Objective justification for stops
The Fourth Amendment states: “The 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 search, and the persons or things to be seized.”
The scope of Fourth Amendment protections against unreasonable search and seizure came to the forefront of public discourse during the landmark 1968 U.S. Supreme Court case, Terry v. Ohio. The case arose following a police encounter known as a "stop-and-frisk" in which a citizen is stopped, questioned, and patted down for illegal contraband by a police officer. On October 31, 1964, Detective Martin McFadden conducted a pat down on three men whom he believed were planning to rob a nearby shop. Having discovered that two of the men, John Terry and Richard Chilton, were carrying firearms, Detective McFadden arrested the men and they were later convicted for illegally concealing weapons. The men appealed their convictions on the basis that the evidence used to convict them was discovered during an illegal search and therefore, according to the defense, could not be used as evidence in trial. Ultimately, the Court concluded that an officer may conduct an external pat-down for weapons and that any questioning based upon "reasonable suspicion" does in fact compose a constitutional search as defined by the Fourth Amendment.
The personal discretion afforded to an officer in order to detain, search, or arrest an individual is contingent upon two distinct, but separate, preconditions. If there are "facts or circumstances present indicating that a crime has been, is being, or will be committed," an officer has what is called reasonable suspicion. If reasonable suspicion is present, "investigators can detain, frisk, and question a suspect." It is important to note that reasonable suspicion is not contingent upon an officer’s certainty of criminal intention, but is rather based on the presumed likeliness of a crime. Probable cause is distinct from reasonable suspicion in that it requires the existence of "hard evidence and sufficient facts" regarding any alleged behavior. Ultimately, probable cause affords officers more legal authority to make an arrest, search property, or obtain a warrant.
The Supreme Court ruling in favor of Detective McFadden was primarily based upon what the Court described as "reasonable action consistent within the scope and circumstance prompting the initial search." Where Terry v. Ohio fell short is in neglecting to properly set a constitutional standard for the definition of "probable cause," leaving what may be considered "reasonable" in a search and seizure vague and widely subjective. This has had long enduring consequences for police-community relations given the exceptional amount of authority given to an officer without the authorization of a judge in day to day police encounters.
Reasonable suspicion and probable cause are particularly pertinent in discourse surrounding the common Broken Windows Policing practice of "stop-and-frisk," referring to "brief and non-intrusive" police stops in which a suspect is questioned and searched within reasonable suspicion. Though stop-and-frisk was implemented as a measure to protect communities by getting ahead of criminal activity, the results have often caused more harm than good. Data from New York City provides one of the most comprehensive examples of these effects. In 2019, nearly 9,000 innocent New Yorkers were stopped, interrogated, and searched in front of friends and neighbors in what can be humiliating, stressful experiences that often result in unnecessary and violent altercations with police.
Stop-and-frisk programs continue to disproportionately affect communities of color, especially in urban areas. Between 2007-2010 in Boston, Black residents were the subjects of 63.3% of police encounters, despite making up 25% of the city’s population. In Los Angeles during the last six months of 2018, 28% of all people stopped were Black even though Black people account for only 9% of the city’s population. In New York City, nearly 90% of annual stops in 2019 were performed on Black and Latinx individuals. In the same year, 14% of stops citywide were performed on the suspicion of low-level offense, yet they composed nearly 50% of total arrests. In New York as in other metropolitan areas, more often than not, the precincts with the highest share of arrests are areas of the city in which officers perform the highest level of stops based upon "suspicion of low-level or non-violent offenses" such as possession of marijuana, gambling, graffiti, and criminal trespass. Disturbingly, the precincts in which the highest rates of these arrests took place were not those with highest major felony crime rates, but instead the areas with some of the highest poverty rates and largest minority populations.
Given the ruling in Terry v. Ohio, officers are afforded a significant amount of discretion when performing a stop. Probable cause to perform a search can range from justifications like "suspect wearing disguise commonly used in a crime" to "suspect suspiciously well dressed," leaving officers with broad swaths of potential reasoning to establish a police stop. In many situations this can lead officers to conflate a break in pattern—such as a black citizen walking around a predominantly white neighborhood—with "reasonable suspicion." Without a police department requirement to provide a detailed and objective justification for initiating a stop, these policies can lead to countless discriminatory and unnecessary encounters.
Though sensible levels of personal discretion are necessary to the dynamic world of policing, a lack of objective, categorical standards set for police stops allows for a dangerous amount of autonomy that disproportionately affects communities of color and results in unfair arrests. As the sole dissenter in Terry v. Ohio, Justice William Douglas stated, “To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.” Within a judicial system that seeks to afford a fair court trial to citizens, law enforcement should not have more autonomy nor legal discretion than a judge. It is integral that citizens are given the opportunity to determine the terms of a "reasonable" search and seizure. The role of law enforcement is first and foremost to protect its citizenry in the same way the judiciary exists to safeguard citizens under the protections of the law. Without comprehensive and objective legislation on the limits of search and seizure by law enforcement, police stops leave citizens subject to the sole authority of an officer as judge, jury—and in tragic occasions—executioner before ever entering the courtroom.
Sources and additional resources (click to expand)
White, B. R. & Supreme Court Of The United States. (1967) U.S. Reports: Terry v. Ohio, 392 U.S. 1 .
Fagan, Jeffery, Braga, Anthony, Brunson, Rod, and April Pattivina. “An Analysis of Race and Ethnicity Patterns in Boston Police Department Field Interrogation, Observation, Frisk, and/or Search Reports.” ACLU of Massachusetts. June 15, 2015. https://www.aclum.org/en/ending-racist-stop-and-frisk
“Annual Report 2020.” Racial & Identity Profiling and Advisory Board, California Department of Justice. https://oag.ca.gov/sites/all/files/agweb/pdfs/ripa/ripa-board-report-2020.pdf
Hutchinson, Bill. “Blacks account for nearly half of all NYC arrests 6 years after end of stop-and-frisk: NYPD data.” ABC News. June 30, 2020. https://abcnews.go.com/US/blacks-account-half-nyc-arrests-years-end-stop/story?id=71412485
“Civilian Complaint Review Board: Report of the Finance Division on the Fiscal 2021 Preliminary Plan and Preliminary Mayor’s Management Report.” Finance Division, The Council of the City of New York. March, 2020.https://council.nyc.gov/budget/wp-content/uploads/sites/54/2020/03/054-CCRB.pdf