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Dasha Kabakova

Reprinted from: Dasha Kabakova, The Lack of Accountability for the New York Police Department's Investigative Stops, 160 Cardozo Public Law, Policy and Ethics Journal 1631 (Summer 2012) (260 Footnotes Omitted) (Student Note)


Being stopped and frisked is a sufficiently unwelcome intrusion that the increasingly widespread use of this policing tool in New York City is not to be taken lightly, even in those cases in which the individuals are not detained for more than a few minutes, and even if the practice causes some reduction in the City's crime rate.

In the United States, when a police officer has specific and articulable facts that cause him to suspect that a person has committed, is committing, or is about to commit a crime, he may approach that person and ask investigatory questions. The person thus approached may not know why he is approached or whether he is free to leave. If the officer reasonably believes that the civilian has a weapon, he may frisk the civilian by patting his outer clothing to look for a concealed weapon. Such investigatory stops happen hundreds of times each day in New York City. For the most part, they are perfectly legal, but as many as 30% of these stops may be unsupported by reasonable suspicion.

The New York State law authorizing police officers to conduct investigative stops and frisks of civilians was upheld as constitutional by the United States Supreme Court in 1968. Nevertheless, the New York Police Department's (NYPD) policy of stopping and frisking civilians remains controversial. In the first six months of 2010, NYPD officers conducted 318,702 such stops. Many have argued that the NYPD's stop and frisks are racially biased, and there is statistical support for this argument.

When an individual is stopped and frisked by the police and believes that the stop was either baseless or based only on race, one would expect that the individual can take action in some form to receive judicial or administrative review of the officer's actions and a determination as to whether this stop was illegal. The very language of the Fourth Amendment seems to require this result: The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. In fact, such review of police action is largely out of reach for the average person who is stopped and frisked.

This Note provides an in-depth analysis of the NYPD's stop and frisk policy and demonstrates that the actions of police officers in stopping and frisking civilians are largely unreviewable, both judicially and administratively. In these instances, there is generally no arrest and thus no evidence to suppress, so the exclusionary remedy is largely irrelevant. Additionally, individual civil rights suits based on wrongful stops are mostly blocked by qualified immunity, and administrative review is largely ineffectual because of a lack of cooperation by the NYPD. As a result, for the vast majority of those stopped by police officers, the officers' actions remain unreviewable. Civil rights suits brought by groups to address racial disparities in the numbers of minorities stopped and frisked represent the best avenue for inspiring reform.

Part I of this Note discusses the history of the New York stop and frisk law and describes the NYPD's stop and frisk procedures. Part II addresses possible avenues for judicial and administrative review of the actions of individual officers in stopping people and argues that they are usually inapplicable or ineffective. Lastly, Part III describes the attempts to prove-- and disprove--racial bias or racial motives in the NYPD's stop and frisk policy.