How Is That Consent Degree Working Out????

Here is an article and the underlying research that documents that prohibition or scaling back on “Stop and Frisk” led to a direct increase in homicides. More specifically homicides in communities that the suspension of stop and frisk was supposed to protect. Study-Chicago-homicides-spiked-due-to-ACLU-police-decree. 

Cassell, Paul G., and Fowles, Richard, What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the “ACLU Effect” and the Role of Stop and Frisks in Preventing Gun Violence (March 21, 2018). Available at SSRN:

I’m just a broke down old narc who used “stop and frisk on a daily basis. Three or four times a year I taught (warrantless) search and seizure law. Most importantly, I testified on a regular basis in both State and Federal Courts about the circumstances surrounding a particular stop and frisk. The reality is that most practitioners in the court system, cops, prosecutors, defense attorneys, and judges have no idea what stop and frisk means or how one sets about doing it.

I have been over this before; here, and  here

Liars Lie

“Stop and Frisk” in a nutshell. When a police officer has a reasonable articulable suspicion that a particular person under suspicious circumstances is engaged in unlawful conduct, he may inquire as to the reason. If inquiries do not dispell the officer’s suspicion and lead the officer to believe that the person may be armed, then he may pat down the person’s outer clothing for a weapon.

The requirement is less than “probable cause”. Probable cause (to search or to arrest) is the ante into the courtroom. No probable cause and you don’t get to play. However, the confrontation between police and suspect is dynamic and changes second to second each situation is different, some will cross the line and others will not.

The other issue to consider is that there are 14 exceptions to the unreasonable search requirement. The uninformed would say search warrant requirement. That is not what the Constitution or the Supreme Court says. The Constitution bans “unreasonable searches” and then goes on to state a search under a warrant is always reasonable, if it meets certain criteria. Given a certain fact situation, if the officer follows the rules, even without a warrant, the resultant search, and recovery of evidence will be admissible.

I would estimate 20-30% of working cops have the legal knowledge, vocabulary, discipline and writing skills to document their activities to justify a Terry Frisk. Legal knowledge, what starts as a Terry encounter changes in the blink of an eye to something else. The suspect drops evidence using sleight of hand (Abandonment). The dropping of the contraband and recognition that it is evidence (plain view) gives the officer probable cause to arrest. The officer in casual conversation asks, “What do you have in your pockets?” He receives the ever popular reply, “They’re not my pants” or “Is that a gun in your pocket or are you just happy to see me?” Reply, “A gun.” Courts have ruled that persons lie to get out of trouble, not into trouble. Either way, these guys have crossed from Terry to offense within view or presence, search incident to arrest.

Here’s one that requires gamesmanship and restraint on the part of the officer, without it the officer will lose every time. An officer comes across a car stalled in traffic and vacant. The windows are all down and there sitting on the front seat is a lid of marijuana. The officer hears a shout and observes a guy approaching carrying a gas can. The officer meets him near the front of the car and confirms that it is the guy’s car, he ran out of gas and will be on his way. What does the officer do?

He directs traffic until the guy gets his car started and out of traffic. The officer then scans the interior of the car for the marijuana which is no longer in view. The officer can now arrest the guy for the completed offense of possession of marijuana. Unlikely as it may seem, with an open vehicle, unattended, with marijuana in plain view, our guy could advance the defense that it wasn’t his, (the other guy) must have planted it. Absent any other evidence this is likely to fly. In this case, the officer is not arresting him for the marijuana on the seat but for the marijuana that is not on the seat. The only way the guy could win would be to jump out of the car immediately upon entry shouting “Oh shit, Oh dear, somebody has planted marijuana in my car!” The hiding of the marijuana indicates guilty knowledge and knowing possession an offense within view, search incident to arrest.

“Terry Frisk or Stop and Frisk” is tough because 60-70% of the time we don’t find anything. That means no arrest, no report, or three line incident report or Field Contact card and no real independent check that it got done right.

I read several law blogs written by attorneys and professors of law and I have seen what they have to say about “Stop and Frisk” and the various consent decrees put in place to suspend or restrict their use. Nobody has pointed out that for all the fancy footwork of the ACLU and Department of Justice, “Stop and Frisk” or Terry v Ohio remains the law of the land. “Stop and Frisk” is just as valid in New York City as it was before the consent decree, as long as the police officer’s collar brass doesn’t say NYPD.

The ACLU and Justice Department calculated, rightly, it turned out, given limited resources the NYPD would prefer to cave in on “Stop and Frisk” rather than spend the money to defend a legitimate law enforcement interest. The ACLU used a civil suit to force the NYPD to ignore the law. I wonder if 30 thousand NYPD officers now have cause, under the 14th Amendment, to sue because they have been singled out and deprived of equal protection under the law. The New York State Police can use “Stop and Frisk”. So can the FBI, ATF, and Homeland Security. When “Stop and Frisk”  goes down, murders go up.

I am not sure how giving a significant segment of the black male population permission to violate the law with impunity because of their race advances the cause of black males or society. Nobody can be as racist or more proud of it as a liberal.