Stop-and-Frisk, Hydraulics, and the 4th Amendment

by Sara Mayeux

Last week, New York Governor David Paterson signed a law prohibiting police departments from storing the names and addresses of New Yorkers stopped on the street and questioned, but found to have done nothing wrong. The California NAACP endorsed Prop 19, which would legalize marijuana, on the basis that blacks are arrested for marijuana offenses at rates totally out of proportion with their population and their usage of the drug. In part, this is because of heavier policing in black neighborhoods.

The stop-and-frisk regime was made possible by a 1968 Supreme Court decision, familiar to law students throughout the land: Terry v. Ohio. The case arose out of Cleveland where, in 1963, a police detective observed a pair of black men pacing in front of a department store. Suspecting the men of "casing the joint," the detective stopped them and patted them down for weapons, finding, in the pockets of the eponymous Mr. Terry and his companion, two revolvers. They were both charged with concealed weapons offenses, and challenged the search as unlawful under the Fourth Amendment, because the detective had not had evidence of wrongdoing amounting to probable cause. (It's a funny thing, by the way, about the number of times that Terry and his companions were alleged to have walked back and forth: It kept getting higher as the case moved up higher in the legal system.)

In an opinion penned by Chief Justice Earl Warren, today remembered so fondly (well, by some) for expanding criminal defendants' rights, the Supreme Court bestowed its imprimatur upon brief stops and patdowns justified merely by "reasonable" suspicion, rather than the higher standard of "probable cause." Warren held that the evidence of Terry and his friend's revolvers was admissible:

The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be effectively used to control, may exact a high toll in human injury and frustration of efforts to prevent crime.

In a vigorous dissent Justice William Douglas protested:

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

The Terry doctrine has been widely criticized by legal scholars. But today I noticed, on one of the legal-academic blogs which I am wont to frequent, a new article by law professor Lawrence Rosenthal, coming to its defense. Rosenthal concludes:

A criminal justice system that fails to keep disadvantaged persons of color safe, even as relatively wealthy whites live in security, can offer neither fairness nor legitimacy. Terry offered the police hope of a prophylactic approach to policing in which the authorities need not wait until a crime is committed to undertake measures to keep a community safe. ... The residents of high-crime, inner-city communities face threats to their safety that most of us would find unimaginable, and that surely those who framed the Fourth Amendment could never have imagined. Perhaps that is why so many rebel against the kind of stop-and-frisk regime undertaken in New York. The threat of violent crime that New York and other cities have faced, however, should be enough to expand one's imagination.

I have long admired the Harvard Law professor William Stuntz, who has put a great deal of thought into the tragedy of mass incarceration and the structural imbalances in the American criminal justice system. Last year Stuntz called for a "police surge" into poor urban streets. He reminds us that, the much-vaunted crime decline notwithstanding, homicide rates remain unacceptably high for blacks -- 26.5 per 100,000 in 2005, compared to just 3.5 per 100,000 for whites. (Read Randolph Roth's encyclopedic American Homicide and you will find that it was not always thus.) Stuntz also knows that incarceration rates have spiraled unacceptably high for blacks -- "nearly double the Soviet rate of confinement circa 1950."

So. What do you think about all of these competing voices? What is to be done? (As a commenter observed in one of yesterday's threads: I do like to start with the easy questions...)

(Oh -- and speaking of law students throughout the land: A great good luck to my classmates starting the bar exam today. Although you obviously won't be able to read this, trapped as you are in suburban hotel ballrooms, your laptops locked with exam software, maybe TNC's generous commenters will send you some good vibes.)