Legislation and the Beat Cop: Is Stop-and-Frisk Coming to San Francisco?

Amid continuing national controversy and judicial disapproval, San Francisco Mayor Ed Lee is standing firmly behind a stop-and-frisk policy similar to one already implemented by New York City.  The policy would allow law enforcement officers to stop and search anyone they considered suspicious.  Proponents of the policy cite crime prevention as the driving force during a period of increased homicides in the city. Opponents, on the other hand, are more concerned about a potential increase in racial profiling and lack of proof that such policies would indeed prevent crimes.

The reasonable suspicion basis is a much lower legal standard than the probable cause normally required under the Fourth Amendment searches and seizures.  The stop and frisk is different from an arrest and a full search – a stop involves only a temporary interference with a person’s liberty, and the frisk is generally limited to the patting down of the suspect’s outside clothing.  Stop-and-frisk has long been implemented by law enforcement unofficially, and the definitions of the policy were not explained until the 1968 Supreme Court decision in Terry v. Ohio.  In Terry, the Court found that an officer may perform a search for weapons without a warrant, even without probable cause, when the officer reasonably believes that the person may be armed and dangerous.  A Terry stop may not be based on an officer’s hunch that the suspect is up to no good, but instead it must be based on a reasonable, articulable suspicion.  The Court also noted that the purpose of the second component, the frisk, is to ensure the officer’s safety.  As such, the frisk requires reasonable suspicion that the suspect is armed and dangerous, as opposed to just being involved in a crime.

While Terry remains a valid precedent, the issue of racial profiling arose as cities such as New York and Philadelphia began to heavily implement the policy in the 1990s.  A recently released report by the New York Civil Liberties Union demonstrated that the program overwhelmingly targeted minorities to the extent more than eighty percent of those stopped were black or Latino.  In 2011, Philadelphia settled a class-action suit against the city by seven men alleging civil rights violations.  The settlement laid out a model for court supervision and police monitoring and accountability.   Combined with greater interests by the lower courts, it is likely that any future stop-and-frisk policies would be closely monitored and within reach of the judicial system on the local law enforcement level.

Therefore, it seems peculiar that Mayor Lee continues with his push for the implementation of the policy amid lackluster national and local support.  While there has indeed been an increase in homicides, the rise is negligent in the face of declining crime rates throughout the city.  Stop-and-frisk may constitute a valuable tool in the law enforcement arsenal, but whether its benefit is outweighed by the possibility of skewed use and abuse has not been sufficiently demonstrated.  The underlying issue here may be of the importance of decision sovereignty by the patrolling officers – is it better to give greater legislative leeway to the beat cop and hope he or she makes the right call or to limit what they can do and possibly endanger their safety?

Elena Gekker

Blogger, Criminal Law Brief

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