9/22/16

College basketball games

Trump praises 'stop-and-frisk' police tactic

After tossing Betty Shelby under the bus, and presumably gaining some love amongst the black vote ... Trump stuck his foot in his mouth again:

"I would do stop-and-frisk. I think you have to," Trump said, according to excerpts of a Fox News "town hall" in Cleveland, after a listener asked what he would do to reduce crime in predominantly black communities across the nation.

"I see what's going on here, I see what's going on in Chicago, I think stop-and-frisk. In New York City it was so incredible, the way it worked," he added.

another excerpt:

U.S. Republican presidential nominee Donald Trump, in remarks at an African-American church on Wednesday, praised "stop-and-frisk" policing methods that have aroused protests and successful legal challenges, for singling out minorities.

"Stop and frisk" - or more correctly, "stop and maybe frisk" - is a staple tactic for law enforcement. The practice is solidly rooted in case law, the landmark US Supreme Court case being 392 U.S. 1 Terry v. Ohio.

The court's opinion legitimized a tactic that cops had been using for decades without significant challenge. The opinion also sharply defined and limited the process. The decision is the foundation for a number of other court cases, in the circuits as well as the US and several state courts.

It defines the 'investigative stop.'

Here's the thing in a nutshell. A Cleveland detective was out on a foot beat he had been patrolling for many years. He observed a person engaged in behavior that in the detective's experience was typical of a thug casing a joint for a robbery. The detective then noticed an accomplice, and then another. So he approached them to determine what they were up to. They were less than cooperative, and the detective 'spun' of them around and patted down his overcoat, discovering a revolver. Though cops had been doing this sort of thing for a long time, this is the first time it was challenged significantly, all the way to the US Supreme Court.

The court's opinion, from the link above, covers this in greater detail.

Such a stop constitutes a seizure within the meaning of the Fourth Amendment. Such a 'frisk' constitutes a search, within the meaning of the Fourth Amendment. There are people, including some cops, who will tell you that this is not so, but it is so, and it is clearly so stated in the court's majority opinion.

One of the main objections to this type of police activity centers on a reading of the Fourth Amendment that 'probable cause' is required for all searches and seizures. Actually, probable cause is required for the issuance of a warrant; probable cause is also required for arrest, and for most other seizures and searches. But not all. The 'investigative detention,' also known as a 'Terry stop,' is the main exception.

Terry v. Ohio hinges not on probable cause and warrants, but on the 'unreasonable search' clause. Any search or seizure must be 'reasonable.' NYPD's policy on executing 'stop and frisk' (or 'Terry stops') clearly was discriminatory, based on race and ethnicity, and therefore, unreasonable.

A sidebar:
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“Under the NYPD’s policy, targeting the ‘right people’ means stopping people in part because of their race. Together with Commissioner Kelly’s statement that the NYPD focuses stop and frisks on young blacks and Hispanics in order to instill in them a fear of being stopped, and other explicit references to race . . . there is a sufficient basis for inferring discriminatory intent.”
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The 'investigative stop' requires only 'reasonable suspicion', which is a much lower level of fact pattern or proof that some sort of skulduggery is afoot.

So a police officer, based on reasonable suspicion, an articulable fact pattern, not something he or she pulls out of his/her bunghole ... may make a brief stop, and under some circumstances, conduct a very limited search. The keys here are 'articulable fact pattern,' 'brief,' and 'limited.'

From that detention, an officer may develop probable cause to arrest. Or maybe not.

Now here is why the term 'stop and frisk' is misleading.

The frisk, that limited search, is not a given. In order to conduct a frisk, a police officer must be able to articulate not only the fact pattern that led him/her to make the stop in the first place, but also why he/she believed that the detainee a) had a weapon and b) posed a threat. Such a search is limited to outer clothing, and is conducted only to find any weapons that may be used against an officer or someone else. It is not a license to conduct a full-blown search of a person. If probable cause arises during the stop to justify an arrest, then that full-blown search can take place.

Absent that, there is no legal basis for a frisk, much less an extensive search. It doesn't take much; only 'reasonable suspicion,' but that fact pattern must exist; it must be reasonable, meaning that a judge and/or a jury, if it gets that far, will buy it.

I doubt that Trump understands any of that.

In fact, I suspect that Trump thinks Terry v. Ohio is a college basketball game.

So ... are minority communities justified in being Outraged!™ over 'stop and frisk?' It all depends on whether or not the cops were unreasonably targeting by race, and whether or not they could actually articulate a credible fact pattern to justify each stop. In the case of NYPD, it was Commissioner Kelly himself who pounded the nails into the coffin. From some of the accounts from elseplace that I have examined, I suspect there is at least some justification for the Outrage!™

Take a look at Colorado's world-famous Whitfield v. Board of County Commissioners of Eagle County No. 90-C-1541

You have to wonder where those cops got their basic cop training. If they were ever taught anything about search and seizure, clearly, it didn't take.

We also find a really good explanation of the 'investigative detention' in a Colorado case, Stone v. People 485 P.2d 495 (1971). This is the basis for the so-called 'Stone stop', which is basically the same thing as the 'Terry stop.'

Update:

Here's a good article on why New York's application of 'stop and frisk' was iffy at best, and downright illegal at worst:

It looks like Rudy Giuliani convinced Donald Trump that stop-and-frisk actually works

In order to legitimately make a 'Terry stop,' an officer must have 'reasonable suspicion,' and he/she must be able to articulate that. Absent that, and given overwhelming evidence that the process was selectively applied based on race and ethnicity ... Trump is once again as full of crap as a Christmas turkey. As is 'Rude Rudy'.


All these yay-hoos have done is make the job all the more difficult for cops out there doing the job in honest fashion.