I’m jumping James Hodgson’s Comment of the Day in line past two COTD already on the runway. His topic is stop-and-frisk,which nas been the topic of much discussion hither and yon, especially on social media by people who have no idea what they are talking about. James does, and his post is both timely and helpful.
For some background on the stop and frisk Supreme Court case, here are some links:
- Terry v. Ohio (392 U.S. 1 (1968)
- Terry v. Ohio, 50 Years Later.
- “Reasonable Suspicion and Mere Hunches”
- “Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio”
There will be a test.
Here is James Hodgson’s Comment of the Day on the post, “Seven Ethics Observations On The Las Vegas Democratic Candidates Debate”:
In Support of Constitutional Stop and Frisk
[Commenter] Dave L. said, “suspicionless seizures of young men based entirely on their race, was a wholesale violation of constitutional rights.”
Without question this is correct. But, there seems to be an inclination to throw the baby out with the bath water in denouncing stop-and-frisk tactics. Permit me to defend the constitutional use of stop and frisk tactics as established under Terry v. Ohio, [392 U.S. 1 (1968)].
I began my law enforcement career in 1974, when Terry was still a fresh decision, and had really curtailed the number of police stops made on the often dubious grounds of unarticulated “suspicion.” Of course, the synopsis of Terry is that the Fourth Amendment is not violated when a police officer stops a suspect on the street and frisks him or her, if the police officer has a 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 presently dangerous.”
For their protection, after a person has been stopped, police may perform a quick surface search or “pat-down” of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. Reasonable suspicion must be established based on “specific and articulable facts” and not merely upon an officer’s intuition or “gut feeling.” (Reasonable suspicion, sometimes called “articulable suspicion,” is a lower standard than “probable cause.” If an officer has probable cause, an arrest is usually made which moves the encounter to an entirely different level.) Detention and limited searches made under these guidelines have become known as “stop and frisk” encounters or “Terry stops”.
I learned about Terry stops in the police academy in 1974, and for the next forty years I practiced Terry stops, reviewed Terry stops as a supervisor, taught Terry stops as an agency trainer and police academy instructor, and investigated citizen complaints about Terry stops. I cannot attest to how Terry stops were performed by NYPD or other agencies outside of my region where I am familiar with the accepted standards of training and practice.
Always, the boundaries of Terry vs. Ohio were my touchstone and guideline. For example, the decision addresses the stop and the frisk separately. So, sometimes an officer might have articulable suspicion sufficient to initiate a stop, but not sufficient to perform a subsequent involuntary frisk. In such cases the officer needs to obtain consent for the pat-down, which was given in probably 99% of cases.
My county is about 87% Caucasian, 6% Hispanic, and 5% African American, which means that far more Terry encounters were with white citizens than minorities, and complaints about “unjustified” stops were made more often by white citizens.
In investigating such complaints, we found that while the Terry stops were almost always well-founded, some officers were occasionally remiss in being courteous, explaining to citizens exactly what behavior and circumstances led to their being stopped, in apologizing to the “non-criminal” citizen for the inconvenience, and thanking them for their cooperation(as was our policy). So the majority of issues were not due to a faulty legal basis for the stop, but rather poor interpersonal communications. When officers used good communications skills along with sound Terry principles, there were very few conflicts. Much training effort was directed at teaching and institutionalizing those skills.
One of the primary things we expect police to do is to prevent crime. Often, this requires officers to check out people whose behavior does not fit the time, the place, or the circumstances, or in other words, is “suspicious.” Terry established the legal constitutional basis for doing so in a manner that minimizes the intrusion, making stop and frisk an invaluable policing tool.