This is Part Two in a two-part series of columns on two New York State appeals court panel decisions and the law relating to stop and frisk. Part One appeared on August 8 here on Justia’s Verdict. –Ed.
In the first column of this two-part series, I examined a controversy surrounding two New York state appellate court decisions that ruled evidence inadmissible because it resulted from what a majority of the judges regarded as an unlawful stop and frisk. I suggested in that column that differences between New York law and federal law governing police-civilian street encounters help explain the negative public sentiment that followed the two decisions. In this second column of the series, I will explain how I think those differences have contributed to the controversy.
One reason for all of the fuss about the two recent New York decisions is a clash between competing perspectives on what truly occurs, and what is actually at stake, in police-civilian interactions on the street. One perspective – the one to which we have not yet turned our attention – is that of the police officer. In 1968, the U.S. Supreme Court decided Terry v. Ohio, which held that police could seize a person on the basis of something short of the probable cause that the Court had required from police prior to their arresting a suspect for a crime. Though the Court in Terry acknowledged the individual interests in liberty and privacy, it emphasized that society has a countervailing interest in preventing criminal acts before they take place, an interest that would be ill-served by applying a standard of probable cause to street encounters between police and civilians.
In so deciding, the Court largely took the police officers’ perspective (a perspective that police share with potential victims who look to the police for protection from criminal predation). A majority of the Court’s Justices concluded that the reality of policing the streets and protecting the public effectively precluded application of the probable cause standard to a brief stop and frisk which falls short of an arrest and a full search. The fast-paced and dangerous situations that confront police on the streets require split-second judgments and a healthy dose of discretion and deference, the majority reasoned, if police are to be able to do their jobs and simultaneously to guard their own and others’ safety.
In words quoted by the dissent in one of the two New York State cases invalidating a stop and frisk, “police . . . should not be expected to await the glint of steel before [taking reasonable measures to assure their safety].”
The New York Court of Appeals (which, again, is the highest court in New York State), eight years later, agreed with the U.S. Supreme Court insofar as it required more or less the same articulable suspicion to justify a stop and a frisk, respectively, as the Supreme Court had in Terry.
Where the New York High Court differed from the U.S. High Court, however, was in taking the perspective of the civilian as well, regarding encounters falling short of a stop and a frisk. Before a person has been stopped, when she is still free to leave and not to answer an officer’s questions, U.S. Supreme Court precedent requires no level of suspicion at all to justify an approach and a confrontation that includes asking pointed questions. Under the Fourth Amendment, then, an individual’s technical freedom to leave takes such a confrontation outside the scope of constitutional “search and seizure” protection.
By contrast, the New York court takes into account the civilian’s reality in providing him or her with some protection against an officer’s approach and questioning. It does so out of a recognition that such encounters threaten civilians’ liberty in practical fact, even if they do not technically do so as a matter of law (i.e., even if suspects may leave without consequence).
This conflict between perspectives answers both questions I posed at the end of the first in this two-part series of columns: Why all the fuss about the two recent New York decisions suppressing evidence under the state’s law governing searches and seizures? And, What does this case have to do with requirements that govern the first two steps of police-citizen encounters, (approach and posing pointed questions), requirements that neither appellate panel denied were met in the cases before them? The answer, I believe, is that suppressing evidence that results from an on-the-street encounter necessarily exhibits an awareness of—and an openness to—the suspect’s perspective, an openness that may be unwelcome among those who worry far more about crime than they do about police intrusions.
Ruling that evidence must be suppressed in a case that turned up evidence also shows an openness to the perspective of the many innocent people who have no weapons or criminal plans, but who may nonetheless trigger police officers’ suspicions. As Chief Judge Jonathan Lippman of the New York Court of Appeals pointed out in a dissenting opinion in 2011, “as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime.”
This openness to the often-innocent suspect’s perspective is part of the New York doctrine of People v. De Bour, in which the State’s highest court treated officers’ approaches and questions as invasive, because of the reality of how an individual—whether innocent or guilty—is likely to experience them. We see this acknowledgment in In re Darryl C., for instance, when the majority opinion says of the suspect’s seeming nervousness (offered by the prosecutor to justify police suspicion) that “I will depart from a strict reading of the evidence to this limited extent: a 14-year-old boy confronted by a police officer might be ‘a little bit nervous’ without that fact raising a red flag.”
As we have seen, though, there is another competing reality in play here: the reality of police officers who are trying to prevent crime and thereby protect the public, along with the reality of potential victims who live in fear of criminal violence and predation. The strong criticisms that followed the two New York suppression decisions reflect sympathy for this competing reality.
Along these same lines, Mayor Bloomberg reportedly said, “You cannot have safe streets if we’re going to let everybody out . . . . If you make the process of stopping and preventing [crime] so complex that nobody can do it, you’re going to lose control of the streets.” Similarly, Police Commissioner Raymond Kelly reportedly wrote in a column that, “[t]he decision by the Appellate Division to dismiss the [Darryl C.] case against a teenager in possession of a loaded semiautomatic gun may be as dangerous as the weapon itself.” A Daily News article stated that “[t]he courts are going to get people killed. Judges are risking New Yorkers’ lives by barring police from taking even the most reasonable actions to prevent crime.” And a New York Post columnist described the judges who decided the two cases as “more dangerous to the common good than the miscreants they love.”
Identifying with either the police officer or the suspect is understandable. A court (or a politician, or a commentator) will typically ask itself, himself, or herself one of two questions: (1) How would I actually feel if approached by police with questions? or (2) What would I really think if I saw an admittedly suspicious person reaching into a pocket, hiding his hands, or turning away?
It is very difficult to hold both of these perspectives in mind at the same time, and striking a balance between them will necessarily leave those holding one perspective or those holding the other, and perhaps both, unsatisfied.
Perhaps ironically, the language of those who defended the judges against commentators’ harsh words in these cases closely resembles the language of those who have defended police officers in difficult circumstances. For example, Stewart Aaron, the president of the New York County Lawyers’ Association, reportedly said in an interview:
“Judges have to make difficult calls based on the record before them. They can’t take into account, ‘Oh gee, I wonder how Mayor Bloomberg is going to react to this one; how Commissioner Kelly is going to react to that one.’ They need to base decisions on facts and law and not be concerned what some newspapers are going to say or what someone in the executive branch is going to say.”
One can easily imagine (or even remember) someone sympathetic to the law enforcement perspective saying the same thing about police attempting to do their job under trying circumstances, and not having the luxury of attending to how some judge is going to react later in the comfort of his or her chambers.
Police may indeed find it difficult to articulate precisely what behavior by a suspect triggered a sudden feeling that the suspect was armed. Given a great deal of experience, intuition, and a subconscious perception of context, police may legitimately conclude that a suspect is dangerous, but may not be able to provide the sort of narrative that satisfies a court that is seeking articulable suspicion.
At the same time, of course, individuals on the street might make exactly this sort of claim when asked why they thought they were not free to walk away (in circumstances that fall officially below the threshold of a stop). Even though no one might have said “You are under arrest,” and no one might have physically restrained the suspect, something about the context—based on the individual’s own experience in the world—could have led him to feel that if he attempted to leave, he would be stopped. A judge’s decision that no technical “seizure” of the person had occurred might thus fail to take into consideration the individual’s own in-the-moment assessment of what was going on between him and the police.
Though perspectives on these issues differ greatly, there is one commonality here: Virtually everyone who has weighed in on the controversy in New York plainly worries that reality will fail to map fully onto the prevailing legal standard, and that someone’s freedom to act in a permissible range of ways, given trying circumstances, will therefore be unacceptably compromised—whether it is the nervous but innocent individual’s, the diligent and law-abiding police officer’s, or the judge’s. Unless we develop a very different, and effective, way of preventing crime, someone will always feel the cost of any compromise that might be struck.
We nonetheless will likely see more far-reaching attempts to develop just such a compromise, in the class-action lawsuit that is currently pending in the U.S. District Court for the Southern District of New York, Floyd v. City of New York. That federal-court suit, however, will be empowered to consider only the federal Fourth and Fourteenth Amendments as they apply to law enforcement practices in New York City. New York law—and its distinctive requirements—will continue to be interpreted and applied in other forums.