In the first presidential debate, Hillary Clinton and Donald Trump got into a heated argument over the topic of stop and frisk policies by law enforcement departments. Clinton claimed that stop and frisk has been ruled unconstitutional, while Trump argued that stop and frisk is both constitutional and effective. As often happens in politics, both Clinton and Trump are right, and both are also wrong.
You may have experienced a stop and frisk in the past. A stop and frisk occurs when a police officer stops an individual because the officer has suspicion that the person has committed a crime. The officer will usually pat down the individual for any weapons and ask him or her questions. Unless the officer learns that the person has actually committed a crime, then the officer must let the person go within just a few minutes.
The Supreme Court held that a stop and frisk is constitutional in 1968 in the case Terry v. Ohio. Usually, to arrest or detain a person, an officer must have “probable cause” to believe the person has committed a crime. Probable cause requires more than a “hunch”; the officer must have actual evidence that the person committed a crime.
However, the Supreme Court ruled that, if an officer wants to make a temporary stop to ask a person questions, then the officer can make the stop based only “reasonable suspicion.” Reasonable suspicion does not require actual evidence of a crime; an officer can have reasonable suspicion based only on an individual’s suspicious behavior. Basically, stop and frisk gives police officers the authority to stop someone because the person is acting suspiciously.
In 2013, a federal court in New York held that the City of New York was practicing stop and frisk in a way that was unconstitutional. This is what Trump and Clinton were talking about during the debate. The City of New York had been using stop and frisk very aggressively to clamp down on crime. But statistics strongly suggested that New York police were racially profiling those they chose to stop. While New York City is only about 25% Black, over 50% of the people the police were stopping were Black. In addition, 80% of the people the police were stopping were completely innocent.
Based upon these results, the district court held that New York’s stop and frisk policy was unconstitutional and ordered New York to change its policy. The court did not decide that stop and frisk in general is unconstitutional but that New York’s current stop and frisk practices violated the Constitution. The court gave New York specific instructions on how to do stop and frisk correctly.
So, New York and other states can continue to use stop and frisk. However, other city police departments have realized that their stop and frisk programs may be found unconstitutional if they are racially discriminatory. As a result, some cities may choose to re-evaluate their stop and frisk policies. For now, however, stop and frisk itself is constitutional and used by many police forces.
If you have any questions about stop and frisk, or if you think that the police have stopped you illegally, talk to one of the experienced criminal defense lawyers at White Law PLLC!