Stop and Frisk as it Relates to Race and Social Class Despite living in the Land of the Free, some Americans on the public streets are still being singled out by law enforcement authorities for questioning and searches based on race and social class. In what is termed a "stop and frisk," police have detained and searched ordinary citizens for no other crime than being a minority or poor. In mid-1968, the two Supreme Court cases, Terry v. Ohio and Sibron v. New York, approved the constitutionality of police stop and frisk practices under the Fourth Amendment. Since that time, there is a growing body of evidence that indicates that police have used disproportionately applied this authority to minority members and poor people, in some cases to improve their image with their fellow officers. This paper provides a review of the relevant peer-reviewed and scholarly literature concerning these two cases, followed by a summary of the research and important findings concerning stop and frisk as it relates to race and social class in the conclusion.

Summary

As the term implies, "stop and frisk" involves two elements: (a) detaining individuals and (b) "frisking" them. In this context, the definition provided by Black's Law Dictionary (1990) states that "stop and frisk" is, "The situation where police officers who are suspicious of an individual run their hands lightly over the suspect's outer garments to determine if the person is carrying a concealed weapon" (p. 142). As established by the Supreme Court in 1968, current interpretations of stop and frisk practices avoid Fourth Amendment restrictions on unreasonable searches. In this regard, Black's adds that, "A stop and frisk is intended to stop short of any activity that could be consideration a violation of Fourth Amendment rights" (p. 1420). These constitutional rights guarantee that in order for police officers to exercise their stop and frisk authority, they must have probable cause. According to Black's Law Dictionary (1990), probable cause means "A set of probabilities grounded in the factual and practical considerations which govern the decisions of reasonable and prudent persons and is more than suspicion but less than the quantum of evidence required for conviction" (p. 12).

These issues were adjudicated by the U.S. Supreme Court in June 1968 in Terry v. Ohio and Sibron v. New York (Barrett, 1998). These two seminal decisions established the constitutionality of police stop and frisk practices under the Fourth Amendment (Barrett). The legal rationale in support of these decisions by the Supreme Court actually created a new category of police authority in the stop and frisk cases that managed to avoid some of the Fourth Amendment restrictions on unreasonable searches (Dripps, 2003). On the one hand, the Court could have reasoned that the Fourth Amendment did not apply to arbitrary police encounters with suspicious characters that might represent an armed threat. On the other hand, the Court could have reasoned that stopping and frisking someone invoked Fourth Amendment protections, an outcome that would created an unacceptable barrier for law enforcement authorities (Dripps, 2003). According to Dripps, "The Warren Court basically disincorporated the Fourth Amendment in Terry v. Ohio [reasoning] that searches and seizures, as a matter of the constitutional text, need only be reasonable" (p. 52). In so doing, the Court "did not go so far as to fall back on fundamental fairness in light of the totality of the circumstances [but rather] crafted a distinct standard of substantive justification (the 'reasonable suspicion' standard) applicable to a distinct category of police behavior (stop-and-frisk)" (Dripps, p. 52).

Analysis

Taken together, the stop and frisk authority enjoyed by police officers appears to be a reasonable compromise between individual civil liberties and the need for law enforcement authorities to protect themselves during the exercise of their duties. There is a growing body of evidence, though, that suggests some police officers using their stop and frisk authority based on racial profiling. For instance, according to Cooper (2009), "Scholars have long noted that officers sometimes use their Terry v. Ohio stop and frisk powers to racially profile. The usual explanation for that practice is racial animus" (p. 671). Researchers have determined, though, that many Terry searches are in fact based on other factors, including the desire by some police officers to appear tough on minorities. In this regard, Cooper explains, "However, concentrating solely on race as an explanation for police behaviors ignores the fact that the overwhelming majority of police officers are men and the overwhelming majority of those they stop are men" (p. 671). In other words, "One train may hide another"...

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From this perspective, the inordinate application of stop and frisk practices to racial minorities or people who appear to be suspicious by virtue of their poor appearance in otherwise-affluent settings could be attributed to organizational culture that exists within the police department where these type of behavior is expected. For instance, Cooper (2009) notes that, "Masculinities studies help to further explain racial profiling by noting that the hegemonic pattern of U.S. masculinity incorporates an expectation that one denigrates racial minority males" (p. 673). Nevertheless, the research to date clearly indicates that race is the overarching factor involved in the majority of Terry stop and frisk incident in the United States. In this regard, Cooper adds that, "Racial profiling demonstrates that race and gender intersect; the practice can serve a dual purpose of boosting both racial and masculine esteem. Thus far, criminal procedure scholars have failed to see that the use of Terry stops to racially profile is a product of gender as well as race" (p. 674).

In response to these racially motivated stop and frisk practices, a class action suit has been filed by some of the victims in New York City where police stopped and frisked 2.8 million of the city's residents and tourist, in the process "restraining their freedom, even if only briefly" during the period 2004 through 2009 (Civil procedure - class actions - Southern District of New York certifies class action against city police for suspicionless stops and frisks of blacks and Latinos, 2013). More than half of these stop and frisk incidents involved blacks, 30% involved Latinos, and just 10% involved white suspects despite their respective representations within the larger population (Civil procedure, 2013). According to the editors of the Harvard Law Review, "The stop-and-frisk program first came under fire in the progenitor class action suit Daniels v. City of New York, resolved in 2003 by a settlement requiring that the city curb the racially disparate application of the practice, in part by implementing an official policy on racial profiling, revising forms to encourage more accurate documentation, and launching regular audits" (p. 826). In the most recent class action filed in 2008, four black men maintain that they were each stopped at least once during the period 2004 and 2009, citing suspicionless stops and racial discrimination in their suit (Civil procedure, 2013).

A study by Ferrell (2004) also indicates that police officers routinely invoke their stop and frisk powers against racial minorities more often than whites. According to this researcher, "The order maintenance program adopted in the mid-1980s, included a policy of aggressive stop-and-frisk to seize illegal handguns. The program stigmatized individuals of minority groups, especially African-Americans" (p. 498). Notwithstanding the public safety value of aggressive stop and frisk practice to reducing the number of weapons on the street, the practice can also result in racial profiling (Ferrell, 2004). A comprised solution, Ferrell suggests, would be to include other relevant factors as reasons for the stop and frisk rather than strictly race or apparent income level. In this regard, Ferrell advises that, "The burden of privacy violations from such policies may be equitably distributed if police are required to articulate the factors leading to the stop and search and if traits such as race or ethnicity are used as points of description similar to age, weight and height" (2004, p. 498).

Indeed, some criminologists advocate even more aggressive stop-and-frisk policies to help stem to proliferation of weapons in America's inner cities. In the post-September 11, 2001 environment, these proponents are able to cite national security interests as well in support of more aggressive stop and frisk practices in the United States. In this regard, Feld (1999) advises that, "Some jurisdictions have experimented with a number of different prevention and apprehension strategies to reduce the availability of guns" (p. 340). Indeed, some of the arguments in support of more aggressive stop and frisk practices appear to be common sense when applied to real-world settings where it seems easy to spot "the bad guys," and trained police officers are capable of recognizing the difference. As Feld points out, there are other compelling reasons to support more aggressive practices: "Aggressive stop-and-frisk practices and offers of rewards for reports of illegal guns may enable police…