* J.D., University of Virginia School of Law, 2021. I am grateful to Professor Anne Coughlin for her patience and guidance throughout this project. I am also indebted to Louis Capozzi, Justin Aimonetti, Olivia Roat, and the members of the Virginia Law Review for their thoughtful feedback. Thank you to my dear friends Josh Hanley, Drew Mackenzie, Janessa Mackenzie, Blake Page, Anna Cecile Pepper, and Avery Rasmussen for always believing in me. I will miss you next year. Finally, I am deeply blessed to have such a supportive family. John, Margaret, Marlise, Nala, Mom, and Dad, I love you. This Note was inspired by and is dedicated to my father, Jeffrey Sutton.Show More
Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat litigation. But after Terry, the state courts became silent. Since 1968, every state court has lockstepped with Terry in interpreting its own constitutional provisions.
This presents a puzzle, since state courts are free to provide more expansive (or less expansive) rights protections in interpreting their own state constitutions. And in other contexts, they have not been shy in doing so. In roughly a quarter of the Supreme Court’s Fourth Amendment cases, state courts have read their state guarantees to exceed the U.S. Constitution’s protections.
Terry’s suspect pedigree further complicates the puzzle. Over the past few decades, stop-and-frisk has helped spark a breakdown in police-community relations. Multiple federal investigations have uncovered its connection to systemic racism. By many accounts, both the stop and the frisk have disproportionately targeted minorities. Terry has also led to nationwide unrest. A Terry stop precipitated the deaths of Eric Garner, Michael Brown, and Freddie Gray.
This Note proposes a change in perspective: that litigants challenge stop-and-frisk under state law. It also lays the groundwork for such challenges. It examines the history of stop-and-frisk at the state level before Terry. It analyzes the Terry litigation, relying especially on the NAACP’s briefing, which accurately predicted stop-and-frisk’s perverse potential. And it synthesizes this analysis into three arguments that should be raised against stop-and-frisk under state law.
Introduction
In November 2019, former New York City Mayor Michael Bloomberg launched his campaign for the presidency in unprecedented fashion—with an apology. 1 1. Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).Show More Speaking at a predominantly Black evangelical church in Brooklyn, Bloomberg renounced the stop-and-frisk policing strategy that had served as a “pillar of his 12-year mayoralty.” 2 2. Id.Show More “The fact is, far too many innocent people were being stopped while we tried to do that,” Bloomberg said, later adding, “I got something important really wrong.” 3 3. Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].Show More
Despite his contrition, Bloomberg was unable to shake the stigma of the city’s stop-and-frisk policy. “It’s not whether he apologized or not,” argued Joe Biden. 4 4. Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].Show More “It’s the policy. The policy was abhorrent. And it was in fact a violation of every right people have.” 5 5. Id.Show More Elizabeth Warren echoed these sentiments: “It targeted Black and brown men from the beginning . . . You need a different apology here, Mr. Mayor.” 6 6. Id.Show More The denunciations only escalated after a 2015 video emerged in which Bloomberg expounded a racist methodology for targeting minority communities. “[W]e put all the cops in the minority neighborhoods,” he said. 7 7. Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate, NPR (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].Show More “Why’d we do it? Because that’s where all the crime is. And the way you should get the guns out of the kids’ hands is throw them against the wall and frisk them.” 8 8. Id.Show More The soundbite went viral and Bloomberg’s candidacy floundered thereafter.
The repercussions of stop-and-frisk extend beyond Bloomberg’s mayoralty in New York City. In 2015, the Department of Justice released its Ferguson Report, investigating the practices that contributed to riots in the St. Louis suburb. Among the DOJ’s cause-and-effect findings was this: an unchecked “pattern of suspicionless, legally unsupportable stops.” 9 9. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].Show More The Ferguson Police Department “must fundamentally change the way it conducts stops and searches,” the DOJ concluded. 10 10. Id. at 91.Show More Other jurisdictions have faced similar controversies. After 250,000 stops in 2009, the Philadelphia Police Department pledged to appoint an independent monitor and retrain officers as part of a settlement agreement with the ACLU. 11 11. Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).Show More The ACLU has been similarly assertive in critiquing the “troubling frequency” of stops in Newark, and it has identified “similar controversies” in Miami, Baltimore, Chicago, and Detroit. 12 12. Id. at 5–6.Show More
Americans have heard a lot of stop-and-frisk-related apologies from their elected officials over the past decade. 13 13. This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.Show More But state court judges—many of whom are elected officials in their own right 14 14. See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].Show More —have been conspicuously silent during this time in interpreting their state constitutions. How have they avoided this explosive controversy? In short, they have shielded themselves for decades behind federal precedent. In 1968, the United States Supreme Court constitutionalized stop-and-frisk under the Fourth Amendment in Terry v. Ohio. 15 15. 392 U.S. 1 (1968).Show More And ever since, state courts have interpreted search-and-seizure protections in their own constitutions in lockstep with Terry.
This Note demands a change. State courts are free to do what they wish, but they should not hide under the umbrella of federal precedent in construing the search-and-seizure guarantees found in their own constitutions. The Supreme Court and state courts alike recognize that “[i]t is an established principle of our federalist system that state constitutions may be a source of ‘individual liberties more expansive than those conferred by the Federal Constitution.’” 16 16. State v.Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting PruneyardShopping Center v. Robins, 447 U.S. 74, 81 (1980)).Show More Indeed, over the past few decades, state courts have adopted muscular interpretations of their state provisions to reject controversial criminal procedure decisions like California v. Hodari D., 17 17. 499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, seeLaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).Show More Illinois v. Gates, 18 18. 462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).Show More and United States v. Leon. 19 19. 468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).Show More As Mayor Bloomberg (and the millions of citizens subjected to stop-and-frisk) can attest to, Terry may be the most controversial of all. And it is time that it receives reassessment in America’s state court systems.
Part I of this Note examines the societal forces that shaped Terry and the state-level decision making that contributed to its enshrinement as Supreme Court precedent. Part II analyzes the Terry litigation, focusing on the problems Terry was designed to solve and the courts’ different methodologies. Part III argues that state courts play a crucial role as guardians of individual rights and, thus, should not lockstep with Supreme Court precedent. Relying upon this analysis, Part IV raises three arguments that could be marshalled against stop-and-frisk under state law. Finally, Part V offers this Note’s conclusion. Michael Bloomberg is on the record. The citizens of New York City, Philadelphia, and other American cities are too. It is time for state courts and state constitutions to have their turn. It is time to reassess stop-and-frisk under state law.