Support for Stop and Frisk as an Incident Practice
The fact that stop and frisk, within the context of the Terry ruling, was misused, doesn’t preclude it from being necessary and useful. Stop and frisk is an important investigative tool for law enforcement. Without the ability to stop and frisk, the police are hamstrung in their efforts in proactive policing. We have an expectation that the police will be proactive in an attempt to halt or prevent crime by investigating suspicious circumstances, trusting in the individual officers’ training, experiences, and abilities to identify and react to these circumstances. Police officers need the ability to act on their suspicions. Without the ability to temporarily detain and question in order to identify the subject and satisfy their suspicions, criminally minded individuals could simply ignore officers’ questions and commands and walk away with impunity. However, besides those who question the constitutionality of the Terry ruling, there are concerns, and as indicated in At Issue, some evidence, that not all stop and frisks met the Terry standard. While its use as a program versus incidental use is discussed below, for incidental stops there should be assurances that officers are operating within the guidelines of the Terry ruling.
Revising Stop and Frisk Documentation
To assist in that regard, the establishment of a reporting system, or the refinement to existing forms and systems is necessary. With an appropriate design, the form will allow for the collection of criminal intel that could be gathered from the stop, allowing for both police departments and researchers’ examination of the form data for analysis of criminal intel as well as statistical program analysis. The field stop form should exist in both an electronic format that is accessible, searchable, and fileable from the car, and in a short form paper format that officers can fill out as the stop progresses, as opposed to filling out the form later, or transferring field notes from a notebook to the form. Ultimately, the form will contain data on the different aspects of the stop with spaces for information on the:
Officer-Name, Age, Gender, Race or Ethnicity, Years with dept., Precinct, Beat, Shift
Subject-Name, Age, Gender, Race or Ethnicity, Height, Weight (if able to be determined or verified through officer or subject), Level of non-compliance, and Statements made
Location and Circumstances-Physical location or address of stop, Time of day, Weather, Whether the stop was associated with a particular location like a business, housing project, or public transit spot
Reason for Stop-Utilizing a blank space for a narrative, not checkboxes with preprinted justifications
Officer and Subject information will allow departments to examine individual officer performance; to determine the number of stops performed, the productivity of the stops (hit rates), whether more experienced officers are more productive and can be utilized as a training resource, and, based on subject demographics, data could be used to deflect or verify criticisms of individual officer bias. Departments can also use the data to analyze precinct, beat, and shift activity for patterns of effective operation, developing problem areas, and changes in geographic and demographic criminal activity. For researchers, these benefits are the same, with variables like officer race and subject noncompliance being especially informative in examining issues of racial bias by officers in stops, frisks, and arrests.
Location and circumstances information will provider a more comprehensive picture of the circumstances under which stop and frisk are conducted (night, bad weather) and how those may have influenced any of the other circumstances or outcomes of the stop. It will also be informative to have a determination of whether the stop and frisk activity may be focused on certain locations (as well as dependent on the time of day, shift, or beat). At Issue discussed the findings that the productivity of stops varied widely by location. Certain businesses and locations can be criminogenic, drawing both criminals and victims, and while the beat officer may realize this, it also provides a mechanism for intelligence analysis and dissemination across shifts, beats, and precincts. Utilizing this data may allow departments to better refine their focus on existing or emerging criminogenic locations and businesses.
Incorporating a blank space for stop justifications rather than checkboxes is one way to help preserve the Terry standard, and defend against 4th amendment violations. Having officers write out their justifications forces them to comply with an important component of “reasonable suspicion”, that the reason for the stop be articulable. Utilizing checkboxes allows officers to habitually start using cognitive shortcuts by having the decisions written out in front of them, waiting for them to choose one, or retroactively choosing the justification that seemed most appropriate. While some commenters have lamented the net widening of justification for stops (and frisks), officers have to be given some deference in determining what is (articulable) suspicious in making a stop. Recognizing suspicious behavior that may be a prelude to criminality is a skill not well understood by the general public and most academics and one, that for officers, takes both natural aptitude and investigative street experience, to obtain. The cues that officers receive may be innocuous to many observers; the subject nervously hitching up his pants indicates he could take flight, unconsciously touching the waistband or pocket likely indicates a concealed weapon, subtly changing one’s stance indicates they are about to be combative, how often a person scans the environment indicates a lookout, the length and type of contact between two individuals on the street could indicate a drug transaction. For officers to be proactive we assume and expect that they develop those skills of picking out suspicious behavior. They should be allowed to act upon them as long as they articulable. In having to articulate them officers can more easily self-monitor the appropriateness and legal sufficiency of their actions.
The stop is a temporary detention to allow officers to investigate, i.e. question, the subject. Either through questioning, or the presentation of identification, the identity and address of the subject should be determined, the request for this information wholly justified by their presentation of suspicious behavior. All of the information obtained should also be incorporated on the field stop form. The questioning process will always vary depending on the particular situation and the matter under investigation but officers typically will look for explanations, given to their satisfaction, for the subject’s behavior or presence in the area. It can be from this questioning that additional suspicions can arise (as well as from the justification for the stop) that will prompt an officer to frisk a subject.
This is another feature that can’t be denied to officers, as long as it follows the Terry standard of being minimally intrusive. The expansion of situations that might comprise an issue of officer safety is justified, however they need to be limited to weapons searches and not expanded into other contraband. High crimes areas, by virtue of being so, constitute an increased risk to officer safety, and within these high crime area, public attitudes toward the police can be hostile, which might result in greater non-compliance, threats and attacks on the police. While drug possession is typically considered a nonviolent crime, drug transactions are another matter. As drug transactions that will be observable to officers will likely occur in the relative open in high crime areas, both the dealer and buyer run the risk of violence perpetrated against them through deals gone sour, and by street robbery and rival crews. Conducting transactions in risky areas will certainly prompt many of these individuals to arm themselves for protection, and in turn the police need protection from these individuals by a weapons frisk. But in keeping a broader acceptable range of frisk justifications, they also must be articulable, with an appropriate narrative of such included on the field stop form.
Changing the Way Stop and Frisk is Done With Individuals
However, there are ways that stop and frisk can be utilized that can mitigate some of the intrusiveness and perceived bias, and help promote police legitimacy. Regardless of the officers’ justifications for the stop, its crucial for officers to take a procedural justice approach. Hit rates can vary widely and, as the data showed in NYC and other places, it is more unlikely than likely an officer will recover contraband or make an arrest. So to help mitigate that intrusion on a possibly innocent person, officers will use their communication skills to approach the stop with dignity and respect for the subject, to be upfront and truthful with the subject, to allow the subject to have a voice in the matter, and to be fair and without bias in dealing with the subject. This entails maintaining politeness and respect as the subject is approached. The subject should be informed why he is being stopped, which should be the same reason articulated on the field stop form. When questioning, that same level of respect should try to be maintained, (though admittedly this is difficult when the subject is lying to you). The officer should explain what information he is seeking and why, so that it is clear to the subject what it was that made the officer suspicious and the purpose of the officer’s questioning. For example, to identify the subject, to seek information about a crime that occurred, or to ask the subject to explain his suspicious actions. Rather than asking “what ya doing around here”, officers need to be more precise, and polite, in their approach. “I stopped you because you were loitering in a drug trafficking area. Are from this area, or do have some business here?”.
Frisks also need to be done appropriately and with a statement to the subject about the justification for the frisk, the same as the articulable reason on the field stop form, with an explanation to the subject that it is done for both the officer’s and the subject’s safety and that it is only checking for weapons. The officer should explain to the subject where, and in the manner, they are going to be touched during the frisk, and be empathetic toward feelings of intrusion they may feel. These approaches help ensure that the public feels like the police have trustworthy motives and is listening to the subject and communicating rather than just talking at them. In doing so, the effects of an intrusive encounter can be mitigated while bolstering police legitimacy.
To assist officers in employing procedural justice during stop and frisks, practical experience in conducting and explaining stop and frisk behavior should be provided both to new officers and as in-service training. Improving their written communication skills is important as well in assisting officers in how to translate their observational experience (as noted above in the discussion of stops) into articulable statements. Officers often refer to a hunch, gut feeling, or their sixth sense in what draws their attention and makes them want to investigate. However, the Terry ruling was clear that a hunch is insufficient for a stop. In my discussions with police officers, this hunch is likely an unconsciously generated cue based on their past observational experiences. Its something an officer has seen before that was prelude to criminality or danger, it signals to the officer that “something isn’t right”. The challenge is assisting officers in breaking down their hunches to those base cues that are articulable and written communication skills programs could assist in that.
Changing the Way Stop and Frisk is Done in the Community
Stop and frisk is problematic as a general deterrence program. Even though evidence suggests it was targeted to hotspots and appropriately focused on those most likely to be involved in violent crime, ultimately it casts too wide of a net and generated feelings of over-policing and rights violations. However, larger scale deterrence generated by stops and frisks can still be utilized if limited in scope in a crackdown. Crackdowns (on guns for example) could be cycled through major hotspots for limited periods of time, or applied as necessary to flareups in hotspots. To help mitigate tensions, buy-in and cooperation with local community or neighborhood leaders is important. They can assist in announcing the crackdown beforehand to the community, neighborhood, or beat, provide a voice of community support for the police in its efforts on crime, and serve as a liaison, monitor, and information source between the community and the police. This will still provide for a deterrent effect but its limited scope, and coordination with the neighborhood and its leaders, will help repair or establish police legitimacy. The stops and frisks themselves will still need to be done with adherence to Terry and in a procedurally just manner however, officers won’t be increasing the number of stops they make which could lead to a weakening of reasonable suspicion justifications, but rather increasing the number of officers in the crackdown area.
An Alternative to Stop and Frisk
Terry stops were meant to be used as an investigative practice necessary for proactive policing and officer safety and were not intended for programmatic use. However as justifications expanded, it was morphed into a deterrence program, like Broken Windows Theory morphed into Zero Tolerance policing, that overstepped its boundaries and damaged police/public relations. The deterrence program may have been effective in reducing violent crime as it focused on high crime areas and those individuals more likely to be involved in crime (younger male residents). But by doing so communities did and will pay a cost in anger and mistrust of the police, as those primarily focused on were minorities which results in a loss of police legitimacy and hampers law enforcement efforts as the public becomes uncooperative.
Stop and frisk in NYC was focused on the “right kind of people” which is supposed to be young males in high crime areas. While its violation of the 14th amendment may be arguable as it was not the state’s intention to utilize SQF to adversely affect or benefit one racial group over another, but rather the state was indifferent to the racial disparities and its effect and perception of the practice suggests it targets minorities. Because with programmatic SQF there is no real discrimination between who are actually the right people, the criminals, and who are the law abiding, non-problematic residents of the neighborhoods.
While as an investigator, it might be tempting to just shake the trees and see what falls out, an alternative to stops and frisk, is an informal field stop which can be useful for gathering information. Rather than shaking down youths in the neighborhoods, officers could take a more nonconfrontational approach. Officers can approach individuals not based on suspicion but just as a potential information source. Officers take a friendlier, more informal approach and try to build a rapport with the subject to have a conversation rather than an interrogation. A friendlier approach allows people to let their guard down and building a rapport with the subject will get them talking more freely, which allows the officer to guide the conversation toward what he wants to know.
It is important to get to know the residents of the beat; a good cop should be able to read people and figure out through the interactions, and the intel gathered in these interactions, who the problem people are and who the law abiding ones are. This allows officers to focus their efforts on the bad guys while building a sense of trust with the law abiding neighborhood residents. Good street cops should be using these contacts and developing formal and informal informants from their interactions, as well as building rapport, trust, and good will with residents. This approach in either stop and frisks or in an informal stop, can turn a potentially negative encounter for both parties into one that may be neutral for the public and positive for the officer as he may be able to gather intel either on general or specific criminality on his beat or will get to know and distinguish between the different types of people on his beat. This will also benefit future investigations as well as enhance their proactive behavior by having a better idea on who to focus on rather than just blindly casting a wide net.
Approach to Racial Bias Analysis
In the situation with NYC, racial disparities were cast as racial bias, but just like the rule “correlation doesn’t mean causation”, disparity doesn’t mean discrimination. In trying to understand disparity and disparate impact we can’t forget to utilize a disease risk model, which in a policing context means not considering the population as a whole but only the portion of the population at risk for SQF. And there is a far greater likelihood of being subjected to a SQF if you are a young male (the universal profile), even more so if you reside or are in a high crime area, irrespective of race. Social conditions however have situated a high percentage of minorities in these disadvantaged high crime areas. While this may generate a disparate impact within the community, it may struggle to actually be a racial disparity, given the specific population demographics, racial crime rates, and criminal suspect descriptions. This focus on minority populated hotspots of crime does not provide evidence for any institutionalized bias, as by necessity and public expectation, more police resources are focused on higher crime areas.
As was discussed in At Issue, in the analysis of SQF for racial bias, methodology is very important. To examine racial disparities or bias an appropriate unit of analysis must be determined. While most researchers have focused on precincts rather than city population as whole I suggest that the beat, a smaller microunit of analysis, be utilized. A precinct can encompass a relatively large area and within that precinct are districts, sectors or beats that could be similar but could just as likely vary widely from the adjoining beat. One beat might hold a lot of retail businesses while an adjoining beat might be residential, while another adjoining beat might be commercial/industrial. The crime rates of each beat, which could vary widely based on the businesses, residents, and potential targets, when averaged for a precinct crime rate might mask, for analysis purposes, a high level of criminal activity in one of the beats.
Increased stop and frisk activity generated from this beat may, when viewed from a perspective of precinct crime rates, seem disproportionate, but is actually inline with the crime happening on that particular beat. Beat demographics are then a more appropriate denominator to calculate rates because disparity is only proven with the correct population demographics and if the demographics of SQF match that of the beat and its criminal subjects, there is no disparity and thus no bias. As was discussed in At Issue, evidence suggests that hit rates can vary by location, with some locations being criminogenic. Those locations are much better determined and analyzed at a beat level as well.
As discussed earlier in the section on revising stop and frisk documentation, the comprehensive inclusion of appropriate variables is also important in trying to determine if racial bias in stops or frisks exist, and variables like officer race and subject noncompliance must be included. Some commenters in At Issue approach officer motivation in these stops with an almost automatic assumption of implicit bias, if not some policing subculture learned bias, against minorities. This may exist to some degree on an individualized basis with some officers, but it also impugns the vast majority of officers who really are motivated by preventing crime and promoting safety and don’t care what race the subject is, only about determining if he’s a good citizen or a bad guy. The inclusion of officer race in these encounters will surely provide a more nuanced look at the possible existence of racial bias toward minority subjects, especially in cities like NYC and others who have a large percentage of minority officers. Similarly in frisks and arrests, the level of noncompliance is going to be an important determining factor in whether these frisks and arrests occur. Research has shown that Blacks tend to be more confrontational with the police than Whites and differing levels of non-compliance may have some explanatory power in disparities seen here.
Conclusion
Stop and frisk has gone from an essential investigative tool to something that’s vilified as constitutionally challenged and racist. However, the truth is that the practice itself while acceptable and necessary, can be misapplied and mismanaged, which in turn can unintentionally damage police legitimacy. If departments can more closely adhere to the Terry ruling, scale back its use, refine and improve its use, and seek alternatives to its use, the practice itself will gain back some of its legitimacy as will the departments themselves.
