o make a Constitutionally permissible stop in New York, an officer must have reasonable suspicion that the stopped individual has committed, is committing, or is about to commit a felony or misdemeanor defined in the New York State Penal Law. The standard is subjective, largely based on the experience of the officer making the stop, the officer’s own observations, and information supplied to the officer by others. In light of recent reports about UF-250 quotas, we are concerned that officers are being directed to make stops without being given the training needed to articulate why they’re making them.

UF-250 quotas affect all officers in the commands that employ them but none more than rookies whose experience is limited to academy training. Their ability to identify criminal activity is not as sophisticated as experienced officers’, nor is their ability to articulate the constitutionally-mandated reasonable suspicion. So, imposing UF-250 quotas on rookies is particularly bad policy. Let’s brush up on what the law says and what the serious ramifications can be for officers who fail to follow that law.

The stop-and-frisk doctrine

The legal stop-and-frisk is an invaluable law-enforcement tool. Clearly, if officers were unable to stop individuals to inquire about suspected criminal activity and frisk individuals they suspect of possessing weapons, they simply would not be able to do their jobs safely and effectively. But to use the tool appropriately, without violating citizens’ rights and subjecting oneself to civil liability, officers must be familiar with the standard of proof necessary for a legal stop and the ever-evolving case law that has developed over the past four decades.

The landmark federal case that established the stop-and-frisk doctrine was Terry v. Ohio, 392 U.S. 1 (1968), in which the Supreme Court carved out an exception to the Fourth Amendment’s general rule prohibiting searches and seizures without probable cause. The decision set forth a new standard that permits officers to detain individuals for a limited duration and question them about their activities, as long as the officer has reasonable suspicion that criminal activity is “afoot.” Also, the court held that an officer may conduct a limited frisk (pat-down) of the suspect’s outside clothing if the officer has a reasonable fear that the suspect is armed. The court made clear that the frisk’s purpose is to discover whether the suspect is armed, not to search for evidence.

A Terry stop occurs when, “by means of physical force or by show of authority,” an officer detains a person in such a manner that “a reasonable person would have believed that he was not free to leave.” To effect a proper stop under Terry, officers must articulate that reasonable suspicion exists. In Terry, the court’s analysis focused on whether an officer had reasonable suspicion to stop an individual, focusing on such factors as the officer’s personal experience, his observations, and information received from others, which gave rise to the reasonable belief that criminal activity was afoot.

The facts in Terry are instructive of the criteria that should be evaluated by the court to determine the validity of a particular stop.

The court held that a Cleveland police officer had reasonable suspicion to stop-and-frisk two male suspects he had observed peering into a store window at 2:30 a.m. several times over 10-12 minutes in downtown Cleveland — an area the officer had patrolled for over three decades.

After the frisk, both suspects were found to possess revolvers. The court cited several factors in reaching its conclusion, including the officer’s 39 years experience, his careful observation of the men over a period of time, the time of day, and the men’s actions that the officer believed indicated an impending stick-up.

In setting up the stop-and-frisk standard, the court considered the balance that needed to be struck between law enforcement’s interests and citizens’ important privacy interests. The court characterized a stop-and-frisk encounter with police as “not a petty indignity” but a “serious intrusion upon the sanctity of the person, which...is not to be undertaken lightly.” The court was particularly clairvoyant in its observation that stop-and-frisk encounters “may inflict great indignity and arouse strong resentment” in affected parties. Today, officers in certain communities are witnessing first-hand the strong resentment felt by civilians affected by UF-250 quotas.

In the landmark New York case, Debour v. State of New York, 40 N.Y.2d 210, the Court of Appeals expanded on the Terry decision by identifying four tiers of police intrusion. The first and least intrusive level (“request for information”) permits an officer to ask a person his or her identity, the reason for being at a particular location, or travel plans, as long as the request is “supported by an objective, credible reason, not necessarily indicative of criminal activity.” The second level (“common law right of inquiry”) permits an officer to approach and closely question a person to gain an understanding of the person’s actions beyond identity and travel plans. To exercise this level of inquiry, the officer must have a founded suspicion (more than a mere hunch) that “criminal activity is afoot.” However, the person cannot be detained and is free to leave at his or her pleasure. The third level (similar to a “stop” as described in Terry) permits an officer to stop an individual, forcibly if necessary, when the officer has a reasonable suspicion that the particular person has committed, is committing, or is about to commit a felony or misdemeanor. Also, the officer may frisk the person if the officer reasonably suspects that he or she is in danger of physical injury from a weapon. The fourth level (“arrest”) permits an officer to arrest a person when the officer has “probable cause” to believe that person has committed a crime (felony or misdemeanor) whether within or outside his or her presence, or an offense (violation) in his presence.

The fact-specific nature of each stop makes the standard set forth above difficult to apply uniformly. The standard is subjective and based on the totality of the circumstances of each particular stop. So an officer’s ability to articulate the basis for a stop necessarily develops over time with experience.

However, a body of federal and state case law has developed that may assist all officers regardless of their own experience in evaluating the validity of stops with respect to certain common scenarios they may encounter on patrol.

Below is a partial list of types of encounters that New York courts have found to be insufficient to constitute reasonable suspicion to warrant a stop:

Simple refusal to answer questions.
Simple refusal to identify oneself.
Flight alone...or in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify a pursuit of an individual because an individual has a right “to be let alone and refuse to respond to police inquiry.” However, if there is reasonable suspicion that criminal activity is afoot, flight, and other surrounding circumstances, may form the basis to pursue the individual.
Nervous reaction alone.
“The nature and location of the area where a suspect is detained may be one of the factors considered in determining whether, in a given case, the police acted reasonably.” However, “location alone cannot serve as the justification for untoward or excessive police behavior against those of our citizens who happen to live, work or travel in “high crime areas.”
A suspect’s presence in a “drug-prone” location, alone.
General descriptions of suspects — for example, radio description of two male blacks wearing jeans and sneakers — alone.
A person cannot be stopped or stopped and frisked solely because he or she is in the company of an individual whom the police reasonably suspect.
A visible bulge inside a person’s pocket, without more, is insufficient to warrant a stop. However, a bulge at the waistband and a movement toward the waistband has been found to be sufficient to warrant a stop-and-frisk.
A suspect’s association with known drug dealers, without more, is insufficient.
Reasonable suspicion cannot be established solely based on an individual’s conversation with two alleged drug dealers.

Law enforcement officers have been given an invaluable tool in their ability to stop-and-frisk individuals suspected of criminal activity. That right should not be taken lightly nor undermined by the imposition of stop-and-frisk quotas. Like arrest quotas, which were the focus of last issue’s General Counsel’s column, stop-and-frisk quotas call into question all legitimate stops conducted by officers. It doesn’t matter whether citizens’ concerns are based on reality or mere perceptions. In the end, police officers, not the supervisors who order the quotas, will be called to account for the stops they make. Accordingly, all officers should re-familiarize themselves with the standards to ensure they do not overstep their authority.

As previously reported, the PBA is considering a court action to have the department’s arrest-quotas practice declared void on the grounds that it violates public policy. Similarly, the PBA is exploring its options with respect to challenging the department’s UF-250 quotas, which are equally, if not more abhorrent. Accordingly, the union is gathering documentary evidence demonstrating the department’s stop-and-frisk policies. With sufficient evidence of a UF-250-quotas policy, we hope to bring suit in state court. We ask anyone with written evidence of the practice, or who has had his or her conditions of employment changed for not meeting a UF-250 quota, to contact his or her union delegate, trustee or the PBA office directly.