Over the past 20 years, stop-and-frisk policing has risen to unprecedented levels in New York City. Studies have shown that from 1990 to 1995, the New York Police Department (NYPD) subjected about 40,000 people a year to these searches. In 2011, that number climbed to over 684,000. What is most alarming is that according to a New York Civil Liberties Union report, blacks and Latinos together make up 52 percent of the city’s population but 87 percent of those were stopped and frisked. New York City has in place a Trespass Affidavit Program (TAP) that allows police officers to stop people believed to be criminally trespassing. TAP, formerly called Operation Clean Halls, is really aimed at combating other criminal activities such as drug use and weapon possession. Under this program landlords must post signs throughout their building reading “Tenants and Their Guests ONLY,” provide the police with a complete list of tenants and keys to their building, and permit police officers to conduct “vertical patrols” in the building. When necessary, officers may make arrests for criminal trespassing. This program has resulted in police officers who are violating the Fourth Amendment rights of people stopped on suspicion of trespass as they walk into and out of privately owned buildings in the Bronx that participate in TAP, which includes more than 5,000 buildings in the Bronx.
In January 2013, U.S. District Judge for the Southern District of New York Shira Scheindlin issued a preliminary injunction ordering police “immediately to cease performing trespass stops” without reasonable suspicion of actual trespass at thousands of buildings whose owners have given police permission to patrol their property pursuant to TAP. Judge Scheindlin concluded, “Plaintiffs have shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside of TAP buildings in the Bronx.” The 157-page opinion went on to state that for years, the NYPD has known, or should have known, that its officers routinely and systematically violated constitutional rights through the TAP program. Judge Scheindlin found that the police department fails to adequately train officers about when they may legally make trespass stops, and this practice “has risen to the level of deliberate indifference.” This poses the question, what is the law and what should the NYPD be doing?
The Fourth Amendment
The Fourth Amendment to the Constitution of the United States of America states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” As interpreted by the courts, the Fourth Amendment prohibits arrest without probable cause, but allows the police to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause This form of investigative detention is now known as a Terry stop.”
Stop-and-frisk has been a permissible and effective tool for law enforcement since the ruling in Terry v. Ohio in 1968. The Supreme Court agreed with police that officers face uncertain and dangerous situations on the streets, many of which are potentially life threatening to both law enforcement officers and the public. As a result, police officers need a set of flexible protocols that allow them to react based on the limited information they have when approaching a person. Under the Terry ruling, a police officer may stop and briefly detain a person based on reasonable suspicion. In effectuating the stop, if the officer reasonably suspects the individual is armed and dangerous, they may also frisk him or her for weapons.
Reasonable suspicion is a lower standard than the probable cause required for an arrest, search, and seizure. Reasonable suspicion is defined by a set of factual circumstances that would lead a reasonable police officer to believe criminal activity is occurring. As set out in Illinois v. Wardlow, “‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, but the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Courts reviewing stops for reasonable suspicion “must look at ‘the totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Even though there is no concrete standard for what reasonable suspicion is, case law has given law enforcement an idea of what reasonable suspicion is not. Wardlow provided that an individual’s mere standing in an area of expected criminal activity is not enough to support a “reasonable, particularized suspicion that the person is committing a crime.” If the stop-and-frisk gives rise to probable cause to believe the detainee has committed a crime, then the police officer should have the power to make a formal arrest and conduct a search of the person.
The Balancing Act
Law students in criminal procedure classes often find it difficult to decipher whether a particular encounter amounts to a frisk, a search, or a seizure, so it is no surprise that sometimes officers in the field may get it wrong. However, the amount of times that reasonable suspicion is lacking in charges that come through the district attorney’s office is not accidental and seems to be a huge stretch of the law. Judge Scheindlin stated in her opinion, “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 TAP buildings in the Bronx.” Many of the stops appear to have no reasonable suspicion basis and were based only upon the fact that the building was enrolled in TAP. An individual entering or exiting a TAP-enrolled building is not sufficient to qualify as reasonable suspicion even if the building is in a high crime area. Furthermore, Judge Scheindlin found that the evidence “strengthens the conclusion that the NYPD’s inaccurate training has taught officers the following lesson: Stop and question first, develop reasonable suspicion later.” This problem in the Bronx has gotten so out of hand that many people are being arrested in their own buildings. In light of this problem, the Bronx District Attorney’s office changed its policy and insisted on always speaking to the arresting officer before prosecuting a case. The Assistant District Attorney has the discretion to not prosecute, but to even get to that point, rights were potentially violated and people were detained and humiliated.
Many factors need to be balanced in this situation. On one hand is the governmental interest in protecting the public and preventing crime. On the other hand are the Fourth Amendment rights of people who not only live in the buildings participating in TAP, but also the rights of their guests. The balance hangs rather evenly considering some of the crimes perpetrated in certain buildings participating in TAP. Many residents of these buildings feel the police presence and stops are necessary to ensure their safety. Some tenants worry when large groups gather outside, especially after a teen was shot and died on one building’s front steps last year. Demetriou, a concerned resident said, “When you have one bad apple, it’s going to ruin the entire building.” Demetriou also commented, “It’s proactive, It protects all the tenants of the building. And as far as I’m concerned, going forward, it provides an extra added security.” The police department takes the stance that the discontinuance of the program would burden their efforts to fight crime. Moreover the department analogizes their surveillance of the building with that of a doorman who is usually the gatekeeper that determines which visitors come in and out. Law enforcement officers acting as a doorman is problematic because when the government becomes the doorman, the Fourth Amendment attaches.
Unfortunately, this issue has brought to light another scenario in which there appears to be a racial component to the Fourth Amendment. Studies have shown that minority males are targeted by these police practices. Phrases such as “DWB: driving while black” have been coined in reference to the racial profiling that is often prevalent in dealing with police stops and searches. Now it appears that being of a different race while entering and exiting a building participating in TAP has become a new form of racial profiling and grounds for police to effectuate a stop. A 2010 detailed analysis of six years of NYPD data by Columbia law professor Jeff Fagan found that race predicts stop-and-frisk patterns even after controlling for variables like crime rates, social conditions and the allocation of police resources. This study also found that blacks and Latinos are more likely to be stopped, even in predominantly white neighborhoods. Stopping someone based on his or her race raises an equal protection issue, and when that stop is illegal it violates the Fourth Amendment.
As of January 23, 2013, Judge Scheindlin lifted her earlier order. She said she still believes that ruling is correct, but the city has demonstrated it would be expensive to immediately implement an order that could be reversed. A trial in March is set to decide the fate of a lawsuit more broadly, challenging the city’s stop-and-frisk practices. The judge refused a request by the city to delay that trial.