6

SEARCHES WITHOUT PROBABLE CAUSE

Whether they have a warrant or not, government officials need a good reason before they intrude into people’s lives. That’s what the Fourth Amendment means when it talks about “probable cause” and prohibits “unreasonable” searches and seizures. Searches with warrants must be based on probable cause, but so, too, the searches that are excused from the warrant requirement. “Cause” is what spells the line between lawful and lawless policing: without just cause—a good reason—the government’s use of coercive force runs the risk of being arbitrary, discriminatory, or just plain senseless. Unfortunately, the Supreme Court has watered down this vital protection, to the point that it has made suspects of us all.

“SHAKE EVERYONE UP”

Consider the case of Nicholas Peart. Nicholas is the sort of young man you’d be proud to call your own. He’s soft-spoken, gentle, handsome, and fit, and carries the weight of the world on his shoulders. Nicholas’s mother died when he was twenty-one, of lung cancer. He had to take a year off from school to care for her, and for his three younger siblings, whom he is now raising (with some help from an older sister who lives nearby). His younger sister is disabled. Nicholas is working toward his college degree, and holding down a job, all the while making sure he is around for the kids.1

On December 18, 2011, Nicholas published a piece in The New York Times Sunday Review titled “Why Is the N.Y.P.D. After Me?” Good question. In it he describes three instances over the course of four years in which multiple police officers took possession of him, held guns to his head, pushed him to the ground or against walls, ran their hands over his body, and picked through his pockets, his wallet, and his clothes. The first was his eighteenth birthday, when he was sitting with a cousin and friend on a bench; squad cars suddenly appeared, officers jumped out, held guns on them, and forced them to the ground. One officer took Nicholas’s wallet out of his pants, looked through it, found his driver’s license, and tossed it back, saying sarcastically, “Happy birthday.” The second time, he was leaving his grandmother’s house in Flatbush.2

The third was the most startling. Walking home from the gym, Peart was accosted by officers who took his cell phone, wallet, and keys. They handcuffed him and put him in the back of an unmarked police car. Then, while Peart was restrained down the block, one of the officers used Peart’s keys to enter the building where Nicholas and his family lived, and actually tried to get into their apartment. His younger sister, hysterical, had been warned not to let strangers in and kept the door barred. She tried frantically to call Nicholas, but he could not answer to reassure her: the police had his phone.3

Peart, who has never been in any trouble with the law—well, unless you count the law hijacking him repeatedly—is hardly alone. Between 2004 and 2011 there were more than four million similar stop-and-frisk actions documented by the NYPD, and apparently countless undocumented ones as well. You’d think these were a lot of bad people getting jumped all over by armed officers, but you’d be wrong. The only legal justification for frisking someone in this manner is that an officer has “articulable suspicion” that the person possesses a dangerous weapon. Yet the NYPD has found weapons roughly 1.5 percent of the time, and guns in less than 0.1 percent of the stops. Barely ever. If the officers were really acting on “articulable suspicion,” and still finding this few weapons, we’d worry about their ability to distinguish what is suspicious from what is not. But that’s not what is going on here at all. A precinct sergeant was secretly recorded instructing officers, as they headed out to the beat, “Shake everybody up. Anybody moving, anybody coming out of that building … Everybody walking around. Stop ’em.” Or a deputy inspector, on Halloween night: “[T]hey got any bandanas around their necks, Freddy Krueger masks, I want them stopped, cuffed, aright, brought in here, run for warrants. They’re juveniles, we’re gonna leave ’em in here till their parents come and pick ’em up.” 4

Let’s take this for what it is. In an effort to keep guns off the street and crime rates down, the NYPD—with nothing remotely approaching a legally sufficient reason, or “cause”—subjected people to stop-and-frisks simply to ensure they would not misbehave. The NYPD, which was sued over the practice, denied this is its policy. Yet, at the same time (making for an odd litigation strategy), then-Commissioner Ray Kelly explained that it is a “deterrent to criminal activity, which includes the criminal possession of a gun.” What the Commissioner was saying is that if police stop people indiscriminately—meaning without cause—then people will never know when they might be searched, and so they will simply leave weapons and contraband at home.5

We condemn this sort of indiscriminate use of government force when it happens in other countries. We like to imagine it doesn’t happen here. But it does. And it’s not just stop-and-frisks, of which there are millions every year throughout the country.6 In train terminals and on buses, on the streets and roadways of America, police seize us, and search our persons and possessions, without anything approaching a sufficient reason. It all has happened because the Supreme Court has backed away from the Constitution’s requirement of “probable cause.”

This sort of activity is not costless. It has turned wide swaths of the American public, innocents as well as guilty, into criminal suspects. As a result, many do not trust the police. Peart explains how it feels, the anger, the fright, how “the mood just changes and your heart kind of drops.” Most of all, the humiliation: “Other people see you’re being stopped and frisked and they’re looking at you saying what did he do.” It is degrading and humiliating. As often as this cliché gets tossed around inappropriately, it is fair to say that if the Framers of our Constitution were here to see this, they’d be mortified.7

Something has gone terribly wrong. Some of these police activities are entirely legitimate, while others are so far off the mark as to be intolerable in any society that calls itself free. The problem is that we’ve lost the ability to tell the difference. This chapter tells the story of how this happened, how, bit by bit, the Supreme Court loosened the requirement of just cause to the point that government officials were left with no clear guidance of what is in and what is out. And what unguided power in police hands has meant to the rest of us.

WHAT’S CAUSE?

There’s nothing in the least bit novel about the idea of requiring just cause before one’s body or property is forcibly violated. The concept has been part of our legal tradition for hundreds of years. By the time James Madison penned the Fourth Amendment, the idea of probable cause already had been a feature of English law for almost two centuries.

English judges emphasized the importance of probable cause as early as 1611, in Sir Anthony Ashley’s Case. Sir Anthony was a minor aristocrat who had fallen into some disgrace, accused of embezzlement, when Sir James Creighton decided he wanted to get his hands on Ashley’s holdings and income. When other attempts failed, Creighton and his coconspirators cooked up a plot to accuse Ashley of having murdered a fellow named William Rice, who had died some eighteen years before. The plot failed and the tables were turned on Creighton and the others, who were then tried for conspiracy. At the heart of the case was the question of whether Creighton and his collaborators had been justified in arresting Ashley in the first place. (This was the time before organized police, when private parties enforced the criminal law.) The court’s answer was no; an arrest was out of the question unless “he who doth arrest hath suspicion upon probable cause.” Such cause was altogether lacking in this instance: “the said William Rice did not die of any poisoning, but of another horrible disease, that he had got by his wicked and dissolute life, which with reverence cannot be spoken.” 8

Sir Anthony Ashley’s Case highlights why such a requirement of sufficient cause is so important. Police might act, like Sir James, out of ill motives. Or they might simply act without sufficient care. Either way, if people can be searched or arrested without cause, then everyone is at risk of having their liberty taken away at any moment. That is why, no matter what it has been called—including “probable suspicion,” “cause and probability of suspecting the party,” and “reasonable cause”—this idea of sufficient cause to intervene has long been part of our tradition.9

In 1948, in a case called Brinegar v. United States, the Supreme Court offered the definition of probable cause that is used to this very day. At about six o’clock on the evening of March 3, 1947, federal officers watched Virgil Brinegar drive his car heading west toward the Oklahoma-Missouri border. Missouri was a “wet” state, Oklahoma a “dry” one, and federal law made it illegal to transport alcohol from one to the other. The feds had arrested Brinegar for the illegal transport of booze just five months earlier, and in the intervening months had on several occasions observed his loading crates of alcohol in Joplin, Missouri. So when they saw Brinegar in his apparently heavily laden Ford coupe pass them about five miles east of the Oklahoma border, they took off after him, figuring he was up to his usual tricks. Once the feds caught up with Brinegar a mile later, he admitted he had twelve cases of liquor. The issue in the case was whether the federal agents had probable cause to pull him over in the first place. In deciding yes, the Supreme Court explained that probable cause means more than “bare suspicion.” It “exists where the facts and circumstances within … [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”10

That’s all there is to it: Is there enough evidence to make a reasonable person think a crime is being committed or evidence of a crime will be found? It’s a hard call whether there actually was probable cause to pull Brinegar over. The justices of the Supreme Court disagreed with one another vehemently on the question, as did the judges in the lower courts. But the point is that at least in Brinegar’s case there was a debate—everyone thought that before the police went stopping people they needed good evidence of a reason for doing so.

Within fifty years of Brinegar, this most basic rule of criminal procedure had broken down completely. What had endured as a foundational principle of policing for centuries began to unravel in 1968. And it has continued to unravel ever since.

THE JUSTICES’ DILEMMA

The NYPD’s aggressive stop-and-frisk policy that entangled Nicholas Peart was built on the Supreme Court’s 1968 decision in Terry v. Ohio. So was much other invasive policing. Yet Terry was, from the start, an unstable edifice on which to build. Resolving Terry put the justices in a terrible bind. They chose the path they thought would do least harm, but their guess has proven terribly incorrect.

Terry arose on the streets of Cleveland, Ohio, on the afternoon of October 31, 1963. Detective Martin “Mac” McFadden was on his usual beat, patrolling the downtown shopping district in plainclothes. McFadden, a thirty-eight-year veteran of the force, specialized in nabbing pickpockets and thieves of the local department stores; he’d covered this very same shopping area for thirty years.11

As he was patrolling his beat that Halloween afternoon, something caught McFadden’s eye. Walking northeast on Huron Street, McFadden spotted two men standing on the corner of Huron and Euclid. “Now in this case when I looked over they didn’t look right to me at the time.”12

His suspicions aroused, McFadden hastened his pace until he could slip into the lobby of a nearby store to observe what was happening. “I get more purpose to watch them when I seen their movements.” The two men were taking turns walking up and down Huron Street. Each would walk west a few hundred yards, look into a store window, and then walk back. McFadden could not tell which store window exactly, but he “didn’t like their actions”; he “suspected them of casing a job, a stick-up.” After the two men had walked the circuit two or three times, a third man appeared and spoke with them, then walked away. The two men took another couple trips up and down Huron, then abandoned their task.13

McFadden, still suspicious, tailed the two men down Euclid, but he did not have to go far. Soon he watched the two reconnoiter with the third man, in front of Zucker’s Department Store. Deciding the time was ripe for action, McFadden approached the men and asked their names. When someone “mumbled something,” McFadden grabbed one of the men, who proved to be John Terry, and spun him around so that he was facing the other two. McFadden then “patted” or “tapped” Terry’s body and “felt something that seemed like a gun.” Unable to pull it out easily, he “ordered the three of them into the store,” telling the occupants to call the paddy wagon. McFadden made his prisoners face the wall with their hands up, and frisked the three of them. From Terry’s pocket, and from that of his partner Richard Chilton, McFadden pulled out two .38 revolvers.14

Both men were charged with possessing concealed weapons. Whether the charges against Terry and Chilton could stick depended entirely on whether McFadden’s actions on Euclid Street that day were lawful. Their lawyer argued that McFadden had violated the men’s rights under the Fourth Amendment when he seized them and patted them down, and that the guns he recovered should be excluded from evidence.15

As Judge Bernard Friedman of the Cuyahoga County Court of Common Pleas saw the question, it was whether “an officer who has long experience as a detective is justified based upon what he saw and observed to stop and frisk an individual.” It had long been the rule that police could search someone they were arresting, but Judge Friedman didn’t think there had been a lawful arrest at the time the frisk took place. He also believed “it would be stretching the facts beyond reasonable comprehension” to claim there was probable cause to arrest at the time that McFadden stopped the men to question them. Still, the judge believed McFadden was in the right to investigate the activity he’d observed, and he concluded that once McFadden stopped the men to investigate, he was entitled to pat them down for his own protection. No doubt the judge’s conclusion was colored by the fact that a week earlier Cleveland had buried a cop who had sprung upon an armed man unawares.16

The case arrived at the Supreme Court as both a political and a legal hot potato. At that moment in history the justices were under terrific pressure to defend law and order. Crime rates were skyrocketing, the country was afraid, and the justices were being criticized in heated terms for their pro–defendants’ rights decisions. Deciding against the stop-and-frisk practices of McFadden and other officers would be seen as taking away yet another arrow in the beat cop’s quiver.17

Still, deep down the justices had concerns about stop-and-frisk, which was an increasingly common and increasingly controversial practice on the troubled streets of the United States of America in the 1960s. Between ghetto riots and protests of all sorts—against the Establishment and the Vietnam War; for civil rights—the country’s public spaces were seen as out of control. Martin Luther King, Jr.’s assassination triggered widespread rioting and looting in the District of Columbia just months prior to the resolution of the Terry case, and Bobby Kennedy was shot and killed just five days before. Police claimed they needed the sort of authority McFadden had used just to keep the peace. But those on the streets resented it. Two crime commissions that decade fingered this very sort of police conduct to be the source of great hostility in minority communities.18

While the justices were inclined to okay what McFadden had done—their initial vote on the case was unanimous—justifying it as a legal matter was going to prove no easy matter. The question the justices were forced to answer in Terry was whether—even if getting a warrant was impossible given the exigency that someone like Officer McFadden faced—a “search” or “seizure” was ever permissible in the absence of probable cause.

Note that one way to approve McFadden’s actions was simply to declare that what he did was neither a “search” nor a “seizure.” If this were true, then the Fourth Amendment said nothing about it, and the guns were admissible. Yet calling it neither a “search” nor a “seizure” meant this sort of police conduct would be entirely unregulated by the Constitution. Police could toss people against walls and frisk them as they wished.

On the other hand, if it was a “search” or “seizure,” then under precedents going back to the 1600s, McFadden needed probable cause. Yet, as Judge Friedman had noted, it was hardly apparent that McFadden had probable cause at the time he acted.19

So, what to do? That was the justices’ dilemma.

THE BIRTH OF “REASONABLENESS”

The justices flatly rejected the first fork of this dilemma, refusing to accept that “‘stop’ and ‘frisk’ … is outside the purview of the Fourth Amendment.” Chief Justice Earl Warren’s opinion for the Court was positively eloquent on the subject. Fending off arguments that stop-and-frisk was no big deal, he wrote that “it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’” “[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’” He described how “[a] thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” Stop-and-frisk, the Court concluded, is “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”20

But if McFadden had both seized and searched Terry, was there probable cause to justify it? On this question the justices, despite their initial agreement, began to splinter. Probable cause of what? Sure, McFadden was suspicious of what was going on, thinking the men were “casing a job, a stick-up.” But all they’d done was walk up and down the street looking in a store window. “Store windows,” the Court recognized, “are made to be looked in.” And as Justice Douglas, who ultimately proved the lone dissenter, pointed out, “[T]he crime here is carrying concealed weapons; and there is no basis for concluding that the officer had ‘probable cause’ for believing that that crime was being committed.”21

What really worried the justices—and everyone else watching the case—was that if they called the facts observed by McFadden “probable cause,” that would seriously lower the bar on police interfering in people’s lives. The Fourth Amendment doesn’t kick in until something is a “search” or “seizure.” But once there is probable cause, then almost any searching or seizing short of injuring or killing a person, or gratuitous ransacking, is permitted. The Fourth Amendment, up to this point in history, was notoriously short on middle ground. The same cause that would have justified the brief frisk of Terry would also, under existing law at the time, have allowed a full search of his body and anything he was carrying. It would have permitted McFadden, without ever saying a word to Terry, to arrest him then and there. Did McFadden have enough evidence, at the moment he confronted the men outside Zucker’s Department Store, to simply load them into the police wagon and imprison them?

So there the justices were, stuck between a “no search and seizure” rock and a “probable cause” hard place.

What the Terry Court ultimately did was to toss probable cause overboard. As we have seen, there are two clauses in the Fourth Amendment, one that states the people have a right to be free from “unreasonable searches and seizures” and one that specifies the requirements about warrants, including that any warrant must be based on “probable cause.” The separation of these clauses, as we learned last chapter, has allowed some to argue that warrants are not a requirement. But even if the justices have not always insisted on a warrant, until Terry they had consistently maintained that probable cause was a necessity.

Breaking with hundreds of years of tradition, the Terry Court concluded that rather than requiring probable cause, “the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” In other words, rather than looking to see if there was probable cause to stop and frisk Terry and Chilton, they would simply ask whether what Officer McFadden did was “reasonable.” Once again, this is precisely the sort of open-ended analysis that inevitably leads to judges reducing our rights.22

In fairness, the justices in Terry tried hard to make clear that in relying on the Fourth Amendment’s “unreasonable” language alone they were making but a tiny inroad into probable cause. The Chief Justice said they were addressing the “quite narrow question” of “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.”23

But despite his attempt to write narrowly, Warren’s Terry opinion contained the seeds of enormous discretion for law enforcement, which police and prosecutors would capitalize upon—ultimately with the Court’s gradual blessing—in the years to come.

THE COSTS OF INSUFFICIENT CAUSE

What the justices in Terry failed to do adequately was explain when police could stop people in the first place. The Terry opinion’s most precise holding was about the frisk: “[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual.” Justice Harlan, concurring, felt the problem with the majority opinion was its failure to explain why the police could engage in a “forcible stop.” After all, if the police have no reason to hold someone against their will, and thus be in that person’s presence, the justification for the frisk—danger to the officer—evaporates as well. The justices’ not very helpful guidance was that “[e]ach case of this sort, will, of course, have to be decided on its own facts.”24

The result of this omission is that the police, unencumbered by any clear standard to limit their discretion, stop unfathomable numbers of people and shake them like fruit trees, hoping something juicy topples out. Back when probable cause mattered, it provided a way of distinguishing those trees that deserved attention, and those that should be left alone. With probable cause out the window, lots of people get stopped and frisked by the police, and comparatively little evidence or contraband is found. This high intrusion and low success rate should surprise no one; the whole point of probable cause is to indicate when a search for evidence might prove fruitful.

Symptomatic of the problem is law enforcement’s reliance on a so-called drug courier profile. All over this nation, on highways, on streets, at bus stops and train stations, thousands of government agents are engaged in drug interdiction. When drugs are found on someone, the agents must explain why they detained the person in the first place. What was the “reasonable” basis for the stop? One of the Drug Enforcement Administration’s favorite tricks is to tell courts that the suspect they nabbed fit a “drug courier profile”—a set of facts that supposedly yields reasonable suspicion of illegal activity.25

In United States v. Condelee, for example, Agent Carl B. Hicks of the DEA claimed to have a “tip”—it is never disclosed where it came from, and never verified that he had it at all—that “sharply dressed” women were acting as couriers carrying drugs from Los Angeles through the Kansas City airport. Hicks saw a well-dressed woman arriving there from LAX, and followed her. He then approached her, showed his badge, and asked her for ID. She seemed nervous, opened her purse on a trash can so Hicks couldn’t see inside, and handed her ID to him. He showed his badge a second time, informed her he was a DEA agent looking for drugs, and asked if she had any. She responded no. Hicks next asked to search her garment bag, and she agreed. The search again turned up nothing. So he asked to search her purse, at which point Condelee replied that she had no drugs, and told him to get a search warrant if he wanted to bother her further. Hicks persisted nonetheless. Condelee asked to go to the bathroom. Hicks said she could, but also said she couldn’t take her purse. The pressure continued, until Condelee broke down crying and owned up to having drugs in the purse.26

Forget the drugs for a moment—you’ll have reason to be skeptical about the magical detection abilities of DEA agents soon enough—and ask where Hicks was getting the authority to hound someone through an airport like this. What justified his persisting in hassling her when she said “enough” and told him to get a warrant? Where did he get the power to decide who can use the restroom and under what circumstances? What if it were you?

Hicks’s argument was that the stopping and harassment of Condelee was justified because she met the “drug courier profile.” As he explained, because a “sharply dressed” woman had arrived from the “source city” of LA, and moved rapidly through the airport carrying little luggage and not looking around her, he was entitled to hassle her till she broke down and admitted she had drugs. The court bought Hicks’s story, holding that those facts “created a reasonable, articulable suspicion that Condelee had committed or was about to commit a crime.”27

Really? That’s reasonable, articulable suspicion? Those same facts describe most women professionals on out-of-town overnight business. The dissenting judge was flabbergasted, pointing out, among other things, that the tip on which Hicks purportedly was acting said nothing about any particular person or flight. To see how thin Hicks’s basis for stopping Condelee was, consider the fact that she went to jail on a 3–2 vote in her favor; the magistrate judge who first considered her motion to exclude the evidence, and the trial judge, both agreed with the dissenting judge on the three-judge appellate panel that the facts did not support Hicks’s actions.28

Agent Hicks and his supposed “drug courier profile,” it turns out, was ubiquitous in Kansas City airport drug busts. In another of Hicks’s cases, one judge, Richard Arnold, asked the million-dollar question. “It would be interesting to know,” Judge Arnold mused, “how many innocent people have been stopped, either for questioning alone, or for search of their luggage. This information, which we never seem to get in these cases, would go far towards enabling us to say whether the kind of police tactic we have before us is reasonable, which is, after all, the controlling criterion in applying the Fourth Amendment.”29

What Judge Arnold wanted to know, in other words, was Agent Hicks’s “hit rate.” In what percentage of his stops did his tactics yield contraband? After all, if it was high, then maybe there was something to Hicks’s idea of a profile. On the other hand, if not, then maybe the “profile” was simply natural fertilizer.

Judge Arnold got no answer to his critical question, but another judge, in another part of the country, did. In a drug courier profile case out of Buffalo, Judge George Pratt blew the whistle on the DEA. The problem, Judge Pratt boldly stated, was that “the drug courier profile is laughable because it is so fluid that it can be used to justify designating anyone a potential drug courier if the DEA agents so choose.” For example, in the case before him the agents justified the seizure, as they did in Condelee’s case as well, because the defendant had traveled to Buffalo from a “source city” for narcotics. But at argument in the case “the government conceded … that a ‘source city’ for drug traffic was virtually any city with a major airport.” That bit of honesty “was met with deserved laughter in the courtroom.”30

Judge Pratt did a little research to compile a list of the various factors DEA agents regularly rely upon to justify conduct as falling within the drug courier profile. Here’s the list (supported in the original by copious citations to actual cases). People are couriers if they:

Arrived at night

Arrived early in the morning

One of the first to deplane

One of the last to deplane

Deplaned in the middle

Used a one-way ticket

Used a round-trip ticket

Carried brand-new luggage

Carried a small gym bag

Traveled alone

Traveled with a companion

Acted too nervous

Acted too calm

Wore expensive clothing and gold jewelry

Dressed in black corduroys, white pullover shirt, loafers without socks

Dressed in dark slacks, work shirt, and hat

Dressed in brown leather aviator jacket, gold chain, hair down to shoulders

Walked rapidly through airport

Walked aimlessly through airport

Flew to Washington National Airport on the LaGuardia Shuttle31

You get the idea.

Not only that, but Judge Pratt got a specific answer to Judge Arnold’s question: How often do agents stop suspects and hassle them like this, only to come up with nothing? The agents in the case before him testified they “spend their days approaching potential drug suspects at the Greater Buffalo International Airport.” In 1989 “they detained 600 suspects … yet their hunches that year resulted in only ten arrests.” Ten hits out of six hundred people harassed. Less than a 2 percent hit rate. Judge Pratt concluded, “It appears that they have sacrificed the fourth amendment by detaining 590 innocent people in order to arrest ten who are not—all in the name of the ‘war on drugs.’” In other words, it could be you.32

This phenomenon that Judges Arnold and Pratt identified is precisely what repeatedly caught Nicholas Peart in the NYPD’s relentless snares. In one of the lawsuits against the NYPD for its program of muscling people without cause to ferret out supposed crime, the judge ordered the defendants to produce data on how often people were stopped and how successful those stops were. (The NYPD was already collecting the data, because of an earlier lawsuit challenging similar practices.) Of the “2.8 million documented stops between 2004 and 2009” in almost 90 percent of the cases the police released the target without even a summons for any criminality. Arrests were about 5 percent, the rest received a summons for a minor crime. Only slightly better than in the Buffalo airport.33

The reason for these low hit rates—i.e., the reason so many completely innocent people get hassled—is directly attributable to the Terry Court’s failure to state when stops are permissible. Lower the level of cause enough and we are all susceptible to law enforcement intrusion on something that goes by the name of “hunch,” but in common parlance could as easily be whim or caprice. The case law has evolved to allow almost anything to count. In one case, for example, police received an anonymous tip that a car was being driven erratically and had forced someone to the roadside; police located and tailed the vehicle for five minutes seeing no evidence of anything erratic, but the justices okayed a stop of the vehicle anyway.34

FRISKING AS THE GOAL

Not long after Terry, one of history’s most famous judges, Henry Friendly—a man who wasn’t much for mollycoddling criminals—worried that “[t]here is too much danger that instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true.” Judge Friendly proved prescient; rather than stopping on cause and frisking for protection, over time the search became the goal and the stop merely a means to that end.35

In drug cases in particular, the courts almost invariably approve a frisk, on the theory that whenever there might be drugs, there might be guns. Symptomatic was a 1994 District of Columbia case, United States v. Clark. Some undercover cops were buying doughnuts (true story) when a person offered to sell them pot. When he produced a ziplock bag full of marijuana, the cops arrested him. The dealer then volunteered to snitch out the guy with the “stash” if the cops would go easy on him. The informant directed the cops to Edward Clark, Jr., who was getting into his car. The police pulled Clark from his car at gunpoint and had him kneel behind the car while they searched him and the car for weapons. Finding none, the cops next threatened to seize the car if there were drugs in it, at which point Clark broke down and revealed where cocaine base (note: not marijuana) was hidden.36

The judges agreed there was no probable cause to search Clark, but concluded the tip was suspicion enough for a “stop.” And given the alleged crime of drug dealing, the “frisk” was automatically acceptable, with no other facts to think Clark was armed and dangerous. But in explaining why what the police did to Clark was acceptable, you can just hear the ambivalence dripping out of the judges’ mouths: “Taking a citizen out of a car, putting him on his knees, and then searching the car … [it] gets to a point eventually you wonder what the police are limited in doing at all under our law.”37

These drug cases have a narcotic effect, leading judges to approve conduct of police officers that most of us would view as simply insane: pulling a man from his car on the word of a drug dealer the cops did not know from Adam, and having him kneel at gunpoint while they searched him.

It’s true the police found drugs on Clark, but the question that always needs asking is how often the police are frisking or otherwise searching people and finding nothing. Are they acting on fact-based hunches or stabbing in the dark?

Once again, the NYPD figures are telling.

A stunning number of the arrests actually made by the NYPD following stop-and-frisk were for possessing small amounts of marijuana—stunning because possession of a small amount of marijuana is not an arrest-worthy offense in New York unless the marijuana is burning or in public view. But cops apparently solved this problem by putting their hands into suspects’ pockets—as they did repeatedly with Peart—and pulling out marijuana, then arresting people for having it in “public.” But when it came to finding weapons, particularly guns—the basis for the frisk in the first place—as we’ve seen the cops largely were coming up empty.38

New York is hardly alone. Lawsuits in Philadelphia and Boston have revealed similar evidence. In Los Angeles, car and pedestrian searches are no more productive. In 2008, a study of LAPD data found not only that racial minorities were far more likely to be stopped, to be frisked when stopped, to be arrested when stopped, and to be searched, but also that they were substantially less likely to be found with weapons, drugs, or other contraband after a frisk. In other words, the hit rate was lowest in the groups facing the most police scrutiny. Hit rates vary, but they are low across the boards.39

It is plain from what is happening on the nation’s streets, and in its airports, that Terry’s elimination of the probable cause standard has set the police loose on the rest of us. Not just to stop us, but to place their hands on our bodies and possessions. The police still ostensibly need articulable suspicion to forcibly stop people—that much is clear—but what counts as articulable suspicion is deeply suspect, and the Supreme Court has done virtually nothing to rein in this sort of conduct. The stops occur, the frisks follow almost automatically, and the bodily integrity of millions of people is violated without good cause.

FIXING THE PROBLEM

The Constitution says precisely how much cause is appropriate. Probable cause. For roughly four centuries the meaning of what was required before government seized or searched someone or their property was relatively constant. Only in recent decades did the Supreme Court muddy this up, choosing lesser gradations of cause—reasonable cause, articulable suspicion, and the like—that no one quite knows what they mean.40

The question is whether there is any reason to tolerate this alteration of the Constitution’s precise test for police intrusions.

One reason given to justify the lesser standards is the historical argument debunked in the last chapter: that the Constitution does not require warrants or probable cause, only that searches and seizures not be “unreasonable.” But the Constitution certainly tells us in unmistakable terms what does make a search or seizure reasonable, and that is probable cause. There is no evidence that the ratifying generation, many of whom were hysterical about government overreaching, thought something less was appropriate.41

The other reason is, as we saw in Terry, the claim of necessity. If we adhere to the probable cause standard, the concern is we will be unable to investigate and thereby foil real crime.42

It’s not at all clear that this claim of necessity is accurate either. Probable cause itself is an accommodation between society’s need to investigate and the individual’s liberty to be free of government intrusion. That’s where the Constitution drew the line. But it may be more than that. The probable cause standard spells the line between when following every lead and every suspicion is a waste of time, and when it is worthwhile to investigate. As we’ve seen—indeed as we keep seeing—all this relentless searching on less than probable cause is turning up very little in the way of misconduct.

It’s not just people’s liberty at stake; it’s resources that could be devoted to something more productive. Neither public budgets nor the size of police forces is infinite. Resources must be allocated. Lowering the cause standard sends officers on wild goose chases, without many wild geese to show for it. Was it worth the money to plant officers in Buffalo’s airport for a year detaining six hundred people to arrest ten? Could they have been doing something else to make us safer?

Having said that, it is not obvious that eliminating stop-and-frisk entirely is the right answer either—or even feasible. Police have long insisted on the need to question people based on their intuition that something is amiss. For years, police relied upon vagrancy and loitering laws to remove people who seemed problematic or out of place. When the law properly clamped down on this practice, finding such laws unconstitutionally vague or otherwise in violation of First Amendment rights, police forces turned to stop-and-frisk. Even before the Supreme Court authorized the practice in Terry, some states had stop-and-frisk statutes on the books.43

Persistent arguments for investigative stops suggest some core utility. They also suggest that police are likely to continue these practices, lawful or not. As the Terry majority seemed to concede, it may be better to accept the inevitability of stop-and-frisk and regulate it rather than relegating it to the realm of lawless police conduct. And in truth, overruling Terry would leave an investigative gap: what, precisely, are police supposed to do if they lack probable cause yet believe, to quote Terry, that “crime is afoot”?44

The question we need to answer is whether there is a way that Terry can be limited so that it meets law enforcement’s real needs, and not an iota more. There have been a host of suggestions to place controls on stop-and-frisk. Some would restrict the use of Terry-type stops to certain contexts, such as felonies or violent crimes. Others focus on recordkeeping, which has been instituted as a result of court-ordered settlements. In order to ensure the integrity of that data, some commentators have suggested giving people a “receipt” explaining why they were stopped and the process for issuing a complaint. Departments also can create early intervention systems and make it “easier to sack bad cops.” Obviously, there are prominent calls for expanded use of body cameras.45

As a matter of constitutional law, though, if stop-and-frisk is to be retained, the best solution is to return it to its roots: as an investigative tool to be used only when the police—as in Terry itself—can specify precisely what crime they suspect is in the offing, and have the facts to back it up. Unlike the rampage of unjustifiable stop-and-frisk that has been occurring on the nation’s streets, Officer McFadden was quite clear in what he was doing. He suspected Terry and Chilton “of casing a job, a stick-up.” He detailed at length the movements of Katz, Chilton, and Terry that justified this suspicion. On review, the Supreme Court explained why those very “specific and articulable facts” led to a reasonable inference that a robbery was about to take place. The Terry Court noted that it “would have been poor police work indeed for an officer of 30 years’ experience” to watch Terry and Katz casing the store as they were without investigating further.46

This critical aspect of Terry—that the police identify which crime they have cause to believe is being committed—has gone out the window. Police no longer even try. Between 2004 and 2009, the number of stops in which a NYPD officer failed to articulate suspicion of any particular crime rose from 1 percent to 36 percent.47

When the police stop pointing to specific crimes as a basis for a stop or frisk, innocents are hassled and officer time is wasted. In 55 percent of the stops in New York, officers identified “high crime area” as a key factor, and in 42 percent of the stops officers indicated a suspect had engaged in “furtive movements.” (Furtive movements can encompass such activities as “walking in a certain way” and “stuttering.”) Notably, when the police identified furtive movements or high crime area as their primary reason for stopping and frisking, their success rates in finding guns or contraband were actually lower than the average.48

If reasonable suspicion is to remain as a standard for “less intrusive” measures such as stop-and-frisk, police must be able to articulate a specific, plausible crime that is being committed or is imminent. And the specific evidence that backs that claim up. In Terry, the Court warned that if stops were made to turn on the “inarticulate hunches” of an arresting officer alone, “the protections of the Fourth Amendment would evaporate.” That is precisely what has happened.49

The same has to be true of the frisk. The Terry Court required officers to provide additional reason to believe the person is armed and dangerous before frisking. Given the facts of Terry it would have been “clearly unreasonable” to ask McFadden to approach the men without allowing him to frisk them if he suspected they were armed. Yet courts now allow officers to frisk any time a drug crime is suspected on the generalized theory that drugs and weapons must go hand in hand. This, too, must stop.50

Similarly strict rules should apply to automobile stops. Courts have fallen into the habit of stating that the standard for an auto stop is “reasonable suspicion.” But when did probable cause go by the boards as the standard for pulling over automobiles, and why? We already dispense with warrants for car stops; must cause go too? If anything, stopping an automobile is more of an interference than what could be a very quick encounter on the street. Short of specific, articulable facts as to why an officer believes a particular crime is being committed, auto stops and searches should not be allowed. Period.51

Probable cause is what the Constitution seems to demand. Perhaps it would have been better, in retrospect, to deem what Officer McFadden had to be “probable cause.” The costs of the breach have been enormous. To the extent any deviation from probable cause is allowed, police must be required to specify the crime that they believe is being violated, and provide facts to justify this. Real facts. If not, they make criminals of many of us, for nothing.

Judge Richard Arnold—the judge who wanted to know about Agent Hicks’s hit rates—was a sober man, taciturn, learned in the law, hugely respected. President Clinton came within a hair’s breadth of nominating him to the Supreme Court. He was hardly a man given to hyperbole. And so it’s instructive to hear what he had to say in an uncharacteristically blunt dissent in a drug courier case. Because it is so apt for the millions of stops that are occurring in the United States each year based on insufficient cause.52

“It’s hard to work up much sympathy for” the defendant in the case, Judge Arnold admitted: “He’s getting what he deserves, in a sense.” It was the rest of us the judge worried about: “[I]nnocent travelers are stopped and impeded in their lawful activities.” These people “go on their way, too busy to bring a lawsuit against the officious agents who have detained them.” “Airports,” Judge Arnold cautioned, “are on the verge of becoming war zones, where anyone is liable to be stopped, questioned, and even searched merely on the basis of the on-the-spot exercise of discretion by police officers.”53

Concluded Judge Arnold: “The liberty of the citizen, in my view, is seriously threatened by this practice.” What has happened to Nicholas Peart, and so many more like him, certainly confirms this.54

The Supreme Court’s lowering of the cause threshold from “probable cause” to “reasonable suspicion” has put us all in jeopardy. But that has hardly been the end of the Supreme Court’s road in watering down the Fourth Amendment. Today, largely in response to the new, deterrence-driven policing, the Court has eliminated cause as a requirement altogether in many searches. That problem—and what to do about it—are what we tackle next.