The New York Criminal Law Blog

'Stop and Frisk' And Why It Might Be Unconstitutional

There's been a lot of hubbub over the NYPD's 'Stop and Frisk' policy lately. The recent increase in interest in a long-standing policy comes courtesy of an NYCLU study that calls into question the effectiveness of the policy and uses statistics to question whether minorities are disproportionately harassed by the officers, reports the Gothamist.

"Stop and Frisk" is a long-running NYPD tactic in which they stop and pat down "suspicious" people, checking for weapons. However, in order to be constitutional, the stops have to be based on some articulable "reasonable suspicion" that a person has committed a crime or is armed.

The NYCLU study’s numbers are quite interesting. There were 685,724 stops in 2011, with only 1.9 percent resulting in the recovery of a weapon. Blacks and Latinos were more likely to be stopped. However, whites were almost twice as likely to be found carrying a weapon.

The study, as summarized by the Gothamist, also highlights another interesting point. In neighborhoods without a majority black or Latino population, young black and Latino men were still stop and frisked at a disproportionate rate compared to white males.

The high failure rate, along with the statistics indicating a predilection towards minorities, calls into question whether the officers are operating on hunch or actual cause. As the Supreme Court stated in Terry v. Ohio,

“[S]imple good faith on the part of the arresting officer is not enough. … If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police.”

The Mayor’s Office responded to the criticism, which has become a cause celebre by potential Mayoral candidate Bill de Blasio, with the following statement, provided courtesy of the Village Voice:

“When Bill de Blasio last served in the City’s Executive branch there were 2,000 murders a year. Today we are on track to have less than 500 - a record new low. Mr. de Blasio may be nostalgic for the days when the ACLU set crime policy in this city, but most New Yorkers don’t want rampant crime to return. The fact is Stop, Question and Frisk keeps guns and other weapons off the streets and saves lives. Make no mistake, we will not continue to be the safest big city in America if Mr. de Blasio has his way.”

Oh, mayor’s office. Your argument contains just a few flaws. For example, the correlation of a reduced murder rate does not mean causation. Just because people are being randomly tickled by officers on the street, doesn’t mean that is the reason, or even a significant part of the reason for the decrease in murders. What about factors like overall age of the population, and the economy?

Also, the main problem with the policy is not necessarily its effectiveness, or lack thereof. The problem is its constitutionality.

“… in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Terry v. Ohio, 392 U.S. 1 (1968)

Terry v. Ohio was one of the most important Supreme Court decisions in criminal jurisprudence. It held that the Fourth Amendment is not violated by officers stopping and frisking a suspect on the street if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person may be armed and dangerous.

The logic behind the decision was that officers shouldn’t have to compromise their own safety for the sake of ensuring constitutional rights. If someone clearly is a threat, or matches the description of someone who has engaged in a violent crime, of course the officer should be able to stop the person and check them for weapons.

For the NYPD, their 1.9% success rate in recovering weapons from those that they stop and frisk could indicate that they lack that reasonable suspicion.Certainly, officer safety and crime prevention are important, but at a certain point, constitutional rights have to come into play.

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