Stop-and-Frisk a historical context

Every day in New York City, and in cities around the country, police officers stop, question, and sometimes frisk people as part of their routine patrol duties. Police stops occur in a variety of places—on city sidewalks, outside apartment buildings, and in the subway. People are stopped on their way to work, coming home from school, on their lunch break; they may be alone or accompanied by family or friends. From the perspective of New York City police officials, these stops are essential to maintaining public safety.  From the perspective of many citizens who are stopped by officers, the encounters are intrusive and unwarranted.  The United States Supreme Court established a national legal basis for officers to stop, question, and frisk citizens in its 1968 decision in the case of Terry v. Ohio. In the Terry case, a veteran police officer observed three men engaging in conduct that he concluded might be indicative of “casing” a store for the purpose of committing a robbery. When he approached the men to ask them questions, the response from one of them was incoherent. Fearing that the men might be armed, the officer grabbed hold of one of them and “patted” him down. The pat-down revealed that the man was carrying a gun. The Terry decision permits police officers to stop and detain a person based on a “reasonable suspicion” that s/he might be about to commit a crime or is in the process of committing a crime. As such it represents a modification of the Fourth Amendment protection against unreasonable searches and seizures originally granted to private individuals in the Bill of Rights. Prior to Terry, police officers were required to have a higher level of proof, “probable cause,” before interfering with the liberty of private persons. The broader discretion granted to police under Terry requires: 1) that the officer be able to articulate specific facts indicating a person’s possible involvement in a specific type of crime; 2) that in order to frisk the person, those specific facts must lend themselves to a reasonable belief that the suspect may be armed and dangerous; and 3) that the action of frisking be limited to a pat-down of the suspect’s outer clothing, for the purpose of discovering a weapon. While Terry-stops, as these encounters have come to be called, may be conducted based on far less evidence than that legally required to justify an arrest, the Terry decision makes clear that they may not be conducted based on groundless hunches about specific individuals being involved in crime. In New York City, Terry-stops are governed by Criminal Procedure Law (CPL) § 140.50 that became effective September 1, 1971.^[1]

Many cases fleshed out Terry’s rules. These cases gradually required less and less evidence for a stop and frisk. A substantial body of law now allows police officers to stop an individual based on just two factors: presence in an area of high crime activity, and evasive behavior.i3 In other words, many courts now find that reasonable suspicion to stop exists when the person involved 1) is in a crime-prone location, and 2) moves away from the police.^[2]

On November 9, 1989, while exiting an apartment building with a history of cocaine trafficking, Timothy Dickerson spotted police officers and turned to walk in the opposite direction. In response, the officers commanded Dickerson to stop and proceeded to frisk him. An officer discovered a lump in Dickerson’s jacket pocket, and, upon further tactile investigation, formed the belief that it was cocaine. The officer reached into Dickerson’s pocket and confirmed that the lump was in fact a small bag of cocaine. Consequently, Dickerson was charged with possession of a controlled substance. He requested that the cocaine be excluded from evidence, but the trial court denied his request and he was found guilty. Minnesota Court of Appeals reversed, and the State Supreme Court affirmed the appellate court’s decision.

The Fourth Amendment

The Fourth Amendment sits at the boundary between general individual freedoms and the rights of those suspected of crimes. We saw earlier that perhaps it reflects James Madison’s broader concern about establishing an expectation of privacy from government intrusion at home. Another way to think of the Fourth Amendment is that it protects us from overzealous efforts by law enforcement to root out crime by ensuring that police have good reason before they intrude on people’s lives with criminal investigations.

The text of the Fourth Amendment is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The amendment places limits on both searches and seizures: Searches are efforts to locate documents and contraband. Seizures are the taking of these items by the government for use as evidence in a criminal prosecution (or, in the case of a person, the detention or taking of the person into custody).

Legalizing Stop-and-Frisk in New York

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