After weeks of campaigning as the “law and order” candidate, Donald Trump has promised to bring back stop-and-frisk. Pressed by a voter at a town hall-style discussion in Ohio to explain how he will reduce violence in black communities if he becomes president, Trump proclaimed:
“One of the things I’d do is I would do stop-and-frisk. I think you have to. We did it in New York. It worked incredibly well, and you have to be proactive.”
I have very good news for Mr. Trump and anyone else who is mourning the loss of stop-and-frisk: We still do it, even in New York. Trump doesn’t have to bring it back, because it never left. That’s one less thing on his ever-growing presidential to-do list.
Yes, stop-and-frisk is still in place. It occurs every day in New York City and in cities across America.
If that surprises you, that’s because the pervasive narrative is that stop-and-frisk was abolished in 2013 by then-U.S. District Judge Shira Scheindlin. But that’s not what happened. Even Trump and Clinton couldn’t get it straight when they appeared at Hofstra University on Monday night.
Scheindlin ruled that the way the New York Police Department was executing the program was grossly flawed. She said the police were disproportionately targeting blacks and Hispanics by conducting searches without articulable, reasonable suspicion to proceed. This created a discriminatory effect, making the way stop-and-frisk was conducted unconstitutional.
Sheindlin ruled that arbitrarily stopping people on the street and patting them down was a blatant violation of the Fourth Amendment protection against unreasonable search and seizure. She recommended modifying the program to include a written policy that would specify where and how such stops are authorized.
I’ll spare you the long series of judicial updates that have taken place since that ruling. But stop-and-frisk — even under New York’s Democratic mayor, Bill de Blasio — is still very much good law, and it takes place every day. The only difference is that there is greater scrutiny of how it is performed.
Many cities have established review boards or put other safeguards in place to make sure stop-and-frisks pass the constitutional tests for Fourth Amendment protections. When a police officer sees suspicious behavior and can articulate what is suspicious about it (in other words, it’s not just a black or brown male on the street), he or she can proceed to ask questions. Then, if the officer has reason to elevate his suspicions (such as detecting the odor of marijuana or observing an object that resembles a weapon), he or she is authorized to conduct a search or frisk. It’s as simple as that.
Don’t take my word for it; take the word of the United States Supreme Court. Stop-and-frisk is derived directly from the 1968 case of Terry v. Ohio. Before Terry, officers could search only in conjunction with an arrest or if they’d obtained a search warrant. Terry broadened their authority by permitting them to search for weapons if they reasonably believed the person was dangerous. In the law, we even call these stop-and-frisks “Terry stops.”
As a criminal lawyer, I know stop-and-frisk can be an incredibly useful tool with immense probative value. It should not be demonized.
Many community leaders rightfully take serious issue with certain programs, like the one that was being implemented by the NYPD, because some officers conducted stop-and-frisks illegally. But no one wins when the police take shortcuts and perform a bad stop-and-frisk. Any good defense lawyer will get evidence obtained from a bad stop suppressed quicker than Kim Kardashian can snap a selfie.
We are all safer, and justice is served, when officers meet the necessary constitutional tests for stop-and-frisk. If they don’t, the evidence to convict gets tossed out due to the illegal and sloppy way it was obtained, and we end up with guilty and dangerous people on our streets.
Stop-and-frisk is a valuable tool, and I trust our officers to have the skills to use it properly. I’m confident we can have it and not violate constitutional protections.
And now that Trump doesn’t have to “bring back” what never left, he has more time to address the rest of his presidential to-do list, like building his wall.