by Diane Rufino, February 27, 2020 (incorporating an article by Walter E. Williams in Townhall, Feb. 26, 2020, titled "Stop, Question, and Frisk")
In 1968, the Supreme Court handed down a landmark ruling in the case of Terry v. Ohio, which gave an additional tool to law enforcement in fighting crime and limiting the number of people on the streets with guns NOT in furtherance of any constitutional right (for self-protection) but rather in furtherance of criminal activity and violence upon others. Terry v. Ohio gave us the STOP & FRISK policy, a policy that has helped save officers' lives. As it turns out, it has also saved the lives of thousands in minority communities that have been hostile to this policy and hostile to police over the past 30-40 years.
The facts of the case are simple: A Cleveland detective named McFadden, who was patrolling a downtown beat that he had been patrolling for many years, observed two strangers on a street corner. who were acting "suspiciously." He saw them walk back and forth in front of a particular store for about 24 minutes, pausing occasionally to look in the store window. Each time they appeared to scope out the store, they met with a third man on the nearby corner to converse. Suspecting the two men of having criminal intentions, of "casing a job," the officer followed them. When they were joined by the third man, the officer approached and identified himself as a policeman, and asked their names. The men seemed evasive, and quickly, McFadden spun petitioner Terry around and patted down his outside clothing. There was clearly a pistol in his pocket. ,The men were arrested and brought to the police station for carrying an unauthorized concealed weapon.
Supporters of the Second Amendment know that firearms are allowed for self-protection and self-defense, but NOT to carry out violent crime or to harm another, innocent human being. But the Second Amendment was not at issue in the case. The Fourth Amendment was.
So let's review the Fourth Amendment. It reads: "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 searched, and the persons or things to be seized. "
Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. Furthermore, a careful examination of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment.
The ruling in the case provides (established) this general rule:
The Fourth Amendment right against unreasonable searches and seizures, which is made applicable to the States by the Fourteenth Amendment, "protects PEOPLE, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere.
Where a reasonably prudent officer is justified in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.
(a) Though the police must, whenever practicable, secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required.
(b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate.
(c) The officer McFadden was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. He was justified in believing that the petitioners (Terry and his buddies) who were engaging in suspicious behavior, were very likely armed and dangerous and therefore, he had the right to neutralize that threat of physical harm. Furthermore, he was justified in taking the necessary measures he took in order to determine whether those persons were carrying a weapon.
A search for weapons in the absence of probable cause to arrest, which has since become known in law enforcement as the "Stop & Frisk" or "Terry Stop," must be strictly circumscribed by the exigencies of the situation.
In light of this review of the Fourth Amendment, conservative columnist Walter E. Williams recently wrote an article on the "Stop & Frisk" policy in Townhall. It is an excellent article which I've copied and pasted below:
STOP, QUESTION, & FRISK, by Walter E. Williams, February 26, 2020.
Before former New York City Mayor Michael Bloomberg threw his hat into the 2020 presidential race, he defended the New York Police Department's use of "stop, question and frisk" policing. At a United States Naval Academy's 2019 Leadership Conference, Bloomberg said, "We focused on keeping kids from going through the correctional system ... kids who walked around looking like they might have a gun, remove the gun from their pockets and stop it." He claimed that as a result of his policy, New York's murder rate fell from 650 a year to 300 the year he left office.
In the cases of Terry v. Ohio, Sibron v. New York, and Peters v. New York, the U.S. Supreme Court, in 1968, granted limited approval to officers to stop, question and frisk, even though they lacked probable cause for an arrest, if the officer believed the subject to be dangerous. The Court's decision made suspicion of danger to an officer grounds for a "reasonable search."
The "Stop, Question and frisk" policy has taken on racial overtones because most of the people stopped are black men. Let's look at the numbers. Last year, NYPD data showed that 93% of suspects arrested for murder were black or Hispanic. Ninety-six percent of those nabbed in shootings were also minorities.
Eighty-eight percent of New York City's homicide victims were black or Hispanic as were 96% of shooting victims. While these percentages have been roughly the same for decades, New York police have brought the absolute number of crimes, including homicides, way down from its 1990 peak at 2,245 to 289 homicides in 2018. Since blacks and Hispanics are the major victims of homicide, as a result of the NYPD's proactive response to crime, possibly tens of thousands of blacks are living today who would otherwise be dead.
For a law-abiding black person to be stopped, questioned and frisked - in a word or two, be racially profiled - is truly insulting. However, to analyze the policy, let's look at the origins of racial profiling or any other kind of profiling. First of all, policemen are neither mind readers nor are they equipped with X-ray vision. That means good policing requires learning how to use an easily observed physical characteristic as a guess or proxy for some other difficult-to-observe characteristic. Thus, the reason people profile is that information is costly and they seek methods to economize on information costs. One way to do that is through profiling.
The reality is that race and other behavioral characteristics are correlated, including criminal behavior. That fact does not dispel the insult, embarrassment, anger and hurt a law-abiding black person might feel when being stopped by police, being watched in stores, being passed by taxi drivers, standing at traffic lights and hearing car door locks activated or being refused delivery by merchants who fear for their safety in his neighborhood.
Former New York Mayor Michael Bloomberg is a politician in pursuit of his own agenda. President Donald Trump is also a politician in pursuit of his own agenda. Both will deny their support for and talk down the policy of stop, question and frisk in an effort to curry favor with black voters. Most Bloomberg and Trump supporters don't live under the horrible conditions that so many blacks live under in high crime cities like Baltimore, St. Louis, Chicago and Detroit. Black people must ask what needs to be done to stop criminals from preying on them and making so many of their communities economic wastelands. If stop, question and frisk can contribute to that goal, so be it. They need not listen to politicians, academics, talking heads on the news and others.
Terry v. Ohio, 392 U.S. 1 (1968), from the Cornell Law School library. Referenced here.
Walter E. Williams, "Stop, Question, & Frisk,"
Townhall, February 26, 2020. Referenced here.