Tag Archives: Fourth Amendment

Stop and Frisk Writ Large

The policies of officers stopping people for minor or nonexistent offenses has been well documented, most recently in the Floyd case out of New York, where a federal judge found the practice unconstitutional.

The 11th Circuit Court of Appeals recently denied a request for rehearing which would have raised a similar issue.  The case is United States v. Kareen Rasul Green (No. 11-1558).  Judge Barkett, joined by Judge Martin, dissented from the denial, and she did so in particularly strong terms.  Interestingly, she discussed the relevance, or irrelevance as the case may be, of  a “high-crime neighborhood” which is often a proxy for race, as a factor that is often used to justify a stop.  According to Judge Barkett:

[T]he fact that the stop occurred in a high-crime area cannot, on its own, justify this frisk.  The vast majority of people that live, work, or travel through high-crime neighborhoods do not participate in any criminal activities, much less activities that put officers and other community members at risk.  This is, in part, why several of our sister circuits have warned of “the dangers of relying too easily or too heavily on these contextual factors.”

Judge Barkett does not stop there, however:

Focusing on the fact that a crime occurs in a purportedly high-crime area carries with it other significant risks.  In addition to eroding the liberty of all individuals in these communities, the high-crime neighborhood designation “raised special concerns of racial, ethnic, and socioeconomic profiling.”  The Terry [v. Ohio] decision  itself recognized these dangers, requiring individualized suspicion in part “because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and ‘severely exacerbat[e] … police-community relations.”  Moreover, because neighborhoods descried as “high-crime” are almost always poor communities of color, excessively-broad police discretion to frisk suspects in such neighborhoods facilitates the disproportionate targeting of poor people of color by law enforcement, contributing to unjustifiable levels of racial and socioeconomic disparities in the criminal justice system.

I have omitted citations and footnotes from these quotes; they are available in the actual order itself, which can be downloaded here.

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Just Another Day at the Office

I was helping out on a criminal matter that resulted in a good outcome for the client.  What started as a multi-count indictment with gun and drug possession charges and a fairly lengthy sentence, ended in the client’s release for time served.  The attorney I was working with even managed to reinstate his probation even though the client had been “revoked” before the criminal case came about.  This outcome was largely the product of shoddy police work and the prosecutor, to his credit, knew it; hence, the reduced charges.  Client ended up pleading guilty to misdemeanor obstruction.

To the general public this result may seem like familiar examples of the criminal justice system run amok and criminal defense attorneys up to their usual tricks .  Even the judge, who accepted the plea but had almost no knowledge of how the police trampled on the client’s constitutional rights in their haste to rid society of another criminal element, was taken aback by the deal the client received from the prosecutor.  To hear the incident recounted during the plea proceedings, one would be hard pressed to think otherwise: guns and drug-like substances were recovered, client’s friend fleeing the scene, client slamming the door on the police and then attempting to flee himself.  But what was not disclosed and what really turned the case around was how the police violated god knows how many constitutional and statutory provisions against unreasonable searches and seizures when they searched the apartment client was at without a valid warrant, and the one they eventually did get was just as good as no warrant at all when they failed to comply with appropriate procedures.

The unfortunate thing is that the public will, for the most part, never learn of what the police did and, for that matter, didn’t do, in the client’s case.  The fortunate thing though is that the client had  attorneys who did find out what happened (not always a given) and raised hell with the prosecutor about it as was their duty under the Constitution.