A prosecutor's perspective

St. John's Law Review, Summer 1998 by Juviler, Michael R

Thank you. It was a privilege thirty-one years ago to appear before the Justices whose clerks are here and with the distinguished lawyers whom you've just heard from, and it's a privilege to be on a panel with them now.

I'd like to take you back thirty-one years to the perspective of a litigator preparing for the Supreme Court, and then come back to the current perspective of a trial judge who has been applying the Terry 1 case and the cases decided after it.

It was a daunting task to defend the right of the police to stop and frisk persons abroad on the public streets on less than probable cause, and a daunting task to defend the validity of those actions taken under a New York State statute which recently had been enacted.2 You must remember that at the time of the Terry argument, the exclusionary rule was very new in New York, in Ohio, and in many other states.3 There was no experience of any substance applying Fourth Amendment law in a state prosecutor's office. We were like second-year law students preparing to argue a historic case before the Supreme Court. We had had no occasion to study in detail the law of search and seizure under the Fourth Amendment.

Three themes appeared to us as we prepared.

The first was that in the brief six years under the exclusionary rule, we had been trained and developed in a culture of probable cause. We knew from probable cause. We didn't know from reasonable suspicion. There was considerable skepticism in our office about our ability to properly uphold the new law. There was skepticism when the Rivera4 case, which Mr. Payne has referred to, was argued in our highest court in New York, and when the stop and frisk in that case, undertaken without authority of the statute, was upheld.5

The second theme that emerged in our preparation was the theme of race. It was as apparent in 1967 as it is now that street encounters between police officers and citizens are disproportionately burdensome to members of minority groups and have caused considerable resentment.6

The third problem that emerged was the problem of police credibility. What if Detective McFadden had testified in a New York court? Some Detective McFaddens would have said not only what the real Detective McFadden said, but also, "[w]ell, actually I also saw a bulge on Mr. Terry, and then there was a bulge on Mr. Chilton, and yes, I have had experience making arrests for persons casing stores." The dramatic increase in cases known as "dropsy" cases shortly after Mapp v. Ohio7 and its exclusionary rule was what gave rise to our concerns as officers of the court. Before Mapp, the gamblers or addicts would have the contraband in their mouths or on their persons, and this stuff was seized from the suspects' mouths or waistbands, but in 1961, after Mapp, the criminal community started much more than before to drop these items to the ground, abandoning them and obviating probable cause.

Our first determination was to urge a theory of proportionality.8 At that time it was relatively simple: An officer needs less information and reliability of information to stop and frisk than to arrest, and there is a need to stop and frisk. We sought to document this in our written argument and in a long appendix to the brief.9 The strategy here was to write the obverse of Mr. Chief Justice Warren's opinion in the recent Mirandalo case, which was replete with examples from police training manuals and actual cases of the abuses of station-house interrogation. We tried to show by use of actual cases what Professor Amar refers to in his paper, to be presented later in this conference, as the good Terry-to show the need for the stop and the need for the frisk.ll

With respect to race, we spent nine pages in our brief addressing that problem. Our statistics on the application of the stop-and-frisk law were gathered from 1600 police reports required by the New York City Police Department for stops or frisks. They showed the disproportionate racial impact of those actions. One of the strengths of the Terry opinion is that it directly addresses the impact of its ruling on race relations.l2 It also points out, as we did in our brief, the limits of what the exclusionary rule can accomplish in this area.l3

Now I'd like to stand here as a judge who for nineteen years in the trial court has been applying Terry and its subsequent cases, and to look back from that perspective.

After the Terry opinions were filed, we felt perhaps like the makers of the hydrogen bomb. What had we created? What had we contributed to? Would this lead to further racial divisions, police abuse, police "testi-lying?" And so we addressed one of these problems shortly thereafter, in a case before our Court of Appeals which I urge you to read, People v. Berrios.14 We asked the Court of Appeals to put the burden of proof and persuasion on the prosecution at hearings on motions to suppress evidence that is obtained by warrantless searches and seizures.15 We lost that request by one vote.ls The federal standards of proof and persuasion, at least in the Second Circuit, appear to be different from ours in New York, and that may be an area for possible litigation for you lawyers.l7