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"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place
to be searched, and the persons or things to be seized."
In the world of criminal justice, the Fourth Amendment to the United States Constitution is a 54 word marvel. Having, as Justice Felix Frankfurter wrote, “the virtue of brevity and the vice of ambiguity,” the Fourth Amendment poses profound societal dilemmas about privacy, security and the police. And since the Amendment offers no clear definition of “unreasonable searches and seizures” or “probable cause,” it has given rise to more litigation than any other Amendment in our great Bill of Rights.
The Founding Fathers, and its’ principal author, James Madison, crafted the Fourth Amendment in response to the abhorred “general warrant” or “writs of assistance,” which custom agents or their minions used to search homes and businesses without notice or cause. But the Colonial era from which it was born was nothing like modern America. There was no police force. There was no stop and frisk. And certainly, there was no large-scale, racially-driven policing that plagues our society today. Thus from its inception, the Fourth Amendment started, as Justice Frankfurter also noted, “a course of law pertaining to searches and seizures [that] has not run smooth.”
Last year’s presidential debates are one example of the confusion, distortion and constitutional illiteracy that surrounds Fourth Amendment interpretation:
LESTER HOLT, MODERATOR: Stop and frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.
CANDIDATE TRUMP: “Whether or not in a place like Chicago you do stop and frisk which worked very well in New York, it brought the crime rate way down where you take away the guns away from criminals who shouldn’t be having them. This issue was before a judge who was a very against police judge; it was taken away from her and our mayor refused to go forward with the case . . . They would have won an appeal; there are many places in the country where it is allowed.”
CANDIDATE CLINTON: “Stop and frisk was found to be unconstitutional, in part because it was ineffective, it did not do what it needed to do. Now I believe in community policing, in fact violent crime was one-half of what it was in 1991; but there was some problems some unintended consequences; too many young African-Americans and Latino men ended up in jail for non-violent offenses . . . Turns out, they were both wrong in several ways.
The “against police judge” Trump referred to was the Honorable Shira A. Scheindlin, a brilliant, unbiased, stalwart defender of the Fourth Amendment. In 2008, she began work on a class action case, David Floyd, et al v. The City of New York , which challenged the NYPD’s long-standing practice of non-probable cause citizen stops and searches, commonly referred to as stop and frisk. Five years of testimony later, Judge Scheindlin gave her final ruling in a 100+ page opinion. She did not find stop and frisk to be unconstitutional; only wrongfully applied under existing Fourth Amendment jurisprudence. And the mayor entered into a consent decree abiding by the Court’s order since it was a righteous decision and would not have been overturned on appeal. Finally, the abusive practice of stop and frisk practiced by the New York Police Department has, in the aftermath of Floyd, proven to be an illusory method of crime control.
The United States Supreme Court sanctioned stop and frisk in the 1968 landmark case of Terry v. Ohio. In that case Martin McFodden, a veteran Cleveland Police Detective, stopped John Terry after observing him and an accomplice acting suspiciously near a department store. McFodden patted down Terry and found a pistol. Although the United States Supreme did not find probable cause to initially arrest Terry, it did uphold the long-standing police practice of stopping and interrogating suspicious looking or acting citizens. In the Court’s view, so long as a policeman had “particularized articulable suspicion” of criminal activity, he has a constitutional right to stop a citizen and conduct a limited pat-down for weapons based on the additional suspicion that the citizen is armed and dangerous.
Forty-five years later, Floyd thrust the same questions of constitutionality and Fourth Amendment rights back into the limelight — this time with a staggering 4.4 million class of citizens, wrongfully profiled and stopped in New York City over eight years. Nineteen lead plaintiffs gave riveting testimony as law-abiding citizens simply going about their lives and suddenly seized, searched or both because of their race.
Multiple experts gave compelling statistical evidence based on written police records describing the racial-ethnic background of stopped and frisked citizens; comparison to other large cities; the legal outcome of each case; and comparison of stopped individuals with the greater population. The numbers showed that nearly all stops or frisks were made without grounds, and that racial profiling was happening on a massive scale.
The numbers were stunning.
Scheindlin’s Court found that 52% of all stops involved blacks, compared to 23% of blacks in the general population. It also found that over 50% of all stops were followed by a frisk, yet only 5% produced weapons, and only 15% of those resulted in weapons prosecutions. Blacks and hispanics comprised the vast majority of cases where force was used, in addition to being 50% more likely to be arrested than non-blacks or non-Hispanics. Moreover, 88% of all stops were demonstrably without basis since no arrest or charges resulted. Of the remaining 12% of cases, the majority were dismissed. Perhaps most importantly, over one-third of all police officers who conducted arrests could not say why they did so.
Institutionalized discrimination and lawlessness was exposed. Police officers testified that superiors instructed them to “instill fear in black and Hispanics.” Tape recordings of precinct meetings revealed officers told to just “make something up” to justify an arrest, and remember “we own the blacks.” Police officers were told to use phrases like “furtive movements” in their reporting to justify reasonable suspicion. “Over stoppers” were praised, and under stoppers were pressured to increase their stops, under the sham theory more stops, less crime. Under this theory reasonable suspicion, which was already ambiguous, was given short shrift. Police received no formal stop and frisk training and were often encouraged to keep documentation of stops to an absolute minimum or to just not bother at all.
Scheindlin’s final order focused on remedies that would stop this shocking un-American epidemic without diminishing police authority to protect against criminal activity. To that end, she instituted a multi-prong approach. First, a community based monitoring system would oversee and review all police-citizen encounters using clear written guidelines and protocols. Reports were mandated to describe each stop and any frisk with each citizen and officer identified, and the reasons and justifications for each clearly stated. New written policies banned racial profiling. Training about conscious and unconscious bias was mandated. Improved discipline processes were imposed along with a Civilian Review Board. Judge Scheindlin also imposed the incredibly helpful safeguard of required body cams to establish a visual record.
Despite the mud-slinging media, the fear-mongering politicians, and a slap-down from her own Circuit Court, Scheindlin’s work — to her everlasting credit — was done. By 2016, stops had decreased 95%. Across the board, crime rates either stayed the same or decreased. And because of her order requiring transparent and detailed reporting, no one could argue these facts.
Looking back to the historic year of 1786, there was striking resistance by the states to acceptance of the Constitution as originally drafted. The people demanded a Bill of Rights. James Madison, a principal drafter, was taken by surprise by this even though most state constitutions, including Connecticut’s, required a specific declaration of rights and protections. Madison first saw the Bill of Rights as a “mere parchment barrier,” which gave no real protection in times of emergency; in any event it was not necessary since the government had no power to engage in activity not specifically mentioned in the Constitution. Eventually, he became a strong advocate for the Bill of Rights, not only for political reasons, but because he believed that each Amendment described important principals which the culture would internalize, thereby forming a safety net of shared constitutional values. History has proven him to be right on.
Judging by the most recent political debates the Bill of Rights — in particular the Fourth Amendment — continues to play an essential role, not because of politicians, but because of hard working civil rights lawyers who have their cases decided by some judges of great courage and integrity who share Madison’s values.
A long bow to the Fourth Amendment and a big tip of the hat to the Hon. Shira A. Scheindlin. The Bar yearns for judges big enough to fill your robes.
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