Manhattan Borough President Scott Stringer called for a reduction in the city’s stop and frisk policy. Last year the NYPD made 600,000 stops and this year they will probably make 700,000.

Most of the stops are of young African American and Latino men. Over 85 percent of the stops are of non-whites. A young African American or Latino is nine times more likely to be stopped than a white person. Yet only seven percent of these stops result in arrests.

Under Terry v. Ohio in order to stop someone, an officer must have a reasonable suspicion that the individual is involved in criminal activity and in order to frisk that person the officer must have a reasonable suspicion that the person is carrying a weapon.

But all too often officers, knowing that they do not have a reasonable suspicion that the young person of color is involved in criminal activity of carrying an illegal weapon stops and frisks the individual any way. Sometimes they do it purely for harassment. Other times they do it because they hope to get lucky and find that the person is either on parole or probation with a search clause allowing the officer to search the individual without a reasonable suspicion of wrong doing. Third world members are often so used to being searched that they consent to what would otherwise be an illegal search. If they consent to the search anything found on them (drugs, guns, etc.) can be used against them in court. And sometimes, to be honest, police write false reports, alleging consent when consent was not given. Knowing that a DA, a judge or a jury is more likely to believe a police officer than a minority youth.

One of the problems with the extraordinary number of searches of minority youth is that they and their families learn not to trust the police. As a result they do not cooperate with officers who are investigating crime and do not reports criminal acts to the police.

Stephen Digiovanni rented a car in Fort Lauderdale, took the autotrain to Washington D. C and drove towards his home in Boston. Driving on I-95 in Maryland, he was stopped by Trooper Chrisotpher Connor for following the car in front of him too closely.

Connor noticed that Digiovanni was somewhat nervous. Furthermore, the car was clean, shirts were hanging in the back without a clothing bag and there was a hygiene bag in the back seat. All of these things he claimed gave him a reasonable suspicion that Digiovanni was a drug trafficker.

While he immediately asked for Digiovanni’s driver’s license and the rental car contract, he did not begin the computer check of the license until over ten minutes after the original stop. During this time he concentrated his investigation on narcotics, asking numerous questions none of which provided answers that indicated a reasonable suspicion of trafficking.

Digiovanni gave consent to a search of the vehicle but was unable to open the trunk. Before Connor searched the interior of the vehicle he wrongly told Digiovanni that he could not revoke his consent. During the search of the interior of the vehicle Connor found 34,091 oxycodone tablets.

Digiovanni’s motion to suppress the pills and some of his statements was granted and the government appealed to the Fourth Circuit Court of Appeals.

Prior to detaining someone an officer must have a reasonable suspicion of criminal activity. The detention is limited to the length of time necessary to dispel the officer’s suspicion. The scope of the investigation is limited to investigating the events that lead up to the stop. If an officer determines during the investigation that there is a reasonable suspicion of other crimes the officer may extend the detention. But an officer may not extend the scope of the investigation beyond the original reason for the investigation unless the officer has a reasonable suspicion and that reasonable suspicion is developed during the time the officer needs to carry out a diligent investigation of the original reason for the detention.

There is no question Connor had a reasonable suspicion to stop Digiovanni. The trooper’s vehicle was equipped with with a video camera and it showed Digiovanni following closely behind the car in front of him. But the length and the scope of the detention exceeded what was necessary for a diligent investigation and preparation of a warning ticket. The court found Connor’s belief that the lack of a clothing bag for Digiovanni’s shirts irrelevant to the finding of a reasonable suspicion and bordering on the absurd. Likewise, it found his reliance on the clean car and the presence of the hygiene bag to be “absurd.” While an officer may ask questions unrelated to the original stop if it does not delay the investigation the court found in this case the focus of the detention was not on the traffic citation but rather on a narcotics investigation for which there was no reasonable suspicion and it upheld the district court’s suppression order.

What do we learn from this case. First that offices can post hoc claim that any fact is a reason to support an arrest or search. Unless officers are stopped this will lead to the dissolution of the Fourth Amendment. Second that people talk to much. Digiovanni should have given the officer his driver’s license and rental contract. On further questioning he should have said. I don’t want to talk any more. May I leave?

Henderson North Carolina Police Detective J. Ragland ¹ saw an SUV with a young man sitting in the driver’s seat, apparently talking to himself. A second young man then sat up in the front passenger seat. Ragland recognized the second young man as David Foster. Ragland had dated Foster’s cousin and had previously arrested him for driving without a license. He knew that Foster had a marijuana related arrest.

He saw Foster’s arms “shifting” and “going haywire.”

Ragland drove across the street and observed the two men. Fifteen minutes passed and nothing happened. During that period Ragland called the head of narcotics and found out that Foster was the subject of an investigation. He also called for a back-up car.

The two cars blocked the SUV. The officers got out and approached the vehicle with guns drawn. Ragland asked the driver for his license. The driver told him it was in his backpack. Ragland performed a pat search and let the driver get his license. Ragland then asked for the registration. Foster opened the glove compartment to get it. Ragland saw a baggie of cocaine in the glove compartment. The gentlemen were arrested.

In case you haven’t figured it out, I will tell you that both the driver and Foster are African American. Studies have shown that African Americans are more likely to be detained, and more likely to be searched than any other racial or ethnic group. While in this case the officers found cocaine, African Americans are less likely to be found in possession of contraband or criminal evidence in Terry searches.

In order to detain someone the stop must be supported “by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” As the Court in Terry v. Ohio said “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The U. S Attorney pointed to three factors in support of the search. First he/she pointed to the officer’s knowledge of Foster’s record. Second, the U. S. Attorney pointed to Foster’s sitting up from a crouched position and finally the shifting of Foster’s arms. The Fourth Circuit Court of Appeals found that these items, neither individually or collectively provided a reasonable suspicion of criminal activity. The crouching and the shifting could be the result of many legitimate activities. The record by itself or with the current investigation do not provide a reasonable suspicion. The reasonable suspicion has to be that the men were involved in criminal activity at the time of the search. Mere knowledge that at sometime in the past they committed a crime will not do.

Therefore the Court reversed the conviction.

In a rare case the Fifth Circuit Court of Appeals reversed a conviction where the trial judge wrongly denied a motion to suppress evidence.

Corey Raney was driving on a two lane street. Due to gasoline shortages surrounding Hurricane Ike traffic was backed up in his lane by drivers attempting to buy fuel at a gas station. Two officers were providing traffic control but it is unclear if Raney saw them.. He attempted to pass the backed up vehicles. There was no on-coming traffic but one of the officers was standing in the empty lane. Raney was stopped by Houston Police Officer Rohan Walker.

After the car was stopped, Walker smelled marijuana and he thought he saw a marijuana cigarette fall to the ground. He ordered Raney out of the car and searched him, finding a .45 caliber Sig Sauer firearm in his waistband. A records search revealed that Raney was a convicted felon and was not allowed to have a weapon on him. He was arrested and the vehicle was searched.

Prior to trial he moved to suppress the evidence. He alleged at the hearing on the motion and again at trial that Officer Walker had no right to stop him.

To stop a vehicle a police officer must have probable cause that a crime has been committed. The government alleged that Reaney violated three traffic laws. First they alleged that he rode on the wrong side of the road. On this basis the trial court denied the suppression motion. But the appellate court pointed out that under Texas law it is permissible to ride in the left lane to pass vehicles or there is an obstruction in the lane. Second the government alleged that he failed to follow the officer’s orders when Walker told him to get back into the right lane. But there was no evidence he saw or heard the officer order him to get back into the right lane. Third, it was alleged that he drove recklessly. But he was driving 10 to 15 miles per hour. There was no traffic in the left lane and there is no evidence that the officer was in any way in danger as a result of Raney driving on the left side of the road.

On the appeal the government brought up two more reasons. ¹ They claimed that he was passing within 100 feet of the intersection. But the evidence at trial showed that Officer Walker who was between Raney and the intersection was 100 feet from the intersection and Raney was farther away. They also alleged that he failed to stay in one lane. But in this instance he was passing non-moving vehicles and that is legal under the law. ²

The Fifth Circuit reversed the conviction.

There was another issue raised on appeal. The United State attorney made a number of questionable argument in the closing argument. Since the Court reversed the decision base upon the Fourth Amendment issues it did not rule on the U. S. Attorney’s arguments. But it was clearly trouble by the arguments.

First, the prosecutor stated that “[t]he gun was loaded, a round in the chamber, ready to be fired. Bang, bang, bang.” This type of comment wrongly leads to an emotional response by the jury instead of an intellectual determination of guilt. Second, during closing argument the prosecutor accused Raney’s wife Jasmine, who testified at trial of calling Walker a lier. She did not and the judge upheld the defense objection. Finally the prosecutor asked the jury to decide whether the police officers had a motive to “tell something other than truth,” and suggested that the officers would not “put their careers on the line[,]” This is called vouching for a witness. The prosecutor who was not present at the incident cannot tell the jury that a witness is telling the truth.

The Ninth Circuit upheld the conviction of Robert Burkett for possession of a gun by a convicted felon. Burkett was a passenger in a speeding vehicle. An officer turned on his overhead light to stop the vehicle but it took an unusually long time to stop. (eight tenths of a mile.) While the officer was stopping the vehicle he saw Burkett in the right front passenger seat making furtive movements.

After Burkett was charge he moved to suppress the gun on Fourth Amendment grounds. The Fourth Amendment protects us against unreasonable searches and seizures.

In the landmark 1968 case of Terry v. Ohio the Supreme Court ruled that an officer can stop and frisk a person if the officer has a reasonable suspicion that the person is involved in a crime and is armed and dangerous. While there was no belief that Burkett was involved in a crime, the Supreme Court ruled last year in Arizona v. Johnson that if an officer has a reasonable suspicion to stop a vehicle for a traffic violation the seizure of all of the passengers in the vehicle is legitimate and that if the officer had a reasonable suspicion to believe that a passenger was armed and dangerous the officer could frisk the passenger.

The Ninth Circuit found that the officer had a reasonable suspicion that Burkett was armed and dangerous and therefore the frisk of Burkett was legitimate. Therefore, the gun found during the frisk could be used at trial. Not only did the driver of the car take an unusually long period to pull over but Burkett made furtive motions while the driver was pulling over. The furtive motions led the officer to believe that Burkett was attempting to hide a gun. Furthermore when the officer asked Burkett what he was doing prior to the car stopping Burkett said “nothing” while the officer knew that the “furtive” conduct meant he was doing something. The officer was also concerned that after he told Burket to exit the car, Burkett used his left arem to open the right side door, hiding his hands and part of his jacket. Thus despite Burkett’s innocent explanations for his behavior the officer had a reasonable belief that he might have a weapon.

In United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?