Frisky business: adapting New York City policing practices to ameliorate crime in modern day Chicago.

• Author: Unger, Josephine

1. INTRODUCTION

   New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. (2) Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. (3) This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. (4) Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. (5) The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. (6) The decline in urban crime and simultaneous rise in stop and frisks suggests a correlation between the two phenomena. (7)

   The discourse surrounding the stop-and-frisk practices in New York City is dominated by the poignant argument of critics claiming that such practices have been unjustly used as a vehicle for discrimination by the New York Police Department (NYPD). (8) Moreover, particular crime statistics do in fact indicate that stop and frisks carried out by the NYPD have disproportionately targeted people of color. (9) Drawing conclusions based solely on the interpretation of raw data, however, paints an incomplete picture of a complex issue. (10) A more thorough examination of the larger context of urban crime and policing practices suggests that a variety of additional factors account for the racially disproportionate figures.

   This Note will begin with a review of the landmark case of Terry v. Ohio, (12) in which the Supreme Court held it constitutional for police officers to stop people based on reasonable suspicion despite a lack of probable cause (commonly referred to as a Terry stop), and show how Terry ultimately paved the path to legalizing stop-and-frisk practices of police officers. (13) Since the initial ruling, public opinion of Terry stops, which constitute the basis of, and are largely understood to be synonymous with, modern stop-and-frisk practices, has not been universally favorable. (14) in fact, there are many scholars who hold strong positions in opposition to the law. (15) This Note, however, will point to data that suggest the racially disproportionate incidence of Terry stops is not so much a product of targeting urban minorities, as it is a failure to interpret statistical data that takes into account other important confounding factors. (16) Additionally, it will show that the safety afforded to New York City's urban communities due to radically low crime rates is in large part a product of the efficacy of stop-and-frisk practices. (17) Finally, this Note will argue that New York City can serve as a model for other U.S. cities; specifically, Chicago, illinois, which is currently affected by a dramatically high rate of crime. (18)

2. HISTORY

   1. Analyzing Terry v. ohio: Moving from Probable Cause to Reasonableness

      The landmark case of Terry v. Ohio is arguably the most criticized decision on the Fourth Amendment's prohibition of "unreasonable searches and seizures." (19) The decision is recognized for announcing the rule that

      police can conduct limited seizures of the person (now commonly known as "Terry stops") and limited patdowns of a person ("Terry frisks") based on a quantum of suspicion that is less substantial than the "probable cause" standard that the police must satisfy when conducting full-blown arrests and equivalent seizures of the person. (20) Prior to 1968, a police officer could only seize a person if the officer had probable cause. (21) The Court's subsequent leniency in Terry was meant to allow police officers the discretion needed to make arrests based on their observations in time-sensitive situations. (22) Following Terry, police officers were held to a reasonableness standard as a measure of Fourth Amendment compliance for pat downs of suspicious individuals stopped on the street. (23) Simply stated, the Court was interested in effective crime prevention and detection. (24)

      The Court rejected the argument 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." (25) The Court specified that in determining whether a particular officer acted reasonably, the officer must cite specific inferences from the experience. (26) Therefore, it was established that absent probable cause to arrest, if an officer observes unusual conduct from a person that leads him or her to reasonably conclude that criminal conduct is taking place, the officer is entitled to conduct a limited search of the outer clothing of such person or persons the officer suspects of the criminal conduct. (27) Interestingly, references to race were virtually absent from the Court's legal analysis. (28)

      The decision in Terry v. Ohio has been strongly criticized for granting police excessively broad discretion. Critics argue that one of the primary concerns of the drafters of the Fourth Amendment was to prevent situations that have arisen because of Terry v. Ohio, namely, the federal government exercising powers that encroach on the rights of minorities. (30) Accordingly, critics contend that the Fourth Amendment should act as a safeguard against unregulated police power. (31)

      Admittedly, not all of those opposed to the Court's decision in Terry v. Ohio argue that the framers of the Fourth Amendment intended that racial minorities be protected by the Bill of Rights. (32) Rather, they argue that the Fourteenth Amendment granted all citizens of the United States the protections intended by the Bill of Rights. (33) Thus, if police officers are targeting people of color for searches and seizures, it is an abuse of power that the Fourth Amendment sought to prevent. (34)

      Conversely, there is an argument that rather than be subject to heavy disparagement, the decision in Terry deserves a substantial amount of credit for the recent nationwide decline in violent crime. (35) In response to the heavy criticism Terry has received, the argument can be made that the Fourth Amendment does not forbid the Court from reconsidering the interpretation of "reasonableness" in light of dramatic increases in crime. (36) Further, if the purpose of the Fourth Amendment is to balance individual liberty with governmental interest, the argument can be made that the Court in Terry did exactly that. (37) Moreover, while critics argue that an excessive number of innocent people are now being stopped as a direct result of Terry, an argument can be made that the Court accepted this potential risk by virtue of their ruling, and any future reversion of the standard from "reasonableness" to "probable cause" would not in itself prevent such risk. (38) The rule found in Terry exudes common sense; officers should not be required to wait until after a crime is completed to take action if they have reasonable grounds to believe that criminal activity is taking place. (39) There is nothing in the Fourth Amendment barring police officers from taking action until a crime has already been committed. (40) The decision in Terry offers the police a prophylactic approach to policing where law enforcement officers are not required to wait for a crime to be committed before taking steps to ensure community safety. (41)

   2. Stop and Frisk: The Experience of New York City

      1. The Birth of Stop-and-Frisk Legislation in New York City

         Stop and frisk offers an exception to the warrant requirement, allowing police officers to interrogate any person for whom there is a reasonable belief that he or she is engaging in criminal behavior. (42) New York City passed its first stop-and-frisk law in 1964, entitled "Temporary questioning of persons in public places; search for weapons." (43) Prior to the law's passage, the New York courts were forced to suppress any evidence obtained from stops in which there was less than probable cause for the search and seizure. (44) The call for such legislation originated from a 1962 New York Court of Appeals decision, which stated that such evidence would continue to be lawfully suppressed in the absence of formal legislation indicating a lower standard. (45)

         Following its passage, New York's 1964 stop-and-frisk law was upheld by the United States Supreme Court in its 1968 Sibron v. New York decision. (46) The Court ruled that such stops did not violate the Fourth Amendment rights of those searched, and from a superficial perspective, the law did not appear unconstitutional. (47) The Court included a notable caveat, which allowed the law to be deemed unconstitutional under the circumstances of individual cases. (48) Less than a decade later, the New York Court of Appeals outlined a "degree of suspicion" framework comprised of four levels, which served to elucidate the potential ambiguity of the new standard and continues to serve today's NYPD officers. (49)

         The first of the four levels that constitute the framework, entitled "request for information," is founded upon the court's belief that police officers' ability to competently perform public service functions is contingent upon the existence of a "wide latitude to approach individuals and request information." (50) Level two of the framework is known as the "common-law right of inquiry" and although considered less stringent than the reasonable suspicion standard, it requires that an officer have "a founded suspicion that criminal activity is present." (51) The third tier is the stop-and-frisk level, which mirrors and is derived from the New York stop-and-frisk statute. (52) The fourth and final echelon of the framework is the probable cause standard, which serves as a prerequisite to an officer legally placing an individual under arrest. (53)

      2. The Report of the Attorney General

         In 1999, then-Attorney General Eliot Spitzer undertook an...