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Stop and Frisk–The Constitutional Tightrope

index2A federal judge in New York recently ruled that NYPD’s “stop and frisk” policy is unconstitutional. Judge Shira A. Scheindlin determined that the controversial police policy unlawfully targeted minorities. The judge found that the policy had the indirect effect of racial profiling. Central to the claim was that the greater number of these police actions occurred in communities with heavy minority concentrations. The ruling has frustrated the Bloomberg administration’s ongoing efforts to reduce violent crimes and illegal weapons possessions.

Advocates of the policy cite statistics suggesting that the incidence of shootings and illegal weapons possession in New York City have had a significant increase since the ruling merely weeks ago. The case is presently on appeal to the Second Circuit Court of Appeals. A request to the Court to stay implementation of the ruling pending the outcome of the appeal has been denied. The NYC mayoral race has also focused heavily on this ruling and its effects.

So what is “stop and frisk” and where does it collide with the U.S. Constitution? The Fourth Amendment in the Bill of Rights provides, “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.” index

We all can understand where the 4th Amendment protects us when we are in our homes. Police cannot intrude into our homes, or other discrete areas where we have a reasonable expectation of privacy, without our consent or the independent determination by a judge that they have such a legal right. The 4th Amendment favors judicially ordered search warrants unless there are specific exigent circumstances that require more immediate police action before a warrant can be obtained. To issue a search warrant a neutral magistrate must make an independent determination that probable cause exists.

In the real world where police are faced with suspicious activities that do not rise to the level of 4th Amendment probable cause our courts have carved out an exception to the warrant requirement to permit police to temporarily detain a person and conduct a limited intrusion. The intrusion is limited to a pat down for the purpose of the protection of the officer during the temporary detention. The ability to stop and frisk, in order to pass constitutional scrutiny, must be based upon a reasonable and articulable suspicion that a crime has been committed. Officers may not simply stop and frisk someone with no basis for the detention.

The constitutional parameters for stop and frisk emanate from a 1968 Supreme Court decision entitled Terry v. Ohio. The Terry decision upheld the right of police to stop a person when there was less than sufficient probable cause to support an arrest. Even in that opinion over 40 years ago the Court expressed concern about the potential for racial profiling and discriminatory police tactics. index3

Judge Scheindlin’s criticism centered on what she perceived was a common pattern of officers stopping minorities with no reasonably objective or articulable suspicion of criminal activity. She was also critical of the City’s higher administrators accusing them of turning a blind eye to a pattern of racial discrimination.

What the current critics of Scheindlin’s decision fail to understand is that there must be a balance between proper investigatory stops with limited frisks, and the wholesale practice of abusing Terry stops to target young minority men with no reasonable basis to believe they are doing anything other than walking the streets, peaceably.

Rich Meehan