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VOLUME 18, ISSUE 3, PAGES 45–65 (2017)

Criminology, Criminal Justice, Law & Society

E-ISSN 2332-886X

Available online at

https://scholasticahq.com/criminology-criminal-justice-law-society/

Corresponding author: Henry F. Fradella, Arizona State University, Mail Code 4420. 411 North Central Avenue, Suite 600,

Phoenix, AZ 85004-0685, USA. Email: [email protected].

Reforming Stop-and-Frisk

Henry F. Fradella and Michael D. White

Arizona State University

A B S T R A C T A N D A R T I C L E I N F O R M A T I O N

Although stop-and-frisk has a long history as a policing tactic rooted in particularized, reasonable suspicion of

criminal activity, several U.S. jurisdictions morphed stop-and-frisk into a broad and sometimes aggressive crime-

control strategy. The recent experiences in many jurisdictions demonstrate a strong disconnect between

constitutionally sanctioned principles and policing practice. Arguably, stop-and-frisk has become the next iteration

of a persistent undercurrent in racial injustice in American policing. Although stop-and-frisk has a legitimate place in

21st-century policing, changes must be made to prevent officers from engaging in racially biased or otherwise

improper and illegal behavior during stops of citizens. Recommended reforms include better selection of police

personnel during recruitment, improved training, clearer administrative policies, enhanced supervision of officers

with corresponding accountability mechanisms, and external oversight.

ADAPTED FROM:

Fradella, H. F., & White, M. D. (2017). Stop-and-frisk. In E. Luna (Ed.), Reforming criminal justice: A report of

the Academy for Justice on bridging the gap between scholarship and reform (Vol. 2, pp. 51–81). Phoenix,

AZ: Academy for Justice.

Keywords:

policing, stop-and-frisk, race and justice, criminal justice policy reform

In 1968, the U.S. Supreme Court decided the

landmark case of Terry v. Ohio

(1968). In the interest

“of effective crime prevention and detection,” the

Court built on an English common law tradition

justifying a stop when it held that “a police officer

may, in appropriate circumstances and in an

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

appropriate manner, approach a person for purposes of

investigating possibly criminal behavior even though

there is no probable cause to make an arrest” (Terry v.

Ohio, 1968, p. 22). Moreover, during that encounter,

an officer might also be justified in conducting a frisk

for the reasons Chief Justice Earl Warren summarized

as follows:

[T]here must be a narrowly drawn

authority to permit a reasonable search for

weapons for the protection of the police

officer, where he has reason to believe that

he is dealing with an armed and dangerous

individual, regardless of whether he has

probable cause to arrest the individual for a

crime. The officer need not be absolutely

certain that the individual is armed; the

issue is whether a reasonably prudent man,

in the circumstances, would be warranted

in the belief that his safety or that of others

was in danger. (Terry v. Ohio, 1968, p. 27)

More than 40 years after Terry v. Ohio was

decided, U.S. District Judge Shira Scheindlin presided

over two cases in which residents of New York City

alleged that Terry’s “stop-and-frisk”

authority had

been seriously abused by New York City Police

Department (NYPD) officers (Daniels v. City of New

York, 1999; Daniels v. City of New York, 2001; Floyd

v. City of New York, 2008; Floyd v. City of New York,

2013; Ligon v. City of New York, 2013). When she

ruled that the NYPD had violated New Yorkers’

Fourth and Fourteenth Amendments to the U.S.

Constitution, Judge Scheindlin said that, “[t]he City

acted with deliberate indifference toward the NYPD’s

practice of making unconstitutional stops and

conducting unconstitutional frisks. Even if the City

had not been deliberately indifferent, the NYPD’s

unconstitutional practices were sufficiently

widespread as to have the force of law” (Floyd v. City

of New York, 2013, p. 562).

Although the NYPD’s aggressive approach to

stop-and-frisk may have garnered the most attention,

the strategy generated similar controversies in other

jurisdictions throughout the United States (White &

Fradella, 2016).

On one hand, Terry stops are

constitutionally permissible and are grounded in a

historical and legal tradition dating back hundreds of

years. Moreover, few people would disagree that law

enforcement officers should be able to be take action

to protect themselves under circumstances reasonably

indicating that they, or others, may be in danger.

On the other hand, the events in New York and

other jurisdictions reveal gross overuse and misuse of

stop-and-frisk resulting not only in violations of

citizens’ constitutional rights, but also in strained

police-community relationships; damage to police

legitimacy; and significant emotional, psychological,

and physical consequences to citizens, especially those

of racial or ethnic minority backgrounds. Indeed, the

line between a sound, constitutionally approved police

practice and racial profiling has become so blurred that

some city and police leaders have faced media scrutiny

and backlash from citizens when they consider

adopting a stop-and-frisk program (Harris, 2017;

Jablonski, 2014). But stop-and-frisk can be reformed.

First, an officer’s decision to detain a person

temporarily on suspicion of criminality must be

viewed as an exercise of police discretion. The

policing literature suggests that effective hiring

practices, proper training, clear administrative

guidance, and sufficient supervisory oversight can all

help to properly control police discretion so that it is

exercised in a fair and just manner. But unlike some

other discretionary decisions that the law neither

explicitly requires nor prohibits, an officer’s decision

to stop someone, along with the subsequent decision

to pat down the person for weapons, are both

constrained by law. Thus, and to the second point, the

tactic must be used in a manner that satisfies the

constitutional standards regarding reasonable

suspicion.

And third, stop-and-frisk must be

employed with sensitivity to citizens’ concerns. Thus,

assessment of the tactic should occur through a

procedural justice lens.

The Origins of Stop-and-Frisk Authority

English constables and “watchmen” were

permitted to detain “night-walkers”—suspicious

people encountered at night (Ronayne, 1964). Indeed,

those on the night watch could legally “arrest such as

pass by until the morning, and if no suspicion, they are

then to be delivered [released], and if suspicion be

touching them, they shall be delivered to the sheriff”

(Hale, 1736, p. 96; see also Lawrence v. Hedger,

1810). Even private citizens had the authority to detain

and question suspicious “night-walkers” (Hawkins,

1824).

Uniform Arrest Act

In 1939, the Interstate Commission on Crime

authorized a study to examine how arrests were made

across the United States. The study examined the

feasibility of creating a model law that states could

adopt to harmonize arrest practices across the country

and to bring the actions of police into alignment with

constitutional standards (Warner, 1942). Once drafted,

that model law became known as the Uniform Arrest

Act. Its provisions dealt with nine types of police-

initiated contacts with citizens, the first two of which

were “[q]uestioning and detaining suspects” and

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

“[s]earching suspects for weapons” (Warner, 1942, p.

317). Section 2 of the Uniform Arrest Act provided:

“A peace officer may stop any person abroad whom he

has reasonable ground to suspect is committing, has

committed or is about to commit a crime. … The total

period of detention provided for by this section shall

not exceed two hours” (Warner, 1942, pp. 320–321).

Additionally, Section 3 of the Act stated that an officer

was permitted to conduct a “search for a dangerous

weapon … whenever he has reasonable ground to

believe [a person stopped or detained for questioning]

… possesses a dangerous weapon” (Warner, 1942, p.

325).

In 1941, the legislatures of New Hampshire and

Rhode Island adopted the Uniform Arrest Act as the

laws of their states (1941 N.H. Laws 242, ch. 163;

1941 R.I. Pub. Laws 21, ch. 982). Delaware followed

suit in 1951 (48 Del. Laws 769, ch. 304, 1951). Other

states enacted statutes authorizing stop-and-frisk

practices that were not consistent with the Uniform

Arrest Act (Ronayne, 1964). As a consequence,

considerable variation persisted across states with

regard to stop-and-frisk authority.

Terry, Sibron, and Peters

Prompted by the need to clarify the scope of

permissible conduct during stop-and-frisk procedures,

the U.S. Supreme Court issued three landmark rulings

in 1968 that set federal constitutional benchmarks for

stop-and-frisk within the framework of the Fourth

Amendment: Terry v. Ohio and the companion cases

of Sibron v. New York and Peters v. New York.

Collectively, these rulings afforded police the

discretion to stop citizens based on reasonable

suspicion. This standard of proof required more than a

mere hunch, but less evidence than probable cause; it

is satisfied when a law enforcement officer can “point

to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably

warrant” a brief, limited stop to investigate whether

criminal activity is afoot (Terry v. Ohio, 1968, p. 21).

These cases also made clear that law enforcement

officers may superficially “pat down” a suspect if

there is reasonable suspicion to believe the suspect is

armed. Such frisks are limited to cursory inspections

for weapons and, therefore, may not involve a “general

exploratory search for whatever evidence of criminal

activity he might find” (Terry v. Ohio, 1968, p. 30).

Justice William Douglas wrote the lone dissenting

opinion in Terry. He rejected the notion that the

Reasonableness Clause of the Fourth Amendment

could provide a basis to support stop-and-frisk outside

the usual probable cause standard (Terry v. Ohio,

1968, pp. 35–39). Indeed, Douglas presciently

cautioned that the reasonable suspicion standard—one

so low that it would not justify a magistrate issuing a

warrant—would not ring a “bell of certainty” (Terry v.

Ohio, 1968, p. 37). Rather, such a low and amorphous

standard would be a blank check for law enforcement

officers to exercise nearly unbridled discretion without

regard to constitutional protections:

To give the police greater power than a

magistrate is to take a long step down the

totalitarian path. Perhaps such a step is

desirable to cope with modern forms of

lawlessness. But if it is taken, it should be

the deliberate choice of the people through

a constitutional amendment. Until the

Fourth Amendment, which is closely allied

with the Fifth, is rewritten, the person and

the effects of the individual are beyond the

reach of all government agencies until

there are reasonable grounds to believe

(probable cause) that a criminal venture

has been launched or is about to be

launched (Terry v. Ohio, 1968, p. 38–39).

Perhaps as reaction to the concerns Douglas

raised in his dissent in Terry, Chief Justice Earl

Warren’s majority opinion in the case was written very

cautiously and narrowly (Sundby, 1988). The opinion

could have been applied in a manner limited to police

safety stops. But through subsequent cases—most

notably Adams v. Williams (1972) and Delaware v.

Prouse (1979)—Terry gradually was interpreted as

granting police expansive “stop” authority to conduct

broader, more general investigative detentions than

night-walker statutes which, by the terms, were

confined to night-time detentions to prevent breaches

of the peace (Ronayne, 1964, pp. 213–215).

Moreover, those who made arrests under night-walker

statutes were subject to liability for false imprisonment

if the overnight detention was not justified. As

Rosenthal noted, “[u]nder the contemporary qualified

immunity doctrine, in contrast, officers face no

personal liability even if they violate Fourth

Amendment standards, as long as their judgment

under the circumstances is considered reasonable”

(Rosenthal, 2010, p. 333). Courts assess the validity of

stop-and-frisks under the reasonable suspicion

standard by considering “the whole picture”—all of

the facts known under the “totality of the

circumstances” (United States v. Cortez, 1981, p. 417).

Importantly, judges are supposed to defer to the

professional judgment and experience of police when

assessing the totality of the circumstances (United

States v. Cortez, 1981, pp. 421–422).

Stop-and-Frisk Beyond Terry and It Progeny

Throughout the 1980s, the Court exempted

several classes of stops from the usual requirements of

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

Terry.

For example, in United States v. Mendenhall

(1980), the Court ruled that a stop had not occurred

when federal agents approached the defendant in the

open concourse area of an airport. Because the agents

neither wore uniforms nor displayed weapons, and

because they requested—but did not demand—to see

the defendant’s ticket and identification, the Court

reasoned that the encounter did not constitute a stop

that qualified as a seizure for Fourth Amendment

purposes. Rather, the stop was deemed a voluntary and

cooperative encounter because at no time should a

reasonable person in the defendant’s situation have

ever felt that she could not leave (United States v.

Mendenhall, 1980, pp. 554–555). Then, in I.N.S. v.

Delgado (1984), the “free to leave” test morphed into

something even more restrictive on personal liberty:

free to continue working and moving about a factory

while armed agents wearing badges roamed the

premises questioning people about their immigration

status. The Court further narrowed Terry in Florida v.

Bostick (1991) when it clarified that law enforcement

officers have the authority to stop and ask basic

investigatory questions—including requests to

examine identification or to search luggage of bus

passengers—without there being a seizure for Fourth

Amendment purposes “as long as the police do not

convey a message that compliance with their requests

is required” (p. 435). In short, Bostick interpreted

Mendenhall’s free-to-leave test by narrowing the

inquiry to one of coercive police tactics through shows

of authority from the perspective of a “reasonable,

innocent person” (Florida v. Bostick, 1991, p. 438).

In other cases, the Supreme Court extended the

authority of police to conduct frisks. Consider that in

Michigan v. Long (1983), the Court permitted the

police to conduct a brief search of the passenger

compartment of a car to look for hidden weapons.

Perhaps most importantly, the Court has partially

retreated from Sibron’s holding that reasonable

suspicion needed to be based on more than just

hunches. In Alabama v. White, the Court upheld a stop

of a vehicle based on an anonymous tip even though

there was no indication of the reliability of the tip

(1990). At first blush, Alabama v. White (1990) might

not appear to have retreated from Sibron’s holding

since an anonymous tip is more than a hunch, but it

paved the way for the decision in Michigan

Department of State Police v. Sitz (1990), which

authorized sobriety checkpoints at which police

stopped drivers without any particularized suspicion of

driving while impaired.

Illinois v. Wardlow (2000)

approved an inference of suspicion from flight—an

inference that logically extends to any type of evasive

behavior (for a review of cases, see Ferguson &

Bernache, 2008). Whren v. United States (1996)

upheld pretextual stops, thereby allowing police to

conduct stops for minor infractions so they could

investigate other, more serious crimes. And because

Minnesota v. Dickerson (1993) approved of the so-

called “plain feel” exception, police likely have an

incentive to frisk people even when they do not

actually fear the presence of a weapon,

but rather

hope to feel some drugs in the pat-down—a seemingly

permissible pretext in light of Whren (see Chin &

Vernon, 2015; Levit, 1996). Notably, Justice Antonin

Scalia wrote a concurring opinion in Dickerson in

which he expressed doubts about the constitutionality

of Terry as applied “frisks” because it exceeded the

scope of authority granted to watchmen under English

night-walker statutes. Scalia expressed doubt that “the

fiercely proud men who adopted our Fourth

Amendment would have allowed themselves to be

subjected, on mere suspicion of being armed and

dangerous, to such indignity” (Minnesota v.

Dickerson, 1993, p. 381, Scalia, J., dissenting). In

other words, where we are today with stop-and-frisk

authority under Terry is not necessarily a preordained

constitutional conclusion.

In short, Fourth Amendment jurisprudence has

steadily expanded stop-and-frisk authority since the

early 1980s. Notably, this expanded authority

increased the risk that officers would employ racial,

ethnic, and socioeconomic class stereotypes as part of

a calculus of suspicion to initiate stop-and-frisks. The

expansion of this authority, and the increased risk of

racial profiling, is especially problematic when

considering the persistent undercurrent of racial

injustice throughout nearly two centuries of American

policing—an undercurrent that is even evident in the

Terry decision itself. Consider that in his opinion in

Terry, Chief Justice Warren noted that stop-and-frisk

activities by police contributed to racial strife:

We would be less than candid if we did not

acknowledge that this question thrusts to

the fore difficult and troublesome issues

regarding a sensitive area of police

activity—issues which have never before

been squarely presented to this Court.

Reflective of the tensions involved are the

practical and constitutional arguments

pressed with great vigor on both sides of

the public debate over the power of the

police to “stop and frisk”—as it is

sometimes euphemistically termed—

suspicious persons. (Terry v. Ohio, 1968,

pp. 9–10)

The opinions in Terry, however, omitted or

glossed over several important facts relevant to the

racial issues underlying the case. Indeed, nowhere in

any of the opinions in Terry does any justice mention

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

that both Terry and his co-defendant, Chilton, were

Black men (Barrett, 1998). Nor does any justice

mention that a third man, Katz—a White man whom a

police officer observed interacting with Terry and

Chilton—was not charged; he was held as a

“suspicious person” and released after two days

(Barrett, 1998, p. 1465). According to the transcript of

the trial court’s suppression hearing in Terry, Officer

McFadden testified that when he saw the men standing

on the street, “they didn’t look right to [him] at the

time” (Barrett, 1998, p. 1456). Jones-Brown and

Maule (2010) suggested that McFadden’s attention

may have been drawn to the men on account of their

race. This conclusion is bolstered by a number of

ambiguities and inconsistencies in McFadden’s

account of the case. As Katz (2004) noted, McFadden

could not explain why he was initially suspicious of

the men; he repeatedly changed the number of trips the

men made up and down the street; and he expressed

uncertainty regarding the type of store into which the

men were looking. Thus, the reasonableness of the

initial stop appears to be more open to debate than the

Terry decision suggests.

The failure of the Court to

address the questionable reasonableness of the stop in

Terry illustrates how the very foundation of the

reasonable-suspicion standard in American

constitutional law masks racially disparate stop-and-

frisk practices with the cloak of race-neutrality

(McAffee, 2012; Maclin, 1998; for an in-depth

discussion of how racial stereotypes contribute to

police officer suspicion in the stop-and-frisk context,

see Fradella, Morrow, & White, 2016).

A Review of the Literature Documenting

the Rise and Impact of “SQF”

Terry and its progeny clearly constitutionally

sanctioned stop-and-frisk as a policing tactic. But

stop-and-frisk morphed into an aggressive crime-

control strategy quite different from the tactic outlined

in Terry, largely as a result of policing activities in

New York City. We differentiate the tactic of stop-

and-frisk under Terry from the New York City “Stop,

Question, and Frisk” (SQF) strategy by capitalizing

the latter and referring to it by the acronym “SQF.”

The Rise of SQF in New York City

Like many cities across the United States, New

York experienced a major spike in violence, crime,

and disorder in the 1980s (Lardner & Reppetto, 2000).

Much of the violence in New York was driven by the

emergence of crack cocaine and competition for the

drug market (Fryer, Heaton, Levitt, & Murphy, 2013).

Homicides climbed steadily from 1,392 in 1985 to

2,262 in 1990 (White, 2014). At the same time, the city

and subway system were struggling with rampant

social and physical disorder (Kelling & Coles, 1996).

Marijuana, heroin, cocaine, and crack cocaine were

regularly and openly being sold on street corners,

blocks, and city parks (Johnson, Golub, & McCabe,

2010). Kelling and Coles (2010) estimated that

“[a]pproximately 1,200 to 2,000 persons a night” were

sleeping in the subway system (pp. 117–118).

The New York Transit Authority appointed

William Bratton as chief of the transit police to address

crime and disorder in the subway system (“The Life

and Times,” 2013). Chief Bratton partnered with

criminologist George Kelling to develop an

enforcement strategy based on Wilson and Kelling’s

“broken windows” theory (Kelling & Wilson, 1982, p.

29).

This broken-windows based strategy targeted

low-level offenses (e.g., turnstile jumping), as well as

social and physical disorder through frequent arrests

and removals from the subway system (Joanes, 2000).

Over the next two years, the level of disorder dropped

dramatically, and felony offenses declined by 30%

(Joanes, 2000).

New York City Mayor Rudolph Giuliani

appointed William Bratton to become the

commissioner of the NYPD in 1994, and Bratton

immediately began implementation of a broken-

windows based strategy throughout New York

(Mitchell, 1993). Under Bratton (January 1994–April

1996) and his successors Howard Safir (April 1996-

August 2000), Bernard Kerik (August 2000–January

2002), and Raymond Kelly (January 2002–January

2014), SQF emerged as one of the primary strategies

not only to achieve order-maintenance by targeting

disorder and quality-of-life offenses (e.g., replicating

the subway strategy on a larger scale), but also as a

means of reducing gun violence through the seizure of

illegal firearms and through the intensive investigation

of gun-related incidents (White, 2014). Importantly,

the aggressive manner in which NYPD officers used

SQF to achieve these ends ignored the principles of

community policing, causing community resentment,

rather than fostering police-community collaboration.

This, in turn, contributed to critics charging that the

NYPD over-enforced quality-of-life infractions

through a zero-tolerance approach because officers

could easily justify the stops under the reasonable

suspicion standard (Fagan & Davies, 2000; Waldeck,

1999). Nonetheless, the aggressive use of SQF as a

department-wide strategy had the endorsement of

Mayor Rudolph Giuliani (1994–2001) and Mayor

Michael Bloomberg (2002–2013). Thus, SQF enjoyed

political support for a considerable period of time and

under two successive administrations that spanned

nearly 20 years.

The NYPD’s use of SQF increased steadily in the

late 1990s into the 21st century. In 2003, for example,

NYPD officers conducted more than 160,000 SQFs

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

(New York City Police Department, 2017; New York

Civil Liberties Union, 2017). In 2003, the NYPD

implemented “Operation Impact,” a hot-spots strategy

where police commanders identified 24 high-crime

“Impact Zones” that would be targeted with

“saturation foot patrol in combination with resources

from a variety of departmental divisions” (Weisburd,

Telep, & Lawton, 2014, pp. 136–137). SQF activity

increased dramatically over the next several years,

peaking at more than 685,000 in 2011 (N.Y. Civil

Liberties Union, 2017). As the frequency of stops

increased, critics attacked the strategy’s low rates of

return. Jones-Brown and colleagues (2010) found that

of the 540,320 stops in 2008, just 6.0% (32,206 stops)

resulted in an arrest and an additional 6.4% (34,802

stops) resulted in a summons; thus, the percentage of

“innocent stops”—those not resulting in summons or

arrest—accounted for roughly 87.6% (pp. 10–11).

Similarly, the percentage of stops resulting in the

recovery of a gun dropped from 0.39% in 2003—627

guns recovered out of a total of 160,851 stops,

representing only one gun recovered per 257 stops—

to 0.15% in 2008—824 guns recovered out of a total

of 540,320 stops, representing only one gun recovered

per 656 stops (Jones-Brown, Gill, & Trone, 2010, p.

10–13). Furthermore, SQFs became an increasing

basis for citizen complaints, rising from a quarter

(24.6%) of all complaints filed against the police in

2004 to a third (32.7%) of all complaints in 2008

(Jones-Brown, Gill, & Trone, 2010, p. 14).

As the use of SQF expanded dramatically, the

NYPD drifted away from the central tenets of broken-

windows theory, and the program devolved into a

strictly zero-tolerance approach against social disorder

such as public drunkenness, vandalism, loitering,

panhandling, prostitution, and the like (Waldeck,

1999, p. 1273-1274). In other words, rather than

focusing on the “amelioration” of disorder in

partnership with the community, the NYPD focused

on the “interdiction” of disorder without regard to

community policing practices (Fagan & Davies, 2000,

p. 468). These efforts led the NYPD to implement a

set of practices that encouraged the aggressive pursuit

of individuals through SQF, rather than mutually

beneficial interactions with law-abiding citizens

(Waldeck, 1999). This zero-tolerance mentality

compounded the police department’s disconnect from

the community, especially by de-emphasizing

informal interactions between police and the

community in the manner advocated by both

community policing principles and broken-windows

theory (White, Fradella, & Coldren, 2015).

Crime-Control Benefits of SQF

During the time that the NYPD implemented its

order-maintenance strategy to target disorder, illegal

gun carrying, and crime—with SQF as a central

feature—the city witnessed a large, prolonged drop in

recorded crime. “From its peak in 1990 until 2000,

violent crime in the city dropped about 60.3%, and

property crime declined 63.7%. … Between 2001 and

2010, violent crime dropped 37.2% and property crime

declined 37.0%” (Weisburd, Telep, & Lawton, 2014,

p. 130). These declines in crime in New York City

were at a level constituting roughly twice the national

average (Weisburd, Telep, & Lawton, 2014; Zimring,

2012). The drop in homicides was even more

pronounced. In 2007, there were 496 homicides in

New York, down from 2,245 in 1990 (Mitchell, 2008;

Rosenfeld, Fornango, & Rengifo, 2007).

Proponents of SQF, such as former NYPD

Commissioner Raymond Kelly (“New York Police

Commissioner,” 2013) and former New York City

Mayor Michael Bloomberg (2013), argue that these

statistics are evidence that the strategy is effective. But

whether SQF caused or contributed to the crime

decline in New York City is a hotly contested

proposition (for full treatment of this question, see the

2014 special issue of Justice Quarterly on the New

York City crime decline). Several studies suggest a

causal connection, although some of these studies

have been criticized for their methodological

limitations. Corman and Mocan (1999), for example,

reported that misdemeanor arrests were associated

with declines in robbery, motor-vehicle theft, and

grand larceny, but not homicide, assault, burglary, and

rape. Similarly, Kelling and Sousa (2011) found that

misdemeanor arrest levels were significantly

associated with reductions in violent crime, while

controlling for several relevant community factors.

Smith and Purtell (2007) found that Operation Impact

had a significant effect on crimes-against-persons in

Impact Zones. Smith and Purtell also examined the

effects of SQF on crime in New York, and they found

that there was a significant inverse relationship

between stop rates and robbery, burglary, motor-

vehicle theft, and homicides rates. Zimring (2012)

argued that New York’s crime decline from 1990

through 2009 was largely attributable to the NYPD’s

policing practices, although he emphasized that he

could not disentangle stop-and-frisk from other

changes in policing that occurred at about the same

time.

Conversely, there are a number of more recent

studies—many of which used more sophisticated

quantitative methods than the first wave of empirical

research on the impact of SQF on crime New York

City—that indicate the relationship between SQF and

the crime decline in New York City is modest at best

(Cerdá, Tracy, Messner, Vlahov, Tardiff, & Galea,

2009; Cerdá, Messner, Tracy, Vlahov, Goldmann,

Tardiff, & Galea, 2010; Rosenfeld, Fornango, &

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Rengifo, 2007, p. 375–377). For instance, Rosenfeld

and Fornango (2014) found that police stops did not

decrease robbery and burglary rates. In a re-analysis of

Kelling and Sousa’s data, Harcourt and Ludwig (2006)

found no significant relationships between policing

minor disorder offenses and New York City’s crime

decline. MacDonald and colleagues (2016) conducted

a comprehensive examination of the crime effects of

Operation Impact, with a specific focus on SQF. They

concluded that “saturating high crime blocks with

police helped reduce crime in New York City, but that

the bulk of the investigative stops did not play an

important role in the crime reductions. The findings

indicate that crime reduction can be achieved with

more focused investigative stops” (p. 1). This

conclusion is bolstered by recent New York City crime

data. Although the number of stops conducted by

NYPD officers declined by more than 90% between

2011 (the height of the SQF program) and 2014 (the

year after SQF was discontinued as part of the

settlement of the lawsuits in which the NYPD’s use of

SQF was found to be unconstitutional), the quality of

those stops has increased and the crime rate has

continued to decrease:

The percentage of stops resulting in arrest

has more than doubled. The percentage of

stops where weapons and contraband were

seized remain low, but those percentages

have doubled or tripled compared to the

2011 rates. In short, the NYPD has altered

its day-to-day practices with regard to stop-

and-frisk, to the benefit of thousands of

New Yorkers. And importantly, the

reforms in the NYPD’s stop-and-frisk

program coincided with continued declines

in crime and violence in New York,

especially homicides, which declined by

35% from 2011 to 2014 (White et al.,

2016).

Notably, the decrease in the overall crime rate and

the homicide rate, in particular, has continued: 2016

formed a record low for homicides in New York, down

approximately 4% from 2015 (New York City Police

Department, 2017b).

The Social Costs

Regardless of the impact on crime, there is

considerable evidence demonstrating that the NYPD’s

SQF program exacted significant social costs that were

disproportionately experienced by members of racial

and ethnic minority groups. By the end of the 1990s,

SQF had become a point of contention among ethnic

minorities. A Vera Institute of Justice study (Fratello,

Rengifo, Trone, & Velazquez, 2013) examined the

experiences of more than 500 people who had been

stopped by the NYPD:

 44% of young people surveyed indicated

they had been stopped repeatedly—nine

times or more.

 Less than a third—29%—reported ever

being informed of the reason for a stop.

 71% of young people surveyed reported

being frisked at least once, and 64% said

they had been searched.

 45% reported encountering an officer who

threatened them, and 46% said they had

experienced physical force at the hands of

an officer.

 One out of four said they were involved in

a stop in which the officer displayed his or

her weapon.

 61% stated that the way police acted

toward them was influenced by their age.

 51% indicated that they were treated worse

than others because of their race and/or

ethnicity (p. 34).

The racial focus of SQF was acknowledged and

minimized by New York City and NYPD leaders

(Kelly, 2013). Former Mayor Michael Bloomberg

stated publicly that, according to the department’s

statistics on violent-crime suspects, “we

disproportionately stop whites too much and

minorities too little” (Fermino, 2013, para. 5).

2013, an officer in the 40th precinct recorded his

commanding officer directing him to stop “the right

people, at the right time, at the right location,”

described as Black males between the ages of 14 and

21 (Rayman, 2013, para. 7). The Center for

Constitutional Rights ([CCR], 2012) interviewed 54

people who had been subjected to SQF in order to

paint a clearer picture of the “human impact” of the

program. The CCR concluded:

These interviews provide evidence of how

deeply this practice impacts individuals

and they document widespread civil and

human rights abuses. … The effects of

these abuses can be devastating and often

leave behind lasting emotional,

psychological, social, and economic harm.

… Residents of some New York City

neighborhoods describe a police presence

so pervasive and hostile that they feel like

they are living in a state of siege (p. 1).

The overt racially charged statements by city and

police leaders, along with clear racial

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

disproportionality in the administration of the SQF

program, illustrates the persistent undercurrent of

racial injustice in New York City policing.

Unfortunately, though, New York is not the only U.S.

city with such problems. Allegations of widespread

unconstitutional SQF practices have been made in

many jurisdictions, including Philadelphia,

Pennsylvania; Newark, New Jersey; Miami Gardens,

Florida; and Chicago, Illinois, just to name a few that

resulted in either class-action civil litigation or in-

depth media investigations (American Civil Liberties

Union of Illinois, 2014; Brennan & Lieberman, 2014;

Ofer & Rosmarin, 2014; see also Bailey v. City of

Philadelphia, 2010; 2011, 2013). As was the case in

New York, both Fourth Amendment (i.e., stops are

being made without reasonable suspicion) and

Fourteenth Amendment (i.e., racial profiling)

concerns permeated policing practice in spite of the

low “hit rates” such strategies yielded (Fagan, 2017;

Harris, 2017; Richardson, 2017).

Also consider the highly publicized deaths of Eric

Garner, Michael Brown, and Freddie Gray—all of

which stemmed from Terry stops (Richardson, 2017).

On July 17, 2014, NYPD officers approached Eric

Garner on a street corner in Staten Island because they

suspected that he was selling unlicensed cigarettes

(Duncan, 2014). The incident was captured on a

bystander’s cell phone. After brief questioning,

officers attempted to take Garner, a 400-pound man,

into custody. During the struggle, Officer Daniel

Pantaleo applied a chokehold and Garner can be heard

stating nearly a dozen times that he cannot breathe.

Garner lost consciousness after the struggle; he was

pronounced dead an hour later. Five months later, a

grand jury refused to indict Officer Pantaleo, sparking

waves of protests (Duncan, 2014; Goodman & Baker,

2014).

On August 9, 2014, Ferguson police officer

Darren Wilson observed Michael Brown and Dorian

Johnson walking in the middle of the street. There is

no video of the incident and the facts are disputed, but

what is clear is that the initial stop of Brown and

Johnson led to a struggle between Wilson, who was

still seated in his patrol car, and Brown, who was next

to the car (Pearce, 2014). Physical evidence supports

Officer Wilson’s assertion that there was a struggle

over Wilson’s gun and that one shot was fired while

he was still in his car (U.S. Department of Justice,

2015). Wilson got out of the patrol car and fired

several more shots that killed Michael Brown. Officer

Wilson claimed that Brown had turned and was

charging at him. Other testimony indicated that Brown

had his hands up and was posing no threat to Wilson

(U.S. Department of Justice, 2015). Protests and civil

disorder began shortly after Brown’s death and

continued for several days. On August 16, 2014,

Missouri Gov. Jay Nixon declared a state of

emergency in Ferguson. On November 24, 2014, a

grand jury declined to indict Officer Wilson for

Michael Brown’s death (Davey & Bosman, 2014).

On April 12, 2015, Baltimore police officers

attempted to stop and question Freddie Gray. Gray fled

from the officers, but he was quickly taken into

custody and arrested for possessing an illegal

switchblade. During his transport in a police van, Gray

slipped into a coma and died several days later on

April 19 (Graham, 2015). Autopsy findings indicate

that Gray died from injuries to his spinal cord (Fenton,

2015). Though there are questions about whether force

was used during the arrest, Baltimore Police

Commissioner Anthony Batts acknowledged that

Freddie Gray was not properly secured during the van

transport. Protests and civil disorder erupted after

Gray’s death. On May 1, 2015, six officers were

charged with Freddie Gray’s death by the State

Attorney’s Office, and on May 21, 2015, a grand jury

indicted the six officers (Pérez-Peña, 2015). A mistrial

was declared in the first trial of one of the officers after

the jury failed to reach a unanimous verdict (Fenton &

Rector, 2015). Three other officers were acquitted in

separate bench trials between May and July of 2016,

which, in turn, led the state to drop the charges against

all of the remaining officers (Rector, 2016).

The numerous allegations of racial profiling that

have emerged in the wake of stop-and-frisk programs,

and the deaths of Eric Garner, Michael Brown, and

Freddie Gray, demonstrate the persistent undercurrent

of racial injustice in American policing. Moreover, the

perceived discriminatory treatment of racial and ethnic

minorities during SQF adversely affects citizen trust

and faith in the police. This problem is likely to be

exacerbated as the expanding interpretation of the

Second Amendment results in so many citizens legally

carrying firearms (McDonald v. City of Chicago,

2010; see also Bellin, 2015; Zimring, 2017), a fact

which, in turn, can combine with implicit bias to create

a suspicion profile that targets young men of racial and

ethnic minority backgrounds (Fradella et al., 2016).

Research strongly demonstrates that procedural

justice—or the manner in which police are perceived

to treat citizens—is crucial to achieving police

legitimacy (Eck & Rosenbaum, 1994; Tyler, 2006).

Furthermore, the President’s Task Force on 21st

Century Policing (2015) recently concluded that

“[t]rust between law enforcement agencies and the

people they protect is essential in a democracy” (p. 1).

To foster trust and legitimacy, police officers must be

impartial and consistent in their decisions, and must

treat all people with dignity, fairness, and respect. The

community policing and police legitimacy

frameworks provide an important lens for

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

consideration of the role of stop-and-frisk going

forward.

Assessment: Ways to Fix Stop-and-Frisk

Aggressive SQF strategies (i.e., those enacted

department-wide through either formal or informal

policies) have no place in 21st-century policing. Not

only do such broad strategies lend themselves to racial

and ethnic profiling along the lines of which occurred

in New York City, but they also damage police-

community relations in ways that stray from the tenets

and aims of broken-windows theory. But stop-and-

frisk as a particularized tactic—one that is judiciously

employed by individual police officers when objective

circumstances give rise to reasonable suspicion of

criminal activity—can help prevent crime if the

practice is viewed as an exercise in police discretion.

With that in mind, we offer suggestions for reforming

stop-and-frisk as a tactic using the vast literature on

the control of police discretion.

Ideally, an officer witnesses something that

generates reasonable suspicion (i.e., bulge in the

waistband, behavior suggesting potential criminal

activity), and then initiates a stop. This decision to stop

a civilian, and consequently to conduct a frisk (or even

a search), is based in officers’ discretionary authority.

Many influences impact the development of individual

police officer discretionary behaviors, including their

training, expertise, and overall field experience. Stop-

and-frisks that are discriminatory or otherwise fail to

meet the constitutionally required threshold are of

main concern and generate controversy surrounding

police-initiated stops of citizens.

Therefore, it is

important to explore how police departments can

control their officers’ decisions to initiate stops of

citizens, to ensure that such stops meet constitutional

standards and do not violate citizens’ rights, and to

mitigate the potential for police misconduct.

For more than 40 years, researchers have

investigated how to impact officers’ situational

decision-making during encounters with citizens.

These efforts have explored predictors of a range of

behaviors, including arrest, use of force (including

deadly force), decisions to conduct automobile

pursuits, and use of canines. One empirically evident

fact is that combating police misconduct is complex

and goes far beyond quick fixes (e.g., increased

training) or removing a few “bad apples” that

consistently make poor decisions (Skolnick & Fyfe,

1993). Additionally, various aspects of police culture

can further inhibit attempts to stem police misconduct

at the department level. Research has consistently

demonstrated the powerful nature of the informal

police culture, particularly with regard to how it can

shape officer behavior in the field, and how difficult it

is to change (Skolnick, 1966).

Clearly, the challenges surrounding these are

daunting and they must be addressed in the context of

the larger historical backdrop of racial injustice in

American policing. However, the larger body of

research on police discretion offers numerous lessons

that can guide effective reform. Police departments

should consider adopting changes reflective of the

following recommendations in order to prevent their

officers from engaging in racially biased or otherwise

improper and illegal behavior during stops of citizens:

recruitment, training, administrative policies,

supervision with corresponding accountability, and

external oversight.

A Careful Selection of Personnel

In 1967, the President’s Commission on Law

Enforcement and the Administration of Justice

established standards for the screening of police

recruits. As a result, law enforcement agencies have

implemented processes to screen out applicants ill-

suited for the profession due to concerns over mental

health, criminal history, poor credit, troubling

interpersonal relationships, and other “red flags,”

especially through the use of thorough background

checks (Fyfe & Kane, 2005; Mui, 1977). The

screening-out process typically occurs within the

context of concerns over corruption and brutality, but

the lessons are equally relevant for abuse of discretion

in stop-and-frisk.

A screening-in process is also important. Despite

the limited success of efforts to identify predictors of

good policing, relevant personal attributes certainly

include good judgment, an even temperament, respect

and appreciation for diversity, creativity and problem-

solving skills, ability to think on one’s feet and handle

pressure, and leadership skills (Grant & Grant, 1995).

Additionally, scholars have noted a need for a college

education to develop the relevant skills to be an

effective police officer and reduce the likelihood of

misconduct (Harris, 2014). One recent study found

that departments with an associate’s degree

requirement for applicants experienced fewer citizen

complaints of police use of force and fewer citizen

assaults on their officers (Shjarback & White, 2016).

Officers who possess empathy, moral acceptance of

coercive authority, protection of the vulnerable, and

problem-solving, what some have called good

craftsmanship, will be less likely to engage in racially

biased and otherwise improper behavior during

encounters of any kind with citizens (Bittner, 1967).

Therefore, departments should carefully and

aggressively seek out these characteristics (White &

Fradella, 2016).

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

Training

Careful recruit selection must be followed with

effective training in the police academy, as well as

later through field and in-service training. At the

academy, the goal of training is to provide officers

with the basic skills and knowledge necessary to

become a police officer. Cadets must receive a clear

message at this early stage that racially biased stop-

and-frisks are inappropriate, illegal, and will not be

tolerated. Following graduation from the academy,

officers are typically assigned to a veteran officer for

a period of field training. This is a formative stage of

a police officer’s career, and it is critically important

for field-training officers to impart the message that

racially biased Terry stops are not consistent with the

principles of good policing. The final form of training,

called “in service,” where officers periodically receive

additional training while on the job, can be used to

“refresh” officers on ethical issues, such as avoiding

discriminatory decision-making, and to resend the

message that the department leadership denounces

racial bias and expects the same from its officers.

Properly trained officers are less likely than

poorly trained officers to engage in unconstitutional

stop-and-frisk practices. Fyfe’s work exploring the

impact of training on violence provides several

suggestions for successful training practices, including

that it should be: realistic—adult learning, role plays,

instruction by legal experts, and coverage of implicit

bias and its effect on the suspicion heuristic (Banaji &

Greenwald, 2016; Fradella et al., 2016; Levinson &

Smith, 2012); continuous; tailored to the department

and the community; and focused on the means or

process, not just the ends, such as avoiding the split-

second syndrome (Fyfe, 1995). Similarly, Bayley and

Bittner stated that learning can be “accelerated and

made more systematic” by relevant training that brings

the reality of police work into the academy (Bayley &

Bittner, 1984, p. 53). Fyfe’s (1995) arguments on the

importance of training are persuasive:

The development of successful boxers,

diplomats, combat soldiers, and trial

lawyers demonstrates that maintaining

one’s temper under stressful and

confrontational conditions is a skill that

can be taught. At the broadest level, police

training designed to do so may involve

providing students with what Muir called

understanding—a nonjudgmental sense

that people’s behavior, no matter how

bizarre or provocative, may usually be

explained by factors that go beyond the

dichotomy of good and evil. … Even if

genuine understanding, as defined by

Muir, cannot be imparted to individuals

who bring extremely narrow views to

policing, officers can be made to know in

training that they simply will not be

permitted to act out their prejudices

through violent, or even discourteous

conduct (p. 174).

By adopting evidenced-based training policies,

law-enforcement agencies can create an environment

of intolerance toward unconstitutional stop-and-frisk

practices, other forms of police misconduct, and better

meet the needs of their respective communities (White

& Fradella, 2016).

Administrative Policy

Administrative guidance in the form of policies,

rules, and procedures communicates to officers what a

police department expects, what is considered

acceptable, and what will not be condoned (Kappeler,

Sluder, & Alpert, 1998). An administrative-

rulemaking framework that has three basic

components helps to ensure accountability with regard

to critical incidents, such as use of force (Walker &

Archbold, 2014). First, agencies should develop

written policies that specify what is (and what is not)

appropriate behavior during given circumstances.

Second, agencies should require officers to write a

written report following a critical incident. Third,

agencies should require supervisory review of critical-

incident reports to ensure the officer acted within

policy and law.

The adoption of clearly articulated policies

governing police stops of citizens, with specific

prohibitions of racial profiling, is absolutely crucial

for controlling police behavior (Friedman &

Ponomarenko, 2015, 2017).

The body of research

that highlights police departments’ success in

managing officer discretion across a wide range of

police actions provides an important backdrop for

consideration of stop-and-frisk practices. Supervisory

review and accountability is especially critical for

stop-and-frisk because the practice generally does not

reach the level of being classified as a critical incident.

The “invisible” nature of such stops presents a unique

challenge for effective discretionary control and

guidance. That said, it is well established that officers’

behavior changes when they know that violations of

policy will have consequences. In plain terms, officers

seek to avoid behavior that will get them into

administrative trouble. This has been demonstrated

across a range of officer field behaviors, particularly

with use of deadly force and automobile pursuits, and

it applies equally well to stop-and-frisk (Albert, 1997;

Fyfe, 1988; White & Fradella, 2016).

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

Supervision and Accountability

Supervision of police officers is a critical

department task that serves as a foundational element

in the agency’s effort to control officer field behavior,

including stop-and-frisk practices (The Mollen

Commission, 1994; Weisburd, Greenspan, Hamilton,

Williams, & Bryant, 2000).

Key principles of

effective police supervision include proper span of

control (8-10 officers per sergeant), proper training

(good supervision can and should be taught), and

holding supervisors accountable for the behavior of

their subordinates (Kappeler et al., 1998; Skolnick &

Fyfe, 1993). The International Association of Chiefs

of Police (1989) stated that “many officers face

temptations every day … management has the

capacity and control to reinforce high integrity, detect

corruption, and limit opportunities for wrongdoing”

(p. 53). These words apply to Terry stops as well as

they do for other forms of police field behavior.

Simply put, if officers believe they will be caught and

punished for unconstitutional stop-and-frisk

behaviors, they will be less likely to engage in those

activities (Klockars, Ivkovich, Harver, & Haberfeld,

2000). Technology like body-worn cameras (BWCs)

offer a unique opportunity for police departments to

track and monitor officers through systematic (or at

least periodic) review of BWC footage (White, 2014;

White & Fradella, in press). For example, supervisory

authority to review BWC footage could be structured

in a number of ways to enhance accountability.

Review authority could be limited to a specific set of

encounters, circumstances, or officers (e.g., all use-of-

force encounters; only probationary officers).

Supervisory authority could also be random or

systematic, where a sergeant is required to review

some number of randomly selected videos per month

for each officer. Finally, supervisor authority to review

BWC footage of officers could be broad and

unfettered (e.g., sergeant has authority to review any

video at any time). Supervisor authority to examine

BWC footage that captures stop-and-frisk activities

could be included in any of the aforementioned review

protocols (White & Fradella, 2016).

External Oversight

The auditor model of oversight offers great

promise as a reform and accountability mechanism.

Under this model, one individual (or office) with some

degree of legal and/or policing expertise serves as a

full-time independent auditor. Auditors are typically

permanent positions created by local or state law, and

in the vast majority of cases, they have much greater

authority than the more traditional citizen oversight

board (Walker & Archbold, 2014). Specific functions

of an auditor include a range of activities such as

auditing the complaint process, auditing police

operations (which can include review of BWC

footage), policy review, community outreach, and

contributing to transparency by publishing reports that

detail the activities of the auditor (Walker & Archbold,

2014).

External oversight through an independent

auditor provides a critically important check on police

officers’ discretionary decision-making (White &

Fradella, 2016). For an auditor to be particularly

useful, we echo David A. Harris’ (2017) suggestion

that the police compile data on every pedestrian stop,

including: (1) a description of the time, place, and

length of the stop; (2) the race or ethnic group of the

person stopped as perceived by the officer; (3) the

behavior witnessed by the officer that led to the stop;

(4) whether a frisk was performed; (5) whether the

frisk revealed a weapon and the type of weapon; (6)

whether the frisk revealed other contraband and the

type of contraband; and (6) whether a warning, citation

or arrest occurred, and for what offense.

Recommendations

There is little consensus on the crime-control

effects of SQF in New York City or similar programs

elsewhere. Although New York experienced a

significant crime decline that coincided with

numerous changes in the NYPD under William

Bratton’s leadership—one of which was increased use

of SQF—crime declined in many other places that did

not employ aggressive use of stop-and-frisk.

Moreover, the NYPD’s overuse and misuse of stop-

and-frisk violated the constitutional rights of

thousands of New Yorkers. The unconstitutional SQF

program produced severe collateral consequences that

negatively affected the emotional and physical well-

being of thousands of New Yorkers; caused significant

damage to the NYPD’s relationship with members of

racial and ethnic minority groups in neighborhoods

throughout the city; and seriously impaired the

NYPD’s ability to effectively fight crime in those

neighborhoods. Unfortunately, the experiences in New

York were witnessed in other jurisdictions that also

overused and misused stop-and-frisk.

Terry stops were intended to be used as an

individualized crime-investigation tactic that police

could employ in response to suspect behaviors that

generated reasonable suspicion of criminal activity

(Meares, 2015). But the SQF program in New York

City expanded far beyond these original intentions into

a pervasive, department-wide surveillance program

that sought to generate deterrence through fear of

being stopped. A program designed in this manner is

at great risk of producing unconstitutional behavior on

the part of the police (Bellin, 2014). Moreover, the

deployment of an NYPD-like SQF program in

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

communities where the racial-injustice undercurrent is

strong will undoubtedly exacerbate tensions between

police and minority citizens, and will quickly erode the

limited reserves of police legitimacy. When police-

minority community relations reach this level, they

represent a powder keg that will explode in the wake

of a controversial arrest, use of force, or citizen death.

Michael Brown in Ferguson and Freddie Gray in

Baltimore demonstrate this tragic point.

1. Because stop-and-frisk is, in its most basic

form, an exercise in discretion, the literature on

effective police discretion control offers lessons

for reforming stop-and-frisk activities. Those

lessons are grounded in careful recruit

selection, training, administrative policy,

supervision, accountability, and external

oversight. In particular, an auditor can assess

the legality of stops and can engage with

citizens to assess the potential for collateral

consequences.

2. Technology also offers potential to control

officer decision-making during stop-and-frisk

activities. For example, big data—“vast troves

of information that can be used by police such

as databases that capture criminal and driving

history, biometric data, employment and

housing records, spending habits, and a wide

range of other individually-specific behaviors

or attributes”— could be harnessed in ways that

satisfy the Fourth Amendment’s requirements

for particularized suspicion justifying a Terry

stop (White & Fradella, 2016, p. 178; see also

Ferguson & Bernache, 2008; Polansky &

Fradella, in press; Slobogin, 2017). And BWC

footage can be reviewed by first-line

supervisors, training units, internal affairs units,

or by external auditors. The technology also

represents an opportunity for police

departments to demonstrate accountability and

transparency to their communities.

3. Finally, stop-and-frisk, if used justly and

selectively (and not as a widespread deterrence-

based program), can be successfully applied

within a number of contemporary policing

frameworks that stress procedural justice, such

as community-oriented policing and problem-

oriented policing. Procedural justice involves

treating people with dignity and respect; giving

individuals “voice” during encounters (an

opportunity to tell their side of the story); being

neutral and transparent in decision-making; and

conveying trustworthy motives (Mazerolle,

Bennett, Davis, Sargeant, & Manning, 2012).

Stop-and-frisk activities should be examined

critically in terms of legal standards (was there

articulable reasonable suspicion?) and in terms

of procedural justice standards. During a stop-

and-frisk, was the citizen treated with dignity

and respect? Was the citizen given an

opportunity to tell his or her side of the story?

Was the officer neutral and transparent? Did the

officer convey trustworthy motives? Police

departments that benchmark their stop-and-

frisk practices along these standards, while

applying the lessons described above, will

achieve police legitimacy in the eyes of their

citizens and will emerge as leadership

organizations in 21st-century policing.

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Acknowledgements

The authors gratefully acknowledge New York

University Press for their gracious permission to distill

and build upon their book Stop and Frisk: The Use and

Abuse of a Controversial Policing Tactic (2016) for

this article. The authors also thank Megan Verhagen

and Kyle Meditz Ernst for their assistance with

assembling this article. Finally, the authors deeply

appreciate the insightful feedback we received on

previous drafts of this paper from Albert W. Alschuler,

Susan Bandes, Karen Henning, Delores Jones-Brown,

Erik Luna, Michael Scott, and Scott Sundby.

About the Authors

Henry F. Fradella is a Professor in and Associate

Director of the School of Criminology and Criminal

Justice at Arizona State University, where he also

holds affiliate appointments as a professor of law and

psychology. He holds a B.A. in psychology, a master’s

in forensic science, a law degree, and Ph.D. in justice

studies. He researches the historical development of

substantive, procedural, and evidentiary criminal law;

the evaluation of law's effects on human behavior; the

dynamics of legal decision-making; and the nature,

sources, and consequences of variations and changes

in legal institutions or processes. He is the author or

co-author of nine books including Stop and Frisk: The

Use and Abuse of a Controversial Police Tactic (New

York University Press); Sex, Sexuality, Law, and

(In)Justice (Routledge); Mental Illness and Crime

(Sage); The Foundations of Criminal Justice (Oxford

University Press); Defenses of Excuse in American

Law (Academica); and four textbooks published by

Cengage. Dr. Fradella has also authored or co-

authored more than 85 articles, book chapters,

reviews, and scholarly commentaries that have

appeared in outlets such as the American Journal of

Criminal Law; Criminal Justice Policy Review;

Criminal Law Bulletin; Criminology and Public

Policy; Federal Courts Law Review; Journal of

Contemporary Criminal Justice; Journal of Criminal

Justice Education; and the Ohio State Journal of

Criminal Law. A fellow and past-president of the

Western Society of Criminology (WSC), Dr. Fradella

current serves as the executive director of the WSC.

From 2014–2017, Fradella served as the co-editor of

Criminology, Criminal Justice, Law & Society.

Michael D. White is a Professor in the School of

Criminology and Criminal Justice at Arizona State

University, where he also serves as the Associate

Director of ASU’s Center for Violence Prevention and

REFORMING STOP-AND-FRISK 63

Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

Community Safety, as well as the Director of the

doctoral program. He is a Senior Subject Matter

Expert for the Bureau of Justice Assistance’s Smart

Policing Initiative and he is Co-Director of Training

and Technical Assistance for the U.S. Department of

Justice Body-Worn Camera Policy and

Implementation Program. He received his Ph.D. in

Criminal Justice from Temple University in 1999.

Prior to entering academia, Dr. White worked as a

deputy sheriff in Pennsylvania. His primary research

interests involve the law enforcement, including police

use-of-force, law enforcement technologies, and

police misconduct. He has published 55 peer-reviewed

journal articles that appear in leading journals,

including Justice Quarterly, Criminology and Public

Policy, Criminal Justice and Behavior, Applied

Cognitive Psychology, Crime & Delinquency,

Policing: An International Journal of Police

Strategies and Management, Journal of Criminal

Justice, Police Practice and Research: An

International Journal, Journal of Experimental

Criminology, Justice Policy Journal, Police

Quarterly, Criminal Justice Policy Review, the Ohio

State Journal of Criminal Law, and the Criminal Law

Bulletin. He is the co-author of two scholarly books:

Stop and Frisk: The Use and Abuse of a Controversial

Policing Tactic (NYU Press 2016), and Jammed Up:

Bad Cops, Police Misconduct, and the New York City

Police Department (NYU Press 2013). He also is the

author of two textbooks: Race, Ethnicity and Policing:

New and Essential Readings (NYU Press, 2010) and

Current Issues and Controversies in Policing (Allyn

& Bacon, 2007).

Endnotes

The authors are aware of the fact that the punctuation of the phrase stop-and-frisk varies considerably by style

guide. The Associated Press, for example, calls for the words to be in quotations when used as a subject or

object noun phrase, while separating the words with hyphens when used as compound modifier. But even the

Associated Press is wildly inconsistent in how their style guide is actually used (see HeadsUp, 2013). For the

sake of consistency and readability, we hyphenate the phrase stop-and-frisk all the time when referring to the

tactic as sanctioned by Terry and its progeny. In contrast, we differentiate how the practice was used as a

widespread crime control strategy in New York City and elsewhere by referring to it as “Stop, Question, and

Frisk” (“SQF”).

The authors note that Judge Scheindlin was eventually removed from the case by the U.S. Court of Appeals for

the Second Circuit. Importantly, however, the appellate court did not make any changes to her findings of fact

or conclusions of law. And although the appeal was settled before resolution on its merits, it is clear that Judge

Scheindlin’s perceptions of the NYPD’s use of stop-and-frisk as an aggressive, city-wide strategy for fighting

crime were shared by many New Yorkers. Among other things, William de Blasio was elected mayor in a

landslide after having run on platform to end the strategy (see Barbaro & Chen, 2013).

It should be noted that stop-and-frisk at the incident (or tactical) level is governed by law. This should be

distinguished from SQF policies that are enacted at the departmental (or strategic) level. The former requires

that we examine whether the suspect’s civil liberties were violated and whether the officer made a wise

investigative and personal safety decision. The latter requires that we examine whether the general

policy/strategy of encouraging officers to stop and frisk lots of people—presumably in furtherance of a crime

control/crime prevention goal—is (a) an effective strategy; (b) a constitutionally permissible strategy; (c) a

procedurally just strategy; and (d) the optimal strategy for achieving the particular objective. Thus, for example,

as will be explained in this chapter, the problem in New York City was not just that many police officers did not

seem to understand the constitutional standards governing stop-and-frisk as a tactic, but also that NYPD

command staff pressed officers to engage in SQF on a massive, proactive basis as a strategic approach to

controlling certain forms of crime.

The Court may have also motivated, in part, by concerns about how vagrancy and loitering laws contributed to

police infringements on constitutionally protected liberty interests (Foote, 1956; see also Papachristou v. City of

Jacksonville, 1972 [invalidating a vagrancy ordinance on vagueness grounds].

Our arguments for reform advocate reining-in police discretion so that the practice of stop-and-frisk brings

Terry back to its more limited, cautious roots.

At first blush, the cases discussed in the remainder of this section may appear to lack a common thread other

than expanding stop-and-frisk authority. But there is a theoretical connection between Terry and these cases if

Terry is viewed as having accomplished more than authorizing stop-and-frisk under the Fourth Amendment.

Indeed, Terry severed the Reasonableness Clause from the Warrant Clause, thereby carving-out swathes of

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Criminology, Criminal Justice, Law & Society – Volume 18, Issue 3

police conduct exempt from both the requirements of probable cause and a warrant (Dudley, 2012; Stelzner,

1979–1980). Thus, all of the cases highlighted in the remainder of this section were decided with regard to a

balancing test aimed at “reasonableness” divorced from other Fourth Amendment principles.

In City of Indianapolis v. Edmond (2000), the Court curtailed law enforcement authority to use drug-sniffing

dogs at roadblocks on the grounds that the DUI checkpoints sanctioned in Sitz were “designed to serve special

needs, beyond the normal need for law enforcement” (p. 37, internal quotations omitted), whereas suspicionless

searches using drug-sniffing dogs at roadblocks impermissibly extended into the realm of investigating

“ordinary criminal wrongdoing” (p. 38). Nonetheless, Sitz remains good law insofar as it permits stops of

vehicles at DUI checkpoints without any particularized suspicion of impaired driving.

To be clear, we are not suggesting that Whren led to Dickerson. In Sibron, the Court held that the test is whether

a reasonable person would find a frisk to be justified under the circumstances, regardless of whether the

particular officer conducting the frisk subjectively believed it was justified. Whren passed up the opportunity to

alter Sibron by applying the “reasonableness” analysis to pretextual stops where an officer stops someone in a

situation in which no other officer would do so. Because Whren failed to find such action unreasonable, our

point is that the combination of Dickerson and Whren—the combination of “plain feel” without the ability to

challenge a frisk as being pretextual—created an incentive for law enforcement officers to conduct frisks even

when they do not suspect the presence of a weapon.

Broken windows theory posits that minor forms of social and physical disorder cause a breakdown in informal

social control as citizen investment in an area diminishes. As citizens withdraw from the area, the level of

disorder increases and the risk for more serious types of crime to emerge becomes greater. The theory suggests

that police focus enforcement efforts on disorder and quality-of-life offenses as a mechanism for reengaging

law-abiding citizens’ commitment to the area. Under Chief Bratton, the transit police adopted a broken

windows-based strategy in the subway system.

It should be noted that Bloomberg was essentially making the case that police should be stopping and searching

people of various races, ethnicities, genders, and ages in rough proportion to their representation in the known

offending population. Conversely, many critics of disparate rates of police stops and other interventions base

their criticism on a contrary assumption, namely that police ought to stop people of various demographic groups

on the basis of their representation in the general population of that jurisdiction (or perhaps of the relevant

neighborhood). The lack of consensus as to which is the proper basis for calculating disparity leads to debates

about the propriety of police practices that cannot be resolved. Even if, for the sake of argument, the latter

approach were used to measure racial and ethnic disparities (which we do not endorse), that would not

necessarily translate into the propriety of police practices premised on that measurement approach. Put

differently, even if it were proven that young Black men were disproportionately represented among offenders

of certain crimes (a supposition we reject, but offer here only for the sake of argument), that fact would not, in

and of itself, justify SQF practices that targeted young Black men. Rather, it would call for consideration of

alternate police strategies that could yield the same crime-control benefits without incurring the same police-

legitimacy costs.

It should be noted that it might be possible to eradicate discrimination in stop-and-frisks and ensure that all

stops are conducted in accordance with the Constitution, but nonetheless still have a problem with how people

perceive stop-and-frisk as a tactic. That is because stops are inherently intrusive and unpleasant and frisks are

even more so. Adherence to the four tenets of procedural justice (voice, transparency, fairness, and impartiality)

can help minimize these concerns, but since no one likes being stopped, it very may well be that the public

might prefer other approaches to policing that can prevent crime without depending significantly on intrusive

and unpleasant police actions. But such solutions are beyond the scope of this chapter and our arguments for

reforming stop-and-frisk as a police practice.

Notably, Fyfe (1989) put these principles in practice as part of the Metro-Dade Police/Citizen Violence

Reduction Project, which culminated in the development of a five-day role-play training program. Results from

the project indicate substantial reductions in use of force, officer injuries and citizen complaints after the

training program was implemented.

As Barry Friedman and Maria Ponomarenko (2015, 2017) suggest, the public has an important role to play in

the development of these policies. Public participation in policymaking promotes accountability and increases

transparency, both of which can help improve policy legitimacy in eyes of community members.

As an example of the importance of supervision with corresponding accountability, Weisburd and colleagues

reported that nearly 90% of police officers surveyed agreed that effective supervision prevents misconduct such

as racially-biased policing.