Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident

18 Pages Posted: 17 Nov 2014

Date Written: November 15, 2014

Abstract

This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.

Keywords: stop and frisk, criminal procedure, Terry

Suggested Citation

Meares, Tracey Louise, Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident (November 15, 2014). Yale Law School, Public Law Research Paper No. 526. Available at SSRN: https://ssrn.com/abstract=2524930 or http://dx.doi.org/10.2139/ssrn.2524930

Tracey Louise Meares (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4074 (Phone)
203-432-4876 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
110
rank
241,425
Abstract Views
599
PlumX Metrics