An offense-severity model for stop-and-frisks.

• Author: Keenan, David
• Position: Author abstract

NOTE CONTENTS INTRODUCTION I. STOP-AND-FRISK DOCTRINE AND PRACTICE UNDER TERRY A. Stop-and-Frisk Doctrine B. Stop-and-Frisk Practice C. The Path Not Taken II. WHAT'S IN A LABEL?: UNDERSTANDING OFFENSE-SEVERITY DISTINCTIONS A. Offense Distinctions B. Legislative Choices III. AN OFFENSE-SEVERITY MODEL FOR STOP-AND-FRISKS IV. DOCTRINAL AND NORMATIVE JUSTIFICATIONS FOR OUR OFFENSE-SEVERITY MODEL V. APPLYING THE OFFENSE-SEVERITY MODEL A. The Noncriminal/Criminal Distinction B. The Petty Offense Distinction CONCLUSION INTRODUCTION

In the mid-1990s, the New York City Police Department (NYPD) embraced a new strategy for crime suppression predicated on James Wilson and George Kelling's "broken windows" criminological theory. (1) The basic thrust of that strategy has now been adopted in some form by hundreds of police departments across the country. (2) Known as "order-maintenance policing," the strategy calls for a zero tolerance policy towards so-called "quality of life" offenses whose occurrence is thought to reflect crime-generating social disorder. (3) In departments that follow an order-maintenance approach, officers aggressively enforce city ordinances against activities like panhandling, public drunkenness, graffiti, prostitution, and loitering. (4) The explicit aim of order-maintenance policing is to "reclaim" the streets in order to "undercut the ground on which more serious crimes seem possible and even permissible." (5) Practically speaking, it often means using aggressive enforcement of quality of life violations as a pretext to seize weapons or other contraband. (6)

One of the primary legal mechanisms for effectuating order-maintenance policing is the stop-and-frisk. (7) A stop-and-frisk is a nonconsensual encounter between police and citizen that falls short of a full-blown arrest. The Supreme Court first recognized the procedure's constitutional legitimacy in Terry v. Ohio. (8) To make a Terry stop, an officer need only have reasonable grounds for believing that "criminal activity may be afoot." (9) A limited search of the suspect's person (the "frisk") is similarly permissible so long as the officer reasonably believes the suspect is armed and dangerous. (10) Subsequent case law has clarified that pretextual motivations for executing a stop-and-frisk are irrelevant. (11) Courts are directed to apply an objective standard in reviewing such encounters. (12)

Challenges to stop-and-frisk policies in recent years have proven successful. In 2011, Philadelphia chose to accept judicial monitoring of stops rather than contest an ACLU lawsuit. (13) The following year, Seattle did the same in response to a Department of justice investigation. (14) And, most significantly, in August 2013, a federal district court judge granted a preliminary injunction against the NYPD's stop-and-frisk program. (15) In her controversial Floyd v. City of New York ruling, Judge Shira A. Scheindlin found the city had been deliberately indifferent to an unconstitutional policing policy that (1) permitted stop-and-frisks to be made on less than reasonable suspicion and (2) utilized racial classifications to determine whom to stop-and-frisk. (16)

The time is ripe, then, to reconsider the purported legal justification underlying aggressive stop-and-frisk practices. This Note asks one narrow, but exceedingly important, question about the stop-and-frisk: should officers be able to stop individuals on the basis of any suspected offense, no matter how minor? As the leading treatise on Fourth Amendment law notes, this question "has seldom been confronted head on by the lower courts." (17) Ordinarily, courts limit their inquiries to whether officers have reasonable suspicion that an offense is being, has been, or is about to be committed, regardless of its severity. (18) We argue that such an approach is both unfaithful to Terry's reasoning and misguided as a matter of policy.

In so arguing, we join a growing chorus of academic voices criticizing the lack of proportionality in the Supreme Court's Fourth Amendment jurisprudence. (19) As these scholars have persuasively shown, the Court's "transsubstantive" approach to search and seizure law ill suits the Fourth Amendment's reasonableness requirement. (20) After all, how can courts strike a proper "balance between the public interest and the individual's right to personal security" (21) without taking into account the seriousness of the offense the government seeks to investigate?

Where the scholarly literature has fallen short, however, is in proposing an offense-severity test that is workable both on the streets and in the courtroom. As Professor Eugene Volokh has noted: "[T]he devil is in the details. If courts can't make the severity distinctions work in practice, then the distinctions' merits in principle are of little consequence." (22) Indeed, in other Fourth Amendment contexts, the Supreme Court has cited administrability concerns as reason to avoid adopting an offense-severity model. (23)

Our Note seeks to remedy this shortcoming by proposing a model that uses preexisting legislative classifications to define offense-severity for Terry purposes. The model has two basic components. First, it distinguishes between civil infractions or violations, on the one hand, and criminal misdemeanors and felonies, on the other. A civil infraction or violation is a regulatory offense that is ordinarily punishable by fine only. Because Terry spoke in terms of proportionate government responses to suspected criminal wrongdoing, courts should clarify that suspicion of a civil offense does not justify the intrusiveness of a stop-and-frisk.

Second, our model deems Terry stops based on suspicion of petty offenses presumptively invalid. For constitutional purposes, petty offenses are criminal misdemeanors that carry a maximum possible sentence of six months in jail. (24) Applying the petty offense distinction in the Terry context makes sense because the government's law enforcement interest is least compelling, and the potential for harassment is greatest, when stop-and-frisks are premised on minor suspected crimes. Adopting a rebuttable presumption for petty offenses also helps mitigate the weightiest objections to our reliance on offense categorizations--namely, that those categorizations vary across jurisdictions and are susceptible to easy legislative manipulation. (25)

The Note proceeds in five Parts. In Part I, we familiarize readers with Terry and current stop-and-frisk doctrine and practice. As we show, courts have largely avoided asking whether the offense used to justify a pedestrian Terry stop should matter in determining its legality. In Part II, we describe offense-severity in greater detail before setting forth our proposed model in Part III. Part IV offers doctrinal and normative justifications for applying our model to pedestrian stops. Finally, in Part V, we consider several state and federal court cases that incorporate offense-severity into their Terry analyses. These cases suggest the feasibility and utility of distinguishing among suspected offenses when assessing the reasonableness of stop-and-frisks. (26)

1. STOP-AND-FRISK DOCTRINE AND PRACTICE UNDER TERRY

   A. Stop-and-Frisk Doctrine

   Ordinarily, a lawful warrantless search or seizure requires that officers have probable cause to believe that an offense has been, is being, or will be committed. (27) Terry famously departed from this standard by recognizing the constitutionality of stop-and-frisks where officers possess merely a reasonable and particularized suspicion of criminal wrongdoing. (28)

   Given the Court's "agonized opinion," (29) there was ample reason to believe Terry would be limited to its operative facts, namely those situations where officers possess reasonable suspicion of (a) an ongoing or prospective offense (30) of (b) a criminal nature (31) that (c) threatens violence to persons or property. (32) Indeed, in 1975, the American Law Institute adopted a similar standard in its Model Code of Pre-Arraignment Procedure. (33) Courts have nonetheless gradually expanded the boundaries of permissible Terry stops to include stops for suspected past offenses, (34) nonviolent drug crimes, (35) and civil infractions. (36) It is the last category that marks the least defensible expansion of Terry and the one most at odds with traditional notions of Fourth Amendment reasonableness. This Part offers a brief review of Terry in order to demonstrate that incorporating offense-severity considerations into their review of stop-and-frisks would enable courts to remain faithful to the Terry decision.

   The facts of Terry are familiar. Officer Martin McFadden spotted two men pacing up and down a street, each pausing several times to look in a shop window. (37) Suspicious the men were "casing a job," McFadden followed them a short distance where the men met up with a third man. (38) At that point, McFadden--who was alone--initiated a stop and began to pat down the outer clothing of one of the men, John Terry. (39) This "frisk" revealed a .38-caliber revolver in the breast pocket of Terry's overcoat. (40)

   In upholding Terry's conviction, the Court recognized the impracticality of subjecting "swift action predicated upon the on-the-spot observations of the officer on the beat" to pre-enforcement review under the Warrant Clause. (41) It chose instead to analyze stop-and-frisks according to the Fourth Amendment's general reasonableness requirement. This called for the adoption of a proportionality test balancing the individual's liberty interest against the government's generalized goal of "effective crime prevention and detection." (42) While acknowledging the potential for abuse, (43) the Court ultimately recognized a "narrowly drawn authority" for warrantless stops based on an officer's reasonable suspicion. (44)

   Though subsequent cases have added flesh to Terry's skeletal framework, doctrinal uncertainty remains over whether...