Criminal lawyers spend a good deal of time challenging evidence obtained by the government during a search of a client’s home, business, car, etc. Most people understand that under the Fourth and Fourteenth Amendments to the United States Constitution, the prosecution in a criminal trial cannot use evidence that was the result of an unreasonable search and seizure, one without probable cause. In the case of police officers stopping, detaining, questioning and frisking people on the street, the question of the reasonableness of the actions of the police is whether there was reasonable suspicion to believe that criminal activity was afoot.
Street stops, referred to as “stop and frisk”, have a long history in New York City. For many years, there has been an official policy in the New York Police Department to use the stop and frisk technique on a grand scale. Indeed, between 2004 and 2011, there have been almost 4.1 million documented stops on the streets of the city. Department brass notes that the stops have resulted in many arrests and convictions for violations of weapons, drugs and other offenses. But there appeared to some to be a disparity in the racial makeup of the people stopped, and several years ago, a civil lawsuit was filed. The plaintiffs in the case asked the court to declare that the stop and frisk policies and practices of the NYPD were illegal under the constitution, and sought an injunction mandating that those policies and practices be changed.
Last week, a procedural decision was made in the case by United States District Judge Shira Sheindlin, in which she certified the case as a “class action.” In the process of deciding this technical issue, the judge made some interesting observations concerning the stops, including data found in the reports officers are required to fill out in each case:
- The NYPD has an official policy requiring officers to stop and frisk more and more people. Since 2004, the number has increased each year except one. In some cases officers are urged by superiors to increase the number of stops even when there is no legal basis for it.
- The racial makeup of those stopped was (approximately) 50% Black and 30% Latino. Only 10% of the detainees were white.
- In 88% of the cases, the officers ultimately concluded that there was no probable cause to believe a crime had occurred, which means that the vast majority of the people who were subjected to a stop and frisk were completely innocent of any wrongdoing.
Now this case has a long way to go, and more facts will be revealed, but the situation gives rise to some preliminary thoughts. First, when you require more and more street stops, this is going to lead to “pretextual” stops, based not on reasonable suspicion of criminal activity, but rather on the need to satisfy your superiors at the NYPD. Second, the racial imbalance in the stops, whether compared with the population in the city as a whole, or in the individual neighborhoods involved, reeks of racial profiling. And third, the rationale put forth by officials for continuing this massive program, that, for example, they’ve found people with illegal guns during the searches, is frankly meaningless. For every 70 people stopped as the alleged result of having a “suspicious bulge”, 69 of them had no weapon at all. For another, an illegal stop is just that – illegal. The end has never justified the means, and it doesn’t justify it here.
What concerns this New York criminal lawyer is the continuing erosion of civil liberties under the guise of crime control, as well as the racial imbalance revealed in the case. At the same time, we wonder how much police manpower was wasted stopping, questioning and frisking 3.6 million (88% of 4.1 million) people who never did anything wrong, but were stopped instead because of a questionable administrative policy.
George Vomvolakis Law Offices
275 Madison Avenue
New York, NY 10016