I. Stop and Frisk in New York
A. Passage of the New York Stop and Frisk Law
New York's so-called stop and frisk law was first passed in 1964. Currently, the statute, titled Temporary questioning of persons in public places, reads:
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
2. [applies to court officers only]
3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
4. [concerns maintenance of data obtained during such stops and is discussed infra.]
The 1964 bill was sponsored by Julius Volker, a Republican member of the New York State Assembly from Erie County. The reasons for passage of the measure were twofold.
First, courts were suppressing evidence of crimes where the initial stop of the suspect was on less than probable cause. In a 1962 decision, the New York Court of Appeals indicated that any change in this policy must come from the legislature. In response, on March 23, 1962, Governor Nelson A. Rockefeller sent a note to the legislature proposing that:
[T] he Code of Criminal Procedure be amended to enact in New York that part of the Uniform Arrest Act which permits a police officer to question for a limited time and to search, without arresting, suspicious persons who are abroad, where the officer has reasonable grounds to believe that such persons are committing, have committed or are about to commit a crime.
The governor's memo on the approved bill agreed that the main purpose of the bill was to remove the uncertainty which has attached in recent years to the admissibility of evidence obtained in these circumstances.
Second, the bill's sponsor presented the measure as necessary to prevent crime, noting, [t] he police are charged with the duty not only of arresting criminals, but, equally, if not more important, of preventing crime and preserving the peace. The latter purpose, however, formed only a small part of Representative Volker's analysis and was not mentioned in Governor Rockefeller's memo.
Anticipating charges that the legislation would violate the Fourth Amendment, Representative Volker argued that from a constitutional basis, the prohibition is against unreasonable search or seizure. What is contemplated in the proposed legislation is a reasonable-man test, viz., in all events the detaining, questioning, and search must be predicated on reasonable grounds. Representative Volker further minimized the intrusiveness of the stop and frisk procedure by noting that the contemplated average period of questioning a person would be no more than a few minutes. In other words, a relatively short period within which a police officer may satisfy himself that an otherwise suspiciously acting person is in reality a law-abiding citizen.
B. Upholding the New York Stop and Frisk Law as Constitutional
In 1968, the United States Supreme Court upheld New York's stop and frisk law as constitutional in Sibron v. New York, decided along with a companion case, Peters v. New York. The defendants in both cases challenged the constitutionality of the New York stop and frisk statute. Sibron was stopped after an officer observed him speaking to multiple known drug addicts over a period of several hours. Peters was stopped when an off-duty officer heard noise in the hallway of his apartment building and observed Peters and a companion tip-toeing through the hallway. Sibron was convicted of possessing heroin and Peters was convicted of possessing burglar's tools. The Supreme Court upheld both stops.
The Court, in an opinion by Justice Warren, refused to rule on the facial constitutionality of the stop and frisk law, writing:
We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of [the stop and frisk law] next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.
In finding that the stops of Sibron and Peters did not violate their Fourth Amendment rights, the Court effectively ruled that the law is not facially unconstitutional while leaving room to find it unconstitutionally applied in individual instances.
C. Clarifying the Stop and Frisk Law
In 1976, the Court of Appeals of New York clarified the stop and frisk law, putting in place the four-level degree of suspicion framework used by NYPD officers today. In People v. De Bour, and the companion case, People v. La Pene, the court established a framework for determining whether an officer can detain a person against his will, ask accusatory questions, conduct a frisk, and make an arrest based on what the officer observed.
The first level is known as request for information and is based on what the court perceives as the need for the police to have wide latitude to approach individuals and request information as part of their public service functions. The court derived this right from a general right of people to approach any other person and attempt to strike up a conversation. Within this level, an approach of a person by an officer is permissible when there is some objectively credible reason for that interference not necessarily indicative of criminality.
The second level, known as the common-law right to inquire, was developed in a precursor to De Bour. At this level of suspicion, the police need a founded suspicion that criminal activity is present, which the court saw as something less than that required for reasonable suspicion. This contact, according to the court, does not constitute a seizure and the officer, without more, cannot frisk the person stopped. Under the second level of suspicion, a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. The court saw this as an intermediate level, reflecting a necessary reality that officers need to be able to initiate encounters with people even if they are not able to seize them.
The court found the stop of De Bour by police officers to fall within this second level. The officers had observed De Bour walking alone in an area with a high level of drug activity and their suspicion was aroused when he crossed the street after observing them. They asked him what he was doing in the area and he replied that he was going to a friend's house. The officers then observed a bulge at De Bour's waist and asked him to unzip his coat. When he did so, they observed the butt of a pistol, which served as the basis for De Bour's arrest. At the time they stopped De Bour, the officers lacked not only probable cause to arrest him, but also the reasonable suspicion necessary to stop him under Terry and Sibron. However, the court-created second level of suspicion allowed the officers to question him and further observe his behavior without seizing him, even temporarily. The court stressed that [t] he encounter here was devoid of harassment or intimidation. . . . Significantly, the encounter did not subject De Bour to a loss of dignity, for where the police degrade and humiliate their behavior is to be condemned.
The third level is what we commonly know as a stop and frisk and is based on the New York stop and frisk statute. In People v. La Pene, officers received a radio message from central communications that there was a male Negro with a gun, wearing a red shirt, in a place called Jean's Bar, based on an anonymous telephone tip. Upon entering the bar, officers approached La Pene because he fit that description. The officers did nothing to verify the information contained in the tip. They did not observe any bulge on La Pene or suspicious behavior on his part, nor did they even look for other black men wearing red shirts in that bar. They immediately told La Pene to freeze and frisked him, recovering the gun for which he was ultimately charged. The court found that the anonymous tip, without more, was not enough to satisfy the reasonable suspicion standard and ordered the indictment dismissed. The fourth level is the power to arrest based on probable cause.
D. NYPD Officer Training in Stop and Frisks
NYPD officers are trained in conducting stop and frisks in an academic setting during their six months at the police academy.
[Stop and frisk] is presented in four 90-minute classroom lessons, as part of a larger discussion of Fourth Amendment and related legal concepts. The classroom training covers the basic legal rules surrounding stop & frisk (including a discussion of Terry v. Ohio) as well as the basic factors which can, and cannot, create reasonable suspicion sufficient to justify a stop. The NYPD's written objectives for recruit training list, as an objective, the ability to understand and articulate factors which may justify a stop or frisk.
The discussion includes use of hypothetical examples, and following the course, officers must pass multiple-choice exams assessing what they learned.
E. NYPD Documentation of Stop and Frisks
Subsequent to conducting a stop and frisk, officers are required to fill out a Stop, Question and Frisk Report Worksheet, known as a UF-250 form. The form includes fields describing the timing and location of the stop, descriptive and identifying characteristics of the person stopped, the reason for the stop, whether the person was frisked, and whether the person was issued a summons or arrested. After the form is filled out by the officer, it is reviewed by a supervisor, then entered into a log in the precinct station house and assigned a serial number. Later, the data from the form are entered into the computerized database by an officer assigned to administrative duties or by a civilian precinct employee.
The stop and frisk statute was amended in 2010 to prohibit the NYPD from maintaining a database of names and identifying information of people stopped. The New York Civil Liberties Union (NYCLU) had filed a lawsuit against the NYPD for maintaining this database and also lobbied for the law's passage. After passage of the amendment, the NYPD can still maintain generic information on persons stopped, such as that person's race and gender, as well as the location of the stop, but cannot keep records of identifying information of those stopped. The NYCLU stated that this non-identifying information is necessary, as it enables independent assessment of how the stop and frisk policy is being applied. The NYPD strongly opposed the law, arguing that the database was an important tool . . . to solve crimes and prevent others.