Police 'Stop-and-Frisk' Illegal?

[triforcharity]

Gun sniffing dogs are not reasonable, as they would detect (I'm assuming) the gun powder. If someone fired a gun recently, the dog would pick that up, giving a false report. As far as wanding, that's still considered a search.

 

[JoeTheJuggler]

But remember, the police are doing this in defiance of the Fourth Amendment. They need powerful evidence in order to justify that. They don't have powerful evidence.

I agree.

Part of the balancing test they'd do is the effectiveness at achieving a valid state interest against the intrusiveness of the search.

The idea that a low hit rate is evidence of effectiveness (as evidence of effective deterrence) is mind boggling. I don't think the court will buy the tiger-deterring rock argument. If they do, then the actual rates are irrelevant since any outcome of these surveys can be deemed evidence of effectiveness. That would mean asking to conduct the balance test would be a waste of time (since any outcome leads to the same conclusion), and we would have effectively repealed the 4th Amendment.

 

[casebro]

Gun sniffing dogs are not reasonable, as they would detect (I'm assuming) the gun powder. If someone fired a gun recently, the dog would pick that up, giving a false report. As far as wanding, that's still considered a search.

Dogs aren't any more efficient than the SAF. Something about 95% wrong at border patrol checks is what I've heard. Dog indicates drugs, search reveals NO drugs. But rumor, dunno if data is posted.

 

[triforcharity]

I've not heard that, but wouldn't be too surprised if that were true.

Dogs' noses are incredibly sensitive, and have been said to be 1,000 to 10,000,000x's more sensitive than a human's nose. So, if there were drugs in a vehicle at one time, they could possibly smell that, which would give a "false positive". However, detaining someone without probable cause, to allow a dog to sniff their person or belongings, has been ruled unconstitutional.

 

[BStrong]

I'm not a fan of the program, and when two local jurisdictions (S.F. and Oakland) considered initiating the program in their respective cities, the plans were rejected.

If a LEO can articulate reasonable suspicion, they can conduct a search - if they can't, they have no business conducting a stop or search.

 

[PhantomWolf]

Not in this lawsuit. Maybe you're talking about a different topic.



The plaintiff is arguing that the police are violating the 4th Amendment.



No. They're arguing that the police are committing unreasonable warrantless search and seizures.




That "responsibility" to the people does not justify unreasonable warrantless searches and seizures. Allocating police resources is not what's at issue in this case.


Is this supposed to be an argument of some sort? Do you mean as long as the crime of murder persists, we ought repeal the 4th Amendment?


It's a case alleging unreasonable search and seizures.

Again, this is not a case that will re-examine the question of whether racial profiling is legal or that will challenge the validity of current laws prohibiting racial profiling.



I pointed out that the study will be used in something like the Brown balancing test.

The problem is both sides are pointing to the low percentage of arrests as evidence of their position (the plaintiff, that the intrusive searches are not outweighed by effectiveness in addressing a valid state interest; the defendant, that it is evidence of the effectiveness of the practice as a deterrent).

Apparently you are looking at a totally different case to me, or you haven't read the actual case.

Floyd, et al. v. City of New York, et al. is a federal class action lawsuit filed against the New York City Police Department (NYPD) and the City of New York that challenges the NYPD's practices of racial profiling and unconstitutional stop-and frisks.

 

[triforcharity]

AND

 

[JoeTheJuggler]

Apparently you are looking at a totally different case to me, or you haven't read the actual case.

What do you mean by "read the actual case"? I said repeatedly I haven't found any of the briefs. There is no decision to read yet.

The source you quote seems to be another news source.

And again, what I've said is that the plaintiffs are arguing that these are illegal warrantless search and seizures. That is, they're saying that the police are conducting stop and frisks largely on racial and ethnic minorities without reasonable suspicion (or, of course, probable cause). In other words, race alone is not sufficient as reasonable suspicion.

I've said that the defendant is not arguing that racial profiling is what they're doing.

The arguments made in this thread attempting to justify racial profiling are not what the court will hear. That question is settled law, and if the defendants tried that, they'd lose very quickly.

Instead, the defendant is likely to argue either that there was reasonable suspicion based on something other than race alone, or that their program is more like sobriety checkpoints. If it's the former, the burden is on them to come up with evidence (as BStrong says--they've got to articulate what gives them reasonable suspicion or probable cause). If it's the latter, they're going to lose because they can't pass the balancing test I've explained a few times.

The reason I think it's going to be the latter is that the news articles have quoted some of the defendants arguing that the study showing a relatively low arrest rate is evidence that the program works (as a deterrent). I would be shocked and surprised if the court bought that argument since it would effectively be the end of the 4th Amendment. Since the court has accepted a relatively high arrest rate (in the sobriety checkpoint case), if they also accepted relatively low arrest rate as evidence of effectiveness, they'd admit that virtually any measured outcome would constitute evidence of effectiveness that outweighs the intrusiveness of the search. (And also, the intrusiveness of stop and frisk is many times greater than that of the sobriety checkpoints.)

 

[JoeTheJuggler]

From the Wikipedia article on the legal background to the Floyd case (my bolding):

In 2003, the United States District Court for the Eastern District of New York first addressed the NYPD's application of "stop and frisk" on minority groups in Daniels, et al. v. the City of New York.[1] Daniels, et al. v. the City of New York was resolved through a settlement agreement requiring the City to adopt several remedial measures intended to reduce racial disparities in stops and frisks.[7] Under the terms of that settlement, the NYPD enacted a Racial Profiling Policy; revised the UF250 form, otherwise known as a “Stop, Question and Frisk Report Worksheet,” so that stops would be more accurately documented; and instituted regular audits of the UF250 forms, among other measures.[7] policy “prohibits the use of race, color, ethnicity or national origin as a determinative factor in taking law enforcement action,” though those markers may be used to identify a suspect in the same way that pedigree information (height, weight, and age, etc.) is used.[1] The Racial Profiling Policy further requires that commanding officers establish self-inspections within their command to monitor compliance with the policy; that the NYPD Quality Assurance Division (“QAD”) audit compliance with the self-inspection directive; and that CompStat review include consideration of “performance in this area.”[1]

 

[newyorkguy]

<snip>

And again, what I've said is that the plaintiffs are arguing that these are illegal warrantless search and seizures. That is, they're saying that the police are conducting stop and frisks largely on racial and ethnic minorities without reasonable suspicion (or, of course, probable cause). In other words, race alone is not sufficient as reasonable suspicion.

I've said that the defendant is not arguing that racial profiling is what they're doing.

The arguments made in this thread attempting to justify racial profiling are not what the court will hear. That question is settled law, and if the defendants tried that, they'd lose very quickly.

I've seem this comment a couple of times here, but it's not entirely accurate. The plaintiffs are alleging the stops are done in a racially discriminatory manner. From a New York Times editorial on Saturday:

The plaintiffs charge the department with illegally detaining hundreds of thousands of people on the streets each year not because of suspicious behavior but because of their race.

Link

Instead, the defendant is likely to argue either that there was reasonable suspicion based on something other than race alone, or that their program is more like sobriety checkpoints.

It's not done like the sobriety checks, at least as I've seen them carried out in the New York area. They put up traffic cones and check every car. It's completely random in that sense. When doing SAF that's exactly what the police don't do. They target people, there's nothing random about it

Since the court has accepted a relatively high arrest rate (in the sobriety checkpoint case)

<snip>

I don't agree that the Rehnquist Court accepted sobriety checks because of a relatively high arrest rate. It's the same as SAF. A greater good defense IMO. Sobriety checkpoint success rates are usually under five percent. Usually way under Link But that's another discussion.

 

[JoeTheJuggler]

I've seem this comment a couple of times here, but it's not entirely accurate. The plaintiffs are alleging the stops are done in a racially discriminatory manner.

And the defendants are denying that. The arguments made in this thread attempting to justify racial profiling aren't the arguments the defense will make. They're not what the courts will hear. Those arguments (attempting to justify racial profiling) are for a settled question that will not be revisited.

It's not done like the sobriety checks, at least as I've seen them carried out in the New York area. They put up traffic cones and check every car. It's completely random in that sense. When doing SAF that's exactly what the police don't do. They target people, there's nothing random about it

I agree. Since spokespeople for the city have tried to argue that the low arrest rate is evidence of the efficacy of this program, I'm assuming they're arguing the balance test used in the sobriety checkpoint cases. IIRC, there were also limits on where the checkpoints can be placed, and a requirement that they be publicized. But the facts are very very different in the stop and frisk policy, (and of course there's the problem of trying to spin a low arrest rate as evidence of efficacy to justify the intrusiveness of these searches. . )

I don't agree that the Rehnquist Court accepted sobriety checks because of a relatively high arrest rate.

[ETA: Here again is Rehnquist's majority opinion (and a concurring and dissenting opinion): http://supreme.justia.com/cases/federal/us/496/444/case.html The appellant argued that the Brown test was inappropriate. The Supreme Court disagreed and affirmed the lower court opinions that it was the correct test to use. One of the 3 prongs of the test is the effectiveness of the program in question.]

It was part of the balancing test (the Brown balancing test) applied in the Supreme Court case I cited above. They also looked at how minimally intrusive the seizure was for most drivers (a 25 second stop, on average).

What you are talking about is a change in the arrest rate. That's not what the court had in the Michigan case that went to the Supreme Court. It's also not what NY is offering here, right? They're sort of assuming a low arrest rate means a drop in the arrest rate. In the sobriety checkpoint case, the court could only balance the benefit to public safety (getting DWIs off the road as measured by the number of arrests made) against the minimally intrusive seizures.

 

[newyorkguy]

Another side of New York's NYPD Stop-and-Frisk program. This is an article about a police officer's complaint that he was uncomfortable doing SAF. This a Latino cop, Pedro Serrano, who himself lives in the Bronx and has been subjected to SAF. He says he did find it upsetting. I guess he therefore doesn't like doing it to other people. He has testified at the SAF trial for the plaintiffs.

Serrano was reprimanded by his precinct commander, Deputy Inspector Chris McCormack of the 40th Precinct in the South Bronx, a precinct with one of the highest rates of violent crime in the city. Serrano secretly recorded some of the conversations.

Ironically this is why I have a problem with this issue. I see both sides. I understand why the police do it. Why a commander wants it done. Here's an NYPD Deputy Inspector explaining it to an officer:

The way to suppress violent crime, [McCormack] said, was for officers to stop, question and, if necessary, frisk “the right people at the right time, the right location....Serrano, began pressing Inspector McCormack about who he meant by the “right people.” The conversation grew heated... After an exchange about Mott Haven, a particularly crime-prone neighborhood, the inspector suggested that the police needed to conduct street stops of the people creating “the most problems” there.
“The problem was, what, male blacks,” Inspector McCormack said. “And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21.”

Link

Serrano was being reprimanded by McCormack for doing very few stops.

At first, Inspector McCormack can be heard lecturing Officer Serrano about how “99 percent of these people in this community are great, hardworking people” who deserve to go about their days in peace. But the citizens, he said, were troubled by crime, and he went on to describe how a woman in her 60s was shot coming out of an elevator at 10 a.m.

When Serrano pressed McCormack on who he was supposed to stop, McCormack:

Offered examples of people who should not be stopped, like an elderly person violating a parks rule by playing chess. He also cited the stop of a 48-year-old woman who was intercepted on her way to work as she took a shortcut through a park that was closed for the night. “You think that’s the right people?” Inspector McCormack asked the officer skeptically.

McCormack told Serrano that for him (Serrano) to be recording so few stops in one of the most violent precincts in New York City was

“not fair to the public. I could see in Central Park maybe that would be fine, but this ain’t Central Park.”

I think Inspector McCormack sounds like a terrific police commander. However, the problem is, as I've heard police officers say, some of the cops do not conduct the stops in the proper way. They have no tact. They're way too heavy handed when they stop people. That's a police management problem. And since NYPD commanders have shown an inability to control the behavior, then I reluctantly agree, the program is a violation of people's 4th Amendment rights and should be stopped.

 

[BStrong]

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?

Here's a real-world example from my neck of the woods:

http://en.wikipedia.org/wiki/Zebra_murders

In an unprecedented move, San Francisco Mayor Joseph Alioto and Police Chief Donald Scott announced that police officers would begin stopping and questioning "large numbers of black citizens" who resembled the description of the killer: a black man with a short Afro and a narrow chin. Once stopped, checked and cleared, each citizen received a specially printed Zebra Check card from the officer(s) that they could show to police if stopped again. Over 500 black men were stopped by the first weekend the program was in operation.

This action by the police provoked vocal and widespread criticism from the black community. Dr. Washington Garner, the first black member of the Police Commission, called for blacks to be understanding of the exceptional circumstances.[4] The policy faced internal criticism, with the Officers For Justice group led by NOI associate Jesse Byrd viewing it as "racist and unproductive".[5] Acting on a lawsuit sponsored by the NAACP and the ACLU, U.S. District Judge Alfonso J. Zirpoli ruled that the widespread profiling of blacks was unconstitutional, and the operation was suspended.

 

[newyorkguy]

An New York uniformed police sergeant that I have known for over thirty years, a personal friend, told me of his experiences with a street crime unit.

This unit was formed to work 6PM-2AM Wed-Sun on the blocks around a large low-income housing project. The population was largely African-American. In the months before the unit was deployed crime in the area had spiraled. There were a lot of drugs being sold, large numbers of youth congregating in the streets, assaults, robberies and several shootings, two of which were fatal.

The sergeant was deployed as commander of a four-person street unit. Himself and three uniformed patrol officers. He told me he started having problems with the three cops right away. He said they were needlessly belligerent with people, overly confrontational. He had to referee many an argument and, in his words, "It was my cops that were usually the problem."

One of the factors was the relative inexperience of the officers he was assigned. The sergeant tried to get some of the veteran officers to volunteer but none of them wanted to do it. He said, "Because it's all foot patrol. The older guys want to be in a car."

He said he tried to explain to his guys, that the street people they were interacting with were very sensitive about being shown up. He said to them, "You try and push these guys around in front of their pals, you're going to have problems."

The unit did make an enormous difference. Primarily by stopping drug sales on the street, that changed the whole dynamic. People had little reason to congregate, there were no longer squads of drug addicts hanging around and gradually everything calmed down. Then the police unit did little more than maintain a presence. Eventually the police department reduced the assignment to Fri-Sun and then the officers involved were redeployed altogether to regular patrol. I think occasionally on random weekends they assign a sergeant and one officer to the blocks around the projects, only not on foot as previously but in a police car. That way they could also cover medical emergencies, traffic accidents, back-up other units, etc.

The point is, with the proper management a lot of the problems that have plagued SAF could have been minimized and maybe there would be no lawsuit.

Make no mistake, the enhanced patrol does make a difference. SAF has an effect. It undoubtedly does reduce the number of weapons carried because there is no way for anyone to know when they might be stopped by the police. But the way the stops were conducted gradually eroded the community support. To the point where people were complaining that the police had become more of a problem for people than the criminals.

 

[JoeTheJuggler]

He told me he started having problems with the three cops right away. He said they were needlessly belligerent with people, overly confrontational. He had to referee many an argument and, in his words, "It was my cops that were usually the problem."

One of the factors was the relative inexperience of the officers he was assigned.

Police officers are people too. And we ask a lot of them. They really do have to put up with a lot and not respond in kind. Hats off to those that can do it.

But yeah--it's a problem when police presence is only adding fuel to a fire!

 

[PhantomWolf]

What do you mean by "read the actual case"? I said repeatedly I haven't found any of the briefs. There is no decision to read yet.

The source you quote seems to be another news source.

It's from the Center for Constitutional Rights page that newyorkguy linked to and you thanked back in the first few pages.

And again, what I've said is that the plaintiffs are arguing that these are illegal warrantless search and seizures. That is, they're saying that the police are conducting stop and frisks largely on racial and ethnic minorities without reasonable suspicion (or, of course, probable cause). In other words, race alone is not sufficient as reasonable suspicion.

I've said that the defendant is not arguing that racial profiling is what they're doing.

I never suggested that they did. The NYPD claim that their statistics show that 97% of shooting victims are Black and Hispainics, as are 96% of the shooters. If they target 90% of their resources at the worst neighbourhoods for shootings, then it is logical that 90% of those they stop will be Blacks and Hispainics because they are the ones in the neighbourhoods where the crime is being targeted.

 

[PhantomWolf]

An New York uniformed police sergeant that I have known for over thirty years, a personal friend, told me of his experiences with a street crime unit.

This unit was formed to work 6PM-2AM Wed-Sun on the blocks around a large low-income housing project. The population was largely African-American. In the months before the unit was deployed crime in the area had spiraled. There were a lot of drugs being sold, large numbers of youth congregating in the streets, assaults, robberies and several shootings, two of which were fatal.

The sergeant was deployed as commander of a four-person street unit. Himself and three uniformed patrol officers. He told me he started having problems with the three cops right away. He said they were needlessly belligerent with people, overly confrontational. He had to referee many an argument and, in his words, "It was my cops that were usually the problem."

One of the factors was the relative inexperience of the officers he was assigned. The sergeant tried to get some of the veteran officers to volunteer but none of them wanted to do it. He said, "Because it's all foot patrol. The older guys want to be in a car."

He said he tried to explain to his guys, that the street people they were interacting with were very sensitive about being shown up. He said to them, "You try and push these guys around in front of their pals, you're going to have problems."

The unit did make an enormous difference. Primarily by stopping drug sales on the street, that changed the whole dynamic. People had little reason to congregate, there were no longer squads of drug addicts hanging around and gradually everything calmed down. Then the police unit did little more than maintain a presence. Eventually the police department reduced the assignment to Fri-Sun and then the officers involved were redeployed altogether to regular patrol. I think occasionally on random weekends they assign a sergeant and one officer to the blocks around the projects, only not on foot as previously but in a police car. That way they could also cover medical emergencies, traffic accidents, back-up other units, etc.

The point is, with the proper management a lot of the problems that have plagued SAF could have been minimized and maybe there would be no lawsuit.

Make no mistake, the enhanced patrol does make a difference. SAF has an effect. It undoubtedly does reduce the number of weapons carried because there is no way for anyone to know when they might be stopped by the police. But the way the stops were conducted gradually eroded the community support. To the point where people were complaining that the police had become more of a problem for people than the criminals.

Pretty much have to agree.

 

[newyorkguy]

The trial judge in New York City's Stop-and-Frisk' case has ruled the procedure is a violation of Constitutional rights.

The judge, Shira A. Scheindlin, found that the Police Department resorted to a “policy of indirect racial profiling” as it increased the number of stops in minority communities. That has led to officers’ routinely stopping “blacks and Hispanics who would not have been stopped if they were white.”

Link

The judge is not ordering NYPD to stop the practice -- when performed in a racially neutral way the tactic has been shown to be effective -- but she is ordering a review aimed at reforming the procedure, with a federally-appointed monitor to ensure the worst abuses (and abusers) are halted.

 

[WildCat]

It should be unconstitutional on its face, regardless if it's done in a racially neutral way. What a disappointing ruling!

 

[Tsukasa Buddha]

Agreed. It was sad when the main defense I heard was "look at the results". Ignoring the correlation/causation issue, it is scary that people are arguing against Constitutional rights based on the pragmatism of violating those rights. Apparently this was part of the court proceedings as well.