Fourth Amendment Implications of Non-Arrest Detentions Term Paper

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Stop and Frisk

In theory, a stop and frisk is "A brief, non-intrusive, police stop of a suspect." (Legal Information Institute, N.p.) These detentions can comply with Fourth Amendment standards under very specific circumstances. "The Fourth Amendment requires that the police have a reasonable suspicion that a crime has been, is being, or is about to be committed before stopping a suspect. If the police reasonably suspect the person is armed and dangerous, they may conduct a frisk, a quick pat-down of the person's outer clothing" (LLI, N.p.). A stop and frisk does not require the same level of detention as an arrest and does not trigger the same rights, such as requiring a subject to be Mirandized or advised of a right to an attorney. Furthermore, stop and frisk searches are only supposed to be conducted when there is a reasonable suspicion that criminal activity has occurred. For example, a person matching the description of a robber who has fled the scene of a nearby robbery that occurred recently might be a reasonable object of a stop and frisk search.

Stop and frisk came to public awareness in the Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968). In Terry v. Ohio, a patrol officer observed three men behaving in a manner that the officer characterized as suspicious and stopped the men for questioning and frisked them during that process. The defendants alleged that evidence found during that frisk should have been determined to be inadmissible because it was collected in violation of their Fourth Amendment rights to be free from unreasonable search and seizure. The Supreme Court agreed that stop and frisk searches fell under the Fourth Amendment's protections, but determined that the search did not violate the Fourth Amendment. The Court determined that anytime a police officer restrains a person's freedom to walk away, a seizure has occurred within the meaning of the Fourth Amendment (392 U.S. 1, 16). Furthermore, a frisk for weapons is a search under the Fourth Amendment (392 U.S. 1, 16). However, when circumstances suggest that the safety of an officer or others is endangered, officers can engage in a search for weapons even if those circumstances are not enough to establish probable cause for arrest (392 U.S.1, 20-27). Furthermore, the reasonableness of a search and seizure will depend on the particular circumstances of each stop and frisk (392 U.S. 1, 21-22). The Court considered the circumstances in Terry and believed that the defendants' behavior, as described, was consistent with people contemplating a robbery, therefore the officer's actions were reasonable (392 U.S. 1, 28).

Furthermore, in Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S.177 (2004), the Supreme Court determined that state statutes allowing police to stop individuals and have them identify themselves did not violate the Fifth Amendments prohibitions against compelled self-incrimination. In fact, asking for a suspect's identity is related to the purposes of a Terry stop, and does not alter the nature of the stop itself (542 U.S. 177, 183). Furthermore, providing a name to police is not compelled testimony and is not incriminating within the terms of the Fifth Amendment (542 U.S. 177, 184).

Taken together, these Supreme Court cases clearly establish a right to stop suspicious persons, detain them for a period of brief questioning including asking them identifying information, and frisk them to search for weapons in order to ensure the safety of police officers. The problem with the stop and frisk laws is that they have been interpreted very broadly by police departments, leading to widespread allegations of abuse, most notably by the New York City Police Department. In order to understand the magnitude of the problem, one has to look at the numbers. "The New York City Police Department is conducting stops and frisks in record numbers -- roughly 685,000 in 2011 and on track to reach over 700,000 this year" (Center for Constitutional Rights, p.3). Moreover, the targets of these stop and frisk searches have been disproportionately members of minority groups; blacks and Latinos make up almost 85% of all stops and frisks conducted by the NYPD (Center for Constitutional Rights, p.3). Furthermore, this aggressive stop and frisk policy has not had the deterrent impact on crime that proponents of it suggested it would have; it results in few arrests and does not net the discovery of contraband items one would expect from such an aggressive policy.

That is not to say that the NYPD's aggressive stop and frisk policy has not had a tremendous impact on the community. People subject to stop and frisk, particularly those who believe that they are considered suspicious because they are members of a minority group, have to cope with the impact of being targeted as a potential criminal. Moreover, because aggressive stop and frisk policies have become a way to legitimize inappropriate police behavior, they often occur with other abusive practices. When the Center for Constitutional Rights interviewed subjects who had experienced stop and frisks they found that people had "experienced a range of inappropriate and abusive behaviors by police, including being forcibly stripped to their underclothes in public, inappropriate touching, physical violence and threats, extortion of sex, sexual harassment and other humiliating and degrading treatment" (Center for Constitutional Rights, p.5). These abuses compounded the feelings of trauma and humiliation that were frequently shared by all subjects of stop and frisk searches. "A stop and frisk can leave people feeling unsafe, fearful of police, afraid to leave their homes, or re-living the experience whenever they see police" (Center for Constitutional Rights, p.6). This, in turn, creates an atmosphere of fear of the police; rather than looking to police officers as a source of safety and stability in the community, even law-abiding citizens begin to fear police presence and view the police as a source of problems. Moreover, "it is common for people to be stopped numerous times, compounding their anxiety and creating an atmosphere of fear" (Center for Constitutional Rights, p.6). People talk about fear becoming part of their way of life.

Even stop and frisks that result in the recovery of contraband may be going beyond their intended scope. For example, some victims of stop and arrest that are not engaging in suspicious behavior may have small amounts of illegal drugs on them for recreational use. While debating the appropriateness of drug policy is outside of the scope of this paper, even if one supports the continued criminalization of recreational drug use, it is difficult to support a policy that results in harsh punishments for drug offenders that are not otherwise engaged in criminal behavior. Moreover, one cannot ignore the disparate impact this policy has on minority youth. "Because of the extraordinarily high numbers of young people of color who are stopped and frisked, these improper drug prosecutions are having a particular impact on this demographic, even though drug use is more prevalent among White youth than Black or Latino youth" (Center for Constitutional Rights, p.7).

Furthermore, the impact of this policy could go further. Police discretion is one of the reasons that experts suggest is behind much higher arrest rates for minorities than Whites, even when known offense rates are similar across racial categories. If aggressively targeting minority youth for stop and frisk searches is a permissible exercise of discretion, then would targeting minorities in other areas where discretion applies also be considered valid? The police exercise discretion in several different critical circumstances: arrests, the use of physical force, the use of deadly force, writing traffic summons, using enforcement tactics, writing crime reports, and investigating crimes (Dempsey and Forst, p.141). It seems logical that a policy that unintentionally promotes racial discrimination in one area where police officers exercise discretion would promote it in other areas as well.

Despite widespread complaints about its aggressive stop and frisk policy, the NYPD continued to advance the program. A collection of plaintiffs brought suit against the NYPD to halt its aggressive stop and frisk program. The decision in Floyd, et al. v. City of New York, et al. was unequivocal in its condemnation of the NYPD's stop and frisk policy because these stop and frisks were being made without the independent suspicion of criminal activity that the Court required in Terry (Peters, N.p.). Not only did the court prohibit the NYPD from continuing the policy, it also appointed "an independent monitor to help the department reform the policy and bring it in line with the law, and generally validates the notion that stop-and-frisk has been a colossal infringement on citizens' civil rights" (Peters, N.p.).

The court's decision in Floyd was not surprising given the overwhelming evidence that the stop and frisk searches had a disparate impact and that they were having a negative community impact. What is somewhat surprising is that it took a court decision for the NYPD to halt the abusive practice. What this suggests is that communities experiencing similar problems with police abuse of the stop and frisk may need to bring…[continue]

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