When is stop-and-frisk allowed, and when is it unconstitutional? Prof. Daniel Capra gives a down-and-dirty explanation of this police tool while also shedding light on how it can be abused for racially discriminatory purposes.
Daniel Capra is a professor at Fordham Law School. He is a nationally recognized expert on evidence and criminal procedure.
Daniel Capra: You’re just walking around one day, minding your own business, don’t think you’re creating any trouble, don’t think you’re suspicious. And all of a sudden, a police officer comes up to you and says, “Stop. I want to talk to you.” And then, they pat you down. And whatever they might find, they pull out and they look at it. The question that this incident raises, often for people of color especially, is, “Is stop and frisk legal?”
I’m Dan Capra. I’m a professor at Fordham Law School and I’ll provide you with a quick and down and dirty explanation of this particularly complicated area.
One of the problems of “Is stop-and-frisk legal?” is the term “stop-and-frisk" is kind of used by people who really kind of don’t know what they’re talking about, like in the presidential debate, for example.
Lester Holt: Stop and frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men—
Donald Trump: (interrupting) No, you’re wrong. It went before a judge, who was a very against-police judge.
Hillary Clinton: Stop and frisk was found to be unconstitutional and, in part, because it was ineffective. It did not do what it needed to do.
Daniel Capra: Stop and frisk has been established as a legal practice if certain conditions are met. And that’s by the Supreme Court in the famous case of Terry v. Ohio. What the court determined is that if officers had to have what is called “probable cause," the standard required to make an arrest, for street encounters and street investigations, then a lot of crime would go undetected, and there would be a risk to the public. So what the court did is basically invent a standard of proof called “reasonable suspicion,” which would allow officers to actually stop somebody’s movement and basically determine whether reasonable suspicion actually could lead to probable cause. To basically ask questions, “Where are you going? What are you doing? Who are you doing it with? Where ya been?” doing warrant checks, doing identification checks and the like, for a limited period of time. It’s not an arrest. It’s what’s called a “stop.” But attendant to the stop is the "frisk." And the frisk is for self-protection. If the officer has reasonable suspicion that the person is armed and dangerous—not just armed, but armed and dangerous—then the officer can search for those weapons that are on the person and also on whatever the person’s carrying, and also, as it happens, in the passenger compartment of the car if the person is stopped in their car. Upon reasonable suspicion, these searches can occur. So, is stop legal? The answer is yes, if the officer has reasonable suspicion that the suspect—the person—is about to commit or has committed a crime. Second, a frisk is legal, again, upon the condition that the officer has reasonable suspicion that the person whom they have stopped is armed and dangerous. Now, those are the basics. It’s a lot more complex than that. But the answer is stop and frisk is legal. However, there have been situations in which officers employ stop and frisk in an illegal fashion, and that is the issue that came up in the major lawsuit against the New York City Police Department about their stop and frisk program. The problem with the stop and frisk program as found by the judge—she found that stop and frisk was being used selectively, that it was actually an equal protection problem in the use of the stop and frisk program. That is to say, it was being used to discriminate against minorities, particularly young African-American men. Secondly, the court found that many of these stop and frisks were occurring without reasonable suspicion. They were occurring just because, for example, around a housing project at a particular time, or a particular place at a particular time. So essentially what the court found was that the quote stop-and-frisk program, not the idea of stop and frisk program, was unconstitutional as applied by the New York City Police Department, and basically that program has now been abandoned. But that doesn’t mean that stop and frisk has been abandoned. It just means that stop and frisk, when legally conducted, is a permissible police practice.