This afternoon I’ll be heading uptown for a march against the NYPD’s stop-and-frisk policies.
The stats on NYC stop and frisk are by now well known. Cops stopped 685,724 people in the city last year, of whom 84% were black or Latino. They conducted more stops of black boys and men aged 14-24 then there are people in that demographic category. Just 9% of all stops ended in an arrest and just 2% led to the recovery of a weapon, even though half included frisks and more than 20% involved the use of force.
But I don’t want to talk about any of that today. What I want to talk about is the constitution.
Under the Fourth Amendment to the US Constitution, adopted as part of the Bill of Rights in 1791, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” What constitutes an “unreasonable” search or seizure under the Fourth Amendment in the context of a stop-and-frisk was decided by the Supreme Court in its 1968 Terry v. Ohio ruling. If you want to know whether a stop-and-frisk is a violation of someone’s constitutional rights, in other words, Terry is the place to go.
On October 31, 1963 a veteran police officer in Cleveland, Ohio saw two men standing together on a street corner. As he watched, one of the men walked down the block to a storefront and peered inside, then walked on for a short distance before turning around and returning to talk to the other man. After that, the second man did the same. The two continued like this — one walking over to the store, looking in, continuing on for a few steps, returning, talking to the other, then the other doing the same — for a period of at least ten minutes before being joined by a third man who talked to them for a moment, left, then rejoined them some distance away.
Believing that the three were casing the store for a robbery, the officer approached them. After asking them to identify themselves, he turned one around and patted him down, finding a revolver. At that point he searched the other two, finding a gun on one of them, and arrested the two men for carrying concealed weapons. The question before the Supreme Court was whether this was a constitutional search.
The Court began its discussion of that issue by quoting a 19th century case in which they had held that there is “no right … more sacred, or is more carefully guarded … than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Given that, they said, the Terry case posed “difficult and troublesome issues,” particularly given “the wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain.”
Let’s pause there for a second. We have here a case in which a cop watched three men casing a store over a period of more than ten minutes, engaging in what the Court described as “elaborately casual and oft-repeated reconnaissance.” During questioning, the officer did no more than pat the three down for weapons — and in fact, even after finding guns on two of them, he didn’t conduct an invasive search of the third. And the Supreme Court of the United States, in the landmark case governing stop and frisk policies, called the question of the search’s constitutionality a “difficult and troublesome” one.
Got that? Okay. Back to the decision.
The first question the Court addressed was whether a stop and frisk constitutes a search and seizure under the meaning of the Fourth Amendment. They “emphatically” found that it does, finding that “it is quite plain” that “whenever a police officer accosts an individual and restrains his freedom to walk away,” that person has been “seized” for the purposes of the Fourth Amendment. Similarly, they declared that it is “nothing less than sheer torture of the English language” to deny that a patdown is a “search.”
Such a patdown, they said, cannot be dismissed as a mere “petty indignity.” It is, rather, “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”
…But now I have to go pick up my kid from a sleepover. More later.
• • •
Hi! I’m back.
By rejecting the idea that a stop-and-frisk was something milder than a real, constitutional “search,” the Court insisted on the seriousness of any “governmental invasion of a citizen’s personal security.” Any stop, they said, matters, and a frisk matters a lot. So what makes a stop-and-frisk reasonable?
The short answer is that the reason for the frisk must be serious enough, and the extent of the frisk limited enough, to convince an objective observer “of reasonable caution” that the violation to the subject was justified. An “inarticulate hunch” is not enough, they said. The officer’s “good faith” is not enough.
So what’s enough?
First, the officer must observe activity that “warrants further investigation.” In the Terry case, the Court made clear, the officer would not have been justified in stopping the men he stopped if they had just been standing on a corner talking, or “strolling up the street,” or looking in shop windows. It was only the whole of their actions, over a period of more than ten minutes, that justified any stop at all.
And the frisk, they said, didn’t automatically follow from the stop. The frisk, they said, was only justified by the “interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.”
Their next paragraph is worth quoting in full.
“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”
It’s only an officer’s concern for his or her own immediate physical safety, in other words, or that of others in the vicinity, that justifies a frisk. And that frisk must be limited in scope and duration, because — quoting again —
“Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.”
An officer has the constitutional right to conduct a warrantless frisk, in other words, only where that frisk is “a reasonable search for weapons for the protection of the police officer, where he [or she] has reason to believe that he is dealing with an armed and dangerous individual.”
That’s it. That’s the sole circumstance that justifies a stop-and-frisk under Terry v. Ohio, which is the controlling Supreme Court precedent on the question as I write this sentence.
Can a cop conduct such a search in hopes of finding evidence of another crime? No. “Such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime.” The search in Terry, they found, was constitutional specifically because “Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.”
And in case that wasn’t clear enough the first time, or the second, or the third, they closed by saying it again — where an officer has specific reason for reasonable concern that criminal activity is occurring or imminent, and specific reason to believe that the person he or she is observing may be armed, he or she may conduct questioning that leads to “a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him [or her].”
- Stopping someone on a hunch? Unconstitutional.
- Stopping someone because they fit a broad demographic profile? Unconstitutional.
- Stopping someone without specific articulable reasonable belief that they are associated with criminal activity? Unconstitutional.
- Frisking someone as policy the course of a stop? Unconstitutional.
- Frisking someone you don’t have specific reason to believe may be armed and dangerous? Unconstitutional.
- Conducting a more intrusive frisk than is necessary to uncover weapons? Unconstitutional.
And again, more than 80% of NYPD stop-and-frisks end in neither an arrest nor a summons. More than 98% end without recovery of a weapon. If you compare pre-Bloomberg stats to today’s, only one in every three thousand new stops conducted under Bloomberg policies produce a weapon, even though recovery of weapons is the only constitutional basis for a frisk.
This is why I’m marching today. This is why I’m bringing my kids.