I stumbled across this article and thought it might interest Dopers.
I’m not sufficiently knowledgeable to make any judgement but the article does seem to hold water.
IANAL but I was an LEO for 25+ years. Probable cause is a fairly high standard. If cops have probable cause to believe that you have committed a crime they have enough to arrest you. If they have PC to believe that you possess evidence of a crime they have enough to search you. Normally, both of these require a warrant. Getting a warrant is a time consuming process and isn’t always practical. I believe that Terry recognizes that there are times when police may need detain you without enough evidence to arrest you. The standard is “reasonable suspicion”. Say a bank robbery is reported. The cops show up and a guy comes running out of the bank carrying a briefcase. Is there PC to arrest at this point? Nope. Is it reasonable to suspect that he may be involved and should be detained (seized) until this can be determined? Sure. To require that PC exist before someone could be detained (for a reasonable length of time) for investigation would have foreseeable negative consequences for society.
Terry does not allow police to search someone without a warrant. It allows a “frisk” or “pat down” for weapons only. Before officers can conduct a frisk they must have a reasonable articulable suspicion that the person may be armed and dangerous. Legally, they cannot empty pockets or check undergarments. As a matter of practice, many (most?) cops will pat down anyone who they have the slightest suspicion about. (“better safe than sorry” theory) If they don’t turn up any weapons, no harm - no foul and no one is likely to complain about this very limited intrusion, assuming the rest of the interaction is professional. Also, I bet that most people don’t realize the requirements for a Terry frisk and just accept the pat down. After all, they’ve seen it on TV a million times. The remedy for this violation of civil rights would be to make a formal complaint or sue and who wants to go through all that? If they do find a gun, they will have to come up with a basis for the frisk. It is easy to conjure up reasonable suspicion after the fact but I think this will become less prevalent with the use of body cameras. Frankly, I don’t see how NYPD got away with stop and frisk for so long. I wonder how many of those encounters were documented with the basis of the reasonable suspicion detailed. Given the very few weapons recovered in these encounters, the old “based on my training and experience” line would lose most, if not all, of it’s credibility.
The reasonableness of the officers’ actions is still, ultimately, determined by judge if it is challenged by an accused at a hearing. Any search without a warrant is presumed to be bad and the state must show why it fit one of the warrant requirement exceptions. Since most of these pat downs don’t result in arrest, few see a courtroom. If “walking while black” pat downs are commonplace, the officers need to be called on it. The law is fine but it must be followed.
Are you sure this is true? There are videos abound that show cops emptying pockets and performing road-side anal cavity searches.
Yes, but the article argues that ‘being black’ is being used as reasonable suspicion. Which is wrong.
There are Terry pat downs and probable cause searches.
If they do a terry pat down, and find drugs or other forms of non-weapon related contraband, is that admissible?
Of course it is. If the pat down was done in accordance with the Terry decision. Terry is a legal intrusion why wouldn’t what was found admissible? Now if a judge decides the situation did not meet the criteria for a pat down or if the pat down what beyond the scope of Terry then the evidence would be thrown out.
IANAL. But, it does seem as though the excuse to search someone without a warrant under the pretext that you are just being safe and checking for weapons short circuits due process a bit.
MikeF specifically said
So, my question on that is, they turn up no weapon, but they do turn up a non-weapon related contraband item. If you give them permission to search everyone on the pretense that they may be armed, then why do we even bother paying lip service to any sort of probable cause?
You’ve made up your mind so go ahead and run with it I don’t join in on those types of discussions.
Its not permission to search everyone - that’s where you’ve mistaken the fact pattern.
No, that’s perfectly correct. New York’s infamously racist “Stop and Frisk” program being a recent example, where the police obsessively searched black men over and over.
You misunderstand me: I’m saying that it’s morally wrong, not that the article is wrong.
A Terry stop is where the police briefly detain you, based on a reasonable, articulable suspicion that you are or have been involved in a crime. (“Briefly” is not specifically defined.) He can pat you down for weapons, but not search you otherwise. You do not have to answer any questions, and he cannot arrest you without probable cause. Is that what you believe is morally wrong?
Certainly it can be abused, but when it is not so abused…?
I had a quick read thru the article, and the suggestion that Terry made it a crime to “Walk While Black”, and that
seems more to have been asserted rather than demonstrated. The example in the article is of a black man being stopped because he matched (more or less) the description of someone the police had received a complaint about.
That is not the same thing as being arrested for Walking While Black.
Regards,
Shodan
It doesn’t. The author has a quite racist agenda she is pursuing, and mixes that with a painful lack of understanding of the Terry v. Ohio case.
What do the police need in order to perform a road-side anal cavity search?
The article is an editorial, not a fact based reporting.
Hopefully, gloves.
From the article “How many African American males have traveled through University Circle and were stopped while walking [while] Black and were given misdemeanors?”
I don’t understand. What misdemeanor are they being charged with? Is the guy saying that these men were involved in no criminal activity whatsoever and were arrested and convicted of being black in the first degree?
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At least buy me a drink first.
Regards,
Shodan
Jesus - gloves, drinks, who knows what else. I’m beginning to rethink my strategy of become a cop for dating purposes.