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Law and Crime
On Being an Ally: Random Stops
Part 2: Encounters with the police can be complicated.
Posted October 22, 2020 Reviewed by Hara Estroff Marano
If you missed Part 1: Supporting your friends can be complicated, you can find it here.
If you're looking for Part 3: Can we really look at the world through someone else's eyes? click here.
The murder rate received top billing. Adults wanted someone to do something, now. The best solution would have helped kids cultivate options other than a career with the disclaimer risk of confrontations with the police, felony charges, loss of freedom, gunshot wounds, and death, while also trying stop what was happening in the moment. But across the United States, now won the day.
The first time it happened, I was about 17 years old. My cousin and I were standing outside his building. A dark car pulled up. Two white men, obviously cops (but not because they were white) got out. They told us to turn around. They frisked us and left. We laughed. One of us asked the other, “What was that about?”
We didn’t know it, but these officers had just violated the Fourth Amendment, which protects “persons, [their] houses, papers, and effects” from “unreasonable searches and seizures” by the federal and state governments, their political subdivisions, and their agents, including the police. The Amendment evolved from an argument against English law enforcement tactics, which according to Thomas K. Clancy, “[placed] permanent search warrants placed in the hands of customs officials [that could] be used with unlimited discretion and were valid for the duration of the life of the sovereign.” (King George II, who had died in 1760 when this issue arose in the colonies, had ruled for 33 years. His successor, George III, ruled for 59 years.) James Otis, the lawyer who first challenged these warrants, argued that warrants should be granted only after a sworn accusation (adding in a consequence for false reports), and limited to a specific person or place (forcing informers to conduct some research before being allowed to search someone’s property).
In the 1967 case Terry v Ohio, the U.S. Supreme Court addressed the specific situation of a police officer (a job that didn’t exist in 1787) stopping and frisking a person on the street without a warrant. The Court ruled that a police stop was a “seizure,” and frisking someone is a “search.” For this act to be “reasonable,” an officer must satisfy several conditions:
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
The officers who frisked us did none of this. No identification. No questions. No time or reason to conclude that two guys standing in front of that building were about to engage in criminal activity. No one was around that we could’ve robbed. The nearest store was one block over. The guys we thought they were looking for were 700 feet away, in their usual spot on the opposite corner of the block, 150 feet from the police station. Oh well, their mistake. We went back to our conversation.
The 1976 New York case People v De Bour explains that New York police officers have the right to approach and request information from a person. They need an objective credible reason to do this, but if they have one, they can request ID or an explanation as to someone’s whereabouts. The person has a right to not answer, walk away, and the police cannot follow. They also have the common law right to inquire.
This second level of “intrusion on the security and privacy of the individual” requires police officers to have a “founded suspicion that criminal activity is afoot.” Police can question a person in an accusatory manner, and if the person attempts to leave, the officers are allowed to seize a person. The Terry stop is the third level and the fourth is the right to arrest, where an officer formally accuses a person of committing a crime. This usually requires a warrant.
The next time, I was walking:
“Let me see your ID,” the officer said. This was the dumbest thing I had ever heard. “Who carries ID to go to the store?” I said.
Two aspects of my personality inform what happened next. First, I have always loved learning new things. So much so that my sixth grade teacher says I read dictionaries in class. Second, my love of learning made me comfortable asking questions of people in authority. And on my first day of seventh grade, my social studies teacher, channeling a book from 1958, told us we had the right to question authority, intensifying this tendency. This officer, whoever he was, stopped me five years later. In short, he started an arms race.
“Let me see your ID.” “No law requires me to carry ID.” “This is true, but you should carry ID anyway.”
“You’re not in uniform. How do I know you’re a cop? Let me see your ID instead.” Every plainclothes officer whose ID I requested showed me. Only one tried to obscure his badge number with his thumb. I still remember the three-digit number and the golden color of his badge, indicating that he was a sergeant.
“But I have a Second Amendment right to bear arms.” This sparked a fifteen-minute discussion on the subject. Everything I knew about the Second Amendment was wrong. I don’t remember the officer’s arguments to know whether he was right. But it was a pleasant conversation. He frisked me anyway.
I refused to be frisked. “We can arrest you for obstruction of justice,” the officer said. I later learned, while working in the prosecutor’s office, that while he could’ve wasted both of our time arresting me, I hadn’t committed a crime by refusing the search. The most likely outcome would’ve been that the prosecutor would’ve refused to charge me. But at that moment, I didn’t know enough to call his bluff. He waited. Finally, I let him win. I had better things to do with my time than sit in a cell for the next few hours with my hands cuffed behind my back, three steps of room to walk, and a copy of USA Today to keep me company. The next day, I went straight to the library.
Finally, after years of being stopped by random NYPD officers, I was fully prepared to prevent the next officer from escalating a stop with no objective, credible reason into a Terry stop (I wasn’t). It never happened. I had aged out of the target group.
Experience would have led the officers to expect to find nothing. At an average rate of 46 stop and frisks per year, a patrolman would find one gun every 18 years. In 2011, only 863 of the NYPD’s 34,805 officers still held the rank of patrolman after 20 years. People tend to stop doing a thing once they expect to get nothing for their effort, but in 2011 NYPD officers stopped and frisked 684,000 people (This number has dropped significantly since about 2014).
Bill Bratton (NYPD Commissioner 1994-1996 and 2014-2016) often talks about the lawful use of Terry stops as a tool to reduce crime. This wasn’t it. These stops were based “upon mere whim, caprice, or idle curiosity” (and allegedly, quotas), violating the spirit of the Fourth Amendment.
Part 3: Can we really see the world through someone else's eyes?
