II. Judicial Review of Stop and Frisk Violations

Generally, violations of constitutional rights by the police are reviewable through a number of well-defined processes, such as the exclusionary rule. However, the unique characteristics of stop and frisks make substantial judicial review of police action in this context difficult and rare. The following sections examine three avenues of review of police action-- suppression of evidence in criminal proceedings, civil rights suits by individuals, and administrative review--and describe how each of these methods fail to provide redress in the majority of stop and frisk violations. Each section provides an example of a case that is an exception, which proves the rule that the majority of stop and frisks are unreviewable.

A. Exclusion of Evidence in Criminal Proceedings

The main remedy for most Fourth Amendment violations is the exclusion of evidence, and the exclusionary rule is a primary deterrent to police misconduct. About 90% of all stop and frisks, however, do not result in arrests and the exclusionary remedy is thus irrelevant. However, in those cases where contraband is recovered following a stop on less than probable cause, the review of police action can be quite robust.

For example, in People v. Lopez, the court suppressed a gun recovered following an illegal stop. The defendant was the passenger on a bicycle moving the wrong way on a one way street. When police officers moved to stop the bicycle, the defendant alighted from his perch on the back of the bike and ran away from the officers. The defendant dropped a gun in a backyard as he ran. The officers pursued the defendant and were able to cut him off and stop him.

The court, in examining the reasons for the stop, noted that the officers likely had other investigatory concerns in mind when they ordered the bicycle to stop, and that in this case their instincts' [sic] proved accurate. The court considered the testimony of the arresting officer in some detail and found it persuasive, but was unable to glean from it any reason for the stop of the defendant other than his flight. Citing ample precedent, the court concluded that because flight in the absence of more is insufficient to give rise to reasonable suspicion, the officer's stop of the defendant was improper. The court therefore suppressed the evidence.

Suppression of seized contraband is more common in cases involving anonymous tips. In 2000, the Supreme Court held in Florida v. J.L. that an anonymous tip providing only a description of a person and the assertion that this person has a gun is not enough to establish reasonable suspicion. Since that decision, New York courts have suppressed evidence, usually a gun, in cases where the stop and frisk was based on no more than such a tip. However, in cases where the anonymous tip was corroborated by a police officer's observations, or where the caller provided identifying information and complained of specific criminal conduct, suppression of evidence has been denied.

The defendants in these cases are unusual among those stopped and frisked in that they were arrested and tangible evidence was recovered. These factors alone gave them the opportunity to have a judge assess the conduct of the officers in stopping them.

B. Civil Rights Suits by Individuals

Individuals who are arrested and whose criminal charges are later dismissed, as well as those who are stopped but not arrested, can sue the NYPD under 42 U.S.C. 1983 for violations of their federal civil rights. These cases represent an alternate route to judicial review of police action. However, 1983 suits involving a stop but no arrest are few and far between because they are complicated by the doctrine of qualified immunity. Under this doctrine, police officers are immune from liability for money damages in suits brought against them in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Furthermore, qualified immunity protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act. Alternatively, an officer can show that officers of reasonable competence could disagree whether the action was lawful.

For example, in Allen v. New York City Police Department, the court used the doctrine of qualified immunity to dismiss most of the suit on summary judgment. Plaintiffs Allen and Walters filed suit pro se, alleging, among other things, that Allen was illegally stopped and searched and that Walters's home was illegally searched. The court's detailed factual analysis of Allen's case is illustrative of the difficulties faced by a plaintiff in 1983 litigation.

Allen's first main claim was that he was stopped and seized in violation of his constitutional rights. On the evening of June 1, 2007, Allen, a resident of the public housing development known as the Taft Houses, entered another building in the development through the unlocked front door. Allen went upstairs to the eighth floor, where his sister and Walters lived, then took the elevator down to the second floor, then took the stairs to the first floor. Three officers patrolling the building observed Allen enter the building, and upon his return to the first floor, stopped him. When he explained that he was visiting apartment 8-B (Walters's apartment), the officers accompanied him to that apartment to verify his account and determine whether he was a proper guest in the building.

The court concluded that the initial encounter was consensual and therefore not a seizure subject to Fourth Amendment protections. The court hesitated to conclude that Allen was seized for Fourth Amendment purposes when he accompanied the officers to the eighth floor, noting that Allen did not suggest that he was forced to accompany the officers and that he himself pressed the elevator button. However, taking the facts in the light most favorable to Allen, the court assumed that Allen was seized for Fourth Amendment purposes for the remainder of the analysis. The court found that such a seizure was justified under Terry because it was based on a reasonable suspicion that he was trespassing in the building and supported by articulable facts that criminal activity may have been afoot. The court cited the circumstances of Allen's entry into the building and his evasive answers to some of the questions posed by the officers as enough to establish reasonable suspicion. Thus, finding that the initial stop was justified, the court granted summary judgment to the defendants on Allen's first claim.

Allen's second main claim was that he was illegally searched. Once on the eighth floor, the officers knocked on the door of apartment 8-B but received no response. Officer Figuereo then frisked Allen, removing a set of keys from one of his pockets, while Officer Gonzalez looked in Allen's bag, which Allen had told him contained flyers to by [sic] food. Walters then arrived on the scene and explained that Allen was his brother-in-law, though he was unable to tell the officers Allen's name.

The court found that when no one responded at apartment 8-B, the officers had probable cause to arrest Allen for trespassing. Based on this finding, the court concluded that:

officers of reasonable competence could disagree as to whether the search occurred when the Officer Defendants merely had a reasonable suspicion that a crime was afoot or if the search occurred after the Defendants had probable cause that Allen was trespassing. . . . Because officers of reasonable competence could disagree as to the constitutionality of their actions, the Officer Defendants are entitled to qualified immunity with respect to the search of Allen's bag and pockets.

Based on this conclusion, the court dismissed Allen's only remaining claim that he was illegally searched.

The other plaintiff, Walters, claimed that officers illegally searched his apartment. After Walters arrived, Officer Gonzalez took one of the keys he had obtained from Allen and opened the door to apartment 8-B. The testimony conflicted as to whether he merely leaned into the apartment or stepped into it. He then closed the door and returned the keys to Allen and told him that he could go.

The court found that the search was not authorized by a warrant and did not fall under any exceptions to the search warrant requirement. The court then concluded that:

[b] ecause the firm line around the physical dimensions of one's home has been clearly established for decades, law enforcement officers of reasonable competence could not disagree as to the constitutionality of Officer Gonzalez's alleged warrantless entry into Walters'[s] apartment. Officer Gonzalez is therefore not entitled to qualified immunity with respect to the warrantless entry into Walters'[s] apartment.

Using the doctrine of qualified immunity, the court here was able to dismiss most of the claims against the officers and remove one of the plaintiffs. While Allen received some judicial review of the police officers' actions, one of his two claims was dismissed without a definitive conclusion as to the legality of the officers' actions. Through the disagreement of officers of reasonable confidence variant of the qualified immunity doctrine, courts can put a heavy thumb on the scale in favor of the police in borderline cases. Combined with instances where the police action was in fact constitutional, qualified immunity shields most police behavior from liability. Only in the rare case where the officers acted without even arguable legal justification will they be subject to potential liability under 1983.

This is not to say that qualified immunity is not an important or arguably necessary doctrine. The qualified immunity doctrine balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. In striking that balance, we must realistically assess the doctrine's impact on the reviewability of certain constitutional claims.

C. Administrative Review

Individuals who are stopped and frisked can file a complaint about the incident and seek to have it administratively reviewed. Two administrative bodies review police action: 1) the Civilian Complaint Review Board (CCRB), an independent agency and 2) the Internal Affairs Bureau (IAB) of the NYPD. The two agencies have different jurisdiction. The CCRB investigates complaints of excessive or unnecessary use of force, abuse of authority, discourtesy, and offensive language, while IAB handles complaints of corruption. Stop and frisk complaints fall into the CCRB's jurisdiction and comprise approximately 30% of all complaints received by the agency.

The CCRB's investigations are handled by more than 140 civilian investigators and are reviewed by panels of a thirteen-member board comprised of mayoral designees, city council designees, and police commissioner designees. The investigative process includes gathering documentary evidence, such as stop and frisk reports, and interviews with the complainant, the witnesses, and the police officers. When the complainant refuses to speak to investigators or cannot be located, the investigation is closed without further action. Approximately 65% of all cases received by the CCRB are closed for this reason.

The CCRB substantiates approximately 10% of the cases that are fully investigated. Substantiated cases are then referred to the NYPD Commissioner, who has complete discretion over disciplinary matters, a power which the Center for Constitutional Rights has called an inherent problem with administrative review. The NYPD has long been criticized for failing to discipline officers after the CCRB substantiates cases. The rates for discipline have increased in recent years, with 87% of cases resulting in some disciplinary action in the first six months of 2010. However, about 50% of the cases referred during that period resulted in a discipline of instructions, which:

involve a subject officer's commanding officer instructing him or her on the proper procedures that should have been followed under the circumstances. They can also involve an officer being sent for in-service training or Police Academy presentations. Instructions are considered the least punitive measure because they do not result in formal proceedings.

The low substantiation rate has three main causes. First, in some cases the only probative evidence is the testimony of the complainant and the officers involved. Both parties are interested in the outcome of the complaint, so it is not possible to credit one over the other without additional evidence to corroborate what occurred. Because many stop and frisks occur in public places where the majority of the witnesses are passersby, it is often not realistic to track down witnesses. The fact that stop and frisk incidents are a normal fact of life in many neighborhoods only exacerbates this. Second, in some cases the stop and frisks are supported by reasonable suspicion and thus the officers are rightly exonerated. Lastly, although the CCRB provides no statistics to this effect, it is likely that in a non-negligible proportion of cases the officers simply do not remember the encounter and their version of the story cannot be assessed. Similarly, if the officers fail to prepare the required stop and frisk reports, there is a substantial chance that they will never be identified.

Because the investigations conducted by the CCRB are part of the subject police officer's personnel record, they are kept confidential. However, the CCRB's website describes several case profiles that illuminate the process.

One profile, based on a 2004 incident, illustrates how corroboration by an independent witness can result in the substantiation of a case. The complainant was walking home from a friend's home when he was approached by officers who said they wanted to search him because they believed he had a gun. The man argued with the officers about the propriety of the stop and was frisked, handcuffed, and taken to the precinct, from where he was released with a summons for disorderly conduct. The CCRB credited the complainant's account and substantiated several allegations against the officers, including improperly stopping and frisking the complainant.

The CCRB reviewed the summons and the stop and frisk report prepared by the officers, and interviewed both the complainant and the officers involved. These are typical steps taken in most investigations. What distinguishes this case from those that do not result in substantiations is that the CCRB was also able to locate an independent witness, a woman who observed the incident from her apartment window and responded to a letter posted in the lobby of the building by the investigator. With this witness's corroboration of the complainant's account, the CCRB was able to credit his statement and substantiate the allegations against the officers. The NYPD ordered the officers involved to receive instructions.

Another case profile reflects an instance where the stop and frisk was found by the CCRB to be justified. There, the officers received a radio report of a man threatening people with a firearm, described as a short Hispanic male with a goatee and a black jacket and red pullover sweatshirt. They stopped a complainant, a 5'10 white male with a goatee and a red jacket. Although the CCRB substantiated allegations against the officers regarding conduct that followed the stop, the CCRB concluded that the complainant matched the description sufficiently to exonerate the stop.

Complaints that are substantiated are referred to the NYPD for disposition. The NYPD is notorious for dismissing substantiated complaints without taking action; in 2009, the NYPD declined to prosecute 30% to 40% of cases referred to it as substantiated by the CCRB. Since then, the situation has somewhat improved. In the first half of 2011, the NYPD declined to prosecute 20% of the cases referred to it by the CCRB. The CCRB negotiated with the NYPD to create an Administrative Prosecutions Unit, staffed by attorneys from the CCRB, to prosecute a portion of substantiated CCRB complaints in NYPD administrative trials. However, this program has faced financing woes that almost caused its demise in late 2011, and a city-wide hiring freeze has prevented the replacement of the program's only attorney, who left for another job.

The result of this system is that a person who believes he was unlawfully stopped and frisked by the police has little hope of recourse through administrative review. The most likely outcome of his complaint is that the CCRB will not be able to determine whether the stop was lawful because the contradictory statements of the complainant and the officer will be uncorroborated by any independent witness or evidence. In the unlikely event that supporting evidence corroborates the complainant's account or that the officer fails to provide a legally adequate reason for the stop, the substantiated complaint still has a high likelihood of being dismissed by the NYPD. And, even if the complaint makes it through these hurdles, the most probable outcome is that the officer will receive the discipline of instructions, amounting to not much more than a stern conversation with a superior and a training session. Given these odds, it is hard to have faith in the civilian oversight system as providing meaningful review and recourse to those who believe they were illegally stopped and frisked.