CRIMINAL JURISDICTION

Increased Use of Stop and Frisk Leads to Increased Constitutional Abuses, Legitimizes Racial Profiling

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Law enforcement officials claim “stop and frisk” is one of their most effective crime prevention practices. Civil libertarians, however, claim that “stop and frisk” is being used as another racial profiling tool against hundreds of thousands of innocent citizens each day across the country. The Associated Press recently released statistics showing that law enforcement stop and question more than one million people each year in the nation’s largest cities—a figure that reflects a sharp increase in the use of “stop and frisk” over the past few years. The AP figures revealed that most of the individuals stopped and frisked were black and Hispanic men, most of whom were innocent of any criminal wrongdoing.

The fact that the “stop and frisk” practice often targets racial minorities who have not violated any law does not deter New York City Police Commissioner Raymond Kelly from being an ardent and vocal supporter of the practice. The Commissioner informed AP that his officers will stop as many as 600,000 individuals this year alone but will arrest only 10 percent of them.

“This is a proven law enforcement tactic to fight and deter crime, one that is authorized by criminal procedure,” he told AP.

But the New York figures are indeed troubling. AP reported that of the 531,159 people stopped by the city’s police department in 2008, 51 percent were black, 32 percent were Hispanic, and 11 percent were white. Even more troubling is the fact that New York City police stopped five times as many people in 2008 than they did in 2002.

David Harris is a law professor at the University of Pittsburgh. As an expert on stop and frisk, Harris has become increasingly troubled by the practice because it yields very few weapons, drugs or evidence of any crime.

“The hit rate goes down because you’re being less selective about how you’re doing this,” Harris told AP. “This has a cost. It’s not free.”

Other major cities like Los Angeles and Philadelphia have followed the lead of New York with aggressive stop and frisk practices. Philadelphia police more than doubled their stop and frisks between 2007 and 2008, stopping nearly 200,000 people last year alone. The same rule holds true for Los Angeles whose police department doubled its stop and frisks over the past six years with 244,038 stops in 2008, and an even higher number of people were stopped in cars.

Data obtained and analyzed by Harvard University’s School of Government revealed that 30 percent of the 2008 stop and frisks in Los Angeles resulted in arrests as compared to 15 percent in 2002. And while the LAPD has undergone significant reforms through a federal mandate after a series of horrible corruption scandals rocked the department in the 1990s, the ACLU of Southern California issued a report last year which showed blacks are still three times more likely to be stopped and frisked in LA than whites.

Some large city police departments, like Boston, do not keep records of the number of stop and frisks undertaken by its officers while the Chicago police department, which is currently embroiled in an uphill effort to control one of the nation’s most vicious epidemics of street violence, refused to even release its stop and frisk data to Associated Press.

More than four decades ago the U.S. Supreme Court authorized the “stop and frisk” but imposed a balancing test against “the need to search (or seize) against the invasion which the search (or seizure) entails” for determining whether a particular “stop and frisk” is lawful. 1/

The Supreme Court said that these “investigatory stops” are permissible only when the law enforcement officer has a reasonable suspicion that a person is engaged in criminal activity. 2/ Whether or not the officer’s suspicion was reasonable is determined by what is called a “totality of the circumstances” test. 3/ The Court has made it clear that an officer’s “hunches” or “generalized suspicions” are not enough to stop and detain a person even for a limited period to question him. 4/ the following case examples illustrate facts that courts have found legitimate reasonable suspicion to justify an investigatory stop:

Reasonable suspicion to stop based on police observation of unprovoked flight by suspect holding opaque bag.

Reasonable suspicion to stop based on observation of suspects pacing nervously and repeatedly looking at store.

Reasonable suspicion to stop based on police observation of individual, who was the only pedestrian within 200 feet of reported burglary site, walking in possible escape route in high-crime area minutes after burglary reported.

Reasonable suspicion to stop based partly on police observation of possible getaway vehicle in lot adjacent to bank, man quickly leaving bank and entering vehicle holding something, and driver and passenger switching seats several blocks from the bank.

Reasonable suspicion to stop based on officer’s observation of individual holding right side of his waistband as if holding a gun and individual saying he had a gun. 5/

The Supreme Court has said that once reasonable suspicion is established to stop, the police may then conduct a limited “pat-down frisk” of the individual’s outer clothing. 6/ This “frisk” is permissible only if the officer making the stop reasonably believes that the individual stopped poses a threat to the safety of the officer or others. 7/ Finally, the frisk must be confined to a search for weapons and cannot be used as a basis to search for evidence of criminal wrongdoing. 8/ The following case examples illustrate when a “frisk” is not justified:

Frisk of individual seen talking to drug addicts not justified because officer did not have a reasonable belief the individual was armed.

Frisk of individual in bar not justified because, while officers suspected other patrons of being armed, they did not suspect the frisked individual of any criminal activity.

Frisk not justified because officer did not have reasonable suspicion that pedestrian was robbery suspect based on general description at location by source who did not witness crime.

Frisk of individual in phone booth not justified though individual refused to answer questions because officer had no reason to fear for his safety.

Frisk of individual not justified by individual’s activation of metal detector and subsequent reaching for breast pocket because no reason to suspect individual was armed.

Frisk of individual not justified because officers had no reason to believe individual was armed because officers did not observe bulge, no threatening movements or previous violent action, and crime not associated with weapons. 9/

The “stop and frisk” practice is indeed an effective tool for law enforcement. There’s no question about that. But it’s the very effectiveness of the practice which has led to the recent trend of constitutional abuses. For example, Arizona’s Maricopa County Sheriff Joe Arpaio has come under increasing criticism from U.S. Homeland Security officials and the target of ACLU lawsuits because of his “stop and frisk” practices that indisputably profiles Hispanics. Sheriff Arpaio has admittedly declared a law enforcement war against suspected illegal immigrants and recently stated in a CNN interview that an individual’s manner of dress alone is sufficient reasonable suspicion to stop and frisk.

The problem inherent in the Arpaio approach is that while such an excessive “stop and frisk” practice may discover illegal immigrants or some other form of criminal activity 30 percent of the time, the remaining 70 percent of the individuals subjected to the practice are innocent and must suffer through an intrusive invasion of their privacy, along with the obvious embarrassment. Those individuals in that 70 percent category—most of whom are law-abiding legal immigrants or citizens—develop an intense distrust of the very law enforcement community that is in place to protect and serve them.

We strongly recommend that any person who feels he/she has been targeted for a “stop and frisk” for racial reasons contact an attorney about available legal options. Civil rights lawsuits in Maricopa County and Los Angeles have had beneficial results. Homeland Security recently stripped Sheriff Arpaio of his authority to arrest illegal immigrants, the LAPD has responded to the lawsuits with some meaningful reforms, and the NYPD hired the independent research agency RAND to analyze its stop and frisks for evidence of racial profiling.

The old adage “getting even is better than becoming bitter” applies in this situation. There are a myriad of legal remedies available to curb abusive law enforcement practices—and people are abused when they are subjected to a “stop and frisk” for no other reason than their race or ethnicity. We understand that law enforcement officers often have no more than a split second to make an up or down decision, but they are trained, and often re-trained, to exercise that decision-making power in a responsible manner. It is simply unacceptable to think that 90 innocent individuals should be subjected to the fear and embarrassment of a stop and frisk just to detect 10 individuals guilty of some kind of wrongdoing.

SOURCES:

1/ Terry v. Ohio, 392 U.S. 1 (1968)
2/ Terry v. Ohio, 392 U.S. at 21.
3/ United States v. Arviza, 534 U.S. 266, 273 (2002)
4/ Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979)
5/ 38 Geo. L.J. Ann. Rev. Crim. Proc., p. 49, n. 116 (2009)
6/ Terry v. Ohio, 392 U.S. at 27, 30
7/ Terry v. Ohio, 392 U.S. at 28
8/ Terry v. Ohio, 392 U.S. at 29-30
9/ 39 Geo. L.J. Ann. Rev. Crim. Proc., p. 61, n. 140 (2009)

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair