Who Really Cares About Illegal Stop and Frisk?

Posted by Perry de Marco, Sr. on 4 February 2014

Why should any decent law abiding citizen care about illegal stop and frisk?

Frankly, having been a Philadelphia Criminal Lawyer for 38 years and having grown up in the city, I have never actually seen a stop and frisk legal or otherwise. Those police activities do not occur where I work or where I now live in the suburbs. Those practices are not impacting my life in any way. So why should I care? Furthermore, lets give serious thought to what a stop and frisk is designed to do. It is designed to get weapons, drugs, and criminals off the streets so as to make our world a lot safer. Is there something wrong with this? Now the Philadelphia Police have been widely criticized about their stop and frisk policies. They have been sued in The Federal District Court where it is alleged that their stop and frisk practices discriminate against innocent African Americans, Latinos, and to some extent Asians. It is alleged that the number of illegal stops versus the amount of illegal weapons and contraband recovered is totally disproportionate and therefore without any legal or practical justification. Also it is alleged that the manner in which the stops are conducted has in some cases resulted in unnecessary injury to the persons searched. Furthermore, in the case of marijuana arrests, there too, it is alleged that there is discrimination against African Americans, Latinos, and Asians. See Mahari Bailey,et al., Plaintiffs v. City of Philadelphia, et al., Defendants, C.A. No. 10-5952 So why is this happening? We cannot deny that within our City there are neighborhoods designated as high crime and high drug areas. Unfortunately those neighborhoods are largely populated by African Americans and Latinos. The reasons why there is more crime, guns, drugs and violence in those areas would be a subject of encyclopedic proportion. Unfortunately good and decent, hardworking people live in these areas and they have just as much right to be protected by the Constitution of the United States and the State of Pennsylvania as does anyone else in this Country. But they are not so protected. They are the ones who it is alleged are being constantly subjected to illegal police practices. We should all care very much about Constitutional violations no matter how and where they occur. I am always amazed when I speak with educated Europeans and South Americans because routinely they know more about their history and constitutional protections or lack thereof then Americans. In some cases they are fighting to obtain or protect those rights while we sit back and take ours for granted. It is so discouraging to speak to juries about the Constitutional rights of the defendant only to be greeted with blank stares! Believe it or not Constitutional protections don’t end at Broad and Spring Garden, or at 8th and Butler or in South West Philly. And believe it or not it’s not, the Constitution doesn’t only apply to white Americans. Now the police have a job to do. It’s a dangerous job and more frequently they are sacrificing their lives in the line of duty. They are brave men and women and deserve great respect for their sacrifices and the sacrifices of their families. I am the first to admit that I do not possess the courage or the strength to do their dangerous jobs. But as with all things in life a balance must be struck between the protection of the public, the protection of the officer and the rights of the innocent citizens who are being stopped and frisked. Our Courts have struggled to find this balance. Judges and lawyers debate these issues in court every day. There are hundreds of appellate court decisions which address the issue of police /citizen encounters. The case law has sought to refine these to three main categories: the mere encounter in which an officer my simply ask a question of a citizen without any degree of suspicion required and where the person is presumably free not to respond and walk away. Believe me that’s a big presumption. The second is an investigative detention. Here the officer must have facts and circumstances which justify a reasonable suspicion that the suspect may be involved in criminal activity. Finally there is the custodial detention or Arrest, which requires that the Officer have probable cause to believe that the suspect has committed a crime. In the case of an arrest, a full frisk and search of the suspect is justified not only to search for contraband but also for weapons. Furthermore, as these are evolving, real life, situations an encounter can escalate into a investigative detention and ultimately to an arrest. Commonwealth v. Acosta 815 A.2d 1078, 2003

Unfortunately, good, decent and innocent people are being arrested, that is stopped, frisked, violated and humiliated without probable cause, only to be released. Now this is not an just an academic discussion. On those mean streets it is a pervasive problem because these bad police practices perpetuate themselves through lack of training, acceptance and abuse of power. Many of the people who fall victim to these illegal searches do not have a voice in the process. They can’t fight back. They can’t afford to. Many simply accept illegal stop and frisk as a fact of life. Now last week the Philadelphia Police Department announced that they are instituting new practices and procedures to help combat this problem. Procedures designed to identify issues and institute better training. That’s a good thing if it works. Let’s all hope that it does and let’s give them a chance.

The Spanish American Philosopher Jorge Santayana said “those who cannot remember the past are condemned to repeat it” Relatively speaking we are a very young country. It was not too long ago that in certain dictatorial countries and even in some countries today, practices like those described herein were wide spread. Abuses of power don’t self destruct. They perpetuate themselves. They become ingrained into society and ultimately accepted. They become emboldened and ever more powerful. Suddenly the police practices that occur in the Bad Lands may start happening at your front door. We are all in this together and we all need to be concerned and vigilant regarding the protection of our Constitutional Rights.