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Constitutionality of Stop and Frisk
‘Stop and Frisk’ is a topic that has been covered by major news outlets as one of the most debated law enforcement tactics in recent years. Before deep diving the topic it is important to have a working knowledge of ‘Stop and Frisk’. ‘Stop and Frisk’, sometimes called a ‘Terry stop’, refers to the United States Supreme Court case Terry v. Ohio (1968). ‘Stop and Frisk’ or ‘Terry Stop’, Constitutionally restricts the freedom of movement because a police officer has reasonable suspicion a crime is about to occur or has just occurred; however the officer lacks probable cause for an arrest. Cornell law describes this as “A brief, non-intrusive, police stop of a suspect” (Page 3). The Fourth Amendment requires that the police have a reasonable suspicion that a crime has been, is being, or is about to be committed before stopping a suspect. If the police reasonably suspect the person is armed and dangerous, they may conduct a frisk, a quick pat-down of the person’s outer clothing. Terry v Ohio, 392 US 1, (1967) (Stop and frisk. (n.d.)).
Stop and Frisk, Terry Stop, Probable Cause, Reasonable Suspicion, 4th Amendment, 14th Amendment, Terry v. Ohio, Floyd et al. v City of New York et al., , brief stop , Reasonable suspicion of criminal activity, reasonable articulable suspicion
Constitutionality of Stop and Frisk
Although the subject of ‘Stop and Frisk’ has been debated by many it is still a multi-faceted topic which covers a whole continuum of previously decided court cases. Additionally, when analyzing ‘Stop and Frisk’, the topics of racial profiling and individual Constitutional rights versus “the greater good” and public opinion will all be discussed. The case law and Constitutionality of ‘Stop and Frisk’ will be discussed via several landmark court cases such as Terry v Ohio, Daniels et al. v City of New York et all (1999), US v. Watson (1976), Henry v. US (1968), Mallory v. US (1957), Adams v. Williams (1972), Pennsylvania v. Mimms (1977), Maryland v. Wilson(1997) and Arizona v. Johnson (2009). All of these cases will be instrumental in understanding the ruling of Floyd et. all v City of New York et. all, the landmark case from New York City discussing “Stop and Frisk”. Along the way the issues of Constitutional freedoms will be addressed; specifically concerning an individual’s First, Fourth, Fifth and Fourteenth Amendment rights.
‘Stop and Frisk’, sometimes called a ‘Terry stop’ refers to the United States Supreme Court case in Terry v. Ohio (1968) What ‘Stop and Frisk’ or ‘Terry Stop’ refers to is the restriction of freedom of movement by a law enforcement officer without probable cause. Cornell law describes this as “A brief, non-intrusive, police stop of a suspect” (Terry Stop / Stop and Frisk. (n.d.)). The Fourth Amendment requires that the police have a reasonable suspicion that a crime has been, is being, or is about to be committed before stopping a suspect. If the police reasonably suspect the person is armed and dangerous, they may conduct a frisk, a quick pat-down of the person’s outer clothing. (Stop and frisk. (n.d.). If though, a brief non-intrusive stop is a ‘Stop and Frisk’ are all police encounters with the public a ‘Stop and Frisk’? If law enforcement asks you to wait as you are walking away, but they hand you an item you recently dropped, is that a seizure under the FourthAmendment?
It is clear that not all law enforcement contact is a seizure or a ‘Stop and Frisk’; citizens have interactions with law enforcement daily without their Civil Rights being infringed upon. In the case of Terry v. Ohio, it was stated that "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred" (Terry v. Ohio, page 16, 1968). Police officers, just like everyone else, speak to people daily without the encounter restricting a person’s Fourth Amendment rights, or being a seizure at all. An example of a police interaction where the person is speaking to the police without it being a ‘Terry Stop’ would include a witness to an accident. The witness is there speaking to police because of a sense of civic duty to help independently articulate a situation in which they have no other involvement. Conversely, should the individual who was involved in the accident be speaking with the police they would not be free to leave; ergo they would be seized under the Fourth Amendment. Although the individual in the accident is seized under the Fourth Amendment they are still not involved in a ‘Stop and Frisk’ unless there is a reason, or reasonable articulable suspicion. Reasonable articulable suspicion could be exemplified by the following situation; you see two males walking down the street. One of the males fits the description of a person who recently evaded law enforcement on foot, this description included race, age, approximate height / weight, a visible tattoo and very specific shoes. There was a report of a second person; however, there was no description other than race and a general age. The officer stops both people as they are walking together and both fit the descriptions. The officer then conducts a pat-down of both suspects; because of the initial stop. So in this scenario it is fair to say that a reasonable and prudent person would believe the first suspect was the person who evaded police on foot. The second suspect might be more of a circumstantial case; then the officer during the pat-down discovers a firearm on suspect two. While the officer can articulate reasonable articulable suspicion, the defense team will try to dispute this and attack the officers original stop.
In the case of Terry v. Ohio a police officer observed three people who appeared to be ‘casing’ a store for an armed robbery. The officer made this conclusion based on his training and experience. When the police officer approached the three people, he identified himself and when the police officer did not receive the identification of one individual quickly he seized that man and conducted a ‘pat-down’ of the exterior portion of the seized individual’s clothing where the police officer discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable to the situation:
The warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the question was whether the policeman's actions were reasonable. The test of reasonableness …is whether the police officer can point to specific and articulable facts which, taken together with rational inferences from those facts, would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a "frisk" was required…led to believe that the men were armed and probably dangerous and that his safety required a "frisk." Because the object of the "frisk" is the discovery of dangerous weapons.(Terry v. Ohio, page 23, Justice Harlan Opinion, 1968)
Law enforcement encounters can vary greatly and the public should understand that merely being stopped by law enforcement is not a ‘Stop and Frisk’; however, being stopped by law enforcement checking to ensure you do not have any weapons when you are not free to leave is a ‘Stop and Frisk’. Being suspected of a crime without having probable cause, and having a clear and articulable reason (reasonable suspicion) for the suspicion which ultimately leads to an individual’s detention and pat-down, are the instrumental parts of a ‘Stop and Frisk’ by law enforcement. What is the difference between probable cause and reasonable suspicion?
Probable cause can be broadly defined as; probable cause as “… when there is a reasonable basis for believing that a crime may have been committed (for an arrest)…Under exigent circumstances, probable cause can also justify a warrantless search or seizure…” (Probable Cause, n.d.). Probable cause was defined in Illinois v. Gates (1983) as the "factual and practical considerations of everyday life on which reasonable and prudent men [...] act" (Illinois v. Gates, page 3, Justice Rehnquist Opinion 1983). As such, it has been common to hear the phrase ‘how a reasonable and prudent person would act’ when referring to probable cause, use of force or general police/public behavior. There is, however, a stark difference between probable cause and reasonable suspicion. Reasonable suspicion is defined as “When determining reasonable suspicion, courts consider the events leading up to the brief stop and decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.” (Reasonable Suspicion, n.d.).
In United States v. Cortez, 449 U.S. 411 (1981), a unanimous Court attempted to capture the "elusive concept" of the basis for permitting a stop. Officers must have "articulable reasons" or "founded suspicions," derived from the totality of the circumstances. "Based upon that whole picture the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity" (Alabama v. White, 496 U.S. 325 (1990)).The inquiry is thus quite fact-specific. In the anonymous tip context, the same basic approach requiring some corroboration applies regardless of whether the standard is probable cause or reasonable suspicion; the difference is that less information, or less reliable information, can satisfy the lower standard.
The comparison for probable cause and reasonable suspicion may seem vague, however, consider the following scenario. A police officer is walking down the street and sees a man running with a mask covering his face and a bag in his hand. Simultaneously the police officer sees what appears to be a store clerk out front of a store screaming “he just robbed me!!” The police officer would have reasonable suspicion to stop the fleeing man, briefly detain him and ascertain if there is enough evidence that would stand on its own in court to warrant an arrest. If the police officer finds that the man was in possession of a large amount of cash in small denominations as well as a firearm matching the victim’s statement of a weapon involved and the suspect left a muddy shoe print in the shop on the clerk's counter where the cash register is; the officer at this point would have enough evidence to arrest the suspect who was previously only being detained for a felony; albeit the felony did not occur in his/her presence. While this is an extremely overt case of reasonable suspicion versus probable cause it should help articulate the difference between the two types of detention (arrest and brief detention) under the Fourth Amendment of the Constitution of the United States. The Fourth Amendment to the Constitution of the United States is not the only Amendment affected by ‘Stop and Frisk’ though, other Amendments that can be involved in ‘Stop and Frisk’ scenario include the First Amendment, Second Amendment, Fourth Amendment and the Fourteenth Amendment.
The First Amendment, which covers free speech, could directly be affected by ‘Stop and Frisk’ under multiple situations; namely the overt action or words of an individual, while Constitutionally protected, might garner attention from law enforcement. An example of Constitutionally protected First Amendment behavior might include protesting. While protesting is not illegal (generally with a permit) if you are protesting without the proper documentation or have otherwise exceeded the parameters set forth by the local governing body the local law enforcement community may briefly detain you to ascertain if there is probable cause of a crime. The charge stemming from protesting outside of the predetermined parameters may be anything from disorderly conduct to inciting a riot depending on the situation. It is also possible in the previously listed scenario that the local law enforcement officer briefly detains you, only to find out that you are not violating these laws because you are within the previously set fourth parameters.
The Second Amendment, which covers an individual's right to bear arms, can be directly affected by ‘Stop and Frisk’ under the follow scenario. In the State of Tennessee with a handgun carry permit (handgun carry permit) you may carry a handgun either concealed or openly (TCA §39-17-1351). An individual who has a handgun in an exposed holster is walking down a public sidewalk in Tennessee and is seen by law enforcement; however, just minutes prior, law enforcement received a tip of a man who brandished a firearm at a woman while she was walking and as a result law enforcement stop the armed individual for questioning but he is not under arrest. There has not yet been an establishment of probable cause, because there is no clear and convincing evidence that the man walking committed a crime. There is, in the above scenario, enough reasonable suspicion though to conduct a ‘Stop and Frisk’. The officer stops the individual, relieves him of his handgun and then investigates if a crime has occurred. If the man did not commit a crime, the brief detention, which was justified, will end there; however, if the man did commit the offense and probable cause has been established, then the man may be placed under arrest and immediately be brought before a judge or magistrate.
The Fourth Amendment to the Constitution of the United States of America is the basis for the Constitutionality of ‘Stop and Frisk’. The 4th Amendment reads “"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (4th Amendment, (n.d.)). With the understanding that ‘Stop and Frisk’ is a tactic based on reasonable suspicion, not probable cause, then it is clear to see why it is so important to the Fourth Amendment. In the Fourth Amendment, there is clear guidance which states that each individual has the right to be secure in their persons; meaning that each person has the right to avoid an unreasonable search and seizure but upon probable cause. Where the Fourth Amendment is vague is the definition of probable cause and unreasonable searches and seizures. Just as we continue to analyze fluid definition of probable cause; unreasonable searches and seizures continue to be subjective as well. Police officers use what is known as the reasonableness test which comes from the landmark case of Terry v. Ohio. This reasonableness test is where a police officer must ask themselves is there a “reasonable suspicion of criminal activity” (Terry v. Ohio, 1968). While the Fourth Amendment is the primary focus of the ‘Stop and Frisk’ movement the Fourteenth Amendment has played an instrumental role as well.
Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or a misdemeanor in their presence. The probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman's stop…There are, however, instances when a policeman's suspicions will have been aroused by someone's conduct or manner, but probable cause for placing such a person under arrest will be lacking. In Terry v. Ohio, the Court almost unanimously approved an on-the-street investigation by a police officer which involved "patting down" the subject of the investigation for weapons. (United States v. Watson, 423 U.S. 411 (1976)).
The Fourteenth Amendment of the Constitution of the United States of America which reads in part
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (14th Amendment, (n.d.)).
The Fourteenth Amendment is critical to understanding the complexity of ‘Stop and Frisk’. Understanding that the Fourth Amendment does not allow for unreasonable searches and seizures, when you delve into the Fourteenth Amendment and understand that due process and equal protection of the law(s) are very important. When you begin to look at the equal protection of the law you can see where protected classes and communities seek protection. In the review of Daniels et. all v City of New York et al. it begins to become clear that ‘Stop and Frisk’, the reasonableness test, and reasonable articulable suspicion cannot be weighed based on issues such as race, color, creed, national origin; thus allowing for the equal protection of the law.
It would not be possible to add to the emphasis with which the framers of our Constitution and this court have declared the importance to political liberty and …the rights guaranteed under the Constitution by these two (Fourth and Fifth) Amendments... such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty, and private property'; that they are to be regarded as of the very essence of constitutional liberty... It has been repeatedly decided that these amendments should receive a liberal construction so as to prevent ...overzealous, executive officers. (Gouled v. United States, 255 U. S. 298, 255 U. S. 302, 255 U. S. 303)
When considering equal treatment based on issues such as race, color, creed, national origin it is only natural for people to become curious about racial profiling. What is racial profiling and what are the misnomers that surround racial profiling?
Racial profiling by law enforcement is commonly defined as “a practice that targets people for suspicion of crime based on their race, ethnicity, religion or national origin” (Racial Profiling, 2013). Exactly what law enforcement and the community want to avoid is racial profiling; however, there are cases when racial profiling happens. In the case of Daniels et. all v City of New York et al., there was a group of citizens who filed suit against the New York Police Department and several specific officers in the Street Crimes Unit, alleging racial profiling. During this case, the Street Crimes Unit was disbanded and there were negotiated terms with the New York Police Department:
The NYPD was (1) to adopt a written policy pertaining to racial or national origin profiling in compliance with the United States Constitution and New York State Constitution; (2) to undergo audits, conducted by the NYPD Quality Assurance Division and to be shared with plaintiffs' counsel, assessing whether stop-and-frisks are conducted according to NYPD regulations and whether they are based upon reasonable suspicion; and (3) to provide training and public education relating to the NYPD's racial profiling policy. (Daniels et. all v City of New York et al.) .
When the contractual obligations with the New York Police Department and the defendants were nearly over, the defendants claimed racial profiling was still occurring in the New York Police Department. The Judge in the case then ordered the defendants to file a new claim, which some did. The new claim became the landmark case of Floyd et. all v City of New York et. al..
In the case of Floyd et. all v City of New York et. al. the primary focus shifts from Fourth Amendment violations to Fourteenth Amendment violations. Floyd et. all points out that nearly 85% of individuals stopped under ‘Stop and Frisk’ were Black and Latino; however, those two groups only make up 52% of the City’s population (Floyd, et al. v. City of New York, et al.) In 2011, the NYPD reported a record 685,724 stops -- a 600 percent increase since Raymond Kelly took over as NYPD Commissioner in 2002. Eighty-four percent of those stopped were Black or Latino, and 88 percent of the people stopped were neither arrested nor received summonses. Despite the stated purpose of the policy, weapons and contraband were recovered less than 2 percent of the time (FOIA Report. (2016)). On August 12, 2013, a federal judge found the New York City Police Department liable for a pattern and practice of racial profiling and unconstitutional stops. This makes the Floyd, et. al. v City of New York, et. al. case a landmark in that a Federal Judge has ruled the New York City Police Department negligent in its handling of minorities under the Fourteenth Amendment.
Next step recommendations include a re-evaluation of the reasonable suspicion stops by law enforcement; however, it is important that there be room for ambiguity because life happens in the grey area and when a definitive line is drawn there will be those that manipulate the system to avoid detection. Understanding that it is imperative and not negotiable to forever protect the rights of all persons, it is also important to ensure public safety. It is necessary to ensure that all people are being treated fairly and equally, for what they have done (or not done) and as such it should be less important what race, color, creed or national origin the individual is but what are the circumstances surrounding their behavior that has given law enforcement the reasonable suspicion to stop that person and frisk them.
The law will always be grey, each case will present new challenges. There is a majority of law enforcement officers who are aware of what they should and should not be doing. Law enforcement officers keep it ever present in their minds, what is the right way to do the right thing. While guidance can be good, it is not always necessary. Blanket sweeps of policy overhaul and changes generally do very little to correct an issue; however, education and training will address the imperfections that need to be addressed.
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