Forty three years ago, in Terry v. Ohio (1968) 392 U.S. 1, a majority of the justices of the United States Supreme Court held it not a violation of the Fourth Amendment for a police officer to stop a citizen on the street and "pat down" his pockets, if the officer could articulate an objective basis for reasonable suspicion that the citizen might be committing a crime, or about to commit a crime. Here is how Chief Justice Earl Warren, writing the majority opinion, explained the concept.
"It is argued that the police should be allowed to `stop' a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to `frisk' him for weapons. If the `stop' and the `frisk' give rise to probable cause to believe that the person has committed a crime, then the police should be empowered (by the Court) to make an `arrest' and a `search' of the person."
On the other side it is argued that "acquiescence by the courts in the compulsion inherent in the field interrogation practices at issue here would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in `the often competitive enterprise of ferreting out crime.'"
Chief Justice Warren then addressed the issue to be decided: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest. Answering this question by recognizing "stop" and "frisk" amounts to the same thing as "seizure" and "search," Warren said this:
"Whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a `search.' Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a `petty indignity.' It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly."
Warren then stated the express holding of the case this way:
"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his safety, he is entitled to conduct a carefully limited search of the outer clothing of the citizen in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken."
In the Terry case this holding meant that the police officer was justified in seizing the gun he found on Terry's person, because his stopping Terry was based on reasonable suspicion that Terry might be engaged in a criminal act. The police officer testified that while on patrol, his attention was drawn to two men standing on a street corner and thought to himself, "Those two guys don't look right to me." His interest aroused, the officer watched as the two men walked to a store window and looked in, then walked on a short distance, turned around and walked back toward the corner, passing again the store window. Then, again, walking down the street, looking in the window, turning and walking back again; in all, making a half dozen trips. The officer took this behavior to mean that the men were "casing the joint" and he approached them and identified himself as a police officer. When the men "mumbled something," the officer spun Terry around and patted down the outside of his clothing, feeling a pistol in the breast pocket of the man's coat. The officer reached in and removed a gun. This led to Terry's arrest and conviction for carrying a concealed weapon.
Mr. Justice Harlan, concurring in Warren's opinion, added an important qualification to the scope of the Court's ruling:
"If the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. If and when a policeman has a right to disarm a person for his own protection, he must first have a right to be in the presence of the person. That right must be more than the liberty possessed by any citizen to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the interrogator's protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime."
Mr. Justice White, also concurring with Warren's opinion, added this:
"There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest."
To all of this, the great libertarian, Mr. Justice William O. Douglas, dissented.
"It is a mystery how the `seizure' and `search' can be constitutional by Fourth Amendment standards, unless there was probable cause to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed. We hold today that the police have a greater authority to make a `seizure' and conduct a `search' than a judge has to authorize such action. We have said precisely the opposite over and over again.
Police officers up until today have been permitted to seize without a warrant only when they possess facts concerning the person arrested that would have satisfied a magistrate that `probable cause' was indeed present. The term `probable cause' rings a bell of certainty that is not sounded by phrases such as `reasonable suspicion.'
The infringement on personal liberty of any `seizure' of a person can only be `reasonable' under the Fourth Amendment if we require the police to possess `probable cause' before they seize him. Only that line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the officer's personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be a deliberate choice of the people through a constitutional amendment.
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."
A new regime indeed. Here we are, forty-two years later, and hundreds of thousands of American citizens, mostly of color, are being "seized" and "searched" in the cities of America by police officers acting at their own discretion, and exercising this discretion in patently unreasonable ways. Here is the record of the great City of New York, for example, followed closely by Los Angeles.
On February 14, 2013, the Federal District Court for the Southern District of New York issued an injunction against the police of New York City to stop "seizing" citizens and "searching" them in violation of the Supreme Court's holding in Terry v. Ohio. (In other words, the District Court found that the police could not even obey the watered down requirement of "reasonable suspicion" the Terry Court gave them in place of "probable cause." Just pathetic.)
In the case of Ligon, et al., v. The New York Police Department, et al, 2013 U.S. Dist. LEXIS 22383, the District Court found the following:
"Plaintiffs, all of whom are African-Americans or Latino residents of New York, argue that the police have a practice of making unlawful stops on suspicion of trespass outside buildings in the Bronx (i.e., without "reasonable suspicion.)." Here are examples of the practice as testified to by plaintiffs and defendant police officers alike.
A. Charles Bradley's Stop: After finishing work as a security guard, Mr. Bradley, a black fifty-one year old resident of the Bronx, took the subway to visit his fiancée, Lisa Rappa, as they had arranged the evening before. When Bradley arrived at Rappa's apartment building he entered, walked upstairs, knocked on her door and, when no answer was forthcoming, he walked back down and went outside and looked up toward her window.
While Bradley was standing on the sidewalk, Officer Santiago pulled up in a vehicle and gestured for Bradley to come over. When Bradley did so, Santiago got out and asked, "What are you doing here?" Bradley answered that he was there to see Rappa. Santiago, according to Bradley, then called him a "fucking animal," and searched his pockets; then he told Bradley to place his hands behind his back and handcuffed him. Bradley was taken to the station house, strip-searched, and thrown in a cell where he remained for several hours until released. He was never prosecuted for any crime.
B. Abdullah Turner's Stop: Mr. Turner, a black twenty-four year old, was standing outside an apartment building waiting for a friend to come out. While he waited he talked to his girl friend on his cell phone. Suddenly the phone was yanked out of his hand and, turning around, Turner found himself confronted by three police officers. The officers asked him what he was doing and where he lived. After Turner explained, the officers stood him against a wall. Then they arrested him for trespassing and took him to the station where he was finger-printed and, several hours later, released. He was never prosecuted for any crime.
C. J.G.'s Stop: J.G., who is black and seventeen years old, has been stopped about seven times under similar circumstances. On one occasion he had gone from his apartment building to the corner market to buy ketchup for dinner. On his way back, he was stopped by officers and questioned: where was he coming from, where was he going, what did he have in the bag? J.G. gave intelligent answers, whereupon the officers frisked him and then let him go.
D. Jerome Grant's Stop: Grant, who is black and nineteen years old, knocked loudly on the door of his grandmother's apartment building, to attract the attention of his brother who had entered before him but had not left the door open. Officers approached him and asked if he lived in the building. Grant explained the situation and asked what he had done wrong. One of the officers responded with, "I'm the one that's talking here; shut up and there won't be a problem." Then Grant was told to stand against the wall and the officer patted him down; putting a hand in Grant's pockets, the officer removed the contents. Then he let Grant go.
E. Roshea Johnson's Stop: Johnson, who is black and thirty-four years old, went to a friend's apartment building to change into clothes he had left there. When he found no one answering the apartment door, he returned to the ground floor and began walking across the street to a pay phone to call the friend. As he crossed, a black van pulled up with officers inside. One asked what he was doing and he explained. The officers handcuffed him and placed him in the van. They then drove him around asking as they did so, "Where are the guns and the drugs?" After a fifteen minute ride, the officers let Johnson out of the van about a mile from where he had been picked up.
In response to these examples, and many more like them documented in the trial court record, the District Court found that "instead of reasonable suspicion providing a basis for investigative questioning, the standard scenario is for investigative questioning to lead to reasonable suspicion." This, of course, stands the Supreme Court's holding, in Terry v. Ohio, on its head.
Furthermore, the Court found, the NYPD's training materials suggest that even when an officer lacks reasonable suspicion for a stop, the officer may not only approach and ask accusatory questions, but during the encounter may place his hands on his holstered firearm or draw the weapon without any cause but to intimidate the citizen.
The District Court said:
"What is most troubling about these materials is not the suggestion that investigative questioning might under certain circumstances lawfully precede reasonable suspicion, but that it should do so as a matter of course, routinely, as the rule rather than the exception. If it is safe to assume that officers routinely display their authority and power through aggressive behavior, as many of the officers did in their encounters with plaintiffs in the instant case, then a training program that invites officers to approach large numbers of people (600,000 a year in New York City alone) and question them without reasonable suspicion will inevitably result in frequent Terry stops that lack reasonable suspicion. The evidence shows that the NYPD's training has taught officers the following lesson: stop and question first, develop reasonable suspicion later.
In sum, while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside apartment building in the Bronx. For those of us (read "white" persons) who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence, however, the conclusion is inescapable that this is the case."
As all the classic features of oppressive government coalesce in America—the whiff of lethal drones in the skies, heat sensors, GPS devices, and dogs invading citizens' privacy, the Government's agents snooping through citizens' email, monitoring their interests, stopping them on the street, abusing them without even the nebulous ground of "reasonable suspicion," and all of this done, as Mr. Justice Douglas lamented, without a full debate of the people—we, the Americans, must surely realize too late that the regime of the Orwellian state is upon us.
Floyd v. City of New York
Federal District Court 2013
On August 12, 2013, in a nonjury trial, the District Court
Ruled the City of New York has systematically violated the civil rights
Of New York citizens. Below are excerpts from the judge's decision: