Analyzing the stop and frisk: 3 areas where police practice falters
The continuing validity and constitutionality of stop and frisk depends on lawful execution of the practice
Stop and frisk practices have been a source of critical examination for over two decades.
In New York, three different Attorney Generals issued reports in 1999, 2013 and 2020 concerning the stop and frisk practices of the New York City Police Department.
The 2013 report, by then-Attorney General Eric Schneiderman, revealed that less than 3% of the arrests made from stops resulted in convictions. The same year, federal district court judge Shira Scheindlin issued her decision in Floyd, et al. v. City of New York, which found NYPD’s stop and frisk practices violated the Fourth and Fourteenth Amendments. A separate study and report completed for the Floyd plaintiffs by Columbia University professor Dr. Jeffrey Fagan concluded that NYPD frisks resulted in weapons seizure in less than 1.5% of all stops.
Subsequent misinformation regarding the Floyd decision and its remedial measures led to political claims that stop and frisk, in general, was unconstitutional. Those proclaiming its unconstitutionality remained undeterred by the fact that Terry v. Ohio, the 1968 case upholding the constitutionality of the practice, was never overturned by the U.S. Supreme Court or that in several subsequent cases the Supreme Court expanded its limits. Half the states have a statutory provision relating to stop and frisk, while others follow the standard adopted in Terry.
What has been problematic about stop and frisk practices among U.S. police departments is that in some instances it has been implemented in an unconstitutional manner. In 2020 the City of Philadelphia admitted that the disparate racial impact of its police department’s stop and frisk encounters was evidence of racial bias and agreed to remedial measures. A pilot program within the city’s 14th district began in 2021. Prior to that consent decree, the City of Chicago Police Department and the ACLU of Illinois entered into a 2015 agreement to reform stop and frisk investigatory practices.
Where does that leave stop and frisk as a law enforcement tool? The practice still retains its constitutionally accepted status when it is performed lawfully. Police administrators must provide proper training to officers to ensure not only the retention of seized evidence, particularly weapons, but also community trust.
A review of stop and frisk case law over the past two years exposes three common areas where police practice falters, resulting in the suppression of evidence derived from the initial stop.
1. Lack of “reasonable suspicion” for the stop
In People v. Benbow, 193 A.D. 3d 869 (2021), a New York State appellate court found no justification for the stop of an individual suspected of carrying a gun. The defendant and his friend were stopped as they exited a nightclub. The basis for the stop was information supplied by an anonymous informant. However, the officers lacked independent reasonable suspicion for the stop. Even though the defendant was in possession of a gun, and then fled, the appellate court found the initial Terry stop, based solely on an uncorroborated anonymous tip, lacked reasonable suspicion.
Similarly, in the Maryland case of Mitchell v State – an unreported opinion from the Court of Special Appeals in 2021, located at 2021 Md. App. LEXIS 311 or 2021 WL 1329448 – the court reversed a lower trial court’s denial of the defendant’s suppression motion. Here too, a gun was recovered, but it was the officer’s failure to establish reasonable suspicion for a Terry stop that led to the reviewing court’s suppression of the evidence.
The court in the California case of People v. Pantoja, 77 Cal. App. 5th 483 (2022), had no issue with the initial stop but found the officer lacked reasonable suspicion for the frisk resulting in the officer finding a loaded revolver on the defendant. The facts, in this case, highlight two officer-generated issues regarding Terry frisks. One, the improper assumption that a justifiable stop will always lead to a frisk without any individualized suspicion of weapon possession; and two, the reliance on vaguely articulable reasons for the frisk, such as an individual’s prior criminal record.
2. Lack of foundation for the frisk
This segues to the second problem area concerning stop and frisk practice, lack of foundation for the frisk.
In State v. Laster, 406 Mont. 60, 497 P.3d 224 (2021), the Montana Supreme Court, like the California appellate court in Pantoja, found the initial stop supported by reasonable suspicion. But it was the subsequent frisk yielding a pipe containing methamphetamine that the Montana court determined was illegal since there was no separate reasonable suspicion that the defendant possessed a weapon.
The Maryland court in Mitchell also faulted the officer’s frisk of the defendant. Much of the error in this part of a Terry stop is grounded in sequencing – officers go to the “frisk for safety” relying on the initial reasonable suspicion for the stop, then revert to the initial reason for the stop once the frisk is complete, rather than justifying the frisk separately from the basis of the stop. Oftentimes the reason for the initial stop may provide grounds for a frisk, but the reasonable suspicion for the frisk still must be properly articulated, which leads to the third problem area.
3. Failure to properly articulate the reason for the stop or the frisk
The officer’s articulation for the stop in Mitchell was based on vague, otherwise innocent activities that even when considered in totality did not rise to the level of reasonable suspicion. The officer’s response to defense counsel questioning on re-cross examination in Laster underscores the false belief among some that a stop alone justifies a frisk:
Defense attorney: But you don't do pat searches on everybody?
Defense attorney: Unless you believe they may have a weapon or something dangerous in their pocket, is that correct?
Officer: No. If I'm going to be in close proximity to somebody, I'll do a pat search. If I'm going to be with a person for a period of time, I'll do a pat search. If it's a brief moment to tell a trespasser to leave an area, I will not.
The officer’s response clearly did not meet the frisk criteria of Terry v. Ohio. Additionally, the rationale was absurd. Courts confronted with this kind of testimony have no other option than to suppress evidence. A recent opinion from the Ohio Court of Appeals, First Appellate District, summarizes the limits of a frisk: “the need to act out of concern for officer safety does not legitimize the ‘indiscriminate stop and frisk’ of the first person observed on the scene.” (State v. Henson, 2022-Ohio-1571; 2022 Ohio App. LEXIS 1482; 2022 WL 148618, 05/11/22)
The continuing validity and constitutionality of stop and frisk depend on the lawful execution of the practice. This begins with correct initial training, continues with in-service refresher courses, and survives through constant monitoring and vigilance of police-citizen encounters.