The constitutionality and effectiveness of “stop-and-frisk” policing have become very much debated topics as a result of the broader social issues involving race relations and crime control that have risen in the past couple of years. Policing tactics involving “stop-and-frisk” procedures may be traced back to early English common law. In early English common law, village watchmen were permitted to stop any unfamiliar and suspicious people out in the street at night time and to detain them up until the next morning. If the watchmen found that the person they detained had engaged in any criminal act, they would arrest the individual and only release them if they could no longer justify their detention. Since then, modernized “stop-and-frisk” laws, that allow police officers to stop and detain a person on grounds less than that required to justify a full arrest, have been adopted by many jurisdictions at the local, state, and national levels.
The power for a police officer to detain a person in the state of California on the grounds less than that of probable cause was first judicially recognized in Gisske v. Sanders 9 Cal. App. 13, 98 Pac. 43 (1908). Following the adoption of Gisske v. Sanders, multiple court cases attempting to address the legality of temporary detentions in California arose. One of the most recent and most accepted interpretations concerning the legality of the temporary detention of an individual in the state of California is laid out in the decision in People v. Ellsworth 190 Cal. App. 2d 844, 12 Cal. Rptr. 433 (1961). People v. Ellsworth allows police officers to “question a person outdoors at night when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the discharge of his duties” (Henderson Jr., 625). People v. Ellsworth essentially allows officers to stop and question people out at night on grounds less than the probable cause required to detain a person as established in the Fourth Amendment. Based on People v. Ellsworth, officers are allowed to use any grounds of probable suspicion to detain an individual and begin some form of an investigation procedure if they deem so necessary.
Policing procedures that allow police officers to briefly detain a person based on the reasonable suspicion of them being involved in criminal activity are known as Terry stop rules and are generally used as proactive means of policing intended to prevent crime before it happens. In return, communities hope to have lower crime rates and increase public safety while also safeguarding law enforcement agents from any harm that may become present while performing their investigatory duties. However, far from its original intent, People v. Ellsworth has given police officers all the discretion necessary to abuse the rule and make racially-motivated stops.
Whereas traffic stops require for there to be tangible evidence that a violation or crime has been committed, reasonable suspicion stops can be made on the simple belief that someone has engaged in some form of criminal behavior. An officer may make a Terry stop if they believe a person fits a suspect’s physical description, inconsistently answers questions, or generally acts in a suspicious manner. After a police officer identifies themselves as an officer, they may ask a suspect for their name, begin to question them as to what they are doing in a particular location at the time of the investigation, some going as far as to frisking them. An individual may challenge the legality of a “stop-and-frisk” procedure if they believe that it violated their constitutional rights, however, this is often a difficult task to carry out since policemen are ultimately given the full discretion to define what is reasonably suspicious behavior. It is easy for police officers to claim reasonable suspicion or that they believed their life to be endangered when deciding to follow through with performing a Terry stop.
Throughout the years, legal cases concerning the implementation of People v. Ellsworth arose but none prevailed in modifying its scripture. In People v. One 1958 Chevrolet, the court recognized that People v. Ellsworth is usually stated in terms of detentions at night but still held that under the facts of the case, the time of the day was immaterial (Henderson Jr., 626). In People v. Machel, the court determined that the power to temporarily detain should be extended to stops made indoors when the circumstances are sufficiently suspicious to overcome the fact that the person detained is indoors (Henderson Jr., 626). Thus, in practice, neither the fact of it being night time nor outdoors really matters when an officer is making a stop as long as a high reasonable suspicion is involved. Such decisions only further extend the ability for officers to make stops at times and places that were not explicitly accorded in People v. Ellsworth. To date, California has failed to establish a reasonable suspicion standard on what constitutes enough reasonable suspicion for a stop to be made. There is truly no way to measure suspicion other than the intuition of a police officer. As a result, Black pedestrians and motorists throughout major cities in California tend to be disproportionately stopped in comparison to other racial and ethnic groups.
From September 2014 to September 2015, more than 34,000 people were stopped by the Oakland police, 1,876 of them for reasonable suspicion. Of those that were stopped for reasonable suspicion, 71 percent were Black although Black people only accounted for 26.5 percent of Oakland’s population (Palomino). The disproportionate percentage of Black people stopped on the grounds of reasonable suspicion in Oakland and other major California cities may be a result of police bias about who they deem as criminal and non-criminal. Over policing in Black neighborhoods and police bias results from predominant notions around black criminality and urban crime.
In attempts to address racial profiling and bias, California passed AB 953, The Racial and Identity Profiling Act of 2015 (RIPA), requiring each California law enforcement agency employing peace officers to annually report their stop data to the Attorney General of California. For reporting purposes, a “stop” is defined as any detention made by a peace officer of a person. Despite its passage and the hopes that making stop data public would discourage police officers from making racially motivated stops, RIPA data collection records from July 1st, 2018 to December 31st, 2018, revealed that Black people were still stopped frequently on the grounds of reasonable suspicion across California’s eight major law enforcement agencies that employ 1,000 or more peace officers in the state. Black people who were stopped for reasonable suspicion were stopped at a rate 1.8 times higher than that of white individuals. The data further demonstrated that officers searched Black people whom they stopped at a rate 2.9 times the rate at which they searched White people. Despite the stop data being public, Black people are continually overcriminalized.
Continuing racial profiling practices in policing lead to unintended consequences upon individuals and communities. Even though People v. Ellsworth only addresses the “stop” in a “stop-and-frisk” procedure, it is often used as a mechanism for police officers to move on with their ability to frisk almost anyone that they detain. Without the premeditated stop, the frisk component cannot be performed by an officer. A frisk is a limited search performed by police officers of a person’s outer clothing which can be performed if an officer believes that the suspect may be armed and may intend to use that weapon against the officer or general public. An officer can easily justify performing a frisk on an individual based on the nature of their suspicious behavior. Therefore, stops more than often turn into discretionary searches of innocent people without any justification or legitimate reason.
For example, under reasonable suspicion grounds, a police officer can justify stopping and perhaps even frisking a teenage boy wearing baggy clothing who had previously approached another man on a street corner on the belief that the teenage boy could be concealing a weapon. When police officers are successful in obtaining contraband in a reasonable suspicion stop, they obtain a probable cause to arrest and at that point, it becomes difficult for individuals to challenge the original question of whether the frisk was legal.
Whether People v. Ellsworth is an effective policy that reduces crime is a much debated question among social justice groups and law enforcement agencies. Law enforcement agencies argue that Terry stops are performed in attempts to effectively control crime. On the other hand, social justice groups point to data and statistics that demonstrate how police disproportionately target minority areas and people of color, putting them at higher risk of entering the criminal justice system. Alberto Retana, President, and CEO of Community Coalition in the city of Los Angeles denounces such tactics as “suppressive racial policing strategies” (Sentinel News Service).
Along with community leaders and social justice groups, scholars like Angela Davis and Khalil Gibran Muhammad, urge for the end to ineffective “stop-and-frisk” policing practices that only target people of color. However, it is at challenge at hand since law enforcement agencies are largely backed by influential politicians like Donald Trump and Mike Bloomerg who contend that crime reduction in troubled cities like New York only results from aggressive “stop-and-frisk” policing. Since the launching of his very first presidential campaign, President Trump portrayed himself as a “law and order” candidate supporting “stop-and-frisk” procedures across the nation. There is no true data as of yet that proves that there is a correlation between the drop in crime in major cities and “stop-and-frisk” policing. Even if “stop-and-frisk” policing were effective at all, hypothetically speaking, low-income communities and people of color would face the unintended consequences of over policing in their neighborhoods.
Although abolishing “stop-and-frisk” procedures may be the ultimate goal for many social justice groups, I would personally like to see People v. Ellsworth challenged and then re-written to set out some form of standard for police officers to use to determine when they may and may not deem a situation suspicious enough for them to perform a stop. In addition, the law should indicate that police officers may stop a person at any time of day and at any location since that is how the law is carried out and practiced in the state of California. However, if we were to explore options that completely replace “stop-and-frisk” policing, Community based policing could be an alternative used to increase public safety, decrease crime rates, and increase trust among community members and the police. One form of community policing that proved successful in Boston during the early 1990s was “focused deterrence” (Forman). Focused deterrence policing recognizes that there is a small cohort of young offenders that are responsible for most of the violent crime occurring in a neighborhood. Then, there is a focus to build community trust in police and have them help the police in identifying those individuals. Another possible solution is the “call-in” approach, where gang members, drug dealers and other “bad actors” from a community are summoned into a meeting with law enforcement agents and social services organizations. At the meeting, local parents who have lost children due to violence, ex-offenders who have gone “straight,” and faith leaders set a standard against violence by warning the “bad actors” that they can voluntarily stop committing violence or continue on and run the risk of getting arrested along with their crew sooner or later (Stringer). This approach gives young people an opportunity to rethink their actions and build bridges between wanting to change. Regardless of whether People v. Ellsworth abolished or reformed, we need to ensure that communities that are affected the most are given the opportunity to have a say over any forms of policing policies that affect them.
References
“Community Leaders Urge the L.A. Police Commission and City Officials to End Stop and Frisk Policy in South L.A.” Los Angeles Sentinel, Sentinel News Service, 6 Feb. 2019, lasentinel.net/community-leaders-urge-the-l-a-police-commission-and-city-officials-to-end-stop-and-frisk-policy-in-south-l-a.html
Forman, J., & Stutz, T. (2012, April 20). Beyond Stop-and-Frisk. Retrieved November 11, 2020, from https://www.nytimes.com/2012/04/20/opinion/better-ways-to-police-than-stop-and-frisk.html
Harvey E. Henderson Jr., Stop and Frisk in California, 18 Hastings L.J. 623 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol18/iss3/7
Johnson Managing Editor & Insurance Lawyer, Jeffrey. “Understanding the Stop-and-Frisk Debate: What You Need to Know.” FreeAdvice, 5 Jan. 2017, www.freeadvice.com/legal/understanding-the-stop-and-frisk-debate-what-you-need-to-know/
Palomino, J. (2015, November 29). Black Oakland residents stopped, searched with vague legal tactic. Retrieved November 11, 2020, from https://www.sfchronicle.com/bayarea/article/Black-Oakland-residents-stopped-searched-with-6662485.php
State of California Department of Justice. (n.d.). Retrieved September 16, 2020, from https://openjustice.doj.ca.gov/exploration/stop-data
State of California Department of Justice. (n.d.). Retrieved September 16, 2020, from https://oag.ca.gov/sites/all/files/agweb/pdfs/ripa/ripa-quick-facts-2020.pdf
‘Stop-and-frisk in a car:’ Elite LAPD unit disproportionately stopped black drivers, data show. (2019, January 24). Retrieved November 11, 2020, from https://www.latimes.com/local/lanow/la-me-lapd-traffic-stops-20190124-story.html
Stringer, S. (2015, June 29). Beyond Stop-and-Frisk: Toward Policing That Works. Retrieved November 11, 2020, from https://www.thenation.com/article/archive/beyond-stop-and-frisk-toward-policing-works/ Wilkie, Christina. “Trump Praises ‘Stop and Frisk,’ Calls for Tougher Policing Tactics.” CNBC, CNBC, 8 Oct. 2018, www.cnbc.com/2018/10/08/trump-praises-stop-and-frisk-calls-for-tougher-policing-tactics.html.
foundations of law and society 