Monday, June 11, 2012

Stop-and-Frisk and Racial Profiling - What We Should Know


If you see someone being frisked on the street by several police officers, do you automatically ask, "Why are those cops frisking that innocent person?" 

Now imagine the scene in your head.  What color is the person being frisked?  

Chances are you answered no to the first question and something other than "white" to the second. From a statistical perspective, your first thought should be that the person being frisked has done nothing wrong.  The number of times that no weapon is found is about one out of fifty stops.  In almost nine out of ten encounters, the person being frisked is innocent of any offence and has done nothing to warrant the frisk.  And yes, those being stopped and frisked for guns on the street are overwhelmingly African-American or Latino males. 

Stop-and-Frisk policies, where a policeman needs only to imagine that a person is suspicious in order to detain and frisk that person, would appear to be unconstitutional.  Even so, it is a practice in many American cities.  It doesn't produce many illegal weapons or criminal arrests.  It does succeed in creating an unhealthy estrangement and mistrust between citizens of color and the police officers assigned to protect and defend them.  Here are some facts for New York City that help make the point:

The AlterNet

10 Facts Everyone Should Know About New York City's Stop-and-Frisk Policy

This morning, New York City Mayor Michael Bloomberg defended the city’s controversial “stop-and-frisk” policy, saying it helped “take guns off the streets and save lives.” “Stop-and-frisk” is a policy strategy where officers stop and search “people they consider suspicious.”
Bloomberg did, however, acknowledge some issues with the program, saying the practice needed to be “mended not ended.”
Here are 10 important facts about the contentious program:
1. In 2011, NYC officers made 685,724 stops as part of the “stop-and-frisk” policy. Of that group, 605,328 people were determined not to have engaged in any unlawful behavior. [NYCLU]
2. Only 5.37% of all stops in a recent five-year period resulted in an arrest. In short, many people stopped did nothing wrong. [NYT, 5/17/12]
3. In 2009, 36% of the time officer failed to list an acceptable “suspected crime.” Reasonable suspicion of a crime is required to make a stop. [NYT, 5/17/12]
4. More than half of all stops last year were conducted “because the individual displayed ‘furtive movement’ — which is so vague as to be meaningless.” [NYT, 5/14/12]
5. Of those frisked in 2011, a weapon was found just 1.9% of the time. Frisks are supposed to be conducted “only when an officer reasonably suspects the person has a weapon.” [NYCLU]
6. 85% of those stopped were black or Hispanic even though those groups make up about half of NYC’s population. [NYT,5/17/12]
7. Young black and Latino men account for 4.7% of NYC’s population but 41.6% of the stops in 2011. [NYCLU]
8. The number of stops involving young black men in 2011 (168,124) exceed the city’s population of young black men (158,406).[NYT, 5/15/12]
9. Even in overwhelmingly white neighborhoods, police stopped more blacks than whites.[NYT, 5/15/12]
10. In 2012, police are on pace to make more than 800,000 stops, more than twice the population of Miami. [NYT, 5/15/12]
Bloomberg and New York Governor Andrew Cuomo recently “endorsed a proposal to decriminalize the open possession of small amounts of marijuana,” a move intended to limit the number of arrests that result from stops. The announcement was praised by civil rights leaders.
Other New York City politicians, including City Council speaker Christine Quinn, have called for more dramatic reforms of the policy.
By Judd Legum | Sourced from Think Progress 

Posted at June 11, 2012, 5:59 am

STOP-AND-FRISK Definition and Background Information\

The situation in which a police officer who is suspicious of an individual detains the person and runs his hands lightly over the suspect's outer garments to determine if the person is carrying a concealed weapon.
One of the most controversial police procedures is the stop and frisk search. This type of limited search occurs when police confront a suspicious person in an effort to prevent a crime from taking place. The police frisk (pat down) the person for weapons and question the person.
A stop is different from an arrest. An arrest is a lengthy process in which the suspect is taken to the police station and booked, whereas a stop involves only a temporary interference with a person's liberty. If the officer uncovers further evidence during the frisk, the stop may lead to an actual arrest, but if no further evidence is found, the person is released.
Unlike a full search, a frisk is generally limited to a patting down of the outer clothing. If the officer feels what seems to be a weapon, the officer may then reach inside the person's clothing. If no weapon is felt, the search may not intrude further than the outer clothing.
Though police had long followed the practice of stop and frisk, it was not until 1968 that the Supreme Court evaluated it under the Fourth Amendment's protection against unreasonable searches and seizures. Under Fourth Amendment case law, a constitutional Search and Seizure must be based on Probable Cause. A stop and frisk was usually conducted on the basis of reasonable suspicion, a somewhat lower standard than probable cause.
In 1968 the Supreme Court addressed the issue in terry v. ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. In Terry an experienced plainclothes officer observed three men acting suspiciously; they were walking back and forth on a street and peering into a particular store window. The officer concluded that the men were preparing to rob a nearby store and approached them. He identified himself as a police officer and asked for their names. Unsatisfied with their responses, he then subjected one of the men to a frisk, which produced a gun for which the suspect had no permit. In this case the officer did not have a warrant nor did he have probable cause. He did suspect that the men were "casing" the store and planning a Robbery. The defendants argued the search was unreasonable under the Fourth Amendment because it was not supported by probable cause.
The Supreme Court rejected the defendants' arguments. The Court noted that stops and frisks are considerably less intrusive than full-blown arrests and searches. It also observed that the interests in crime prevention and in police safety require that the police have some leeway to act before full probable cause has developed. The Fourth Amendment's reasonableness requirement is sufficiently flexible to permit an officer to investigate the situation.
The Court was also concerned that requiring probable cause for a frisk would put an officer in unwarranted danger during the investigation. The "sole justification" for a frisk, said the Court, is the "protection of the police officer and others nearby." Because of this narrow scope, a frisk must be "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." As long as an officer has reasonable suspicion, a stop and frisk is constitutional under the Fourth Amendment.
After Terry this type of police encounter became known as a "Terry stop" or an "investigatory detention." Police may stop and question suspicious persons, pat them down for weapons, and even subject them to nonintrusive search procedures such as the use of metal detectors and drug-sniffing dogs. While a suspect is detained, a computer search can be performed to see if the suspect is wanted for crimes. If so, he or she may be arrested and searched incident to that arrest.
Investigatory detention became an important law enforcement technique in the 1980s as police sought to curtail the trafficking of illegal drugs. In United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989), the Supreme Court ruled that police have the power to detain, question, and investigate suspected drug couriers. The case involved a Terry stop at an international airport, during which the defendant aroused suspicion by conforming to a controversial "drug courier profile" developed by the Drug Enforcement Agency (DEA). The Court said that the DEA profile gave the officer reasonable suspicion, "which is more than a mere hunch but less than probable cause."
The Supreme Court has become increasingly permissive regarding what constitutes reasonable suspicion. In Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), the Court upheld a Terry stop of an automobile based solely on an anonymous tip that described a certain car that would be at a specific location. Police went to the site, found the vehicle, and detained the driver. The police then found marijuana and cocaine in the automobile. The Court observed that it was a "close case" but concluded that the tip and its corroboration were sufficiently reliable to justify the investigatory stop that ultimately led to the arrest of the driver and the seizure of the drugs.
However, the Court retreated from this holding in Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (U.S. 2000), in which it ruled that an anonymous tip identifying a person who is carrying a gun is not, without more reason, sufficient to justify a police officer's stop and frisk of that person. The U.S. Supreme Court concluded that the tip, stating that a young black male was standing at a particular bus stop, wearing a plaid shirt, and carrying a gun, lacked sufficient reliability to provide reasonable suspicion to make a Terry stop. After announcing its decision in Florida v. J. L., the Court vacated two other state court decisions with similar fact patterns, one from Ohio (Morrison v. Ohio, 529 U.S. 1050, 120 S.Ct. 1552, 146 L.Ed.2d 457 [U.S. 2000]) and one from Wisconsin (Williams v. Wisconsin, 529 U.S. 1050, 120 S.Ct. 1552, 146 L.Ed.2d 457 U.S. [2000]).
In the Ohio case, the Ohio Court of Appeals upheld a Terry stop that was based on a phone call to the police from an anonymous informant who stated that there were two males walking westward on a particular avenue in a particular area and that one of the males was carrying a weapon in his pocket. According to the Ohio Court of Appeals, the Terry stop was supported by sufficient reasonable suspicion because significant aspects of the anonymous caller's predictions were verified. In the Wisconsin case, the Wisconsin Supreme Court ruled that the police had reasonable suspicion to conduct an investigatory stop based on an anonymous tip that individuals were dealing drugs from a vehicle parked within view of the tipster and their confirmation, within four minutes of the tip, of readily observable information offered by the tipster, even though the officers did not independently observe any suspicious activity. In Florida v. J. L., however, the U.S. Supreme Court stated that an accurate description of a subject's readily observable location and attributes does not show that the tipster had knowledge of concealed criminal activity.

Further readings

Drummond, Rob. 2000. "Phone Calls, Guns, and Searches." American Journal of Criminal Law 27.
Erlinder, Peter. 2001. "Withdrawing Permission to 'Lie with Impunity': The Demise of Truly Anonymous Informants and the Resurrection of the Aguilar/Spinelli Test for Probable Cause." University of Pennsylvania Journal of Constitutional Law 4.
Lisenby, Amanda. 2001. "Informant Reliability Under the Fourth Amendment in Florida v. J. L. Northern Kentucky Law Review28.

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