Law Commons^™

Pocket Police: The Plain Feel Doctrine Thirty Years Later, Kelly Recker

Michigan Law Review

The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since …

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

No Runs, Few Hits And Many Errors: Street Stops, Bias And Proactive Policing, Jeffrey A. Fagan

Faculty Scholarship

Equilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient and suggest bias. An unbiased officer who is seeking to maximize her hit rate would reduce the number of unproductive stops toward a group with the lower hit rate. An unbiased policing regime would generate no differences in hit rates between groups.

We use this framework to test for racial …

Suspicionless Policing, Julian A. Cook

Scholarly Works

The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …

Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall

Touro Law Review

Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …

Stingray Cell-Site Simulator Surveillance And The Fourth Amendment In The Twenty-First Century: A Review Of The Fourth Amendment In An Age Of Surveillance, And Unwarranted, Harvey Gee

St. John's Law Review

(Excerpt)

This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of …

A Genealogy Of Programmatic Stop And Frisk: The Discourse-To-Practice-Circuit, Frank Rudy Cooper

University of Miami Law Review

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men.

Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

The Plausible And The Possible: A Bayesian Approach To The Analysis Of Reasonable Suspicion, W. David Ball

Faculty Publications

The United States Supreme Court uses the wrong approach to analyze reasonable suspicion. The Court asks whether, if criminal activity were afoot, an officer would be likely to see what she saw (e.g. furtive gestures or flight from police). The ultimate question we are interested in, however, is whether, given what the officer saw, her conclusion about criminal activity was reasonable. These two questions are different. Even if it is highly likely that an officer would make a set of observations when criminal activity is afoot, it does not follow that criminal activity is itself highly likely when an officer …

Guns And Drugs, Benjamin Levin

Fordham Law Review

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle

All Faculty Scholarship

The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.

What’S Fear Got To Do With It?: The “Armed And Dangerous” Requirement Of Terry, Gerald S. Reamey

Faculty Articles

Reason to believe a person may be involved in criminal activity is not necessarily also reason to believe that person is armed and dangerous. "Stop and frisk," therefore, more accurately should be thought of as "stop and maybe frisk." But courts have conflated or ignored these two distinctive kinds of suspicion, inviting police officers to frisk automatically during an investigative detention, a practice that ignores the reasonableness requirement of the Fourth Amendment and subjects suspects to the indignity and intrusion of a search unsupported by any level of suspicion. This article explores some of the ways in which this undermining …

The Big Picture View Of Anonymous Tips From Ordinary People, Amanda M. Dadiego

Touro Law Review

No abstract provided.

Terry'S Original Sin, Jeffrey Fagan

Faculty Scholarship

In Mapp v. Ohio, the U.S. Supreme Court extended the due process protections of the exclusionary rule to include all "constitutionally unreasonable searches" that were done without a basis of probable cause. In the seven years after Mapp, when homicide rates in the U.S. nearly doubled, riots broke out in at least forty-seven U.S. cities. During the same era, a heroin epidemic gripped the nation's urban centers, giving rise to street drug markets and associated violence and pressures on law enforcement to curb those markets. As violence increased, a turn in the nation's political culture questioned Mapp's restraints on …

Guns And Drugs, Benjamin Levin

Publications

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

Vulnerable, Not Voiceless: Outsider Narrative In Advocacy Against Discriminatory Policing, Nicole Smith Futrell

Publications and Research

Activists and lawyers advocating for those who are targeted, arrested, and prosecuted as a result of aggressive policing practices are often the first to hear individual accounts of the dehumanizing treatment endured by vulnerable communities. Working on the front lines of the criminal justice system on a daily basis may cause advocates to regard these descriptions as commonplace, such that the transformative potential of a shared personal experience is overlooked. Critical race, practice-oriented, and narrative theory scholarship have long recognized the power of telling one’s story. These disciplines have explored how outsider narrative, or the articulated experience of groups subordinated …

Are Prosecutors The Constitution's Gatekeepers?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Race And The Decision To Detain A Suspect, Sheri Johnson

Sheri Lynn Johnson

No abstract provided.

Justification For Police Intrusions, Corey Rashkover

Touro Law Review

No abstract provided.

Search And Seizures: Constitutionally Protected Or Discretionary Police Work?, Jaren Fernan

Touro Law Review

No abstract provided.

Stop Terry : Reasonable Suspicion, Race, And A Proposal To Limit Terry Stops, Renée M. Hutchins

Renée M. Hutchins

The Terry doctrine, which grants a police officer the authority to stop and frisk based on his or her reasonable suspicion rather than probable cause, was created by the Supreme Court at a time when the nation con- fronted a particular moment of violent racial strife. Since Terry was decided, the Supreme Court has continued to expand the reach of the doctrine—which opened the door for potential abuse. Existing data is increasingly proving that the loosening of constitutional standards is causing substantial harms to people of color nationwide. This article joins the existing scholarly discussion surrounding this decision to suggest …

The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane

Michigan Journal of Race and Law

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen …

Race To Incarcerate: Punitive Impulse And The Bid To Repeal Stand Your Ground, Aya Gruber

Publications

Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon Martin's death was not in vain. However, when the story of Martin's killing first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida's self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially …

Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt

Faculty Scholarship

A troubling aspect of the practice of "stop and frisk" in New York and other cities is the evidence that this police tactic is employed predominantly against young men in racial minorities. On August 12, 2013, the federal district court ruled in Floyd v. City of New York that New York's practices and policies regarding stop and frisk violated the Equal Protection Clause of the Fourteenth Amendment and its Due Process Clause, which makes the Fourth Amendment ban on "unreasonable searches and seizures" applicable against the states. Judge Shira A. Scheindlin found that a number of specific stops and subsequent …

Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men's Legal Socialization, Tom Tyler, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

An examination of the influence of street stops on the legal socialization of young men showed an association between the number of police stops they see or experience and a diminished sense of police legitimacy. This association was not primarily a consequence of the number of stops or of the degree of police intrusion during those stops. Rather, the impact of involuntary contact with the police was mediated by evaluations of the fairness of police actions and judgments about whether the police were acting lawfully. Whether the police were viewed as exercising their authority fairly and lawfully shaped the impact …

Stop And Frisk: From Slave-Catchers To Nypd, A Legal Commentary, Gloria J. Browne-Marshall

Trotter Review

Today’s “stop and frisk” practices stem from centuries of legal control of Africans in America. Colonial laws were drafted specifically to control Africans, enslaved and free. Slave catchers culled the woods in search of those Africans who dared escape. After slavery ended, “Black Codes” or criminal laws were enacted to ensnare African Americans, including the sinister convict-lease system that existed well into the twentieth century. The U.S. Supreme Court ruled to extend police authority to stop and frisk during the Civil Rights Movement.

Police abuse of stop and frisk has led to tens of millions of people detained and searched …

The Policeman's Duty And The Law Pertaining To Citizen Encounters, Charles M. Oberly Iii

Pepperdine Law Review

In this article the author, by case analysis, identifies the confusion facing police officers when dealing with stop and frisk situations and suggests adoption of the Model Rules of Stop and Frisk as a possible solution to the problem.

Stop Terry : Reasonable Suspicion, Race, And A Proposal To Limit Terry Stops, Renée M. Hutchins

Faculty Scholarship

The Terry doctrine, which grants a police officer the authority to stop and frisk based on his or her reasonable suspicion rather than probable cause, was created by the Supreme Court at a time when the nation con- fronted a particular moment of violent racial strife. Since Terry was decided, the Supreme Court has continued to expand the reach of the doctrine—which opened the door for potential abuse. Existing data is increasingly proving that the loosening of constitutional standards is causing substantial harms to people of color nationwide. This article joins the existing scholarly discussion surrounding this decision to suggest …

“The Lady Of The House” Vs. A Man With A Gun: Applying Kyllo To Gun-Scanning Technology, Sean K. Driscoll

Catholic University Law Review

No abstract provided.

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

All Faculty Scholarship

Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …