Whither the criminal court: confronting stops-and-frisks.

• Author: Zeidman, Steven

Two recent cases from one of New York's intermediate appellate courts suppressed evidence based on illegal searches, (1) and, given the present stop-and-frisk controversy, immediately became headline news. The New York Times ran a front-page story (2) and the New York Post printed an editorial titled "Next stop: Anarchy." (3) In federal court in Manhattan, a judge granted class-action status to a lawsuit challenging the New York City Police Department (NYPD) stop-and-frisk practice, and commenced a trial to determine whether the NYPD was adhering to constitutional search and seizure requirements. (4) The New York Times article even declared that judges were "the most potent critics" of stop-and-frisk practices. (5) These decisions, and the attention they garnered, suggest that New York courts are immersed in stop-and-frisk litigation. (6) That is hardly the case. The timely decisions rendered by the federal court and the state appellate court on this contentious subject actually point to a larger issue--the invisibility and willful irrelevance of the New York City Criminal Court, the first-tier trial court. (7)

While many have critiqued the NYPD, its Commissioner, and the Mayor for the plague of rampant stops-and-frisks that impact young men of color in disproportionate and disturbing numbers, (8) few have turned their attention to the role of the criminal court. One would expect, or at least imagine, that in a city with more than 685,000 stops-and-frisks per year, (9) there would be innumerable suppression hearings with police officers called to testify under oath about what they did and why they did it. This is precisely the role imagined for the criminal court by the U.S. Supreme Court when it established the exclusionary rule for Fourth Amendment violations. (10) The Court determined that exclusion, or suppression, of the evidence was necessary in order to deter police officers from violating constitutional rights and performing unreasonable searches and seizures. (11)

However, suppression hearings in the criminal court are few and far between. (12) Just as the criminal court's longstanding and overarching emphasis on efficiency and plea bargains trumps trials and meaningful determinations of guilt or innocence, (13) it also ignores, if not abhors, suppression hearings and careful examinations of the legality of everyday police conduct on the street. By abdicating its critical oversight role, the criminal court effectively shields police behavior from any meaningful external review or accountability and allows and encourages rampant stops-and-frisks to continue unabated. (14)

The criminal court's missing-in-action status on the policing issue of the day is all the more egregious when the NYPD's stops-and-frisks are examined through a constitutional lens. The very use of the phrase "stop-and-frisk" implies that the practice employed by the NYPD is somehow condoned or imbued with legality by the Supreme Court through its landmark decision from 1968 in Terry v. Ohio. (15) Although street stops must be distinguished from street stops-and-frisks, the tension and controversy (16) surrounding both practices has generally been subsumed under the "stop-and-frisk" heading. That makes sense since street stops in general are viewed as authorized by the Court in Terry, the case that gave the Court's imprimatur to the practice now known as "stop-and-frisk." Given that Terry is offered by proponents of stop-and-frisk as providing constitutional cover for this controversial policing tactic, (17) it behooves all concerned to critically examine whether, and to what extent, that is truly the case. Put simply, did the Supreme Court in Terry mean to authorize more than 685,000 street stops in a single city in a single year?

In Terry, the Court wrestled with a seemingly basic question: what, if anything, can police do to a citizen when they don't have probable cause to arrest, but they suspect that something illegal is afoot? (18) That question grew out of an essential truth--the explicit text of the Fourth Amendment references "probable cause," but speaks only in terms of "reasonableness" about what the police can do in situations when they do not have probable cause. (19)

While the defense in Terry argued that the police were prohibited from interfering with a citizen in any way unless the information they possessed rose to the level of probable cause, (20) the prosecution countered that police/citizen encounters that stopped short of an arrest were not subject to the Fourth Amendment. (21) The Court seemingly split the difference and held that the police do not need probable cause for every police/citizen interaction, but every police/citizen interaction that involves a restraint on a person's liberty is indeed regulated by the Fourth Amendment. (22) The Court held that an officer is permitted to conduct an investigatory stop (23) if "specific and articulable facts ... taken together with rational inferences from those facts" (24) suggest that "criminal activity may be afoot." (25) Further, the officer can perform a pat-down, or frisk, for weapons (26) if he or she has reason to believe the individual is "armed and presently dangerous." (27) Courts reviewing the propriety of the officer's actions must assess "whether a reasonably prudent [person in the officer's] circumstances ... would be warranted in the belief' held by the officer under review. (28)

Over time, the test has been recast in terms of "reasonable suspicion." (29) If the police have "reasonable suspicion"--a phrase not found anywhere in the Constitution--that criminal activity may be afoot and that the suspect is armed and dangerous, they can engage in a "stop-and-frisk." For the first time, the Court gave its seal of approval to forcible encounters between police officers and citizens in situations where the officer lacked probable cause or a warrant. (30)

Unfortunately, the Court did not provide a carefully delineated definition of this new "reasonable suspicion" standard. One could divine that reasonable suspicion is a less exacting standard than probable cause, but that the police still need some objective justification and should be able to articulate facts that lead to specific reasonable inferences of criminal activity. (31) At a bare minimum, it must be something more than an "inchoate and unparticularized suspicion or 'hunch.'" (32) In subsequent cases, the Court instructed that reasonable suspicion should be evaluated based on the "totality of circumstances," (33) and "on common sense judgments and inferences about human behavior." (34) While "a showing considerably less than preponderance of the evidence" (35) is required, "the Fourth Amendment requires at least a minimal level of objective justification for making the stop." (36)

Post-Terry, much has been written about the impact on the victims of these stops. Stories are legion of men of color stopped for no apparent reason while walking down the street or returning home from work, (37) and articles have been written and videos have been made capturing the prevalent stop-and-frisk experiences of young men of color living in highly policed neighborhoods like Brownsville, Brooklyn. (38) None of this is especially surprising, given that almost 90% of those stopped are people of color. (39) More surprising, and alarming, is that the racial impact of street stops was actually one of the factors that motivated and undergirded the decision in Terry itself. (40)

More than forty years ago, Chief Justice Earl Warren, the author of the Court's opinion in Terry, (41) understood well the incendiary interplay among police behavior, race, and stops-and-frisks. Writing in 1968, a time characterized by social unrest, racial tension, and the Civil Rights Movement, (42) Warren proclaimed, "[w]e would be less than candid if we did not acknowledge that this question [meaning the permissibility of stops-and-frisks] thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity--issues which have never before been squarely presented to this Court." (43) Later in the opinion, he referred more specifically to "[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain,"(44) and he cited presciently for that statement to the findings of the President's Commission on Law Enforcement and Administration of Justice. In that citation, in the form of a lengthy footnote, Warren wrote:

The President's Commission on Law Enforcement and Administration of Justice found that "in many communities, field interrogations are a major source of friction between the police and minority groups." It was reported that the friction caused by "[m]isuse of field interrogation" increases "as more police departments adopt 'aggressive patrol' in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident." While the frequency with which "frisking" forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true in situations where the "stop and frisk" of youths or minority group members is "motivated by the officers"' perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets." (45) Warren's candor led one scholar to observe that "Terry was a landmark ruling for many reasons, not the least of which was the fact that the Court, for the first time, openly acknowledged the tensions between urban blacks and the police caused by street investigations and stop and frisk techniques." (46)

It was against...