6. SEARCHES WITHOUT PROBABLE CAUSE

0.    Interview by Barry Friedman with Nicholas Peart, Apr. 5, 2012 (hereinafter Peart Interview).

0.    Nicholas K. Peart, “Why Is the N.Y.P.D. After Me?,” N.Y. Times, Dec. 18, 2011, at SR6.

0.    Id.; see also Floyd v. City of New York, 959 F. Supp. 2d 540, 633–37 (S.D.N.Y. 2013) (making mixed findings of fact and law regarding unconstitutional stops and frisks of Nicholas Peart).

0.    Floyd, 959 F. Supp. 2d at 573 (noting 4.4 million stops followed by more than 2.2 million frisks, 1.5 percent of which led to finding guns); Rachel A. Harmon, “The Problem of Policing,” Mich. L. Rev. 110 (2012): 779 (reporting 4 million stops); Al Baker and J. David Goodman, “Police Are Undercounting Street Stops, U.S. Monitor Finds,” N.Y. Times, July 10, 2015, at A22 (undocumented stops); Floyd v. City of New York, 283 F.R.D. 153, 166n68 (S.D.N.Y. 2012) (quoting recorded statements by NYPD supervisors).

0.    Compare Floyd, 283 F.R.D. at 164 (acknowledging NYPD rejection of the characterization of its stop-and-frisk program as a quota), with id. at 163n40 (quoting Ray Kelly).

0.    Though no single nationwide database tracks the stop-and-frisk statistics of the nation’s thousands of police agencies, other major cities documenting their policies exhibit trends paralleling New York, where 4.4 million stops were documented from January 2004 to June 2012. Floyd, 959 F. Supp. 2d at 573. In 2012, Philadelphia police stopped over 215,000 pedestrians in six months, finding only three guns. Id. Boston police the same year stopped 123,000 people, turning up nine guns and a knife. NAACP, Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America (2014), 24, http://naacp.3cdn.net/443b9cbc69a3ef1aab_ygfm66yd7.pdf.

0.    Peart Interview, supra note 1; see also City of Indianapolis v. Edmond, 531 U.S. 32, 56 (2000) (Thomas, J., dissenting) (“I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”).

0.    Sir Anthony Ashley’s Case (1611) 77 Eng. Rep. 1366, 1367–68 (KB).

0.    Henry v. United States, 361 U.S. 98, 104 (1959) (“Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.”); William Blackstone, Commentaries, 4:*290 (probable suspicion); id. at 4:*287 (“cause and probability of suspecting the party”); Nathan Dane, A General Abridgment and Digest of Law (1824), 5:588 (“reasonable cause”).

0.  Brinegar v. United States, 338 U.S. 160, 162–64, 169, 175–76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). On the continued vitality of Brinegar’s definition of probable cause, see, for example, Green v. Missouri, 734 F. Supp. 2d 814, 832 (2010).

0.  Terry v. Ohio, 392 U.S. 1, 5 (1968) (noting McFadden was patrolling his usual beat in plainclothes); “State of Ohio v. Richard D. Chilton and State of Ohio v. John W. Terry: Suppression Hearing and Trial Transcripts,” ed. John Q. Barrett, St. John’s L. Rev. 72 (1998): app. B at 1420 (reprinted the suppression hearing testimony of Detective McFadden) (hereinafter “Terry Transcripts”).

0.  “Terry Transcripts,” supra note 11, at 1456.

0.  Id. at 1418, 1456.

0.  Id. at 1411, 1418.

0.  Id. at 1413.

0.  Id. at 1416, 1429, 1444.

0.  See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), 275–78; Risa Goluboff, Vagrant Nation (2016), 216–17; Earl C. Dudley, Jr., “Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk’s Perspective,” St. John’s L. Rev. 72 (1998): 892.

0.  Goluboff, Vagrant Nation, supra note 17, at 216 (describing the political climate leading up to Terry); Lewis R. Katz, “Terry v. Ohio at Thirty-Five: A Revisionist View,” Miss. L.J. 74 (2004): 438 (noting the proximity of the decision to the Kennedy assassination); Terry, 392 U.S. at 10 (“[I]t is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess.”); The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967); The Kerner Report: The 1968 Report of the National Advisory Commission on Civil Disorders (1968).

0.  “Terry Transcripts,” supra note 11, at 1444.

0.  Terry, 392 U.S. at 17 (quoting L. L. Priar and T. F. Martin, “Searching and Disarming Criminals,” J. Crim. L. Criminology & Police Sci. 45 (1954): 481).

0.  Id. at 24; id. at 36 (Douglas, J., dissenting).

0.  Id. at 20 (majority opinion).

0.  Id. at 15 (emphasis added).