Computers, Privacy & the Constitution
Unreasonable Suspicion and Its Insufferable Alternatives: A Look at Legal Norms Through the Lens of NYPD Stop-and-Frisk Activity

-- By StephenClarke - 18 Mar 2010

On September, 16, 2007, Officer Kaz Daughtry of the New York City Police Department stopped a man at night in a high-crime area near a public housing project in New York City’s 73rd Precinct. United States v. McRae? , 07-CR-772, 2008 U.S. Dist. LEXIS 2314, at *1 (S.D.N.Y. 2008). Officer Daughtry stopped the man because he saw the man walk away from a group of men and women, who were talking loudly, and then “move his hand as if moving an object from the center of his stomach to the left side of his waistband” in a manner similar to how Daughtry had “observed other officers in plainclothes” adjust firearms in their waistband. Id. at *1-*4. Officer Daughtry later testified that he had stopped 30 to 50 people based on similar “telltale movements” indicating gun possession and that the defendant he arrested on September 16th was the first one who had a gun. Id. at *4. The “methodology” that Officer Daughtry employed to detect gun possession had a success rate of approximately 3.33%. Id. at. *12-*14 n.7. Based in part on this low success rate, a federal district court dismissed Daughtry’s “methodology” as “little more than guesswork” and suppressed the gun that he had recovered. Id. at *14-*-17.

Officer Daughtry was not, however, a rogue officer policing in an idiosyncratic or uniquely ineffective manner. Empirical studies suggest that police officers on routine patrol spend more time engaged in proactive policing, initiating encounters with citizens based on their own initiative, than engaged in reactive policing, responding to requests for police services. Bernard E. Harcourt & Tracy L. Meares, Randomization and the Fourth Amendment 19-25 (2010) (unpublished manuscript). Between 2002 and 2008, the NYPD’s increased commitment to proactive stop-and-frisk policing caused the number of stops conducted in New York City to increase by approximately 446%. See Al Baker & Emily Vasquez, Police Report Far More Stops and Searches, N.Y. TIMES, Feb. 3, 2007 (reporting that 97,296 stops occurred in 2002); Press Release, Center for Constitutional Rights, New NYPD Data Shows Record Number of Stops-and-Frisks in 12-Month Period (Feb. 11, 2009) [hereinafter CCR Release] (reporting that 531,159 stops occurred in 2008). Reported criminal cases and anecdotal evidence suggest that police officers often attempt to and do sometimes recover guns by stopping and frisking people based on the kind of conduct that Officer Daughtry observed. See Erick Eckholm, Who’s Got a Gun? Clues are in the Body Language, N.Y. Times, May 26, 1992 (reporting that a retired NYPD officer “disarmed more than 1,200 gun-toting thugs” by stopping individuals based on body movements purportedly indicative of gun possession); McRae, 2008 U.S. Dist. LEXIS 2314, at *4 (noting that Officer Doughty was provided with a copy of the Eckholm article while at the New York City Policy Academy); People v. Riddick, 2010 N.Y. App. Div. LEXIS 1336, at *2-*5 (App. Div. Feb. 11, 2010) (suppressing a gun recovered after officers stopped a man who reached for his waistband, walked away, and then fled in a high crime area); People v. Powell, 667 N.Y.S.2d 725, 727 (App. Div. 1998) (suppressing a gun recovered after officers stopped a man because he walked at a quick pace while holding one arm stiffly against his body and adjusted his waistband). Between 2004 and 2008, NYPD officers seized a weapon during 2.37% of the 442,552 stops based on suspected weapons possession and during .86% of the more than 2.2 million total stops in this time period. Amanda Geller & Jeffrey Fagan, Pot as Pretext: Marijuana, Race and the New Disorder in New York City Street Policing Table 8 (2010) (unpublished manuscript). Based on these numbers, it appears that Officer Daughtry was no more or less capable of finding a gun than the average New York City police officer who is looking for one.

Two alternative policing models might be more effective at detecting guns and preventing crime than the current proactive policing model. The first is empirical proactive policing based on total suspicionless electronic surveillance of people in public places. See Ali Winston, A Chance for Input on 3,000 New Police Cameras, (Mar. 16, 2010) (describing the NYPD’s plan to construct a network consisting of 3,000 cameras, automated license plate readers, and other devices to foster “domain awareness” in lower Manhattan). But see People v. Weaver, 909 N.E.2d 1195, 1199-1203 (N.Y. 2009) (indicating that such total surveillance may violate the New York state constitution). Working with complete and accurate information, the NYPD would presumably be able to construct a better behavioral profile for gun possession by empirically testing commonly held assumptions and then applying this profile evenhandedly. Alternately, NYPD could simply establish checkpoints to randomly search individuals for weapons in areas where there was sufficient reason to suspect individuals might be carrying weapons. See Harcourt & Meares, supra, at 44-50 (arguing for random checkpoint stops to be permitted once a base level of probabilistic suspicion has been satisfied). Contra City of Indianapolis v. Edmund, 531 U.S. 32, 48 (2000) (holding that general crime control checkpoints are unconstitutional). Checkpoints might be as efficient as stops based on individualized suspicion and, unlike stops based on individualized suspicion, they can be predictably allocated to ensure that racial minorities are not over-stopped due to bias. Id. at 45, 48-50 (noting that one drug checkpoint had a hit rate of 4.75%).

Consideration of these two unpalatable (if not unconstitutional) alternatives is instructive because it demonstrates how current patterns of enforcement should be altered. First, established assumptions regarding what, if any, behaviors are indicative of gun possession need to be detailed and empirically tested through observational study. Second, until such time as proactive policing focused on weapons possession can be made significantly more efficient, it must be curtailed due its intolerable disparate impact. CCR Release, supra (“From 2005 through 2008, approximately 80 percent of total stops made were of Blacks and Latinos”).


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