The New York Post has an article, with video of Lester Holt and Donald Trump discussing Stop and Frisk. Lester-Holt-calls-out-Donald-Trump-on-stop-and-frisk-in-nyc. Holt maintains that Stop and Frisk was ruled unconstitutional. He is wrong. Any journalist who has ever covered the court system should know he is wrong and that his statement was false. But Holt being a democrat gets a bye.
There is so much misinformation out there. “Stop and Frisk” is not a New York City Police Department program. It was not originated in New York. It didn’t just come about in the past few years. It is used everyday in every police jurisdiction in the United States and continues to be a useful tool. It is not random and in fact a randomness component to the “Stop and Frisk” would render it unconstitutional.
The City of New York may have entered into a ILLEGITIMATE “CONSENT DECREE.” It is narrowly fashioned to apply only to the signatories of the decree. NYPD may be limited, within the City limits of New York, but it has no effect on the New York State Police or any other law enforcement agency that does not fall under the umbrella of New York City Municipal Government.
“Stop and Frisk” was coined by the Warren Court, much to the chagrin of Associate Justice William O Douglas. The term and guidelines for use were outlined in the decision Terry V Ohio /supremecourt/text/392/1. This case dates back to June 1968. It has been tweaked since then but never overturned.
Here is the majority opinion from 1968, bold areas are my emphasis:
We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [p31] Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
Affirmed.
In a concurring opinion Justice Harlan went on: Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.
The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” This inestimable right of [p9] personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For as this Court has always recognized,
The Warren Court of 1968 even seemed to anticipate that some time in the future a less than talented Judge, such as U.S. District Court Judge Shira Scheindlin might find themselves in a position to review the decision. The Warren Court cautioned that the nature of police/public contact is such that it is impossible to develop a pattern to apply across the board. Each encounter is unique. The Warren Court also pointed out that the traditional cure for police misconduct, the application of the “Exclusionary rule” was not entirely appropriate. This, because the gap between acceptable police procedure and violation of the Fourth Amendment was so narrow. The other issue is the Exclusionary Rule only works when their is evidence to be suppressed.
No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). We have recently held that “the Fourth Amendment protects people, not places,” Katz v. United States, 389 U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable “expectation of privacy,” id. at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United States,361 U.S. 98 (1959); United States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is whether, in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity — issues which have never before been squarely [p10] presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk” — as it is sometimes euphemistically termed — suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly unfolding and often dangerous situations on city streets, the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose, it is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a “frisk” and a “search.” [n3] Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” amount to a mere “minor inconvenience and petty indignity,” [n4] which can properly be imposed upon the [p11] citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion. [n5]
On the other side, the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. [n6] It is contended with some force that there is not — and cannot be — a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen, and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent [p12] in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in “the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation’s cities. [n7]
In this context, we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street. The State has characterized the issue here as
the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as “stop and frisk”).[n8]
But this is only partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391-393 (1914). Thus, its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629-635 (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that, without it, the constitutional guarantee against unreasonable searches and seizures would be a mere “form of words.” Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function — “the imperative of judicial integrity.”Elkins [p13] v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. Thus, in our system, evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts, the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. [n9] Doubtless some [p14] police “field interrogation” conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, [n10] it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.
Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, [n11] will not be [p15] stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary, and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.
The Warren Court cautioned that the nature of police/public contact is such that it is impossible to develop a pattern to apply across the board. Each encounter is unique. It ruled out randomness, much beloved by liberals, as being unconstitutional. It would seem to argue against any statistical analysis and addresses racial profiling. To do either is to ignore the unique set of circumstances required to have a legitimate “Stop and Frisk”.
The Warren Court also pointed out that the traditional cure for police misconduct, the application of the “Exclusionary rule” was not entirely appropriate. This, because the gap between acceptable police procedure and violation of the Fourth Amendment was so narrow. The other issue is the Exclusionary Rule only works when there is evidence to be suppressed. The nature of the “Terry Stop” is that many encounters will not result in arrest or charge.
For additional thoughts on Stop and Frisk
At first glance this entry seems to have me talking out both sides of my mouth. That is not true, I was a cop for thirty years. I believe that if a cop insists on taking a turd’s freedom away from him, he be required to do it right. It is the least the Cop can do.