Folks, It’s Time For A Come To Jesus Meetin’ Over Stop & Frisk
It’s time to have a talk about something that a lot of people have a very strong opinion on and that is whether the police should have the ability to stop someone for no apparent reason and question them, ask them for ID, or even search them without a justifiable cause. All manner of excuses for this have been proposed, such as the argument that the police need:
- the ability to search transients/vagrants
- the ability to search anyone for weapons only (y’know, cuz no one ever has a good reason to have a weapon, right?)
- the ability to search people acting strangely
- the ability to search people near a crime scene
- the ability to search people in a high crime area
- the ability to search people looking for something
- the ability to search people who are dressed “out of season”
- the ability to search people who are “emotional” or “fearful”
- the ability to search people who are of any particular race, ethnicity, or religion (yes, that includes Muslims, like it or not!)
- the ability to search people when the officer is alone
Let me be clear: none of these things are okay. It is not constitutional for a police officer to search an individual based on any of these criteria!
The only thing they are constitutionally allowed to do is search people who have given them probable cause to do so… and probable cause must be supported by factual evidence, not an officer’s “hunch”.
The legal standard for the “stop and frisk” or even “stop and ID” laws are not up to par constitutionally and should be completely done away with.
But, What Is Stop & Frisk, Anyway?
Stop and frisk is a crime prevention policy in New York City practiced by the NYPD. In other states, it is known as a Terry stop. These laws are often similar in nature, but because New York City is the place most known for them, we’ll list New York law here.
The New York state law relevant to stop and frisk, criminal procedure law section 140.50 states:
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer’s employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.
– See more at: http://codes.findlaw.com/ny/criminal-procedure-law/cpl-sect-140-50.html#sthash.mKL19F0r.dpuf
When Is A Terry Stop Unconstitutional?
Terry stops become unconstitutional when a police officer stops a random person for no particular reason and demands to question or search them unnecessarily.
In some states, Terry stop law allows officers to demand ID from people that they stop. The following is a list of states with “stop and identify” laws.
|Alabama||Ala. Code §15-5-30|
|Arizona||Ari. Rev. Stat. Tit. 13, §2412 (enacted 2005) & Tit. 28, §1595|
|Arkansas||Ark. Code Ann. § 5-71-213 - Loitering|
|Colorado||Colo. Rev. Stat. §16-3-103(1)|
|Delaware||Del. Code Ann., Tit. 11, §§1902, 1321(6)|
|Florida||Fla. Stat. §901.151 (Stop and Frisk Law); §856.021(2) (loitering and prowling)|
|Georgia||Ga. Code Ann. §16-11-36(b) (loitering)|
|llinois||Indiana Code §34-28-5-3.5|
|Indiana||Ill. Comp. Stat., ch. 725, §5/107-14|
|Kansas||Kan. Stat. Ann. §22-2402(1)|
|Louisiana||La. Code Crim. Proc. Ann., Art. 215.1(A); La. Rev. Stat. 14:108(B)(1)(c)|
|Missouri (Kansas City only)||Mo. Rev. Stat. §84.710(2)|
|Montana||Mont. Code Ann. §46-5-401|
|Nebraska||Neb. Rev. Stat. §29-829|
|Nevada||Nev. Rev. Stat. §171.123|
|New Hampshire||N.H. Rev. Stat. Ann. §594:2, §644:6|
|New Mexico||N.M. Stat. Ann. §30-22-3|
|New York||N.Y. Crim. Proc. Law §140.50|
|North Dakota||N.D. Cent. Code §29-29-21|
|Ohio||Ohio Rev. Code §2921.29|
|Rhode Island||R.I. Gen. Laws §12-7-1|
|Utah||Utah Code Ann. §77-7-15|
|Vermont||Vt. Stat. Ann., Tit. 24, §1983|
|Wisconsin||Wis. Stat. §968.24|
Myth #1: Stop And Frisk Catches Lotsa "Bad Guys"
Negatory! Stop and frisk does not now, nor has it ever, substantially reduced crime. In truth… it has a less than 10% success rate at finding anyone guilty of ANYTHING.
Fact: Out of the 685,724 people stopped in 2011 in New York City, only 0.12% of women and 0.13% of men were discovered to be carrying a firearm.
That’s less than 1/5 of 1 percent and it includes all manner of Terry stops. If a teacher had a success rate that low with their students, they would be fired!
Again, in NYC, stop and frisk failed to stop much real crime. Look at these stats.
In 2002 there were 97,296 “stop and frisk” stops made by New York police officers. 82.4% resulted in no fines or convictions. The number of stops increased dramatically in 2008 to over half a million, 88% of which did not result in any fine or conviction, peaking in 2011 to 685,724 stops, again with 88% resulting in no conviction. On average from 2002 to 2013 the number of individuals stopped without any convictions was 87.6%. — Wikipedia
So, you’re thinking that 12% of people isn’t anything to sneeze at, right? Well, don’t forget to take into account that drugs account for 82% of arrests in the United States. And of that 82%, 42.4% are for cannabis.
So, in reality, if the “success” rate for stop and frisk is 12% and 82% of those arrests are related to drugs, that means 9.84% are drug-related. Take out the percentage of arrests that are for cannabis (4.17%) away from the total “success” rate and you’re left with a success rate of 7.83%.
That means that over 90% of people who were stopped and frisked did absolutely nothing ethically wrong!
Myth #2: If You Have Nothing To Hide...
Most people who quote this have no idea that this quote is attributed to the Reich Minister of Propaganda in Nazi Germany during WWII, Joseph Goebbels and was also used in George Orwell’s 1984. In either case, the very idea of the quote, which is that people who have either done nothing wrong or believe they have done nothing wrong should cooperate with the police, lest they make themselves suspicious.
Privacy Isn't Just For Criminals
The entire problem with this argument is this: it assumes that privacy is only about hiding things that are “bad”. This is obviously not the case.
The right to privacy is the right to self. There is a reason we lock our doors at home, lock our vehicles, and in modern society now we even lock our phones, because our entire lives are so wrapped up in them. Privacy is not something that only criminals require.
We're All Innocent Until Proven Guilty
This is something that the “nothing to hide” doctrine flips on its head and is completely anti-American: the idea that by simply existing, you are suspicious until proven otherwise. It’s the state that bears the burden of proving they had a good reason to be suspicious of you; it is not on you to prove you’ve done nothing wrong.
The Most Dangerous Thing About This
Perhaps the most unnerving thing about this is that this concept leads people to believe that the only people who care about their privacy are criminals. What many need to realize is that giving your information to a police officer is no different than giving it to a random stranger on the side of the road. You don’t know them, you don’t know what their intentions are, and you don’t know whether your information will be mishandled, either intentionally or accidentally.
This is why we have the right to remain silent, the right to an attorney, and rights against unreasonable searches and seizures. After all, “if you have nothing to hide, you have nothing to fear” is true… we may as well do away with the rights I just mentioned… right?
Nah… they can go get a warrant, bro.
Myth #3: It's Constitutional
Nope! Contrary to what some other people say, stop and frisks aren’t constitutional, even when they’re done “correctly” using the “reasonable suspicion” legal doctrine.
The Constitution holds that “probable cause” is the standard for searches and seizures and says nothing about “reasonable suspicion”. Taylor Law Company says:
Reasonable suspicion is a reasonable presumption that a crime has been, is being, or will be committed. It is a reasonable belief based on facts or circumstances and is informed by a police officer’s training and experience. Reasonable suspicion is seen as more than a guess or hunch but less than probable cause.
Probable cause is the logical belief, supported by facts and circumstances, that a crime has been, is being, or will be committed.
The 4th amendment does not speak of “reasonable suspicion”, only “probable cause”. In other words, there must be evidence that a crime has been, is being, or will be committed. An officer’s “hunch” does not stand up to probable cause, therefore performing any type of search or seizure on an individual is unconstitutional and illegal. It is openly admitted that “reasonable suspicion” is a lesser standard than “probable cause”, yet police still use it to detain people and violate their civil rights.
Replace “reasonable suspicion” in these stop and frisk laws with “probable cause” and you might be onto something… but the 4th amendment already covers that, so why write new laws?
Inconvenient Truth #1: Cops Will Make Things Up To Detain You
It’s a sad fact, but it’s something police are actively taught and encouraged to do in order to search you. Some examples of this include:
- saying that they “smelled marijuana” or “smelled alcohol” on you
- pulling you over by saying there was a suspicious vehicle reported in the area and yours matched it
- when walking down the street, they will say that a suspicious person matching your description was reported in the area
- “there’ve been break-ins in the area”
- “You look lost”
This does not mean that every cop that ever talks to you is trying one of these tactics to get you in trouble, because there really are plenty of good cops out there. What this does mean is that, sadly, because they wear the badge and are arms of government, they cannot be fully trusted when they are the ones coming up to you and initiating conversation. If you’re in trouble or in danger, by all means, go to the cops! But, if they’re the ones approaching you, be wary of their intentions. Their loyalty is to their badge and the orders they’re given, not to you.
Inconvenient Truth #2: You Are Not Allowed To Lie To Them
Nope, just don’t do it. Lying to the police is always a bad idea.
But that doesn’t mean that you have to talk to them, either. In fact, you have the right to remain silent and the right to an attorney.
But, beware: silence when you’re not in police custody and not Mirandized can be used against you in a court of law if they decide to arrest you later. Better to invoke your 5th amendment rights and say nothing than give ammo that they can use against you later.
The ACLU has more information about how to handle interactions with the police.
How To Deal With A Terry Stop
When you’re stopped by the police, everything you do from their first word or action to you matters. If you believe nothing else, believe this: when interacting with a police officer, they have more power over your life than anyone else does, right then, right there.
Talking To You Does Not Violate Your Rights
Police officers are totally allowed to come up to you and talk to you for any reason they want. That’s not a violation of your civil rights. Don’t make a fool of yourself by immediately being confrontational about the fact that they’re even speaking to you.
Know Your Rights: The 4th Amendment
Many people on YouTube make utter fools of themselves by saying or even yelling out “I know my rights”… when they know nothing of the sort. Commit the 4th amendment to memory:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If you don’t know this, you don’t know your rights. If you do know this, be nice and polite to the police officer, but communicate that you do know what the 4th amendment is and whether your rights are being violated.
Cooperation: Just Do The Thing
If they tell you to do something, don’t stand there and argue with them or refuse to comply. This will NOT help you. Do not resist a physical search; verbal resistance is what you need to communicate. Make it known clearly that the search is non-consensual.
You can try all you want, but go watch an episode of Cops: you will not win a confrontation with a police officer on the street. Legal battles are won in court rooms, not on the side of the road. You will end up 1 of 2 places: jail or a coffin.
Disclose Any Weapons You Have On You Or Near You
Fact: police officers deal with the bottom dwellers in society all day every day. The wife beaters, the drug dealers, the child molesters, the burglars, etc.
Extend to them the common courtesy of letting them know that you have a weapon on you or in your vehicle. If you have a concealed carry permit, let them know this and if you have it with you (you should), provide it when you’re asked for ID. Do this immediately when you’re first contacted by them. This is just as much for your protection as it is for their peace of mind: by doing this, they cannot claim that you attempted to hide anything from them if you end up in court.
If You Have A Weapon: DON'T TOUCH IT!
Seriously, guys. Even if the cop asks you to hand him your weapon, do NOT touch it. Request that he or she remove it from your person or from your vehicle themselves if they want it. This is the one case where you can say “nope, not doing that”, because it puts you in a legally compromising situation. An unscrupulous officer could later claim “he reached for his weapon” and it would be 100% true. Sure, you can say “he told me to”, but now it’s your word against theirs.
Do not touch your weapon or even make motions towards it.
Be Careful If They Give It Back To You
If they let you go and give your weapon back to you, put it back where they obtained it from carefully. Move slowly and don’t motion towards them with it.
If You're Arrested: Be Cooperative
Once you are arrested, keep your mouth shut. Anything you say can and WILL be used against you in a court of law.
Do not threaten them in any capacity, including filing a complaint or legal action. When you get to the police station, ask for your lawyer.
The Trial by Franz Kafka (1925)
This is Franz Kafka’s best known work that was published in 1925 and tells the story of a man who is arrested by an authority that he cannot speak directly with and the nature of his offense is never revealed to him nor to the reader.
It serves as a cautionary tale of the damage that indiscriminate police powers can do to the very individuals those policies are supposed to protect.