Terry v Ohio's fourth amendment legacy: Black men and police discretion

St. John's Law Review, Summer 1998 by Maclin, Tracey

It's harder to work in these neighborhoods now than it used to be because we send the kids to school and teach them about rights and then put them back in the neighborhood. I think we ought to either get rid of these neighborhoods or stop teaching these kids about their rights. -Police officer's response to blacks who resist patrol tactics utilized by the police in the 1960's 1

It's like when you're a parent, you just know your children aren't doing what they're supposed to be doing. -St. Petersburg Police Chief Goliath Davis, III, explaining how persons are selected in 1997 by police for field interview reports.2

I. INTRODUCTION

When one examines the history and modern exercise of police "stop and frisk" practices,3 the old adage "the more things change, the more they stay the same," aptly describes the experience of many black men when confronted by police officers. Before the "due process revolution" of the 1960s, a retired, white Detroit police officer told the United States Civil Rights Commission the following:

I would estimate-and this I have heard in the station also-that if you stop and search 50 Negroes and you get one good arrest out of it that's a good percentage; it's a good day's work. So, in my opinion, there are 49 Negroes whose rights have been misused, and that goes on every day.4

Despite the passage of thirty years and a landmark Supreme Court ruling aimed at checking the discretion of officers, things have not changed much; black men continue to be subjected to arbitrary searches and "frisks" by police.5 Consider a few examples taken from recent press reports:

It was 72 degrees and sunny in Homestead, a town just south of Pittsburgh whose better days saw steel mills ablaze, and streets busy with people on their way to wellpaying jobs....

At 3:10 in the afternoon, the police and the young black men standing on Amity are playing the usual cat-andmouse game. Two officers in a cruiser drive slowly past the men and stare, silently sending the word: don't hang too long. The men shrug the police off, walking casually away, but only until the car is out of sight. Then they regroup.

The game continues for the rest of the day and into the night. Police drive quietly by three more times. On the fourth pass, they order the men to move on or "someone's going to jail."

Finally, two of the men give it up and leave for home. On the way, police stop and search them. An officer notices a marijuana cigarette on the sidewalk and asks where it came from. The men say they don't know. The police let them go.

A half hour later, officers stop three more of the original group on Amity Street and pat them down. No arrest is made. But the message has been sent.6

Friday night in the ghetto of southeast New Orleans, the city's highest crime area, as four young black men standing on a quiet, darkened corner are about to spend some time getting to know the hood of Officer Kevin Hunt's police car. ...

Dressed in dark blue police fatigues, heavy boots, and wearing a pistol, Officer Hunt leans the boy's hands against the patrol car as his partner, rookie Lawrence Jones, reaches for the handcuffs.

Hunt: "Put your hands behind your back, bro." Officer Jones runs a computer check for any outstanding warrants while Hunt uses his flashlight [for] a zerotolerance search for crack cocaine.

Hunt: "Open your mouth! Lift up your tongue .

No drugs are found and this 14-year-old and his buddies are sent on their way.

The [New Orleans Police Department] calls these "proactive drug patrols." Officers in this task force don't ride around waiting to respond to 911 calls. Instead, they make frequent--on this night anyway-seemingly random searches of just about anybody hanging around suspected drug areas. Throughout an eight-hour evening shift, the officers, both of whom are black, roam this lowincome black neighborhood and stop, cuff, and search more than 20 men, sometimes with guns drawn....

For sure, many of those stopped this night weren't choir boys. Computer checks showed many had past run-ins with the law. But this evening, not one had any drugs, and all but one was let go. He had an outstanding warrant.

Back in the patrol car, Officer Hunt says the stops are necessary to fight an entrenched drug trade which fuels crime.

Hunt: "They look at the type of work that we do as police harassment. No one's blind to the fact that there's a lot of narcotics here."

Asked about the Fourth Amendment's prohibition of unwarranted searches, Hunt says he's merely responding to citizen complaints.

Hunt: "If we get citizen complaints about a specific corner, we go there. There's people hanging on the corner, we're gonna stop 'em to question 'em, to see if they have any contraband on 'em. The letter [i.e., the citizen complaint] in and of itself is reasonable suspicion and sort of probable cause to stop 'em."7

Reading his newspaper and sipping his orange juice on the 6:42 train from Chappaqua, [New York], Earl G. Graves Jr. looked and felt like the briefcase-toting businessman he is. But when the train arrived at Grand Central Terminal at 7:35 and he stepped onto the platform, he was transformed.