I missed that you had replied to this post before, so sorry for the late reply, but here it is....
Terry stop and stop and frisk are the same thing according to the courts.
Absolutely not true. Show me a case where this is unequivocally ruled. You can't, because no such case exists. And if Terry and S&F mean the same thing, then why was it necessary for Giuliani or cops or anyone else to rename "Terry stops" to "stop and frisk?" They're different because a Terry-compliant stop has guidelines issued by the Supreme Court that qualifies it as a "Terry stop" when performed according to those guidelines. S&F is named something different because it
is different in that there are no federal court rulings that give cops such guidance. S&F could just as easily stand for "Stop and start a Fishing-expedition," because no matter the individual department guidelines a cop on the street might be expected to be observing, in practice, it's nothing but stop for no RAS or PC and frisk to find whatever they find even if it's not a gun or banned knife or brass knuckles - what-the-heck-ever - that's how it works in practice.
<...snipped because I have no idea what you're trying to say in the first sentence of your second paragraph...>
In NYC it is unlawful to carry a concealed weapon without a permit so it is reasonable for a law enforcement officer to "stop and frisk" someone they think might be carrying an illegal gun, don't you think.
With just the information you give here, no, I absolutely don't think it's "reasonable." A cop can say
anybody "might be carrying an illegal gun." Terry stops mandate a 3-prong assessment, and simply *thinking* they
might have a gun doesn't fit within that 3-pronged criteria. The 3-pronged assessment mandate is:
1) A police officer must subjectively believe that a particular person is committing, is about to commit or has just committed a crime and;
2) The officer must be able to articulate what actions by the subject or sets of circumstances her/his belief is based upon and;
3) The belief must be objectively reasonable (meaning Jane or Joe Average, knowing what that officer knew at that time, would agree that the person in question was, at the time committing, about to commit or had just committed a crime).
Everything I put in bold are mandates that must be
objectively arrived-at by the cop conducting the S&F.
In your above quote you neither mention the reasonable, nor the articulable, nor the suspicion parts of a Terry stop, which is perfectly understandable since we're not talking about a Terry stop, but a jurisdiction-sanctioned fishing expedition that has none of those basis as a foundation upon which the cop can legally act under color of law. Terry stops and stop and frisk are different, and no federal court has said otherwise.
The problem is that some cops were using it to check even if they didn't have the RAS or PC.
No, nearly
all of them were acting in that
illegal manner. Otherwise, we would be talking about real Terry stops, not S&F.
That is a problem, and that is what the courts were trying to stop.
No, that is
the problem with S&F (as opposed to "legitimate" Terry stops), and only one
district court has made any attempt to rein the illegal practice in. There is only one court that has concerned itself with S&F, so there's no "the court
s" involved here at all. Terry is well-settled law. S&F isn't.
There are lazy people in every job, and far too often good cops look the other way rather than be ostracized by the peers. Is it a problem, yes. How can we fix that? Good question, by having leaders that back their good officers when they come forward instead of making them look bad.
I see. So the depth of principle that most cops take to the job every day revolves around whether or not their leaders will make 'em look bad if they apply their "principles" while on the job? Isn't that exactly the risk that everyone takes when standing for an unpopular principle? But actually, I mostly agree with you on this score, except I don't think it's that they care one way or the other about looking bad, they care more about not breaking the code of silence that every cop-shop in America has active to a slightly lesser or mostly greater degree.
I don't believe it can be fixed. Do you? And if you do how?
No, I don't think it can be fixed either, which is exactly why I never trust cops until after an encounter and I can evaluate whether he/she upheld their oath and respected my rights, or trashed 'em like I believe is the most common occurrence, especially if the subject deigns to go through the motions of trying to get them to recognize that RAS and/or PC are necessary in order for the stop to be legal.
Yeah, I'm familiar with it. When I cite it though, I don't go to someplace where a private author gives his subjective opinions about it like the link you provide, I go to
the ruling itself. Some things your pro-cop-biased link doesn't include in their incomplete analysis are....
Held:
1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9.
2. The issue in this case is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12.
While I don't think they achieved it, SCOTUS was trying to maintain the integrity of the Fourth Amendment while at the same time weakening it by putting caveats about cops' safety over and above the rights of The People to be free from unreasonable searches absent probable cause. The admissibility spoken of in #2 was concerning the attempt by Mr. Terry to have his gun excluded as evidence since it was his contention that the search that revealed the gun was illegal. He lost because his actions leading up to the search were reasonably, articulably and objectively ruled by SCOTUS to have been suspicious. Assuming the facts that SCOTUS relied on throughout the several years of trials and appeals leading to their chambers are stated accurately in the Terry ruling, even I would agree that Terry's actions before the search were suspicious, but the point here is that what SCOTUS authorized from that point forward was solidly contingent upon such "reasonable, articulable suspicion" being present in every single case that might flow from that ruling going forward. The mention of "stop and frisk" within the Terry ruling does not describe the practice that was taking place rampantly in NYC, and to a slightly lesser degree in other jurisdictions. The words themselves are wrapped in quotation marks as a sort of shorthand by SCOTUS to describe the limitations they were subsequently imposing when they said:
4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20.
"Followed here" means those actions by the cops who eventually arrested Mr. Terry after searching him and finding his gun. Their actions were a rather long, drawn out observation of Terry and an accomplice of casing a place that looked like they were getting ready to rob. Search "stop and frisk" on YouTube and you will find hundreds, if not thousands of instances of cops simply rolling up on one or more citizens standing on the sidewalk and starting a confrontation without having even a second's worth of time to have developed RAS that any criminal activity was afoot by them. As-practiced, S&F is very different than a Terry stop that uses "procedures such as those followed here" in the actual Terry case.
(a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16.
(b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. P. 16.
Many of those same YouTube videos show the cops going through pockets, emptying them, and even searching vehicles, all under the rubric of doing a "Terry stop" in ways that the ruling itself clearly and unambiguously prohibits.
I said earlier that Terry itself has Fourth Amendment problems, and Justice Fortas' dissenting opinion, though powerless, nonetheless articulates the main problem I have with Terry....
Dissent
FORTAS, J., Dissenting Opinion
MR. JUSTICE DOUGLAS, dissenting.
I agree that petitioner was "seized" within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a "search." But it is a mystery how that "search" and that "seizure" can be constitutional by Fourth Amendment standards unless there was "probable cause" [SUP] [n1] [/SUP] to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.
The opinion of the Court disclaims the existence of "probable cause." If loitering were in issue and that was the offense charged, there would be "probable cause" shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had "probable cause" for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of "probable cause." We hold today that the police have greater authority to make a "seizure" and conduct a "search" than a judge has to authorize such action. We have said precisely the opposite over and over again.
In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their "seizure" without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that "probable cause" was indeed present. The term "probable cause" rings a bell of certainty that is not sounded by phrases such as "reasonable suspicion." Moreover, the meaning of "probable cause" is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100-102:
*************
The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of "probable cause" before a magistrate was required.
* * * *
That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even "strong reason to suspect" was not adequate to support a warrant for arrest. And that principle has survived to this day. . . .
. . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.
(My note about that last line in bold - thus we have "stop and frisk" as-illegally-practiced by cops on a regular basis with impunity across this country.)
There is more to Fortas' dissent, but if the above doesn't adequately describe that our Fourth Amendment rights have been at least in part gutted by Terry, then the person saying such never believed the Fourth Amendment had authority over the actions of cops on the street to begin with.
Blues
