Op-Ed: The Problem with "The Problem with Stop and Frisk"
4/11/2013, 4:21 p.m.
Following Terry, New York decided People v. DeBour, 40 N.Y.2d 210 (1973). DeBour established four levels of police encounters in New York State:
- Right to Approach and Request Information: A police officer may approach a private citizen on the street for the purpose of requesting information. The person does not have to be engaged in criminal activity, but there must be some "articulable reason" sufficient to justify the police action. The officer may ask for ID and ask for explanation as to whereabouts, but a person has a right not to answer, and to walk away.
- Common Law Right to Inquire: A police officer may "interfere with a citizen to the extent necessary to gain explanatory information" if he has a "founded suspicion" that criminal activity is afoot. The police officer in this situation may not seize the citizen.
- Right to Stop and Detain (a Terry stop): A police officer may stop and detain a person if he has a "reasonable suspicion" that the person has committed, or is about to commit a felony or misdemeanor. The officer may frisk the person if he reasonably suspects the person is armed and dangerous.
- Right to Arrest: A police officer may arrest and take someone into custody when the officer has probable cause to believe that person has committed a crime, or has committed the offense in his presence.
With these rules in mind, I would like to explain to you how an ordinary stop and frisk works, from the perspective of one who has been stopped and frisked four or five times in his life (namely me, before law school): You're standing in front of your building or walking to the store. The police roll up and get out of their car. They ask who you are. If they're in plain clothes, you ask who they are. When they respond, "we're the police," you ask for their ID. You take note of their shield number, though some officers will try to distract your eyes with their finger. They then ask to see your ID. You state you're not carrying any. They ask "why not?" You answer, "Nothing requires me to carry ID," or, "No one carries ID to come outside and sit in front of their own building," depending on the situation. In the worst case scenario, you get nervous and try to figure out some reason to explain why you don't have what the police officer's tone of voice has made seem like a requirement. You could walk away here, but you don't because you have no idea that you can walk away. Or because you're a law student who hasn't read DeBour yet. Or even if you have, they have guns and you're familiar with what happened to Sean Bell and Amadou Diallo.
Next, the police ask if you have any weapons on your person. You smirk to yourself, thinking, "Who would answer 'yes?'" On the first occasion, you answer "no." On the second occasion, you ask why they want to know. On the third occasion, you make a Second Amendment argument, but the officer seems to know the Amendment better than you. None of these arguments work and you later attend law school with an eye on a 4-credit Criminal Procedure class.