Understanding the Stop-and-Frisk Debate: What You Need to Know

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jan 5, 2017

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Female OfficerDuring the first presidential candidates’ debate, Donald Trump advocated greater reliance on “stop-and-frisk” in troubled cities as a crime reduction tactic. Trump asserted that former Mayor Giuliani’s aggressive stop-and-frisk policy in New York City contributed to a reduced crime rate. According to Trump, stop-and-frisk had a “tremendous impact on the safety of New York City, tremendous beyond belief.” Hillary Clinton, on the other hand, argued that stop-and-frisk is both ineffective as a crime reduction policy and that Mayor Giuliani’s policy was unconstitutional.

Stop-and-frisk was raised in the context of larger issues. The moderator initially asked about race relations and the shooting of African-Americans by police officers. Clinton advocated improved training for police officers and crime reduction policies that focus on removing guns from the streets. Trump then suggested stop-and-frisk as a way of taking guns away from criminals, including “gangs roaming the street” and illegal immigrants.

To understand stop-and-frisk in the larger context of race relations and crime control, it is important to understand what stop-and-frisk means and what courts have said about it. It is also important to ask whether the aggressive use of stop-and-frisk is really a policy that a president can implement.

What Is a Stop?

In the context of the criminal justice system, a “stop” is the brief detention of a suspect by a law enforcement officer for the purpose of investigating suspected criminal activity. A stop is less intrusive than an arrest, which often involves handcuffing the suspect and transporting the suspect to a police department or jail.

A stop requires a show of authority that deprives a suspect of the freedom to walk away. If a law enforcement officer approaches a suspect and asks “Can I talk to you?”, no stop has occurred because the suspect is free to say “no” and go about his business. On the other hand, if a law enforcement officer says “stop” or “wait” or “stay right there,” the officer has exercised the kind of authority that deprives the suspect of her freedom. Even a brief deprivation of freedom transforms an encounter with a suspect into a stop.

The legality of a stop is governed by the Fourth Amendment to the United States Constitution. Supreme Court decisions allow a police officer to stop a suspect when the officer has a reasonable suspicion that the suspect has been or is about to be involved in criminal activity. A reasonable suspicion must be based on objective facts. Neither a “hunch” that someone has committed a crime nor unfocused curiosity about someone’s purpose for being in a certain place can justify a stop.

What Is a Frisk?

A “frisk” is usually defined as a “pat-down” or a touching of the outer surfaces of clothing. A frisk is allowed during a stop to protect an officer if the officer fears that the suspect is armed. A frisk is most commonly used to determine whether a suspect has concealed a gun or knife in a pocket or waistband.

Police officers are not automatically entitled to conduct a frisk whenever they stop a suspect. A frisk is allowed only if the officer has an objectively reasonable suspicion that the suspect is armed with a dangerous weapon.

Nor are police officers entitled to use a frisk to search a suspect for evidence of a crime. On the other hand, if the police “feel” drugs or other evidence of a crime during a pat-down, they are entitled to seize that evidence. When that happens, issues often arise as to whether the frisk for weapons was merely a pretext to conduct an illegal search for drugs, and whether the officer could reasonably distinguish contraband from other objects merely by feeling them through a layer of clothing.

Are Aggressive Stop-and-Frisk Policies Effective?

Trump and Clinton disagreed about the efficacy of aggressive stop-and-frisk policies. Trump’s suggestion that stop-and-frisk gets guns off the street might be true, but the New York City experience shows that it doesn’t do so very often. An analysis of the City’s stop-and-frisk data revealed that guns were found “in less than 0.2 percent of stops.” The same data showed that during the peak years of stop-and-frisk in New York City, 86% to 90% of the people stopped by police were completely innocent.

Trump’s suggestion that stop-and-frisk reduced crime in New York City is questionable. During the same years that the NYPD used stop-and-frisk aggressively, crime rates also fell in other cities that did not do so. Moreover, murder and other violent felony rates continued to decline in New York City after the police abandoned the aggressive use of stop-and-frisk.

Trump’s endorsement of aggressive stop-and-frisk tactics as a way to heal the racial divide is also suspect. Raymond Kelly, the NYPD Police Commissioner who held that office during the Dinkins and Bloomberg administrations, acknowledged “that tough-sounding rhetoric and dubious stop-and-frisk tactics [between his two tenures as Commissioner] sowed new seeds of community mistrust.”

The New York City data reveals that “from 2002 to 2011, black and Latino residents made up close to 90 percent of people stopped,” and that they were disproportionately stopped even in predominantly white neighborhoods. If the police use stop-and-frisk policies in a way that targets nonwhite suspects, it is difficult to believe that the practice can heal the nation’s racial divide.

Are Aggressive Stop-and-Frisk Policies Constitutional?

Neither candidate gave a sufficiently nuanced response when talking about the constitutionality of stop-and-frisk. Clinton asserted that stop-and-frisk was held unconstitutional while Trump asserted that it was not.

The Supreme Court has made clear that stop-and-frisk does not violate the Fourth Amendment, provided that the police follow the standards described above. The practice is therefore constitutional, although a particular officer’s decision to stop-and-frisk a suspect without having a reason to believe that the suspect was doing anything illegal would be unconstitutional.

The court decision that both candidates mentioned found that New York City’s aggressive use of stop-and-frisk violated the Fourth Amendment rights of individuals who were subjected to frisks in the absence of any reason to believe they had done anything wrong. The judge concluded that NYPD’s constitutional violations were widespread and that senior city and police officials were aware of those violations and did nothing to curtail them.

Based on the evidence presented at trial, the judge also found that NYPD officers were “directed, sometimes expressly, to target certain racially defined groups for stops.” The judge also found that “NYPD implements its policies regarding stop-and-frisk in a manner that intentionally discriminates based on race.” Since racial profiling violates the constitutional right to equal protection of the law, the judge determined that the City had engaged in unconstitutional race discrimination as well as unconstitutional Fourth Amendment violations. The City settled the case so no appellate court reviewed the judge’s ruling.

Can the President Implement New Stop-and-Frisk Policies?

The debate about stop-and-frisk is important, but it is largely irrelevant to presidential politics. Nearly all stop-and-frisk occurs at the local level, as police officers patrolling streets encounter someone they decide to stop.

The president has little power to influence local police practices. Presidential policies may affect the FBI, Homeland Security, and other federal law enforcement agencies, but the overwhelming majority of stop-and-frisk decisions are made by municipal, county, or state law enforcement officers who are beyond the president’s control.

At best, a president might ask Congress to authorize funding that would allow states to train police about stop-and-frisk procedures, or to hire more police who might engage in stop-and-frisks. A president might also ask the Justice Department to enforce federal civil rights laws that prohibit the police from intentionally violating Fourth Amendment rights. For the most part, however, the discussion of stop-and-frisk in a presidential debate was irrelevant to presidential powers.

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