Introduction

Every day, police officers across the United States stop drivers and pedestrians to ask them questions — and sometimes to detain them. They search people and their property — their belongings, their cars, and their homes — with and without their consent. They arrest people, handcuffing them, putting them in police cars, inking their finger prints, and taking their mug shots.

For officers, stops, searches, and arrests are everyday activities, but for members of the public, they are hardly routine. They deprive people of their liberty and harm individuals, families, and sometimes entire communities. The use of force can cause trauma, injury, and death, and arrests can lead to negative outcomes in education, employment, housing, earnings, social stigma, and other areas. This is true even when arrests don’t result in conviction. These effects are amplified in Black and Latinx communities, where stops, searches, and arrests are more common than in White communities and which may have histories of police abuse.[i] 

Officer interactions affect the public’s perception of police. Officer conduct during a stop, search, or arrest affects people’s confidence in police and can build — or destroy — trust between departments and the communities they serve. When officers act fairly and impartially, explain their actions, and listen to people they encounter, they enhance the legitimacy of their department, of local government, and of police generally.[ii]As a 2004 study put it, police legitimacy:

…increases the stature of the police in the eyes of citizens, creates a reservoir of support for police work, and expedites the production of community safety by enhancing cooperation with the police. Research has found that people obey the law not just because they are afraid of being punished or because they believe the law is morally right, but also because they believe the law and its enforcement are fairly administered. The public’s judgment can be heavily influenced by the conduct of the police, one of the most visible representations of law and government in most citizens’ lives.[iii]

Federal and state constitutions (and their interpretation by courts) establish the legal baseline for stops, searches, and arrests. These standards establish the minimumprotections departments must provide; department leaders can and should build on this threshold to protect personal liberty, communicate performance expectations, and promote safe, bias-free, and respectful interactions between officers and community members. Virtually all departments, for example, prohibit officers from firing “warning shots” because doing so, even though permitted by constitutional law, is widely regarded as dangerous and unprofessional.  

This chapter lays out the minimum standards — i.e.,the “constitutional floor” — that all departments are required to meet when making stops, searches, and arrests and the best practices that go beyond these standards to better protect individual liberty.

[i]           See generally Lynn Langton & Matthew Durose,U.S. Dep’t of Justice, Bureau of Justice Statistics, Police Behavior During Traffic and Street Stops (2011),https://www.bjs.gov/content/pub/pdf/pbtss11.pdf;see also, e.g., Department of Justice, Civil Rights Division, Investigation of the Baltimore City Police Department 47–73 (2016), https://www.justice.gov/opa/file/883366/download; New York Civil Liberties Union, Stop-and-Frisk Data, https://www.nyclu.org/en/stop-and-frisk-data(last accessed Dec. 17, 2018) (“Innocent New Yorkers have been subjected to police stops and street interrogations more than 5 million times since 2002, and that black and Latino communities continue to be the overwhelming target of these tactics”); Lowery, Wesley, New Study: Only 24% of Population, Blacks in Boston Make Up 63% of Stop and Frisk Encounters, Wash. Post, Oct. 8, 2014, https://www.washingtonpost.com/news/post-nation/wp/2014/10/08/new-study-only-24-of-population-blacks-in-boston-make-up-63-of-stop-and-frisk-encounters/?utm_term=.352c97f03c03(“even after controlling for crime, stope-and-frisk encounters were more likely to occur in the city’s traditionally black neighborhoods”); Fuller, Thomas, U.S. Cites Bias by San Francisco Police Against Blacks, N.Y. Times, Oct. 12, 2016, https://www.nytimes.com/2016/10/13/us/us-cites-bias-by-san-francisco-police-against-blacks.html(“. . .24 percent higher chance that African-Americans were pulled over by the police given the estimated number of black drivers in the city”); Hurst, David, Durham Police Deny Claims of Racial Profiling During Traffic Stops, WNCN (June 4, 2015), http://wncn.com/2015/06/04/durham-police-deny-claims-of-racial-profiling-during-traffic-stops(demonstrating that traffic stop and search incidents are disparately biased against black drivers); Rebecca Neusteter & Megan O’Toole, Vera Institute of Justice, Every Three Seconds: Emerging Findings (Jan. 2019), https://www.vera.org/publications/arrest-trends-every-three-seconds-landing/arrest-trends-every-three-seconds/findings(“[B]lack people now make up 12 percent of the U.S. population, but an estimated 28 percent of all arrests.”).

[ii]          Maarten Van Craen & Wesley G. Skogan, Achieving Fairness in Policing: The Link Between Internal and External Procedural Justice, 20(1) Police Q. 3, 14 (2017),https://journals.sagepub.com/doi/pdf/10.1177/1098611116657818.

[iii]          National Research Council, Fairness and Effectiveness in Policing: The Evidence 6 (Wesley Skogan & Kathleen Frydl, 2004).

Federal, State, and Local Protections

Stops, searches, and arrests must meet standards laid out in the U.S. Constitution and interpreted by the courts. These standards are minimum standards; they are not necessarily best practices or even common standards. The Fourth Amendment, for example, permits strip searches (a practice in which officers remove clothing to search for concealed items) in circumstances that many find offensive and traumatic. It also gives officers the discretion to conduct “lawful but awful” activities (legal activities that cause negative outcomes), which undermines community trust. State and local governments can — and should — enact laws that provide moreprotection from government intrusion, and police departments can implement policies that do so as well.

Many state constitutions grant broader protections than those provided by the U.S. Constitution. The U.S. Supreme Court, for example, ruled that the Fourth Amendment permits officers to stop vehicles regardless of their pretextual motives (i.e., their true intent) so long as they have probable cause to investigate traffic violations. The Washington state constitution, however, forbids the use of pretext to justify warrantless traffic stops.[i] 

The New York and Vermont constitutions, meanwhile, provide broader protections regarding search warrants. To search a person or place for specific objects, officers must obtain a warrant — a court order finding probable cause that there’s a high probability that officers will find evidence of a crime at the place or on the person to be searched. Probable cause is an officer’s reasonable belief that a crime has or is about to occur;[ii]it is generally established on the basis of sworn testimony, usually in the form of an affidavit signed by an officer.

The Supreme Court has held that police officers do not need a warrant to search areas immediately outside of homes (a.k.a. “curtilages”) because it found no reasonable expectation of privacy in an “open field.”[iii]Vermont and New York, however, extend privacy protections to curtilages if landowners post “no trespassing” signs; thus, officers in these states must obtain warrants to search curtilages if these signs are present.[iv] 

Many state laws also grant greater protections than those afforded by the U.S. Constitution. States such as Arkansas, California, Maine, and Utah limit the use of automated license plate readers (which capture and upload license plate and other data),[v]and Florida and Vermont regulate the use of government drones.[vi]State lawmakers have often enacted laws such as these after coming under community pressure to provide more protections in public spaces than granted by the U.S. Constitution.[vii]These types of state laws demonstrate that departments and communities can and should enact statutes and policies that give individuals greater freedoms than those provided for by federal law without compromising public or officer safety.

[i]           CompareWhren v. U.S., 517 U.S. 806, 818-19 (1996) (holding that pretextual traffic stops are constitutional where officers have probable cause to believe that a traffic violation occurred)with State v. Ladson, 979 P.2d 833, 837-40 (Wash. 1999) (holding that the state constitution forbids officers from using traffic violations as pretext to stop vehicles for unrelated criminal investigations); Law enforcement agencies in Washington have adopted stop policies that reflect the prohibition of pretextual stops. See alsoSeattle Police Dep’t, 6.220 Voluntary Contacts, Terry Stops & Detentions, Seattle Police Department Manual (effective date Aug. 1, 2015), https://www.seattle.gov/police-manual/title-6—arrests-search-and-seizure/6220—voluntary-contacts-terry-stops-and-detentions(“This policy prohibits Terry stops when an officer lacks reasonable suspicion[.]”).

[ii]          SeeCarroll v. United States, 267 U.S. 132, 149 (1925). 

[iii]          See United States v. Dunn, 480 U.S. 294, 302-05 (1987) (holding that a barn located 60 yards from the owner’s home did not fall within the property’s curtilage and thus was not subject to Fourth Amendment protection).

[iv]          Vt. Const. art. XI; N.Y. Const. art. I § 12;CompareHester v. United States, 265 U.S. 57, 59 (1924) (reasoning that the Fourth Amendment’s protection against unreasonable search and seizure does not extend to the “open fields” outside of the homeowner’s property) andOliver v United States, 466 U.S. 170, 180, 184 (1984) (asserting that the Fourth Amendment protects the curtilage, or “the land immediately surrounding and associated with the home,” from unreasonable search and seizure but does not protect the “open fields” beyond it) withState v. Kirchoff, 587 A.2d 988, 994 (Vt. 1991) (concluding that warrantless search of property beyond the owner’s home “where indicia would lead a reasonable person to conclude that the area is private” violated the state constitution) and People v. Scott, 79 N.Y.2d 474, 491 (1992) (holding that warrantless search of property where owners “indicate unmistakably that entry is not permitted” violated the state constitution).

[v]           Ark. Code Ann. §§ 12-12-1801-1808 (2018); Cal. Civ. Code §§ 1798.90.5–.55 (2018); Me. Rev. Stat. § 2117-A(2) (2018); Utah Code Ann. §§ 41-6a-2001–2005 (2018); seealso National Conference of State Legislatures, Automated License Plate Readers: State Statutes (Nov. 6, 2018), http://www.ncsl.org/research/telecommunications-and-information-technology/state-statutes-regulating-the-use-of-automated-license-plate-readers-alpr-or-alpr-data.aspx(providing a list of state statutes limiting the use of automated license plate readers).

[vi]          Fla. Stat. § 934.50 (2018) (searches and seizure using a drone); Vt. Stat. Acts. Ann. tit. 20, § 4622 (2018) (law enforcement use of drones).

[vii]        Orin S. Kerr, The Effect of Legislation on Fourth Amendment Protection, 115 Mich. L. Rev. 1117, 1147-49 (2017), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1661&context=mlr.

The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people’s rights to be free from unreasonable searches and seizures, and thus governs how police conduct stops, searches, frisks, and arrests.

Stops and Searches. The Fourth Amendment secures “persons, houses, papers, and effects against unreasonable searches and seizures.” (The term “seizure” applies not only to property but also to people — i.e., arresting or temporarily stopping people without consent.) This means that officers must have probable cause to stop or search people they suspect are engaging in unlawful activity.[i]For brief stops, they must meet the lower standard of “reasonable suspicion” — the belief, based upon specific circumstances, that criminal activity maybe afoot (i.e., that it is happening or is about to happen).[ii]

Courts have, however, recognized that obtaining warrants before searches is not always practicable. Thus, they have long permitted officers to conduct warrantless searches in “exigent circumstances” — emergencies where the delay required to obtain a warrant presents real and immediate risks of injury or destruction of evidence. In the case of armed robbery, for example, officers are permitted to chase suspects into a house without a warrant to prevent injury to others — but they still need probable cause to conduct the search or seizure.[iii]Courts have, in fact, found so many exceptions to the warrant requirement that many officers conduct more searches without a warrant than with one.[iv]

The rules — and rationales — for stops and searches have evolved over time. For example, courts initially exempted vehicle searches from the warrant requirement because vehicles are mobile, but they have since permitted warrantless searches even when there is little danger the vehicle will be moved.[v]Courts initially justified warrantless searches when making a lawful arrest on the grounds of safety (i.e., to disarm suspects) and to prevent the destruction of evidence.[vi]However, courts now permit such searches, even for minor offenses and even when officers have no reason to believe they will find anything.[vii]

Stop-and-frisk practices. In the 1960s, the Supreme Court approved “stop-and-frisk” practices in Terry v. Ohio,[viii]a case in which a plainclothes police officer in Cleveland saw two men standing on a street corner behaving in a manner he found suspicious. One of the men walked down the block, peered into the window of a closed store, and returned to the corner to talk to the other. Then the other man did the same. This pattern repeated several times. A third man then appeared on the corner, spoke to the men, and left. The two men joined him a few blocks away.

The officer suspected that the men were “casing” the store so they could rob it. He stopped the men and asked them their names but did not get a clear answer. He then spun Terry around, quickly patted down the outside of his overcoat, and found a gun. He also frisked the other men and felt a second gun in one of their overcoat pockets (Richard Chilton’s).

The case went to court, and Terry and Chilton were convicted of unlawful possession of a firearm. They challenged the convictions, arguing that the officer had conducted an unlawful search. The Supreme Court disagreed, ruling that the frisk did not substantially invade their privacy and was justified because the officer had reasonable suspicion that they may be about to commit unlawful activity (i.e., armed robbery).

Courts have applied the Terry holding to two types of stops and searches. First, when officers have reasonable suspicion that people are engaged in or are about to engage in unlawful activity—i.e., that criminal activity may be “afoot” — they may briefly stop them without a warrant. Second, when officers have reasonable suspicion that people are armed and dangerous, they may “frisk” them by quickly running their hands over their outer clothing to determine whether the person presents an armed threat.[ix]Communities have so many ordinances governing people’s behavior in public that even innocuous behavior, such as loitering, can violate the law. As a result, police can easily justify stopping and frisking people, which gives officers a “pretext” for detaining people they consider suspicious.

Consent searches. Long ago, the Supreme Court found that the Fourth Amendment protects people from unreasonable searches only when they do not give their consent. In other words, if people allow officers to search their cars or homes without a warrant or without suspicion of wrongdoing, their constitutional rights are not violated.[x]

This begs the question: What constitutes voluntaryconsent? Most people who are stopped by an officer are apprehensive and uneasy; officers are, after all, armed and in positions of power. When asked, “May I search?” many people don’t feel at liberty to decline. As one study observed, “When a community member encounters an officer in full uniform who requests a search of their person, belongings, vehicle or home, a very thin line exists between voluntariness and coercion.”[xi]The power difference, in short, is difficult to ignore.

When considering what constitutes genuine consent, the Supreme Court has often sided with law enforcement. It ruled, for example, that officers are not required to tell people they have a right not to consent or that they can refuse consent.[xii]If a motorist stopped for a traffic violation has received a ticket and is free to go, the officer may search the vehicle without tellingthe motorist they are free to go — a type of search the Court has deemed consensual.[xiii]

Pretextual stops. The Supreme Court has ruled that officers can use minor traffic violations as a “pretext” for stopping people they suspect of criminal activity as long as they have probable cause for the violation.[xiv]Police can stop drivers for a broken taillight even if the real reason, or pretext, for the stop is to search for evidence of criminal activity, such as drug paraphernalia, and even if they would not have made the stop otherwise.[xv]

Because so many laws govern behavior in public — especially when it relates to driving — officers can easily justify stopping people on the pretext of a minor traffic violation. Officers acknowledge they can follow almost any driver for a short distance and identify at least one infraction that would allow them to pull the driver over.

The cumulative effect of these laws and rulings gives officers broad leeway to stop, search, and arrest people. Officers in many departments use stop-and-frisk practices and consent searches as primary enforcement tactics. In some departments, officers are rewarded for stopping and searching people in communities with high rates of crime, substance use, or violence. In these departments, officers use stops and searches to find evidence of crime and to deter people from carrying weapons or contraband. This practice, known as “fishing,” is especially concerning when people of color are stopped in predominantly White neighborhoods because they are seen as “fish out of water.”

In sum, the Supreme Court has, over time, granted officers increasing stop-and-search powers. These activities interfere with liberty, invade privacy, and contribute to racial and ethnic disparities in police interactions.[xvi]The wide latitude officers have to stop and frisk people also damages community trust and can reduce cooperation with law enforcement.

Yet little evidence suggests stop-and-frisks are making us safer — and, in fact, they may be having the opposite effect. In New York City, the number of stop-and-frisks plummeted 98 percent between 2011 and 2017. During the same period, the homicide rate hit its lowest point since the 1960s, and the rate of serious crime also declined.[xvii]Hit rates — the rate at which officers find contraband after stopping or searching — are quite low. The New York Police Department’s (NYPD) large-scale stop-and-frisk program was, in fact, held unconstitutional in part because of the department’s low hit rate.[xviii]

Arrests.Courts have also given officers substantial discretion to make warrantless arrests. In communities where minor offenses, such as driving without a seatbelt, are treated as misdemeanors rather than civil infractions, officers have broad authority to arrest — even when arrests don’t advance law enforcement goals or improve public safety. In 1997, Gail Atwater was arrested in front of her two young children because she had violated a seatbelt law, which was punishable by a $50 fine. Atwater sued the city and police chief for violating her Fourth Amendment protection from unreasonable seizure. The Supreme Court held that the arrest met constitutional requirements because the violation was a misdemeanor under state law. The officer, according to the Court, “was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not [Atwater’s] arrest was in some sense necessary.”[xix]

Such broad constitutional authority risks unequal enforcement — a fear that is backed up by empirical data on arrest rates. A national study of misdemeanor offenses conducted in 2018 found “substantial racial disparity” in most misdemeanor arrest rates. For many offenses, officers arrested Black people at two to nearly 10 timesthe rate at which they arrested White people.[xx]

[i] Brinegar v. United States, 338 U.S. 160, 175 (1949) (“‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’”) (internal citations omitted).

[ii] Terry v. Ohio, 392 U.S. 1, 27 (explaining that the officer “need not be absolutely certain that the individual is armed” but may draw “specific reasonable inferences” based on “the facts in light of his experience” to make the arrest).

[iii] Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citing Mincey v. Arizona, 437 U. S. 385, 393–94 (1978)) (“[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”).

[iv] See, e.g., Brigham City v. Stuart, 547 U.S. 398 (2006) (holding exigent circumstances exist when an officer reasonably believes a person in a home is injured); Maryland v. Dyson, 527 U.S. 465 (1999) (holding that probable cause is sufficient and no exigency is required to search a vehicle without a warrant); Chimel v. California,395 U.S. 752 (1969) (authorizing searches of the area around a person under arrest for the safety of the arresting officer); United States v. Robinson, 414 U.S. 218 (1973) (holding searches of people under arrest are an exception to the warrant requirement and reasonable).

[v] CompareCarroll v. United States, 267 U.S. 132, 153 (1925) (explaining that risk of a vehicle moving out of jurisdiction justifies a warrantless search of the vehicle) with Maryland v. Dyson, 527 U.S. 465, 467 (1999) (finding that if probable cause exists to search a vehicle, no exigent circumstances are required to conduct a warrantless search). The rationale has long shifted from mobility and potential loss of evidence to a diminished expectation of privacy regarding the interior of vehicles.

[vi] See Chimel v. California,395 U.S. 752, 762–63 (1969) (“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”).

[vii] United States v. Robinson, 414 U.S. 218, 235 (1973) (“It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”).

[viii] Terry v. Ohio, 392 U.S. 1, 30 (1968) (holding that where an officer has reasonable suspicion that a suspect may engage in criminal activity and may be armed, the officer may perform a limited search of the outer clothing of the suspect to verify there are no weapons that may jeopardize the safety of the officer or those around him).

[ix] Terry v. Ohio, 392 U.S. 1, 24 (1968) (finding that when an officer has reason to believe that a suspect “at close range is armed and presently dangerous to the officer or to others,” the officer may “take necessary measures” to determine whether the suspect is carrying a weapon).

[x] Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973) (holding that police may conduct a warrantless search of an individual who has consented to the search, when the consent is “voluntarily given, and not the result of duress or coercion, express or implied.”).

[xi] Gov’t of the District of Columbia Police Complaints Board Office of Police Complaints, PCB Policy Report #17-5 Consent Search Procedures 3-4 (2017), https://policecomplaints.dc.gov/sites/default/files/dc/sites/office%20of%20police%20complaints/publication/attachments/Consent%20Search%20Report%20FINAL.pdf.

[xii] Schneckloth v. Bustamonte, 412 U.S. 218, 247-49 (1973).

[xiii] Schneckloth v. Bustamonte, 412 U.S. 218, 247-49 (1973) (consent must be voluntarily given, but law enforcement need not demonstrate the individual’s knowledge of a right to refuse); see also Ohio v. Robinette, 519 U.S. 33, 35 (1996) (holding that the Fourth Amendment does not require police to inform a lawfully stopped person that he is free to go before that person’s consent is recognized).

[xiv] Whren v. U.S., 517 U.S. 806, 813 (1996)(holding that the reasonableness of a traffic stop is not determined by the motivations or pretext of the officers involved).

[xv] Whren v. U.S., 517 U.S. 806, 812-13 (1996).

[xvi] See e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 557, 661 (S.D.N.Y. 2013) https://ccrjustice.org/sites/default/files/assets/Floyd-Liability-Opinion-8-12-13.pdf (acknowledging that although “one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience” and finding that “statistical evidence of racial disparities in stops is sufficient to show a discriminatory effect.”).

[xvii] Kyle Smith, We Were Wrong about Stop-and-Frisk, Nat’l Rev., Jan. 1, 2018, https://www.nationalreview.com/2018/01/new-york-city-stop-and-frisk-crime-decline-conservatives-wrong/.

[xviii] Floyd v. City of New York, 959 F. Supp. 2d 540, 561, 602–03 (S.D.N.Y. 2013).

[xix] Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (parenthetical in original).

[xx] Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. Rev. 731, 737 759 (2018), http://www.bu.edu/bulawreview/files/2018/06/STEVENSON-MAYSON.pdf(“There is substantial racial disparity in the majority of offense categories.” “The black arrest rate is at least twice as high as the white arrest rate for disorderly conduct, drug possession, simple assault, theft, vagrancy, and vandalism. The black arrest rate for prostitution is almost five times higher than the white arrest rate, and the black arrest rate for gambling is almost ten times higher.”).

The Fourteenth Amendment

The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law; nor deny[ing] any person ¼ the equal protection of the laws.” The Amendment’s due process clause thus guarantees that the process by which officers deprive people of life, liberty, or property must be fair. For example, it bars coercive interrogations because they deprive people of the liberty of deciding whether and when to speak.[i]

Police practices that intentionally discriminate based on race, ethnicity, religion, national origin, or gender violate the Fourteenth Amendment’s equal protection clause.[ii]Under certain circumstances, violations can also occur when officers enforce “facially neutral” laws or policies in a discriminatory manner or in a way that has a discriminatory effect.[iii]

Thus, an officer can comply with the Fourth Amendment (e.g., arresting people for marijuana possession) but violate the Fourteenth Amendment (disproportionately arresting Black members of the community despite similar marijuana usage rates among White community members). Targeting and arresting people of color who reside in high-crime areas may also run afoul of the Fourteenth Amendment. Officers’ actions, regardless of their intentions, are unlawful if they have a racially discriminatory impact. (For more detail, see Chapter 2.)

Racial and ethnic impacts. Courts have largely been unwilling to curb the use of race and other personal characteristics in policing where abuse is not obvious or egregious. If race, gender, nationality, or another factor is used to describe someone suspected of the crime (e.g.,a Latinx man in his late 40s wearing a yellow T-shirt), officers are allowed to use that description to find him. The use of race or ethnicity faces the strongest judicial scrutiny, but the courts have said officers can consider these characteristics so long as they are not the sole factor in their decisions or the basis of intentional discrimination.[iv]

In 1992, officers investigating an alleged assault by a young Black man in a small, predominantly White town “swept” the area, stopping and questioning people of color in public spaces and inspecting their hands for cuts. Officers questioned more than 200 people but did not apprehend anyone.[v]In a challenge to the constitutionality of the sweep, the court recognized that it was “understandably upsetting to the innocent plaintiffs who were stopped” and acknowledged the “impact of this police action on community relations.”[vi]But it found no violation because race was not the “sole” basis for the stops; age and gender were also factors.

Officers engage in profiling when they target people of a certain race or ethnicity because they believe (consciously or not) they are more likely to commit crime or have information about others’ criminal behavior. (For more detail, see Chapter 2.) A large body of evidence finds that profiling disproportionately affects people of color during stops, searches, and arrests.[vii] 

A recent study of misdemeanor arrests found that Black people were arrested at least twice as often as White people for petty offenses like vagrancy and disturbing the peace.[viii]This pattern emerges even when researchers take into account other factors that might play into decision-making, such as local crime rates, socioeconomics, and the like. What’s more, searches of people of color result in “hits” for contraband and weapons at a lowerrate than searches of White people.[ix]

In 1996, 17 Black motorists moved to suppress evidence in a criminal case (New Jersey v. Soto) because they claimed that institutional racism resulted in the New Jersey State Police selectively enforcing traffic laws according to race. The motorists (i.e., the “defendants”) and the state both studied traffic stops and post-stop outcomes for presentation to the court, and experts tracked who was driving and who was violating traffic laws.

In reviewing the evidence, the New Jersey Superior Court found that state police disproportionately stopped Black motorists, constituting a “de facto policy” of “targeting Blacks for investigation and arrest.”[x]The motorists’ study found that, overall, 13 percent of motorists and 15 percent of people violating speed limit laws were Black, but between 35 and 46 percent of those stopped were Black.[xi]The court explained that the constitutionality of stops and searches hinges on whether the officer’s conduct is “objectively reasonable,” regardless of motive or intent. A stop is unconstitutional if the “objective evidence” evinces a de facto policy of racially or ethnically biased treatment.[xii]

The Superior Court’s analysis squared with a subsequent investigation by the U.S. Department of Justice (DOJ) that found a pattern and practice of racial profiling by the New Jersey State Police. The result was a federal consent decree (i.e., a settlement agreement between the parties) that began December 30, 1999, and ended September 21, 2009.[xiii] 

A federal court weighed in on racial profiling again in Floyd v. City of New York, in which NYPD witnesses conceded that NYPD officers used race-based assumptions about which stops would increase “productivity” to target “the right people.”[xiv]The evidence — presented during nine weeks of testimony from more than 100 witnesses — demonstrated not only racial disparities but also the severe burden that aggressive police stops impose on people of color.

For reference, between 2004 and 2012, the NYPD conducted more than 4 million stop-and-frisks.[xv]Frisks are lawful when officers have a reasonable suspicion that detainees are armed — and therefore pose a danger to officers. But the NYPD found weapons in only 1.5 percent of frisks and found guns specifically in less than 0.1 percent of frisks.[xvi]

Data presented at trial showed additional evidence of racial disparities and ineffective practices. In 2010, the population of New York City was 23 percent Black, 29 percent Latinx, and 33 percent White.[xvii]But more than 80 percent of NYPD stops between 2004 to 2012 were of Black people and Latinxs; weapons were seized from Black people in 1 percent of stops, from Latinxs in 1.1 percent of stops, and from White people in 1.4 percent stops.[xviii]Only 6 percent of stops resulted in an arrest, and only 6 percent led to a summons.[xix]In response, the court ordered the NYPD to end its stop-and-frisk policy and appointed an independent monitor to oversee substantial changes in NYPD policies, training, and practices.

NEW YORK POLICE DEPARTMENT STOP-AND-FRISKS (2004-2012)

• 10% – White
• 7% – Other
• 52% – Black
• 31% – Latinx

• 88% – No Further Action
• 6% – Arrest
• 6% – Summons

Source: Floyd v. City of New York, 959 F. Supp. 2d 540, 558-59 (S.D.N.Y. 2013).

New York City officials had claimed that its stop-and-frisk policies were needed to curb crime.[xx] But the numbers tell a different story. By May 2017, NYPD stops had dropped from 686,000 in 2011 to under 11,000. During this period, crime rates declined.[xxi]

Harmful patterns in policing aren’t fully explained by overt discrimination. Implicit, or subconscious, bias is also a factor, as is systemic, or institutional, bias. (For more detail, see Chapter 2.) Indeed, the same types of patterns exist in the broader criminal justice system and in society at large.[xxii]Officers often claim that they stop people “where the crime is” — and crime, they say, tends to be in lower-income neighborhoods with larger communities of color.[xxiii] 

Some officers who are sensitive to allegations of intentional bias note that they patrol neighborhoods in which most — and sometimes virtually all — residents, employees, and motorists are of color. The issue then is howofficers engage with people in those neighborhoods, such as whether they rely heavily on pretextual stops or consent searches. Another question relates to the use of resources: Do departments use resources to crack down on low-level offenses (e.g., daily arrests for sex work or marijuana possession) or do they invest in addressing higher-level offenses (e.g., human trafficking or organized narcotics networks). 

Even when officers comply with the letter of the law, bias, whether individual or institutional, can devastate communities of color, weaken police-community relationships, and allow “big fish” criminals to prosper. (For more detail, see Chapter 2.) High rates of stops, searches, and arrests also undermine community health and wellbeing. Studies show that people who have been stopped and frisked experience higher levels of anxiety.[xxiv]Frequent stop-and-frisk interactions demean and humiliate people.[xxv]

Stopping and arresting young people, meanwhile, increases their likelihood of future delinquency and amplifies deviant attitudes.[xxvi]Real or perceived racial and ethnic profiling reduces trust in police and undermines public safety. Young people who have been stopped multiple times are less likely to report crimes or seek police help, research shows.[xxvii]And communities with high levels of police interactions are less likely to cooperate with officers to combat crime.

[i]           Brown v. Mississippi, 297 U.S. 278, 285–86 (1936) (noting that the “rack and torture chamber may not be substituted for the witness stand” and concluding that coerced confessions violate the due process clause of the Fourteenth Amendment).

[ii]          See Adarand Constructors v. Pena, 515 U.S. 200, 213, 227 (1995) (concluding that “classifications based explicitly on race” violate the equal protection clause unless they are “narrowly tailored measures that further compelling governmental interests.”); Reed v. Reed 404 U.S. 71, 76 (1971) (“To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment[.]”).

[iii]         SeeYick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (reasoning that although a policy may “be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”); Washington v. Davis, 426 U.S. 229, 241 (1976) (“A statute, otherwise neutral on its face, must not be applied so as to invidiously discriminate on the basis of race.”); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977) (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”).

[iv]         See, e.g., Brown v. City of Oneonta, 221 F.3d 329 (2d. Cir. 2000).

[v]           Brown v. City of Oneonta, 221 F.3d 329, 334 (2d. Cir. 2000).

[vi]          Brown v. City of Oneonta, 221 F.3d 329, 337, 339 (concluding that officers stopped individuals based “not only [on] race, but also [on] gender and age, as well as the possibility of a cut on the hand.”), overruled in part on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).

[vii]         SeeAm. Civ. Liberties Union, The War on Marijuana in Black and White 4 (June 2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf(finding Blacks are 3.73 times more likely to be arrested for marijuana possession than Whites despite similar usage rates); Lynn Langton & Matthew Durose U.S. Dep’t of Justice, Bureau of Justice Statistics, Police Behavior During Traffic and Street Stops (2011 rev. Oct. 27, 2016), https://www.bjs.gov/content/pub/pdf/pbtss11.pdf; NAACP, Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America 9 (2014), http://action.naacp.org/page/-/Criminal%20Justice/Born_Suspect_Report_final_web.pdf(discussing national data on racial profiling that show “racial profiling happened to men, women, and children of all ages and socio-economic backgrounds, and in virtually every context of people’s lives: on the streets, inside cars, at home, at airports, at shopping centers, and at places of worship”); New York Civil Liberties Union, Stop-and-Frisk Data, https://www.nyclu.org/en/stop-and-frisk-data(last accessed Dec. 17, 2018) (noting that “[n]early nine out of 10 stopped-and-frisked New Yorkers have been completely innocent and “black and Latino communities continue to be the overwhelming target of these tactics”); Wesley Lowery, New Study: Only 24% of Population, Blacks in Boston Make Up 63% of Stop and Frisk Encounters, Wash. Post (Oct. 8, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/10/08/new-study-only-24-of-population-blacks-in-boston-make-up-63-of-stop-and-frisk-encounters/?utm_term=.352c97f03c03. 

[viii]        Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. Rev. 731, 759 (2018), http://www.bu.edu/bulawreview/files/2018/06/STEVENSON-MAYSON.pdf.

[ix]          L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 2035, 2037–38 (2011), http://www.minnesotalawreview.org/wp-content/uploads/2011/06/Richardson_PDF.pdf;see also Ian Ayres & Jonathan Borowsky, A Study of Racially Disparate Outcomes in the Los Angeles Police Department (Oct. 2008), https://www.aclusocal.org/sites/default/files/wp-content/uploads/2015/09/11837125-LAPD-Racial-Profiling-Report-ACLU.pdf.

[x]           State v. Soto, 734 A.2d 350, 360 (N.J. Super. Ct. Law Div. 1996).

[xi]          State v. Soto, 734 A.2d 350, 352-57 (N.J. Super. Ct. Law Div. 1996).

[xii]         State v. Soto, 734 A.2d 350, 360 (N.J. Super. Ct. Law Div. 1996).

[xiii]         Consent Decree, United States v. State Police of New Jersey, No. 99-5970 (MLC) (D.N.J. Dec. 30, 1999), https://www.justice.gov/crt/us-v-new-jersey-joint-application-entry-consent-decree-and-consent-decree; Press Release, Office of the Att’y Gen., N.J., State Police Racial Profiling Consent Decree Dissolved (Sept. 21, 2009), https://www.nj.gov/oag/newsreleases09/pr20090921a.html.

[xiv]        Floyd v. City of New York, 959 F. Supp. 2d 540, 561, 602 (S.D.N.Y. 2013).

[xv]         Floyd v. City of New York, 959 F. Supp. 2d 540, 556 (S.D.N.Y. 2013).

[xvi]         Floyd v. City of New York, 959 F. Supp. 2d 540, 558-59, 565-69, 574 n.118 (S.D.N.Y. 2013).

[xvii]       Floyd v. City of New York, 959 F. Supp. 2d 540, 556, 559 (S.D.N.Y. 2013).

[xviii]       Floyd v. City of New York, 959 F. Supp. 2d 540, 559 (S.D.N.Y. 2013).

[xix]        Floyd v. City of New York, 959 F. Supp. 2d 540, 558-559 (S.D.N.Y. 2013).

[xx]         Jason Hanna, Judge Rules NYC’s Stop-and-Frisk Policy Unconstitutional; City Vows Appeal, CNN (Aug. 12, 2013), https://www.cnn.com/2013/08/12/justice/new-york-stop-frisk/.

[xxi]         Peter L. Zimroth, Fifth Report of the Independent Monitor Analysis of NYPD Stops Reported, 2013-2015, 7 (May 30, 2017), http://nypdmonitor.org/wp-content/uploads/2017/06/2017-05-30-MonitorsFifthReport-AnalysisofNYPDStopsReported2013-2015-Asfiled.pdf(examining trends in the NYPD’s stop, question and frisk data during the period 2013-2015); New York Civil Liberties Union, Stop-and-Frisk Data, https://www.nyclu.org/en/stop-and-frisk-data(last accessed Dec. 17, 2018); see alsoAl Baker, Street Stops by New York City Police Have Plummeted, N.Y. Times, May 30, 2017 at A17, https://www.nytimes.com/2017/05/30/nyregion/nypd-stop-and-frisk.html; Ashley Southall, Crime in New York City Plunges to a Level Not Seen since the 1950s, N.Y. Times, Dec 27, 2017, https://www.nytimes.com/2017/12/27/nyregion/new-york-city-crime-2017.html.

[xxii]       SeeThe Sentencing Project, Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance Regarding Racial Disparities in the United States Criminal Justice System (Mar. 2018), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.

[xxiii]       See e.g., Katherine Reed, Q&A: Police Chief Ken Burton Talks about Racial Profiling, Community Policing and Why He’s So Frustrated, Missourian (Sept. 17, 2017), https://www.columbiamissourian.com/news/local/q-a-police-chief-ken-burton-talks-about-racial-profiling/article_9538af60-9990-11e7-98bf-5bdbb91f3a3d.html(discussing traffic stop data and the problem of racial profiling coming into sharper focus);Heather MacDonald, What Looks Like Profiling Might Just Be Good Policing, Manhattan Institute(Jan. 19, 2003), https://www.manhattan-institute.org/html/what-looks-profiling-might-just-be-good-policing-1506.html(discussing the effects of racial profiling such as going “where the crime is”).

[xxiv]      A. Geller, et al., Aggressive Policing and the Mental Health of Urban Young Men, 104 Am. J. Public Health 2321 (Dec. 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4232139/(finding that participants with more police contact generally reported more trauma and anxiety-like symptoms, which were associated with the number of stops reported, the level of the encounter, and perception); see also Nancy La Vigne, Pamela Lachman, Shebani Rao & Andrea Matthews, U.S. Dep’t of Justice, Community Oriented Policing Services, Stop and Frisk: Balancing Crime Control with Community Relations20 (2014), https://ric-zai-inc.com/Publications/cops-p306-pub.pdf(discussing the importance of “community policing”); Jennifer Fratello, Andres F. Rengifo, Jennifer Trone & Brenda Velazquez, Vera Institute of Justice, Coming of Age with Stop and Frisk: Experiences, Perceptions, and Public Safety Implications 27 (2013), https://storage.googleapis.com/vera-web-assets/downloads/Publications/coming-of-age-with-stop-and-frisk-experiences-self-perceptions-and-public-safety-implications/legacy_downloads/stop-and-frisk-technical-report-v4.pdf(describing young people who were stopped as having “lingering feelings of fear and anxiety”); Josephine Ross, Warning: Stop-and-Frisk May Be Hazardous to Your Health, 25 Wm. & Mary Bill Rts. J. 689,727 (2016), http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1804&context=wmborj(“[R]esearchers recorded self-reported mental health factors and measured them against the number of times the person had been stopped.  As anticipated, greater police contact correlated with higher anxiety scores[.]”).

[xxv]        See Nancy La Vigne, Pamela Lachman, Shebani Rao & Andrea Matthews, U.S. Dep’t of Justice, Community Oriented Policing Services, Stop and Frisk: Balancing Crime Control with Community Relations20 (2014), https://ric-zai-inc.com/Publications/cops-p306-pub.pdf; Center for Constitutional Rights, Stop and Frisk: The Human Impact 6 (2012), https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf  (“The experience of being stopped and frisked by police often has a lasting emotional impact. People interviewed by CCR described feeling a range of emotions during stops, including anger, fear, shame, and vulnerability.  One man described feeling ‘disgusted, insulted, humiliated!’”); U.S. Dep’t of Justice, U.S. Attorney’s Office Dist. of N.J., Investigation of Newark Police Department 9 n.8 (Jul. 22, 2014) (“Being placed in the backseat of a police vehicle can be a humiliating and often frightening experience.”); Gellar et al., Aggressive Policing and the Mental Health of Young, Urban Men, 104 vol. 12 Am. J. Pub. Health 2321, 2322 (Dec. 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4232139/pdf/AJPH.2014.302046.pdf(Discussing feelings of hopelessness and dehumanization).

[xxvi]       Stephanie A. Wiley & Finn-Aage Esbensen, The Effect of Police Contact: Does Official Intervention Result in Deviance Amplification, 62 Crime & Delinquency 283, 299 (2013), https://www.researchgate.net/publication/277456150_The_Effect_of_Police_Contact_Does_Official_Intervention_Result_in_Deviance_Amplification(“[O]ur findings show that the negative consequences of police contact are compounded for arrested youth; subsequent to arrest, they report less anticipated guilt and more delinquency compared with stopped youth”); see also Jennifer Fratello, Andres F. Rengifo, Jennifer Trone & Brenda Velazquez, Vera Inst. of Justice, Coming of Age with Stop and Frisk: Experiences, Perceptions, and Public Safety Implications 1 (2013), https://storage.googleapis.com/vera-web-assets/downloads/Publications/coming-of-age-with-stop-and-frisk-experiences-self-perceptions-and-public-safety-implications/legacy_downloads/stop-and-frisk-technical-report-v4.pdf(“There’s reason to believe that being stopped can also influence young people’s self-perceptions, potentially causing them to see themselves as deviant and to actually commit delinquent acts[.]”); U.S. Dep’t of Justice, Civil Rights Div., Investigation of  the Ferguson Police Department 94 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf(discussing how to change responses to students “to avoid criminalizing youth while maintaining a learning environment”).

[xxvii]       Jennifer Fratello, Andres F. Rengifo, Jennifer Trone & Brenda Velazquez, Vera Inst. of Justice, Coming of Age with Stop and Frisk: Experiences, Perceptions, and Public Safety Implications 5 (2013), https://storage.googleapis.com/vera-web-assets/downloads/Publications/coming-of-age-with-stop-and-frisk-experiences-self-perceptions-and-public-safety-implications/legacy_downloads/stop-and-frisk-technical-report-v4.pdf.