When Can the Police Stop and Frisk You on the Street?
(from http://www.legalzoom.com/us-law/privacy/when-can-police-stop) Beverly Rice - Jul 2007
Every American citizen has the constitutional right to be free from unreasonable search and seizure. It's the reason tough talking TV characters always snap "where's your warrant?" when police start snooping around. Unfortunately, the police don't always need a warrant. In fact, under the stop and frisk exception, the police can stop you on the street and pat you down for anything illegal...as long as they have suspicion. So how exactly does stop and frisk work? And just when can the police use it?
A Little Back Story:
Stop and frisk has been an effective tool for police since the 1968 case Terry v. Ohio, when the Supreme Court ruled in favor of it. The court agreed with the police that officers face uncertain and dangerous situations on the streets—circumstances that can potentially threaten both law enforcement officers and the public. For this reason, police officers need a set of flexible responses that allow them to react based on the information they possess. Thus, distinctions should be made between a stop and an arrest (or seizure of a person), and between a frisk and a search.http://www.legalzoom.com/us-law/privacy/when-can-police-stop
Under the Terry ruling, a police officer may stop and detain a person based on reasonable suspicion. And, if the police reasonably suspect the person is armed and dangerous, they may also frisk him or her for weapons.What exactly is Reasonable Suspicion?
Reasonable suspicion is defined by a set of factual circumstances that would lead a reasonable police officer to believe criminal activity is occurring. This is different from the probable cause (what a reasonable person would believe) required for an arrest, search, and seizure. If the stop and frisk gives rise to probable cause to believe the detainee has committed a crime, then the police officer should have the power to make a formal arrest and conduct a search of the person.
What is a Stop?
What constitutes a stop and frisk? Can one be stopped and not frisked? Or does one action always follow another? A stop is a seizure of a person. There are two types of stops: (1.) a show of force and (2.) a show of authority. With a show of force, an officer must physically lay hands on the person with the intent of detaining them. In a show of authority, the officer's look, demeanor, and display of authority persuades a person to submit to authority. The key element in this type of stop is that the individual must submit to the show of authority, believe they have been seized, and feel compelled to cooperate.
A Justified Stop
A stop is justified if the suspect is exhibiting any combination of the following behaviors:
1.Appears not to fit the time or place.
2.Matches the description on a "Wanted" flyer.
3.Acts strangely, or is emotional, angry, fearful, or intoxicated.
4.Loitering, or looking for something.
5.Running away or engaging in furtive movements.
6.Present in a crime scene area.
7.Present in a high-crime area (not sufficient by itself or with loitering).
What is a Justified Frisk?
A frisk is a type of search that requires a lawful stop. It involves contact or patting of the person's outer clothing to detect if a concealed weapon is being carried. The frisk doesn't necessarily always follow a stop. The law of frisk is based on the "experienced police officer" standard whereby an officer's experience makes him more equipped to read into criminal behavior than the average layperson.
The purpose of a frisk is to dispel suspicions of danger to the officer and other persons. The frisk should only be used to detect concealed weapons or contraband. If other evidence, such as a suspected drug container, can be felt under the suspect's clothing, it can be seized by the officer. This is called the "plain feel" doctrine. To pass the plain feel test, the item must have an immediately apparent character or quality of being contraband or evidence.
A frisk is justified under the following circumstances:
1.Concern for the safety of the officer or of others.
2.Suspicion the suspect is armed and dangerous.
3.Suspicion the suspect is about to commit a crime where a weapon is commonly used.
4.Officer is alone and backup has not arrived.
5.Number of suspects and their physical size.
6.Behavior, emotional state, and/or look of suspects.
7.Suspect gave evasive answers during the initial stop.
8.Time of day and/or geographical surroundings (not sufficient by themselves to justify frisk).
Too much power?
Does the ability to stop and frisk go too far? Many police departments are at odds with the public in certain neighborhoods concerning what some people deem unwarranted stops. People in high crime areas and in areas with high minority populations often complain they are stopped and questioned at a disproportionately higher rate than their counterparts in other areas of the city.
Even some patrol officers complain about an unwritten quota system that rewards officers with promotions based on the number of stop and frisks they perform that uncover drugs or guns. While officers believe the stop and frisk law is a useful crime fighting tool, they also feel the law can be overused in an effort to boost statistics. Moreover, stop and frisk may reduce crime by scaring criminals into thinking they might be stopped at any time, but it also scares law-abiding citizens. This further alienates good citizens and strains the relationship between the police and the community.
When used correctly, the stop and frisk tool benefits the police and average citizens. Curbing crime and ensuring the safety of our on-the-beat public servants, stop and frisk can help us all sleep a little more soundly - a good step in the all-American pursuit of happiness.
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Stop and Frisk Practices
The NYPD’s stop-and-frisk practices raise serious concerns over racial profiling, illegal stops and privacy rights. The Department’s own reports on its stop-and-frisk activity confirm what many people in communities of color across the city have long known: The police are stopping hundreds of thousands of law abiding New Yorkers every year, and the vast majority are black and Latino.
An analysis by the NYCLU revealed that about 3 million innocent New Yorkers were subjected to police stops and street interrogations from 2004 through 2010, and that black and Latino communities continue to be the overwhelming target of these tactics. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent, according to the NYPD’s own reports:
In 2004, 315,483 New Yorkers were stopped by the police.
279,754 were totally innocent (89 percent)
156,056 were black (50 percent)
90,468 were Latino (29 percent)
29,000 were white (9 percent)
In 2005, 399,043 New Yorkers were stopped by the police.
351, 842 were totally innocent (88 percent)
196,977 were black (49 percent)
115, 395 were Latino (29 percent)
40,837 were white (10 percent)
In 2006, 508,540 New Yorkers were stopped by the police.
458,104 were totally innocent (90 percent)
268,610 were black (53 percent)
148,364 were Latino (29 percent)
53,793 were white (11 percent)
In 2007, 468,732 New Yorkers were stopped by the police.
407,923 were totally innocent (87 percent)
242,373 were black (52 percent)
142,903 were Latino (31 percent)
52,715 were white (11 percent)
In 2008, 531,159 New Yorkers were stopped by the police.
465,413 were totally innocent (88 percent)
271,602 were black (51 percent)
167,111 were Latino (32 percent)
57,407 were white (11 percent)
In 2009, 575,304 New Yorkers were stopped by the police.
504,594 were totally innocent (88 percent)
308,941 were black (54 percent)
179,576 were Latino (31 percent)
53,466 were white (9 percent)
In 2010, 601,055 New Yorkers were stopped by the police.
517,458 were totally innocent (86 percent)
317,642 were black (53 percent)
190,491 were Latino (32 percent)
55,083 were white (9 percent)
During the first six months of 2011, 362,150 New Yorkers were stopped by the police.
317,376 were totally innocent (88 percent)
184,186 were black (51 percent)
119,853 were Latino (33 percent)
33,805 were white (9 percent)
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Disproportionate Stops of People of Color
89 percent of those stopped in 2006 were people of color. 55 percent of the stops were of black people – more than double their percentage of the population – and 30 percent were of Latinos.
Stops of whites, who number about 3.6 million according to recent census estimates, amounted to only 2.6 percent of the white population. By contrast, stops of blacks, who number about 2.2 million people, represented 21.1 percent of the entire black population.
Residents of Brownsville's 73rd Precinct and Harlem's 28th Precinct had a 30 to 36 percent chance of being stopped and questioned by police in 2006. Citywide, the average was about 6 percent.
A total of 2,756 cops filed 54 percent, or approximately 274,000, of all stop-and-frisk reports in 2006. Of that group, 15 percent, or about 413 officers, stopped no whites.
Disproportionate Outcomes of Stops for People of Color
In 2006, 21.5 blacks were stopped for each arrest of a black person as opposed to only 18.2 whites stopped for each white arrest. Cops found guns, drugs, or stolen property on whites about twice as often as they did on black suspects.
Whites were stopped on suspicion of possessing a weapon at a rate lower than their weapon-possession arrest rate. Blacks were stopped on suspicion of possessing a weapon at a rate greater than their weapon-possession arrest rate. These findings indicate that cops were more often unjustified in stopping black people on suspicion of having weapons.
Disproportionate Use of Force on People of Color
Police used force – i.e. handcuffing, frisking, drawing weapon, restraining – about 50 percent more often on blacks than on whites in 2006. 45 percent of blacks and Latinos who were stopped were also frisked, compared with only 29 percent of whites.
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What To Do If You’re Stopped By The Police
We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities — especially in our interactions with the police.This card tells you what to do if you are stopped, questioned, arrested, or injured in your encounter with the police, and how to file a complaint.
IF YOU HAVE A POLICE ENCOUNTER, YOU CAN PROTECT YOURSELF.
1. What you say to the police is always important. Everything you say can be used against you.
2. You have the right not to speak. To exercise this right, you should tell the police, “I would like to remain silent.”
3. You never have to consent to a search of yourself, your belongings, your car or your house. If you do consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ask to see it. If they don’t, say “I do not consent to this search.”
Police cannot arrest you simply for refusing to consent to a search. This may not stop the search from happening, but it will protect your rights if you have to go to court.
4. Do not interfere with or obstruct the police—you can be arrested for it.
IF YOU ARE STOPPED, QUESTIONED AND/OR FRISKED:
Police may stop and briefly detain you only if there is reasonable suspicion that you committed, are committing or are about to commit a crime.
2. You should ask if you are under arrest or free to leave.
3. In New York, you are not required to carry ID, and you don’t have to show ID to a police officer. If you are issued a summons or arrested, however, and you refuse to produce ID or tell officers who you are,
the police may detain you until you can be positively identified.
5. Don’t bad-mouth a police officer or run away, even if you believe what is happening is unreasonable. That could lead to your arrest.
IF YOU ARE STOPPED IN YOUR CAR:
1. Upon request, show the police your driver’s license, registration and proof of insurance. In certain cases, your car can be searched without a warrant. To protect yourself later, you should state that you do not consent to a search.
2. If you’re suspected of drunk driving (DWI), you will be asked to take a breath-alcohol and coordination test. If you fail the tests, or if you refuse to take them, you will be arrested, your driver’s license may be suspended and your car may be taken away.
3. If you are arrested, your car will be subject to a search.
IF POLICE COME TO YOUR HOME:
1. The police can enter your home without your permission if they have a warrant or if it is an emergency. If the police say they have a warrant, ask to see it. Check to make sure the warrant has the correct address.
2. If you are arrested in your home or office, the police can search you and the area immediately surrounding you or where evidence of criminal activity is in plain view.
IF YOU ARE ARRESTED OR TAKEN TO A POLICE STATION:
1. You have the right to remain silent and the right to talk to a lawyer before you talk to the police. Don’t tell the police anything except your name and address. Don’t give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best.
2. If you have a lawyer, ask to see your lawyer immediately. If you can’t afford a lawyer, you have the right to a free one once your case goes to court. You can ask the police how to contact a lawyer. Don’t say anything to police without speaking to a lawyer first.
3. Within a reasonable time after your arrest or booking, you should ask the police to contact a family member or friend. If you are permitted to make a phone call, anything you say at the precinct may be recorded or listened to. Never talk about the facts of your case over the telephone.
4. Do not make any decisions in your case or sign any statements until you have talked with a lawyer.
Don’t get into an argument with the police.
Never bad-mouth a police officer.
Remember, anything you say or do can be used against you.
Keep your hands where the police can see them.
Don’t run.
Don’t touch any police officer.
Don’t resist even if you believe you are innocent.
If you complain at the scene, or tell the police they’re wrong, do so in a non-confrontational way that will not intensify the scene.
Do not make any statements regarding the incident.
If you are arrested, ask for a lawyer immediately.
Remember officers’ badge numbers, patrol car numbers and physical descriptions.
Write down everything you remember ASAP.
Try to find witnesses and their names and phone numbers.
If you are injured, take photos of the injuries as soon as possible, but make sure you get medical attention first. Ask for copies of your medical treatment files.
To File A Police Misconduct Complaint: Contact the Civilian Complaint Review Board by calling 311 or by visiting www.nyc.gov/html/ccrb.
1. You have the right to remain silent and the right to talk to a lawyer before you talk to the police. Don’t tell the police anything except your name and address. Don’t give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best.
2. If you have a lawyer, ask to see your lawyer immediately. If you can’t afford a lawyer, you have the right to a free one once your case goes to court. You can ask the police how to contact a lawyer. Don’t say anything to police without speaking to a lawyer first.
3. Within a reasonable time after your arrest or booking, you should ask the police to contact a family member or friend. If you are permitted to make a phone call, anything you say at the precinct may be recorded or listened to. Never talk about the facts of your case over the telephone.
4. Do not make any decisions in your case or sign any statements until you have talked with a lawyer.
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WHAT TO DO IF YOU’RE STOPPED BY THE POLICE
Stay calm and in control of your words, body language and emotions. Don’t get into an argument with the police.
Never bad-mouth a police officer.
Remember, anything you say or do can be used against you.
Keep your hands where the police can see them.
Don’t run.
Don’t touch any police officer.
Don’t resist even if you believe you are innocent.
If you complain at the scene, or tell the police they’re wrong, do so in a non-confrontational way that will not intensify the scene.
Do not make any statements regarding the incident.
If you are arrested, ask for a lawyer immediately.
Remember officers’ badge numbers, patrol car numbers and physical descriptions.
Write down everything you remember ASAP.
Try to find witnesses and their names and phone numbers.
If you are injured, take photos of the injuries as soon as possible, but make sure you get medical attention first. Ask for copies of your medical treatment files.
To File A Police Misconduct Complaint: Contact the Civilian Complaint Review Board by calling 311 or by visiting www.nyc.gov/html/ccrb.
