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Stop and Frisk and ‘Reasonable Suspicion’

The NYPD’s Stop and Frisk program was ruled unconstitutional by a federal judge recently, though she stopped short of ending the program and only ordered some reforms and greater oversight. But it’s probably useful to look at the broader question of when the government can stop and search someone, which this post will do.

In 1968, the Supreme Court ruled in Terry v Ohio that while the 4th Amendment does apply to cases where a police officer stops someone and frisks them, the probable cause standard found in the 4th Amendment was not necessary to meet where “swift action based upon on-the-spot observations of the officer on the beat is required.” Instead, the court said that the officer has to have “reasonable suspicion” that the target of the search poses a dangerous threat to others. Notice how the language of this ruling focuses so much on imminent danger of violence and threat to others:

Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed…

The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate…

An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon.

A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation.

An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest.

But in the intervening 45 years, that focus on a suspect being armed and dangerous and the actions of the police being necessary to protect immediate public safety seems to have gone by the wayside. In the NYPD’s Stop and Frisk program, weapons were found on 1% of blacks, 1.1% of Hispanics and 2.3% of whites. And that’s just people who are armed, not necessarily armed and dangerous.

The definition of “reasonable suspicion” has become so broad as to be utterly meaningless. The judge’s ruling noted some 200,000 cases where the police officer didn’t even bother to give a reason for the suspicion at all. And the form they fill out after making such a stop was a multiple choice one where they just check a box. The box checked most often: “furtive movement.” What is furtive movement? Anything the officer says it is. It can be walking too slow, walking too fast or not walking at all. It can mean talking to a lot of people along the way or not talking to anyone at all. It can mean looking around while they walked or looking straight ahead. Anything is a pretext for “reasonable suspicion.”

But when 95% of the stops based on “reasonable suspicion” turn up neither a weapon nor drugs (the two biggest excuses for the need to stop and frisk people), it should be obvious that their suspicions are not reasonable at all.

Comments

  1. Alverant says

    If the cops went to wall street and did a stop n frisk on the people there having the reasonable suspicion of insider trading or other white collar crimes, the mayor would put a stop to that real fast.

  2. says

    LOOK ITS NOT THE COPS FAULT THAT THE BLACKS AND HIPSANICS ACT SO SUSPICIOUS ALL THE TIME! AND WHY ARE THEY ACTING THAT? WHAT ARE THEY REALLY HIDING?

  3. doublereed says

    Those rulings make it sound like that precedent of stop and frisk cannot reasonably be used for drug offences at all…

  4. jaytheostrich says

    Stop and Frisk was just a way of turning ‘driving while black’ into ‘walking while black’, and so far it’s worked.

  5. uzza says

    Who gets to decide

    “whether a man of reasonable caution is warranted in believing that”

    Recent cases have involved LEOs claiming to believe that the use of lethal force was warranted by the threat posed by a Jack Russell Terrier or an unarmed black teenager. According to their bosses, they always

    have “reasonable suspicion” that the target … poses a dangerous threat

    It’s way past time to let someone else decide what’s reasonable.

  6. David C Brayton says

    I think we are on the same page now. The courts have abdicated their responsibility. They should demand specific evidence that a reasonable suspicion existed. The use of video cameras will go a long way to reducing the number of unconstitutional Terry stops. (I hope.)

  7. meg says

    Ok, so here’s the thing I don’t get, so if someone could explain it to me. . .

    You have the right to bear arms. So why are the police allowed to frisk you to see if you are carrying them? Couldn’t it be challenged purely on those grounds? I’m sure there’s a logical reason I’m missing here. . .

  8. dingojack says

    Meg – Firstly, IANAL. Having said that, I believe that the ‘right to bear arms’, like other rights, is considered to be limited. You don’t have the right to bear weapons that are illegal, nor do you have the right to bear arms if you are going to use said arms for an illegal purpose, hence the police can frisk you, if they have ‘reasonable suspicion’ (or is it ‘probable cause’?).
    Or that’s the theory use to justify this at least
    Dingo

  9. jesse says

    meg- IANAL either, but lots of rights are circumscribed in some fashion. You don’t have the right to carry around a surface-to-air missile, nor do you have the right to drive without a license even if there is the right of free movement between localities (i.e., no internal passports, though for air travel they de facto exist). and “I am going to kill John Smith” does not fall under 1st Amendment protection. (It’s a threat against a specific individual).

    While the whole ‘reasonable suspicion’ is silly, but the logic is that the person might be a danger to others, so the right to bear arms wouldn’t apply — it was meant originally to b in situations where, for instance, you see a guy running from a bank heist and think he might be one of the perpetrators, or when chasing someone for something else. That kind of thing.

  10. says

    I believe that the ‘right to bear arms’, like other rights, is considered to be limited.

    It didn’t used to be. Until The Black Panthers started carrying guns like white people did. Then suddenly, it was completely reasonable to place limits on carrying. What a shocker!

  11. says

    it was meant originally to b in situations where, for instance, you see a guy running from a bank heist and think he might be one of the perpetrators

    No, it was meant to disarm the Black Panthers. But your revisionist narrative certainly is more attractive than the truth.

  12. francesc says

    “nor do you have the right to bear arms if you are going to use said arms for an illegal purpose”
    soo… policemen are precogs? I think you do have the right to bear arms if you are going to use them for an illegal purpose, although you don’t have the right to use them for that illegal purpose. In conclusion, policemen should wait and see until they are reasonably sure that you in fact are going to use them.
    Either that, or just forbid to carry a gun in public areas for everyone.

  13. dingojack says

    Marcus – According to the FoAW: “The Black Panther Party or BPP (originally the Black Panther Party for Self-Defense)…. Founded in Oakland, California by Huey Newton and Bobby Seale on October 15, 1966 …’”.

    So you’ve got lots of citations to show that gun rights in the United States were totally unlimited before October 15, 1966? This ought to be good.

    francesc – You’re almost as bad as Marcus. With what part of ‘probable cause’ or ‘reasonable suspicion’ are you having difficulty? Sheesh.
    (And you say that like it’s a bad thing). ;)
    Dingo

  14. doublereed says

    Marcus, that’s totally wrong.

    Look up the case US v. Miller (1939). The black panthers has nothing to do with the second amendment being a limited right. The right to bear arms has been a limited right throughout American History, long before the Black Panthers were ever around.

    In fact, the stance of Miller can be quite restrictive of gun rights, until it was overturned finally by Scalia in the 2008 Heller case.

  15. culuriel says

    Hi Meg, each state and sometimes each local jurisdiction has its own rules on carrying firearms and large knives, especially if they’re concealed. So police should ostensibly be allowed to enforce those rules if someone carrying a weapon illegally is about to do harm (or is obviously carrying a concealed weapon in a place, like NYC, that severely restricts that). But, like Ed says, the SCOTUS tried to define reasonable suspicion and it looks like PD’s across the nation just don’t care.

  16. freehand says

    It’s perfectly reasonable to search someone for weapons if they’re already being held or stopped for a legitimate reason. For instance, if they see a fight on the sidewalk, both people may be seized, searched, and questioned separately. A buddy’s grown son was grabbed by the cops who showed up when a bar fight was called in. The young man had his pocket knife seized, held under watch by a cop (handcuffed), and witnesses questioned*. When they determined that the lad hadn’t even drawn his own knife, they released him without charge and returned his (legal) weapon. People in such situations are a special risk to cops, but this is different from searching folks to see if they are doing something they can be charged with.

    * The other, older man had pulled a knife on the young fella (with no arguments or other previous interactions), who knocked the weapon out of his hand and pounded him a few times, enough to establish a stable situation until the deputies showed up.

  17. wscott says

    @ culuriel: Right. In most cities/states AFAIK, it is illegal to carry a concealed firearm unless you have a license for it. And as Ed points out, the original justification for all of this was based on officer safety (and safety of others). Talk about giving someone an inch and them taking a mile.

  18. uzza says

    SCOTUS defines ‘reasonable’ using the standard of ‘person of reasonable caution’. LEOs are notoriously not that person. Members of the law enforcement community are by nature suspicious of everyone who is not a member, and with good reason given their experiences.

    SCOTUS can say anything, but so long as members of the LE community are interpreting what they say, it won’t matter. Only when police have to justify their reasonable suspicions to outsiders will things change.

  19. lorn says

    IMHO there is a lot of grey are in ‘suspicious activity’ and nailing down the exact signs is difficult.

    WTF is a “furtive movement”? Please give three examples. Give three characteristics that differentiate furtive from non-furtive moments.

    That’s going to be a tough row to hoe because the whole thing is subjective and context based.

    On the other hand there is clearly something there.

    ie: I used to live in a moderately high crime area. Almost all of the crime was associated with partying, D&D and disturbing the peace, and a mix of theft and burglary. There was very little actual violence. I spent a lot of time reading and listening to music over headphones. The general rule around my place was that if the interior light was on I wasn’t home.

    Anyway, I’m doing my thing around 10PM on a warm summer night with no lights on inside but a tiny reading lamp. I’m sitting crossed legged just inside the front window with the blinds partially drawn and the porch light brightly illuminating the front door. The lighting is arranged so that I can see out quite well but people can’t see in.

    I’m inside digging on some music when a gentleman walks past my door on the sidewalk. He kind of casually looks at my door. I don’t think anything of it. Perhaps five minutes later he does the same thing, again glancing at my door, going the other way. There is a convenience store two short blocks away so I figure he walked there to get something and is coming back. No problem.

    A couple of minutes later he is on the sidewalk walking the opposite direction again when he stops directly in front of my door. He turns to face the door. And then he gives away his intention. Facing the door he very purposefully looks over his right shoulder, then his left. Half a second of delay, then he walks in a manner that could well be described as furtively up to my door. He slowlllly opens the screen door. Then he tries to look through the glass panes on the window. he can’t see anything because the porch light is bright and the interior is quite dark. He tries the door and finds it unlocked. He very slowly and gingerly opens the door and steps in. His eyes start to adjust to the dark … and he becomes aware that he is standing about two feet away from a butt-naked, ghost-white dude with a big grin, holding a large knife who says “Hi there”.

    He looks up, his eyes get as big as saucers, and he, in one smooth motion, turns and runs … his footfalls on the sidewalk disappearing in the distance. I didn’t call the police. I mentioned it to a cop a couple of months later and he said the burglary rate had gone down in the area about that time. Probably coincidence.

    The point here is that when the gentleman returned the third time stopped and faced my door it got may attention. When he looked over both shoulders, the universal sign of being up to no good, I knew something was up. If I was a policeman the three trips with special attention given to the door is reason enough to watch the guy. The look over both shoulders would be reason enough to talk to the guy. Opening the screen door, trying to see inside and trying the lock, when considered together, is behavior of someone who is committing a burglary.

    Granted probably 90% of the stop and frisk cases didn’t involve anything as clear cut. But there is also clearly some sets of behaviors that raise suspicions when in some contexts. The point of transition between appearing innocent and up to no good is not well defined. It is a judgment call. It is also open for abuse.

    A doctor reading a mammogram sees a smudge of white. Is it normal tissue, and nothing to worry about, or is it an early cancer? This judgment is also up for abuse. If he knows someone who will provide kickbacks for patients he can recommend a very expensive series of tests and make a good bit of extra money. Odds are the patient will comply. If the authorities get involved he can say it was a judgment call and he was recommending more test out of ‘an abundance of caution’ . Odds of getting busted are slim to none.

    Some doctors are motivated to see cancer where there is none. Some police are motivated to see suspicious activity where there is none. Both can claim they are just being extra cautious. Odds are, outside any single truly egregious case, or an established pattern, both can get away with their abuse. They could also get away with not doing their jobs. False negatives are as dangerous as false positives. Cancer is dangerous because the bodies defenses can’t usually identify the cancer cells as foreign, and potentially dangerous criminals hide in plain sight.

    In both cases it is not the overly weak or aggressive actions by authorities that are the systemic problem. The problem is getting people into those positions of authority who are honest and unbiased.

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