Stop and Frisk
The New York City Police Department’s “Stop and Frisk” policy was recently held to be unconstitutional by a U. S. District Judge, violating the necessity of equal protection of the law. The practice was an unconstitutional application of racial profiling as applied, with the great majority of those stopped were non-white young men; and this ratio appeared even in neighborhoods that were predominately white. (I might also suggest it is questionable on the basis of sex as well as race, since to my knowledge, few if any women have been stopped and frisked.) While racial profiling is the flaw in stop and frisk that has been highlighted by the news media, it has other problems even more fundamental.
The stop and frisk doctrine was one of the Supreme Courts first cuts on the way to eviscerating the Fourth Amendment’s requirement of probable cause before the state could search a person or his property. While New York City has been the recent center of attention, stop and frisk is used universally by police forces nationwide. The Court ruled that the police could momentarily detain a person and question him if they had reasonable suspicion that they person was engaged in unlawful behavior. Since stopping and detaining a possibly dangerous person could put the officer himself in danger, the officer would be entitled to briefly search the person’s body (frisk) for the purpose of determining if he was carrying a weapon. Notice that the right to question safely was the justification for the frisk and that the search should be no more intrusive than necessary to detect weapons.
But the racial profiling revealed in New York is merely an example of the doctrine improperly applied. The doctrine itself contains two fundamental flaws that call for the end of the practice. The first is that “reasonable suspicion” is undefined, and probably undefinable so that no standards for regulating police behavior can be articulated. The second is the lack of any clear distinction between a frisk necessary for the officer’s safety and an illegal warrantless search. Both of these defects have frequently surfaced in cases involving contraband drugs.
Reasonable suspicion has shown up in many drug possession cases in which the arresting officer has to justify his decision to stop and frisk the defendant in order to question him. As these cases make painfully obvious, “reasonable suspicion” has no connection with – or even correlation to – any criminal conduct. At best, the police testimony reveals behavior that deviates from the individual officer’s personal judgment of what is normal behavior. In what way do driving below the speed limit, paying cash for an airline ticket, buying a one-way ticket instead of roundtrip, being too well-dressed for a bus passenger, not looking at (or staring at) a police car parked by the road, or being too nervous (or too calm) to be an airline passenger support any belief that the person is engaged in criminal behavior?
The best way to judge the reasonableness of an activity is to measure the results. The New York data shows that “reasonable suspicion” is far from reasonable. The data show that over eighty-eight per cent of the stops resulted in no police action: the detained person was released without citation or arrest. Can any behavior be reasonable if it proves erroneous in nine cases out of ten? Even in terms of reaching its stated goal, stop and frisk is an unreasonable failure. The mayor and police commissioner of New York claim that one of the major goals of the program is to remove illegal guns from the street and brag that it has detected and seized over 8,000 firearms. However, the numbers show that the stop and frisk found guns in only 0.15 percent of the cases – or fewer than two guns in each thousand stops. Is this meager result a reasonable justification for the program?
Although questioning is the ostensible goal of the stop, most often the questioning is used only as a pretext for the frisk. The court allowed the frisk as a minimal intrusion into the privacy protected by the Fourth Amendment only so far as it was necessary to protect the questioning officer from a concealed weapon and would be permitted to be no more intrusive than necessary to detect the presence of a gun, knife, or sap. Normally, a pat-down over the clothing would be sufficient to detect a weapon, without the need to examine the contents of pockets or inside clothing.
The New York numbers tell this story as well. Less than one percent of those stops found guns, but about twelve percent of them led to arrests or citations. Most of these arrests, over ten percent of the stops, were for drug possession. A gram of cocaine or heroin is about the size, weight, and hardness of a packet of sweetener found in a coffee shop. An eighth-ounce of marijuana – a typical street buy – is an amount of vegetation about the size of a finger and packaged in a plastic sandwich bag. A surface pat-down only obtrusive enough to find a lump of metal as large as a handgun, detects these tiny, soft parcels surprising often.
Stop and frisk as it is used is a perversion of democratic law enforcement. The role of police agencies is to enforce the law and to preserve public safety. When that role is improperly generalized as maintaining public order, then police become controllers, not protectors. The inability of a citizen to walk the public streets without public scrutiny and harassment marks, not a well-functioning democracy, but is a mark of totalitarianism. We must regain control of the police, and ending stop and frisk would be a significant starting point.