the popluation of the city, 96% of victims of gun crime are either Maggles or Deeps, and 97% of the perpetrators of gun crimes are also Maggles or Deeps. Who are you most likely to focus on in trying to stop people walking the streets with guns? Would you consider it worth while spending 65% of your time in stopping and checking Toggles, who are only responsible for 3% of gun crime?

Secondly, if 75% of those Maggles or Deeps who commit gun crimes are male, in their late teens to early thirties and are dressed in hoodies, are you going to be stopping those Maggles or Deeps in business suits?

Now let's say that while 80% of the Maggle and Deep population aged in their late teens to early thirties wear hoodies, but only 5% of them are actually responsible for commiting gun crimes, what is going to be your hit rate if you exclusively target male Maggles or Deeps in their late teens to early thirties and are dressed in hoodies?

Did you know that most violent crimes and very nearly all rapes are committed by people that have a Y chromosome?

Do you suppose the framers of the Constitution thought the 4th Amendment would not prohibit what would otherwise be unreasonable searches and seizures against any male? That being male justified the government conducting such warrantless and otherwise suspicion-less searches and seizures?

ETA: The Supreme Court has often rejected the theory of guilt by association. The burden of evidence remains on the state to justify any searches and seizures. You simply can't use membership in an association as justification for what would otherwise be an unreasonable search and/or seizure.

 

[PhantomWolf]

From the NYPD 2012 Stats:

Shootings

Shooting victims are most frequently Black (71.4%) or Hispanic (24.7%). White victims account for an additional (3.0%) of all Shooting victims while Asian/Pacific Islanders victims account for (0.9%) of all Shooting Victims.

The race/ethnicity of known Shooting suspects is most frequently Black (74.7%). Hispanic suspects accounted for an additional (21.9%) of all suspects. White suspects (2.7%) accounted for the remaining significant portion of suspects while Asian/Pacific Islander suspects accounted for (0.7%) of the known Shooting suspects.

The Shooting arrest population is similarly distributed. Black arrestees (72.9%) and Hispanic arrestees (24.0%) account for the majority of Shooting arrest population. White arrestees (2.5%) and Asian/Pacific Islander (0.6%) account for the remaining portion of the Shooting arrest population.

Firearm Arrests (satisfying specific selection criteria)

The Firearm Arrest population is most frequently Black (69.4%) or Hispanic (26.3%). White arrestees account for (3.6%) and Asian /Pacific Islanders account for (0.7%) of the total Firearm arrest population.

The Firearm arrest group consists of arrests in which at least one firearm is recovered and the arrestee is charged with a Dangerous Weapons Felony charge. The Dangerous Weapon charge may also be one of many arrest charges lodged, some of which may be for more serious violent felonies. This arrest population therefore overlaps with arrests for other violent crimes that appear in other charts.

 

[Tiktaalik]

Some legal notes: two doctrines came from the Terry Case (Terry v State of Ohio, 1968):

Terry Stop (also known as an investigative detention)
Terry Frisk (also known as a pat-down)

While these have been modified by further case law, the following principles apply:

In order to perform a Terry Stop, you must believe (defined as 'reasonable suspicion')
1) that a crime has, is now, or is about to occur
2) that the person you are stopping may be responsible

In order to perform a Terry Frisk (defined as a 'limited pat-down of the outer clothing') you must believe
1) that the person may be armed with a weapon

Your reasonable suspicion may be based on a long laundry list of circumstances, experience, and knowledge. The frisk is further modified by the 'plain feel' doctrine (contraband can be removed if the officer can immediately identify it as such through experience) and other case law, such as witness reports. The person being frisked does not have to actually end up having been armed. Anything that can hurt the officer or anyone else can be identified as a weapon, including pens, knives, credit-cards (given the known existence of credit-card knives and razor blades), firearms, and many other items.

You do not need Probable Cause, only Reasonable Suspicion (see also Graham v. Connor and related case law). It is a fairly modest standard.

There are a lot of complications developed through case law, and Terry is one of the doctrines I personally have seen most misunderstood, both by the public and in the field. I don't know anything about the case cited above.

 

[JoeTheJuggler]

Some legal notes: two doctrines came from the Terry Case (Terry v State of Ohio, 1968):

Terry Stop (also known as an investigative detention)
Terry Frisk (also known as a pat-down)

While these have been modified by further case law, the following principles apply:

In order to perform a Terry Stop, you must believe (defined as 'reasonable suspicion')
1) that a crime has, is now, or is about to occur
2) that the person you are stopping may be responsible

In order to perform a Terry Frisk (defined as a 'limited pat-down of the outer clothing') you must believe
1) that the person may be armed with a weapon

Your reasonable suspicion may be based on a long laundry list of circumstances, experience, and knowledge. The frisk is further modified by the 'plain feel' doctrine (contraband can be removed if the officer can immediately identify it as such through experience) and other case law, such as witness reports. The person being frisked does not have to actually end up having been armed. Anything that can hurt the officer or anyone else can be identified as a weapon, including pens, knives, credit-cards (given the known existence of credit-card knives and razor blades), firearms, and many other items.

You do not need Probable Cause, only Reasonable Suspicion (see also Graham v. Connor and related case law). It is a fairly modest standard.

There are a lot of complications developed through case law, and Terry is one of the doctrines I personally have seen most misunderstood, both by the public and in the field. I don't know anything about the case cited above.

From what I can tell, though, the plaintiff is not arguing this as a Terry stop (that the search is justified because evidence of probable cause would likely otherwise disappear and therefore a reduced standard can justify a warrantless search and/or seizure) but as suspicion-less searches and seizures.

While the lowered standard in Terry stops is as you say a "modest standard", the plaintiff is arguing (best I can tell) that they don't need even reasonable suspicion. I think they're trying to argue it more like a sobriety checkpoint. They're not so much even trying to find evidence of crimes as they are trying to deter crime.

The problem is, as I mentioned, that what NYC is doing doesn't much resemble what the Supreme Court found to be constitutional sobriety checkpoints.

http://supreme.justia.com/cases/federal/us/496/444/case.html

[ETA: The Michigan sobriety checkpoint case I cited here relied on the Brown balancing test to justify the sobriety checkpoint--a test the NY City stop and frisk policy would not pass.]

 

[JoeTheJuggler]

From the NYPD 2012 Stats:

Shootings

Shooting victims are most frequently Black (71.4%) or Hispanic (24.7%). White victims account for an additional (3.0%) of all Shooting victims while Asian/Pacific Islanders victims account for (0.9%) of all Shooting Victims.

The race/ethnicity of known Shooting suspects is most frequently Black (74.7%). Hispanic suspects accounted for an additional (21.9%) of all suspects. White suspects (2.7%) accounted for the remaining significant portion of suspects while Asian/Pacific Islander suspects accounted for (0.7%) of the known Shooting suspects.

The Shooting arrest population is similarly distributed. Black arrestees (72.9%) and Hispanic arrestees (24.0%) account for the majority of Shooting arrest population. White arrestees (2.5%) and Asian/Pacific Islander (0.6%) account for the remaining portion of the Shooting arrest population.

Firearm Arrests (satisfying specific selection criteria)
But they are (again best I can tell from what I've read) arguing these are suspicion-less stop and frisks.
The Firearm Arrest population is most frequently Black (69.4%) or Hispanic (26.3%). White arrestees account for (3.6%) and Asian /Pacific Islanders account for (0.7%) of the total Firearm arrest population.

The Firearm arrest group consists of arrests in which at least one firearm is recovered and the arrestee is charged with a Dangerous Weapons Felony charge. The Dangerous Weapon charge may also be one of many arrest charges lodged, some of which may be for more serious violent felonies. This arrest population therefore overlaps with arrests for other violent crimes that appear in other charts.

You're still missing the point. These stats aren't any more meaningful than the stats showing males commit the vast majority of violent crimes and very nearly all rapes. Being male alone ought not make you subject to what would otherwise be an illegal search and/or seizure.

In fact, racial profiling is illegal, and by definition membership in a racial or ethnic category alone does not comprise reasonable suspicion.

 

[PhantomWolf]

You're still missing the point. These stats aren't any more meaningful than the stats showing males commit the vast majority of violent crimes and very nearly all rapes. Being male alone ought not make you subject to what would otherwise be an illegal search and/or seizure.

In fact, racial profiling is illegal, and by definition membership in a racial or ethnic category alone does not comprise reasonable suspicion.

So if the police are looking for a rapist, you think they should spend 51% of their time on looking for female suspects because that's the population of male to female? Or do you think that they should spend their time focusing on male suspects since 99% of rapes are commited by males?

 

[marplots]

You're still missing the point. These stats aren't any more meaningful than the stats showing males commit the vast majority of violent crimes and very nearly all rapes. Being male alone ought not make you subject to what would otherwise be an illegal search and/or seizure.

In fact, racial profiling is illegal, and by definition membership in a racial or ethnic category alone does not comprise reasonable suspicion.

At some point this breaks down. For example, if my pool of candidates is male and female, I might very well be more interested in males (re: rape). It also breaks down as we add more elements, so that at some point, the search becomes legal.

The burden should be to prove that some discriminator will select (preferentially) the crooks you want to catch. Those characteristics, whatever they may be, have to be evaluated only on the results produced. They should be transparent to politically loaded categories so that if, "wearing a t-shirt with the word Jesus" gives you the results you want, then the other implications shouldn't matter.

This is the same sorting task we find all over the place. If a certain zip code or credit rating indicates a lower number of auto accidents, I am wise to look at those things when setting insurance rates - regardless of what else those statistics may say about people.

If appearance is related to crime, then appearance ought to be used by law enforcement. If behavior, age, language skills or any of a hundred other things are relevant - and they can be shown to be so - then any or all might be useful. Race or gender shouldn't be off the table merely because these things make us uncomfortable.

 

[JoeTheJuggler]

So if the police are looking for a rapist, you think they should spend 51% of their time on looking for female suspects because that's the population of male to female? Or do you think that they should spend their time focusing on male suspects since 99% of rapes are commited by males?

You're miscasting the question before the court. It's not about where police should focus their efforts. It's about what police efforts are legal.

To be analogous the question should be, can police conduct what would otherwise be an unreasonable search and seizure under the 4th Amendment on a person for no other reason but that he is male (given that nearly all rapes are committed by males)?

The answer is no.

 

[JoeTheJuggler]

At some point this breaks down. For example, if my pool of candidates is male and female, I might very well be more interested in males (re: rape). It also breaks down as we add more elements, so that at some point, the search becomes legal.

The burden should be to prove that some discriminator will select (preferentially) the crooks you want to catch.

No. It's not at all like that. They don't even have any evidence (not probable cause, not reasonable suspicion) that a crime has even taken place or is about to.

The point here is does the statistical likelihood that a person of a certain racial profile (or in my example, with the appropriate gender) is more likely than the rest of the population to commit a crime--does that fact alone--justify what would otherwise be an unreasonable search or seizure under the 4th Amendment.

FWIW, I strongly doubt that the defendant in this case (NY City or the individual police) are going to try to assert racial profiling as reasonable suspicion. For one thing, the stuff I've read says they're portraying these as suspicion-less stops (more like sobriety checkpoints) and for another, they're fully aware that that question has been answered and is long settled law. (Several statutes and plenty of case law says that membership in a given racial or ethnic group alone is not sufficient to justify what would otherwise be an unreasonable search or seizure. In other words, they know full well that's illegal.)

This is the same sorting task we find all over the place. If a certain zip code or credit rating indicates a lower number of auto accidents, I am wise to look at those things when setting insurance rates - regardless of what else those statistics may say about people.

If appearance is related to crime, then appearance ought to be used by law enforcement. If behavior, age, language skills or any of a hundred other things are relevant - and they can be shown to be so - then any or all might be useful. Race or gender shouldn't be off the table merely because these things make us uncomfortable.

It's not the same task at all. This nothing like risk assessment. The question is not the degree of risk to an indemnifier. The question is, what justifies what would otherwise be an unreasonable search or seizure by an agent of the government?

And again, I don't think the defendant in this case is even making the argument you guys are trying to make. In fact, racial profiling is fairly well settled law. It's illegal by statute (several at various levels of government) and constitutional jurisprudence.

 

[marplots]

You're miscasting the question before the court. It's not about where police should focus their efforts. It's about what police efforts are legal.

To be analogous the question should be, can police conduct what would otherwise be an unreasonable search and seizure under the 4th Amendment on a person for no other reason but that he is male (given that nearly all rapes are committed by males)?

The answer is no.

Except that, at some point, the search becomes reasonable based on a selection criteria. "Having what appeared to be a gun in his waistband" would be a selection criteria that would allow what would otherwise be an unreasonable search and seizure under the 4th Amendment.

The appearance of a gun is no different than any other criteria, since a certain percentage of people either won't actually have a gun or are permitted to have a gun. It's merely a matter of showing that the selection is validated by statistics - more people who appear to have a gun in their waistband are scofflaws than not.

There is always a selection category on offer. None should be excluded out of hand, and all that are included should have a justification.

ETA: Joe, we cross-posted and I think your position is more nuanced than my response addresses.

 

[PhantomWolf]

You're miscasting the question before the court. It's not about where police should focus their efforts. It's about what police efforts are legal.

To be analogous the question should be, can police conduct what would otherwise be an unreasonable search and seizure under the 4th Amendment on a person for no other reason but that he is male (given that nearly all rapes are committed by males)?

The answer is no.

And you're begging the question. You are assuming that the higher level of stop and frisks are performed on Black and Hispanic people simply because they are Black and Hispanic. This is begging the question.

You have a situation where the police statistics are showing that 96% of the victims of gun crime are Black or Hispanic, and that 97% of the criminals involved in gun crime are Black or Hispanic. Where then do you focus your resources? In the white neighbourhoods where only 3% of the gun crime in happening, or in the Black and Hispanic ones were 97% of the gun crime is happening?

Answer this. Is it fair to those living in Black and Hispanic neighbourhoods who are at least 50x more likely to be a victim of gun crime than a person in a white neighbourhood, that those in white neighbourhoods get 65% of the police power and patrols just so that they can have a population based stop and frisk percentage? In other words, so that there is no evidence of racial profiling do you think that even though gun crime is 32x higher in Black and Hispanic neighbourhoods, they should get half the policing power and stop and frisks that white neighbourhoods get so that it matches up with their percentage of population? Because that is what you are asking for.

If you want the police to be acting in the locations were the majority of gun crime is, then they will be stopping people in the areas that have high gun crime, and as the statistics are saying that those areas are predominately Black and Hispanic, then the obvious result of that is that the vast majority of people stopped will be Black or Hispanic simply because they are the ones were the issues are. The only way to avoid that is to deliberately not focus the police personnel into the very neighbourhoods that have the highest gun crime rates, and how is that fair on the victims of gun crime?

 

[theprestige]

Probably the only acceptable solution is for the police to do nothing at all until society evolves to a more enlightened state where crime statistics no longer break down along racial or ethnic lines.

 

[JoeTheJuggler]

And you're begging the question. You are assuming that the higher level of stop and frisks are performed on Black and Hispanic people simply because they are Black and Hispanic. This is begging the question.

No, it's what you insisted was going on.

I don't think it's what the defendant is even arguing.

You have a situation where the police statistics are showing that 96% of the victims of gun crime are Black or Hispanic, and that 97% of the criminals involved in gun crime are Black or Hispanic. Where then do you focus your resources? In the white neighbourhoods where only 3% of the gun crime in happening, or in the Black and Hispanic ones were 97% of the gun crime is happening?

If you have nothing else other than membership in these racial or ethnic groups, you don't have probable cause or reasonable suspicion.

Answer this. Is it fair to those living in Black and Hispanic neighbourhoods who are at least 50x more likely to be a victim of gun crime than a person in a white neighbourhood,

Now you seem to be confusing the actions of criminals with the actions of the state. The state cannot be held responsible for the actions of criminals.

Or to answer it another way: no it's not fair because life is not fair. The 4th Amendment limits the authority of the government, though. We're dealing with a question of 4th Amendment jurisprudence and not an attempt to make life magically fair.

that those in white neighbourhoods get 65% of the police power and patrols just so that they can have a population based stop and frisk percentage

The question before the court is not about decisions about where to allocate limited police resources. The question is about the legality of a suspicion-less stop and frisk policy.

No one is criticizing the City or the Police Department for sending more cops into areas that have more crimes. The question is, under what circumstances is it legal for a police officer to stop and frisk someone? These circumstances either exist or not independent of how many police officers are patrolling any particular area.

 

[Nessie]

You're still missing the point. These stats aren't any more meaningful than the stats showing males commit the vast majority of violent crimes and very nearly all rapes. Being male alone ought not make you subject to what would otherwise be an illegal search and/or seizure.

In fact, racial profiling is illegal, and by definition membership in a racial or ethnic category alone does not comprise reasonable suspicion.

How would the Constitution cope with stop and searching white males aged about 20 in an area where there has been a series of rapes and the women have been tied up by a male with such a description?

 

[JoeTheJuggler]

Probably the only acceptable solution is for the police to do nothing at all until society evolves to a more enlightened state where crime statistics no longer break down along racial or ethnic lines.

What a humongous false dichotomy! There's plenty of space between ignoring the 4th Amendment (and laws against racial profiling) and doing nothing at all.

Why isn't following 4th Amendment rules an acceptable solution?

Is the only way to deal with rape to consider any male subject to search and seizure with no other reason to suspect a rape has even happened or to do nothing whatsoever about the crime of rape? Should we ignore the issue of rape until rape statistics no longer break down along gender lines?

As Tiktalik correctly pointed out, under Terry, the standards for stopping someone are pretty low already. (FWIW, they can include race--but that's not the same as saying you're going to stop and search people for no other reason but race.)

I see no need to allow police to conduct stop and frisks with no reasonable suspicion whatsoever. (Again, I'm pretty certain the defense in this case is not going to try to argue that racial profiling is OK or that it's what they were doing.)

 

[JoeTheJuggler]

How would the Constitution cope with stop and searching white males aged about 20 in an area where there has been a series of rapes and the women have been tied up by a male with such a description?

I'm pretty sure if you already know a crime has been committed and you have a guy who matches the description of the suspect, the courts would recognize that as probable cause. Such a person can not only be searched, he can be arrested. [ETA: In the scale of standards for search and seizure, probable cause is way up at the high end. With probable cause, a police officer can make an immediate arrest. Terry stops provide a lower standard, under the reasoning that evidence might disappear before you can get a warrant. At the other extreme is. . . nothing--or "suspicion less" searches and seizures. The Supreme Court has allowed them in that last category, but only in very limited circumstances. (See again the case I cited on sobriety checkpoints.) The circumstances in this case are nothing like that.]

But that's not profiling. Profiling is where a person is stopped or searched in the absence of anything--no evidence or reasonable suspicion that a crime has even occurred much less that this person might be connected to it.

And it's certainly not like what's at issue in this case. They're trying to argue for a program of suspicion-less stop and frisk.