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Excerpted From: Brian McNeil, Stop-and-frisk in New York, Philadelphia, and Chicago: Slowly Approaching an Uneasy Synthesis or Running out of Time to Justify its Freight?, 29 Widener Commonwealth Law Review 69 (2020) (220 Footnotes) (Full Document)


Most people know what stops and frisks are, and what standards apply to them. But while these standards provide the framework for adjudging the propriety of stops and frisks on an individual basis, different considerations come into play where the relative benefits and drawbacks of widespread stop-and-frisk practices as a policy are addressed. This article surveys the standards applicable to stops and frisks, traces the origins of these standards, and examines how policies encouraging increased numbers of stops and frisks have progressed in three major cities: New York, Philadelphia, and Chicago. The goal of this article is to review how stop-and-frisk arose as a policy and to examine how it has played out in practice. And ultimately, this article concludes that the experiences these cities have had with stop-and-frisk are quite similar, leaving some--though maybe not much--hope that the practice can continue in a way that complies with constitutional constraints.

The seminal case on stops and frisks is, of course, Terry v. Ohio. In Terry, a Cleveland detective saw two men, Chilton and Terry, at 2:30 p.m. while on routine patrol. The detective “was unable to say precisely what first drew his eye to them,” but testified that, based on his experience, they “didn't look right to [him] at the time.” After watching the men for a while, the detective grew “thoroughly suspicious” that they were casing a store for a robbery and may have had a gun. He approached the men and asked their names, receiving mumbled responses. He then grabbed Terry, spun him around, and “patted down the outside of his clothing.” Having felt a pistol in Terry's coat pocket, he removed the coat and recovered the gun. In similar fashion, he recovered a gun from Chilton. The detective insisted “he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns.”

When the defendants moved to suppress, the government maintained they were properly searched incident to arrest. The court rejected this notion, but denied suppression on the ground that the detective “had reasonable cause to believe ... that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.” When Terry's appeal reached the Supreme Court of the United States, the Court found the case concerned “the power of the police to 'stop and frisk'--as it is sometimes euphemistically termed--suspicious persons.” After weighing the interests at stake, the Court stressed that although a limited search for weapons was a considerable intrusion--not a “petty indignity”--it did not rise to the level of an arrest. Balancing the reduced intrusion against the need for officer safety, the Court found

there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

The Court continued, “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” The Court approved the detective's actions and affirmed the denial of suppression.

Notably, the Terry Court was not blind to the potential misuse of stops and frisks; rather, the Court explicitly acknowledged the risks:

It was reported that the friction caused by (m)isuse of field interrogations increases as more police departments adopt aggressive patrol in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident .... While the frequency with which 'frisking’ forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, ... it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true in situations where the 'stop and frisk’ of youths or minority group members is motivated by the officers' perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.

As discussed below, this proved to be prescient. But it did not change the outcome or dissuade the court from endorsing stops and frisks under appropriate circumstances.

The day the Supreme Court decided Terry, it also decided Sibron v. New York and Peters v. New York. These cases get far less attention than Terry but are worth a look at in their own right. These cases reveal that, before Terry was decided, New York had a law on the books that purported to allow police officers to do essentially what Terry confirmed they could do. This law, “New York's 'stop-and-frisk’ law,” allowed an officer to stop anyone “he reasonably suspects” of committing certain offenses and to “demand of him his name, address, and an explanation of his actions.” The law further allowed an officer who “reasonably suspects that he is in danger of life or limb” to search the suspect “for a dangerous weapon.” The law did not limit the scope of that search.

Both Sibron and Peters were convicted of crimes after they were stopped and searched pursuant to the stop-and-frisk law. When the cases reached the Supreme Court, all parties argued the issue was whether the law was facially unconstitutional. The Court brushed this aside, however, noting New York could pass whatever laws it liked but could not “authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.” Therefore, the law's constitutionality was not really at issue; the question was whether the Fourth Amendment permitted the searches. Applying the newly minted Terry standard, the Court concluded that the search of Peters was permissible, but the search of Sibron was not.

There are countless other cases defining the contours of stops and frisks. But Terry sets forth the basic constitutional framework for appraising the validity of individual stops and frisks. In other words, it is the tool to use when reviewing the propriety of individual stops and frisks under the Fourth Amendment.

On the policy level, different considerations apply. And as a policy, widespread stop-and-frisk bears at least some comparison to Broken Windows theory. Broken Windows theory was developed by sociologists George Kelling and James Wilson in a seminal Atlantic Monthly article from 1982. And in a very small nutshell, the theory provides that small crimes in a community, left unchecked, lead to bigger crimes in that community: “at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence.” Kelling and Wilson demonstrated how this applies, literally, to broken windows: “Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”

In other words, tolerating minor or “quality of life” crimes, such as public intoxication or vandalism, sends the message that the community is not invested in protecting itself or fighting crime. This message leads potential criminals to conclude that the risks of committing crime, potentially even violent crime, are reduced--as Kelling and Wilson put it, “one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.” To put it plainly, “[m]uggers and robbers, whether opportunistic or professional, believe they reduce their chances of being caught or even identified if they operate on streets where potential victims are already intimidated by prevailing conditions.”

The other side of this coin is that targeting minor offenses has the opposite effect: “[o]nly by actively combating low-level disorder, can police and the neighborhood residents signal to the criminal element their resolve that 'law breaking of any kind will not be tolerated’ - and thus begin to restore standards of behavior which make serious crime untenable.”

Stop-and-frisk, as a policy, can almost be seen as Broken Windows on steroids: by putting pressure on police to perform stops and frisks at a heightened rate, i.e., wherever possible, the community is prosecuting smaller crimes and sending out the message that crime will not be tolerated. It puts criminals on notice that they are subject to a greater likelihood of being stopped and frisked, thus deterring crime. This has special resonance for those who might carry guns; an increased likelihood of being stopped made the practice much riskier. Moreover, these criminals may end up incarcerated too, incapacitating specific individuals and making it impossible for them to commit crime in the community.

To many, this sounds fantastic. Why shouldn't police make all the stops they legally can? As long as the stops are constitutionally permissible, what's the problem?

To others, it sounds terrible. It sounds like a police state, where officers are urged or required to round up as many people as possible; robbed of the discretion to make only those stops and frisks they deem appropriate, officers will exalt quantity over quality and make stops based on less than reasonable suspicion or due to improper considerations.

Which of these viewpoints is closer to reality depends on who you ask. As with most things related to stop-and-frisk, the effects--both on crime and on the citizenry--are disputed. As such, it is worth reviewing how stop-and-frisk has played out in a few different cities before drawing any conclusions as to its effects and desirability.

[. . .]

As is clear from the reports produced in the wake of the agreements in New York, Philadelphia, and Chicago, fewer people are being stopped or frisked, and more of the stops and frisks are based on reasonable suspicion. However, improvement on the racial disparity front, in particular, still appears to be lacking. There remains some hope that this too will improve: newer measures such as implicit bias training and accountability at the rank-and-file and middle- management level have been implemented, but their effects have not yet been gauged. It may turn out that, in a few years, there will be substantial agreement that stop-and-frisk is performing its proper law enforcement function with minimal or at least acceptable levels of collateral constitutional damage.

On the other hand, it may instead be the case that as much improvement has been wrung out of the practice as possible. The Philadelphia challengers, in particular, appear to be running out of patience with the pace of improvement. On the other hand, reports out of New York and Chicago sound a bit more optimistic and have called for continued patience in appraising the effects of remedial measures.

It is worth noting, however, that opinions about the pace of reform and hope that it will continue can hinge on what degree of unconstitutionality one is willing to tolerate. In one particularly eye-catching example from last November, the Philadelphia plaintiffs and defendants saw strong support for their respective positions in the exact same results. The plaintiffs viewed the fact that 16 percent of stops lacked reasonable suspicion as proof that the city and police department were making insufficient progress under the consent decree. Meanwhile, the city was pleased with this figure, trumpeting that “only 16 percent] (6,773 out of 41,661) of stops were made without properly documented reasonable suspicion.” Instances like this make it hard to believe there will ever be a true consensus when it comes to stop-and-frisk.

But satisfaction with such high numbers of constitutional violations is worrisome. Having insufficient suspicion to stop 16 percent of the time means the police get it wrong once every five or six times. The other cities report better figures on the Fourth Amendment front, but they have all struggled in quelling the racially disparate impacts of stops and frisks. Again, further progress is possible. But these cities may be running out of options for making stops and frisks in a constitutional manner.

At bottom, it is too soon to tell for sure. And in any event, Terry v. Ohio is not in danger of being overruled anytime in the foreseeable future. Because Terry and its progeny allow stops and frisks and many continue to believe widespread stop-and-frisk practices decrease crime, it is unrealistic to expect stop-and-frisk to disappear anytime soon. This is especially true where some warn that further constraints run the risk of de-policing. But it is worth remembering that these cities have had agreements in place for several years now. And if the negative effects of stop-and-frisk persist, particularly its racially disparate impact, it will be harder for cities to continue defending it. For now, we will all have to wait and see.

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