“Two police officers must pay a Milwaukee man more than half a million dollars for violating his civil rights by searching him without a legal reason and wrongfully arresting him, reports the Milwaukee Journal Sentinel. A federal jury determined that officers did not have a reason to stop and search the 40-year-old man outside his mother’s home in 2012. With the verdict, jurors were essentially saying that Milwaukee police, like their counterparts in New York City, had used unconstitutional ‘stop and frisk’ tactics. The officers did not have ‘reasonable suspicion,’ the lowest level of proof required for officers to search someone in which the Plaintiff had not committed a crime or posed a threat, the jury found. The jury believed the Plaintiff, and they sent a message that no police officer can stop a man and put their hands on him simply because he is black in Milwaukee, said the Plaintiff lead attorney. The verdict was the first in potentially dozens of civil rights trials alleging illegal strip and cavity searches by Milwaukee police. More than 60 people have sued in connection with such searches.”

Unfortunately, this case is not exclusive to Milwaukee.  The NYPD ‘stop, question and frisk’ Federal trial verdict is currently causing that agency to reevaluate its position on this tactic.  This type of police encounter is also one of those that the U.S. Department of Justice normally focuses on during its ‘pattern and practice’ investigations since 1997.

And it’s not just an issue for large departments.  Miami Gardens, Florida is facing a slew of lawsuits over an enormous amount of ‘suspicious persons’ stops, primarily of persons of color.  The street officers in this city have testified that these stops were the result of being pressured by command staff’s demand for statistics.

For years police officers have been conducting stops of ‘suspicious persons.’  This dates back to the U.S. Supreme Court Terry case decided in 1968. On many of these stops officers conduct some form of ‘cursory search’ or ‘frisk.’

Public Agency Training Council recently conducted a survey to determine aspects of this police practice and agency reporting requirements.  In just over a weekend, PATC received 1751 responses to this survey.

The overwhelming number (89 percent) said that their officers were trained in the legal and tactical aspects of stops of suspicious persons.  In reality it probably should be 100 percent as this is mandated in nearly all basic training curriculums.

There was a marked drop-off, only 25.1 percent answered ‘yes,’ in the agencies that stated that a specific report was mandated for each ‘stop, question and frisk’ encounter. Of those that stated they did require a report, 77.7 percent said that this report required the officers to ‘specifically articulate the elements of his/her reasonable suspicion.’  When it came to requiring a supervisor to review and sign each report the positive answers were only 54.4 percent.

More alarming is that only 16.7 percent of all of the agencies that responded to the survey stated they maintained statistics on these encounters.

We could lose this valuable community safety tool if law enforcement fails to act reasonably in training, policy development, supervisory control and field implementation.  Consider the predicament law enforcement encountered on vehicle pursuits.  The courts ended up deciding ‘reasonableness’.  Many professional police officers, in fact, think that recent court decisions have seriously eroded the years of positive work done by law enforcement to limit or restrict pursuits.  Some would contend that recent U.S. Supreme Court decisions appear to allow police pursuits with few restrictions.

If we don’t take action on this issue, the U.S. Department of Justice and litigation may create an even higher standard of proof and conduct for these types of stops.  That could result in some officers simply not conducting these types of community protection stops.  Other officers might become so preoccupied with the legality of the stop that they will let down their guard and could lose their lives.

It’s ironic that on September 16th of this year DOJ announced that it was providing $4.75 million to study five, as yet unnamed, cities.  The focus would be on “racial bias…that would collect data on stops, searches, arrests and case outcomes.”

So what does this say for law enforcement?

    1. Review Training

      Most of law enforcement relies on regional police academies for basic training.  Each agency should evaluate the adequacy of that training and, if necessary, enhance the legal and tactical training on field interview and stops of suspicious persons.  This training must focus on the preparation of the reports and specifically the articulation of ‘reasonable suspicion.’  On-going, in-service training is essential and can be done easily by using free legal updates from sources such as the Public Agency Training Council and Americans for Effective Law Enforcement.

    2. Documentation

      We need to expand the breadth of documentation on these types of stops.  These are seizures and we shouldn’t diminish that fact.  Consider what reporting we require when that stop ends up resulting in a physical arrest.  We require the officer to fully articulate the elements that lead to the development of ‘probable cause.’  A stop, question and frisk should result in similar documentation.  A one page check off report for demographic/physical description would be adequate if it also allowed sufficient room for the officer to fully articulate the specific elements of this encounter’s ‘reasonable suspicion.’

    3. Supervision

      Supervisors will be the key to an effective implementation of this new procedure.  Some officers may elect to simply stop making these types of proactive field enforcement stops, saying it’s just too much extra work.  Others may try to cut corners and make out a report only when the stop results in something else. Just like any police report, this report must be reviewed and approved by a supervisor.  It will be essential that the supervisor ensure that the officer does the proper articulation identifying the ‘reasonable suspicion’ for the stop.

    4. Quality Control Review

      At least quarterly the agency should conduct a quality control review by sampling these reports.  This should be done by a command level person, a representative from IA/OPS, and the agency’s legal advisor.

    5. Data Collection

Each agency should gather and evaluate the data from these stops.  Focus on the ethnicity and location of these stops and make a conscious analysis of what this might demonstrate for your specific jurisdiction.  We need to be proactive and be able to explain rationally when certain areas of your city are most active or when age and ethnicity might be challenged by outside advocacy groups.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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