Stop + Frisk and the Lone Star State
Dec. 9, 2016
Stop + Frisk in the Lone Star State
At the presidential debate held on September 26, 2016, moderator Lester Holt asked Donald Trump how he would heal racial divides, to which Trump replied that he would “bring back law and order” via policies such as stop-and-frisk.[i] Trump explained that New York City’s stop-and-frisk policy had a “tremendous impact on the safety of New York City” and that it could save thousands of African American and Hispanic lives if implemented in cities such as Chicago.[ii] The following night, at a rally in Florida, Trump asserted that stop-and-frisk was constitutional, despite Holt challenging that contention at the debate.[iii]
The truth is that a judge found New York City’s stop-and-frisk policy unconstitutional, but only because it was applied in a manner that did not comport with the Fourth or Fourteenth Amendments.[iv] The judge explained that because the police failed to state a specific suspected crime in 36 percent of stops, they did not have the required “reasonable suspicion” to conduct the stop.[v] The judge in the case also found evidence of racial profiling in the policy’s application, meaning the Equal Protection Clause was violated.[vi]
The opinion cited numerous statistics pulled straight from the NYPD’s own records from 2004 to 2011. During that time, 4.4 million stops were conducted with 52 percent of the persons stopped being labeled “black” and 31 percent being labeled “Hispanic.” For perspective, New York City was approximately 23 percent black and 29 percent Hispanic in 2010.[vii] From 2002 to 2015, no more than 12 percent of those stopped were white.[viii]
The phrase stop-and-frisk is composed of two terms, each of which has an associated legal test to ensure it comports with the Fourth Amendment. These tests come from the case Terry v. Ohio, which is why these stop-and-frisks are sometimes referred to as Terry stops.[ix] To justify a brief detention—the “stop”—an officer must be able to articulate specific facts that would lead to the reasonable conclusion that the person being stopped was engaging in or going to engage in criminal activity.[x] Put differently, the officer needs “reasonable suspicion” of criminal activity to stop a person. After the officer has stopped the person, the officer may conduct a brief pat-down for weapons in order to assure the officer’s safety.
To have reasonable suspicion to stop a person, an officer must be able to assert something more than the person “looked suspicious” or was in a “high drug problem area.”[xi] Furthermore, the officer must have more than a “hunch” that criminal activity is afoot.[xii] The Texas Court of Criminal Appeals applied these principles in 2013 to suppress evidence found after a game warden stopped a man for being nervous and refusing to cooperate.[xiii]
But what about stop-and-frisk in Texas? Texas courts have been very lenient to officers, presumably because they take officer safety very seriously.[xiv] In White v. State, a Texas appellate court held that despite the traffic stop occurring in the afternoon in a safe part of town, a frisk of the driver was justified because he had a tattoo that appeared to be a White Power tattoo, and he was acting very nervous.[xv]
However, Texas courts have been wary of making per se rules. In Furr v. State, decided in September of this year, the Texas Court of Criminal Appeals declined to adopt a rule making it “per se objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs.”[xvi] Moreover, not every roadside encounter, despite statistically being the most dangerous situation for police, requires a pat-down.[xvii]
At the end of the day, Texas police officers can justify a stop-and-frisk on any number of factors. These factors include the number of suspects compared to the number of officers present, the time of day the stop is made, the location of the stop, whether the suspect acts nervous or furtive, the presence of gang signs, and the nature of the suspected crime.[xviii]
[i] Politifact (Sept. 28, 2016), http://www.politifact.com/truth-o-meter/statements/2016/sep/28/donald-trump/debate-donald-trump-says-stop-and-frisk-constituti/ (“African American communities are being decimated by crime.”).
[ii] Jim Dwyer, What Donald Trump Got Wrong on Stop-and-Frisk, N.Y. Times (Sept. 27, 2016), http://www.nytimes.com/2016/09/28/nyregion/what-donald-trump-got-wrong-on-stop-and-frisk.html.
[iii] Jeremy Diamond, Trump: Stop-and-frisk would 'overwhelmingly' save black and Hispanic lives, CNN (Sept. 27, 2016), http://www.cnn.com/2016/09/27/politics/donald-trump-stop-and-frisk-save-lives/.
[iv] Rudolph Giuliani, Trump Is Right About Stop and Frisk, WSJ (Sept. 27, 2016), http://www.wsj.com/articles/trump-is-right-about-stop-and-frisk-1475018152.
[v] Floyd v. City of New York, 959 F. Supp. 2d 540, 559–60, 660 (S.D.N.Y. Aug. 12, 2013)
(“[The terms] “Furtive Movements,” “High Crime Area,” and “Suspicious Bulge” are vague and subjective.”), http://www.nysd.uscourts.gov/cases/show.php?db=special&id=317.
[vii] Floyd, 959 F. Supp. 2d at 559.
[ix] Terry v. Ohio, 392 U.S. 1 (1968).
[x] State v. Kerwick, 393 S.W.3d 270, 273–74 (Tex. Crim. App. 2013).
[xi] Brown v. Texas, 443 U.S. 47, 52 (1979).
[xii] Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
[xiii] Wade v. State, 422 S.W.3d 661, 664–65 (Tex. Crim. App. 2013).
[xiv] Webb v. State, 2014 Tex. App. LEXIS 13454, at *8 (Tex. App.—Houston [1st Dist.] Dec. 16, 2014).
[xv] White v. State, 2010 Tex. App. LEXIS 245, at *6–7 (Tex. App.—Austin Jan. 12, 2010).
[xvi] Furr v. State, 2016 Tex. Crim. App. LEXIS 1094, at *18 (Tex. Crim. App. Sept. 21, 2016).
[xvii] See Taylor v. State, 2015 Tex. App. LEXIS 6505, at *2 (Tex. App.—Houston [1st Dist.] June 25, 2015).
[xviii] State v. Moore, 25 S.W.3d 383, 384 (Tex. App.—Austin 2000, no pet.).