Stop and Frisk Essay

The stop and frisk strategy  (also known  as a “Terry stop and frisk”) is commonly used by law enforcement in the United States. While stop and frisk procedures have been used in the United States for quite some time, the court challenges that are common today did not start until the 1960s. There now are multiple active court cases regarding  stop and frisk policies, especially in New York City, where the stop and frisk policy is used frequently and has been increasingly publicized. Much of the controversy over stop and frisk policies regards potential bias by police officers regarding who is stopped and frisked, especially when the race of the subject is the alleged reason for the detention.

Stop and frisk policies have been used extensively in the history of U.S. law enforcement. The procedure involves a brief, investigative detention of an individual based on “reasonable suspicion” by a police officer or police officers. “Reasonable suspicion” is more than mere suspicion, and the reasons for the suspicion must be articulated by involved officers. However, the standard of reasonable suspicion requires much less evidence than the standard of probable cause, which is required to make a formal arrest.  Officers employing a stop and frisk strategy may briefly detain a person under suspicious circumstances for public safety reasons (as opposed to investigative reasons). The officer(s) may ask the subject to identify him or herself as well as pat down the subject’s outer clothing to feel for weapons that may be dangerous to the officer(s) or passersby. During a stop and frisk, officers may not search within a person’s clothing unless they feel what they believe to be a weapon during the course of the outer pat down.

Terry Case

The constitutionality of stop and frisk policies has been debated in the U.S. court system since the 1960s. In 1968, the case of Terry v. Ohio, 392 U.S. 1, was decided by the U.S. Supreme Court. The Terry case, as it came to be known, involved three subjects in Cleveland, Ohio, who were acting suspiciously. The subjects were observed by Cleveland police officers to be walking back and forth and repeatedly looking into a store window, then consulting with each other. Fearing an impending  robbery,  Police  Detective  Martin McFadden stopped the men and conducted pat downs of outer clothing to feel for weapons. Upon the outer pat down, McFadden felt handguns under the clothing of two of the men, and subsequently reached into their clothing to retrieve the weapons. McFadden did not feel any weapons upon a pat down of the third subject’s outer clothing, and hence did not reach inside that subject’s clothing.

Attorneys for the men attempted to prevent the weapons from being introduced as evidence at the trial based on what they claimed was a violation of their Fourth Amendment protection against unreasonable search and seizure. The court did not agree and the weapons were allowed as evidence. The men were convicted and appealed to the Supreme Court of Ohio, which upheld the decision of the lower court. The case eventually went before the U.S. Supreme Court, which ruled that the stop was conducted appropriately. The main issues discussed in the opinions of the justices regarded the reasonableness of the detective’s actions as well as the evidence required for the detective to initiate the stop and search. The justices ruled that the stop was legal in large part because the detective had articulable, reasonable suspicion for the stop and because the initial limited search was conducted for safety purposes of the officers and surrounding citizens rather than in an attempt to collect evidence of criminal activity. After the U.S. Supreme Court decision in the Terry case, the traditional stop and frisk strategy commonly became known as a “Terry stop and frisk” or a “Terry stop.”

The Terry decision was immediately controversial. First reactions from supporters of the Terry stop and frisk strategy were that police officers needed  some  degree  of flexibility  to  conduct warrantless searches and seizures under certain circumstances for  safety purposes. Opponents of the strategy were concerned by the decision because of the potential for police infringement on individual  liberties,  particularly those  protected under the Fourth Amendment.

Since the Terry case, several other court cases related  to stop and frisk strategies  have been decided. In Adams v. Williams (1972) and Michigan v. Long (1983), the courts ruled that officers could conduct a Terry-style search in a vehicle if they had reasonable suspicion that there was a weapon inside. In 1997, in the case of Gallegos v. City of Colorado Springs, and again in 2002, with U.S. v. Neff, the U.S. Tenth Circuit Court of Appeals ruled that police officers can restrain a subject during a Terry stop if the subject fails to comply with the officer’s legal commands, and can use weapons against the subject if necessary for the protection of officers and the public. In 2000,  the courts ruled that an anonymous tip alone did not justify a Terry stop (Florida v. JL), but an unprovoked person who flees police in a high-crime area does justify such a stop (Illinois v. Wardlow). And in 2013, the U.S. Fourth Circuit Court of Appeals ruled in U.S. v. Black that officers cannot misuse innocent facts to try to construct reasonable suspicion for a Terry stop.

New York City Controversy

Most  of the recent  controversy over stop and frisk strategies has involved the New York Police Department (NYPD) in New York City. Stop and frisk strategies have been used aggressively in New York City since the early 2000s, when then Mayor Rudy Giuliani put them into place in an attempt to curb high and rising violent crime rates. The policy was originally enacted based on the suppositions of James Q. Wilson and George L. Kelling’s broken windows theory, which states that small signs of disorder like broken windows can invite larger crime problems if they are left unchecked.

The use of stop and frisk strategies in New York has been the subject of growing public criticism over the years. A class action lawsuit filed against the NYPD in 2008 claims that while stop and frisk policies in themselves are legal, the NYPD uses such policies arbitrarily and unconstitutionally, and often with inappropriate regard to the race of the subject in question. Concerned citizens say the tactic amounts to legalized racial profiling. Several New Yorkers have claimed that NYPD officers stopped them based not on reasonable suspicion regarding their activities, but on the color of their skin.

Supporters of the NYPD claim that while a disproportionate number  of racial minorities is stopped, it is not because of their race but because they are in a high-crime area. Furthermore, the supporters say that while some citizens may suffer a minor inconvenience when they have done nothing  wrong,  it is worth  the inconvenience because the tactic has so effectively combated the high crime rates of New York City’s recent past. NYPD Commissioner Raymond Kelly, who is known for his innovative and sometimes controversial crime prevention tactics, has seen a substantial drop in crime in New York City during his two tenures as commissioner. The drop has been particularly striking for violent crime, and Kelly attributes this in large part to zero-tolerance policing strategies such as the aggressive use of Terry stops and frisks. Former New York Mayor Michael Bloomberg also asserted that a major reason behind New York City’s historically low crime rates is the use of the stop and frisk policy.

Clearly, a large source of the controversy regarding the ethics of stop and frisk policies has revolved around police discretionary bias in who should be stopped and frisked. Many opponents of stop and frisk policies are concerned that decisions on who to stop are made based on inappropriate factors, particularly race. Many opponents believe it is unethical to stop someone based on their race, and/or that race should not be a contributor to reasonable  suspicion.  Proponents of the policy argue that race is sometimes a necessary factor to consider and that most crime in the United States occurs in communities where a disproportionate number  of racial  minorities  reside. Supporters argue that it is truly the area that police are targeting, not a particular type of person. They say that targeting of particular races, particularly African Americans, is a consequence of the link between race and economic status in the United States, not an intentional or direct targeting of a particular race by police officers.

Bibliography:

  1. Barrett, John Q. “Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference.” St. John’s Law Review, v.72/3 (2012).
  2. “Stop and Frisk Policy—The New York City Police Department.” New York Times. http://topics.nytimes.com/top/reference/timestopics/subjects/s/stop_and_frisk/index.html (Accessed March 2013).
  3. S. Supreme Court. Terry v. Ohio, 392 U.S. 1 (1968).

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