What is Stop-and-Frisk? Well, it’s first important to differentiate (1) the NYPD policy of stopping people in high-crime minority neighborhoods and searching them without cause, and (2) the constitutional standard developed by the Supreme Court in Terry v. Ohio.

As memes fly around the internet from Black Lives Matter groups and police advocacy groups alike, debating institutional racism and oppressive police strategies on the one hand and the need to fight crime and protect police officers on the other, it’s important to understand the difference between certain police practices and the Supreme Court's definition of a permissible stop-and-frisk.

The Constitutional Doctrine

Remember that the Fourth Amendment only bars “unreasonable” searches and seizures. This has allowed the Court to permit many searches it considers to be short of this bar, compromising the protective power of the Fourth Amendment for the benefit of police officers' safety and the governmental interest in fighting crime. Fourth Amendment jurisprudence is full of balancing tests and competing interests, the archetypical example placing security in contraposition to freedom. After all, as the Court itself states, “The ultimate touchstone of the Fourth Amendment is reasonableness.”¹

Accordingly, the Supreme Court held in 1967, in a famous case by the name of Terry v. Ohio, that an officer can briefly stop a person whom he reasonably suspects is breaking the law (or has).² Chief Justice Warren, writing for 8 Justices on the Court, added that an officer who has this “reasonable suspicion” may stop a suspect briefly, and if the officer also has reasonable suspicion that the suspect has a weapon, then the officer may frisk the suspect to discover it and disarm the suspect if necessary.

A great deal has been written about what amounts to “reasonable suspicion” and whether the application of this rule has resulted in racist policies and tendencies by police departments around the country. In fact, I have an upcoming piece titled Mistaken Reasonability that discusses whether and how certain mistakes of fact and law on the part of a police officer can give rise to reasonable suspicion.

The Policy

Just as “reasonableness” is an important component of Fourth Amendment law, so is “particularity.” Remember that the text of the Amendment mandates that warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” While this requirement appears by textual necessity to apply only to warrants, it has also been extended to warrantless searches and seizures, including Terry stops. Just as the Court has held that warrantless searches are per se unreasonable,³ it has limited the scope of permissible stops under Terry to those conducted with particularized suspicion.

Thus, when the City of New York sent its police officers out to conduct mass, suspicionless, and unparticularized Terry stops of people in high-crime minority neighborhoods, the United States District Court for the Southern District of New York struck down these practices as unconstitutional in Floyd v. City of New York,⁴ ruling in favor of a class of New York City residents who asserted that their Fourth and Fourteenth Amendment rights had been violated. But this decision did not render all stop-and-frisks unlawful, nor could it as a mere district court bound by the Supreme Court's decision in Terry v. Ohio.

The New York City policing policy of stopping individuals in high-crime areas has occasioned a great deal of debate. On the one hand, proponents of the policy have argued that it reduced crime and the resulting disproportionate incarceration of minority ethnicities was an incidental result, while on the other hand opponents of the policy have argued that it is both unconstitutional under the Fourth Amendment for being devoid of particularity and reasonable suspicion and also unconstitutional under the Fourteenth Amendment for targeting minority ethnicities.

The Point

There’s a great deal of interplay between the policy and the law. After all, it was a federal court that struck down New York’s stop-and-frisk policy in 2013 for being unlawful. But it’s important to understand that not all stop-and-frisk scenarios are unlawful, and that not every stop-and-frisk event is part of an institutional policy that rendered unconstitutional results. While I believe debating the very merit of the Terry rule itself is worthwhile, identifying that it governs many police encounters with civilians and is not coextensive with the New York City policy is important.

1. Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

2. Terry v. Ohio, 392 U.S. 1 (1967).

3. Katz v. United States, 389 U.S. 347, 357 (1967).

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

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