Terry v. Ohio

Number 67, John W.

Terry et al.

Petitioners v.

Ohio.

Hey everyone, I'm Leon Napok, co-creator of Slowburn and Fiasco.

On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about Terry v.

Ohio, a case that cleared a path for the policing tactic we all know as stop and frisk.

Intended to be a quick check to identify hidden weapons or contraband, it's known as stop and frisk.

But communities of color say it targets many and unfairly at that.

In October of 1963, a police officer in Cleveland, Ohio saw two men walking back and forth past a storefront in a manner he found suspicious.

So he approached them, patted them down, and discovered they had guns.

When the men were prosecuted for carrying concealed weapons, A defense lawyer argued that the stop and frisk had been illegal.

But in 1968, the Supreme Court ruled that the officers' actions did not violate the Fourth Amendment.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, a podcast where we dissect and analyze the Supreme Court decisions that have weighed down American life like stones in the pocket of a struggling swimmer, steadily dragging him toward the bottom of the ocean while he flails helplessly toward the surface.

Water slowly filling his

We've had the ocean eroding rocks and we've had rocks crushing.

It's always a water theme.

Or rocks.

It's pretty difficult to

week after week.

This is like my third metaphor, and I am running extremely low, I guess.

All right.

I am Peter.

Twitter's the law boy.

I'm here with Michael.

Hey, everybody.

And from Austin, Texas, Rhiannon.

Hi.

And together, we are the only legal podcasters at any serious risk of disbarment.

And today, we are discussing Terry v.

Ohio, a milestone 1968 case that firmly established the legality of stop-and-frisk practices by American police.

A couple of things here.

First, we have once again deviated from our namesake.

as this is an eight-to-one decision.

And you might think that calling our show 5-4 and then covering two non-five to four decisions within our first few episodes demonstrates a complete lack of respect for our audience.

That's, yeah.

That's correct.

I shouldn't have phrased it like that.

That's correct.

But this is our first foray into criminal law.

And the Supreme Court has, throughout its history, managed to be particularly unconcerned with the rights of citizens who find themselves at the mercy of police.

And as a result, some of the most atrocious criminal law decisions in the court's history were actually pretty uncontroversial from the justice's perspective.

And this is a court led by Earl Warren, the Chief Justice from 1953 to 1969, who spearheaded the court's push for civil rights quite successfully, but nonetheless held here that a police officer could, if they were, quote, reasonably suspicious of a crime or danger to themselves, throw a person against a wall and pat them down.

This is also the the episode where we make clear this podcast position on the police.

Finally.

Yeah, which is to make that position clear,

opposed.

Opposed to the police.

But we also want to be fair here, and that's why at the bottom of this episode, we're going to be talking to former police officer from Staten Island, Vinny Strombol,

the borough president of Staten Island, I believe.

That's Vinny Strombol's current position.

We're going to be getting his perspective, you know, just sort of hear what the other side has to say.

So, Rhea, I'm going to kick it to you for the facts of the case.

Okay.

Terry v.

Ohio.

We are in.

Let me set the scene for you.

It is a sepia-toned 1960s Cleveland

street.

And a detective, Martin McFadden, he's on his regular beat, and he,

what do you know?

Observes two black men.

That's suspicious already.

Yeah.

I mean, I'm nervous.

Yeah, yeah.

My blood pressure is way up.

So the two men are John Terry and Richard Chilton.

They are standing on a street corner, and Martin McFadden will later testify that, quote, they didn't look right to me at the time.

Although he also testifies that he doesn't know either man, he's received absolutely no information about the men at all at the time that he first spots them.

And he never says before trial, he doesn't say what doesn't look right to him about these guys.

And actually, at the hearing on the motion to suppress for this, when the judge flat out asks him what drew his attention to these two guys, Mr.

McFadden says straight up, Judge, I don't know.

So

that's what we got so far.

I think I know.

I just want to put it out there.

I think I know.

Yeah, I know as well.

I think I know.

I think all of us know.

I think McFadden knows.

Yeah.

So,

yeah.

So what he does say is that he observes both of these guys, they're talking to each other and then alternately, one by one, going up to a store window and they're looking inside.

So like taken alone, right?

That's not suspicious.

But I suppose, ostensibly, that it could become suspicious, maybe depending on like how quickly they're going back to the store.

He thinks they're casing the joint.

But

it depends on the con if it was in a clair shop and they're like, what do you think about that, Eclair?

That one looks good.

Let's go look.

Go look.

Yeah, so he does.

He thinks they're casing the joint.

And he says casing the joint.

And so immediately I'm like in a, like, it's like those old like police detective shows or something.

And he's just like, I thought they were casing the joint, see.

And these hoodlums gave me a real bad feeling, see?

And my wife, she's a virgin, and she's right down the street, see?

And, you know, like, that's what that's what it feels like McFadden is trying to express.

At oral argument, one of the justices asks where the eventual arrest takes place, and the guy was like in a haberdashery.

And I was like, oh, there's a word that is no longer in use.

Right.

Yeah.

What the fuck does that mean?

Completely different.

It's just a place where haberdash occurs.

That's my understanding.

Sure.

Okay, so like I said, they're walking back and forth.

They're looking in the window.

Taken alone, that's not suspicious, but to him, it's suspicious.

So how many times did they walk over and look in the window?

Actually, we don't know.

We never will.

Yeah, but

I think it's important to figure out how many times they looked in the window.

So, what does the cop say in the police report?

Yeah, lay it on us.

So, his police report, which I have read, the original, he says that each guy walks up to the window three times.

Now, just wondering, did he change that number later at any point?

You know, it's interesting that you bring that up, Peter.

This is why they call him the law boy, I think.

He just has a sense for these these things.

So, a year after this arrest happens, because it does, it leads to an arrest, let me tell you.

A year later, at the suppression hearing, he says that it was at least four or five times each.

Then, this goes to trial.

At trial, he testifies: maybe it was actually more than four or five times, but I don't know for sure because, quote, I didn't count the trips.

And something to note here is that by the time this makes its way to the Supreme Court, Chief Justice Warren actually doesn't have these facts, right?

Comes up with another number and says that the men did this five or six times apiece in all roughly a dozen trips.

He says that up top.

Then later in the opinion, literally a number made out of whole cloth.

These men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times.

Wow.

Now we're at 24 guys.

That's the math, though.

Initially, it might look like two times three.

Okay, that's six, right?

If you're like a real math guy, you know?

But if you just feel it out,

if you separate yourself from the numbers, you might realize that it's 24 times, you know?

You don't want to get too focused on the numbers.

I mean, this cop, he was probably scared.

He was sweating.

It's hard to count.

His heart was racing.

Yeah.

And I'm sure it felt like they did it like 20, 30 times.

Right.

You know?

Sure.

You see two black guys across the street, you only have one gun on you.

You're like, oh, man.

They're looking in that window.

They're looking in that window.

And you just lose track of the numbers.

I get it.

So I think, you know, regardless,

the important thing here is that this entire body of law, which we're about to talk about, but like reasonable suspicion, stop and frisk, it stems from this case and is dependent on this fact, which like they can't fucking get right.

Yeah, that fact is like very central to

everything that goes on in this case.

Right.

It's the whole reason that he initiates the

intervention, right?

Where he steps up and

asks these guys what they're doing.

Yeah.

Yeah.

So he says that

as part of what he's like suspicious of, McFadden says that he thinks that they're casing a stick-up, but he also testifies in the hearing on the motion to suppress that in his 35 years as a detective in Cleveland, he's never observed anybody casing a stick-up.

So,

but he just knew

he could tell.

Yeah.

And I think we have to focus like so much on like what a fucking idiot this guy is, but I think it's because like it's a common theme and it's going to come up constantly in all of these cases.

So the story that's settled on from the hearing on the motion to suppress, um, and then at the trial, and of course, in Earl Warren's majority opinion, is that McFadden stops these guys, he asks them their names, he immediately grabs John Terry and he frisks him.

McFadden says at the suppression hearing that he just patted down his outer clothing.

But actually in the police report, when you read it, he says, I searched him.

So he's not using the same language about like just patting down or just frisking as opposed to a full search.

Now, just kind of backing up and giving some like historical context, the Earl Warren Court of the 1960s, it's known for its expansion of individual rights and defining the role of like what an activist court is during the civil rights movement.

So, you know, probably the most famous decision out of the Warren era is Brown versus Board of Education.

And in the criminal areas of law, you have Gideon versus Wainwright, which says like you have to be appointed a lawyer if you can't afford one.

You have the Miranda decision and you have MAP v.

Ohio.

Miranda, of course, says that the Fifth Amendment protection against self-incrimination applies to interrogations by the police.

So the confessions that they coerced and tortured out of you

can no longer just be accepted in court.

And the Matt v.

Ohio case says that the Fourth Amendment exclusionary rule, which Peter will talk about in a little bit, that applies to the states.

Yeah.

These decisions in the criminal realm, like by the Warren Court, are heavily, heavily criticized by conservatives.

And they're criticized as like coddling criminals.

So throughout the 1960s, crime is on the rise in the U.S.

Public fear about violent crime specifically is really kind of boiling over.

And a Supreme Court that's at the center of desegregation battles and the so-called kind of like due process revolution is facing really harsh backlash from Southerners, from conservatives.

And the big critique that they're lobbying at the Supreme Court at this time is that this is judicial legislation.

These guys are legislating from the bench.

Impeach Earl Warren signs are popping up everywhere, and just more kind of like

I disagree with it, but it's pretty cool.

It'd be nice if people cared as much about the Supreme Court today.

Yeah, well, if they started doing anything that helped defendants' rights, then maybe you would see

it.

Right.

Then, yeah, that would motivate

a lot of reaction.

And just another note about kind of like what's going on at the time between this case, Terry v.

Ohio, being argued in December 1967 and the court handing down its decision in this case in June 1968.

Martin Luther King has been murdered

and so has Robert Kennedy, actually, just days before this opinion comes down.

So, you know, like shit's hitting the fan.

Yeah.

Yeah.

So this case gives the police immense discretionary power inside the criminal legal process.

And I think as a result, it makes sense up top to do a rundown of the process of a typical criminal case and how it intersects with the Fourth Amendment.

Right.

So the way a criminal case comes to court, obviously, is somebody gets arrested, right?

A police officer is going to arrest somebody.

They write a report about what they saw and what justified them to stop someone, to seize evidence and seize the person, arrest the person.

And so then after somebody is charged with a crime, the criminal defendant can challenge the evidence that was collected against them, or they can challenge the entire arrest, and they can get that thrown out if the police violated the person's Fourth Amendment rights somehow.

Right, yeah.

And it's called the exclusionary rule, and the idea is that if a police officer violates your rights in collecting evidence against you, that evidence shouldn't be admitted at your trial to be used against you, which makes it

the accountability mechanism we have for the cops

is

that the cop says what he believes happened, or

whatever he wants to represent happened.

So, to recap here, we've got a cop who sees a couple guys ostensibly casing a store.

He walks up to them, stops and frisks them, finds weapons.

They each have a gun, right?

And calls the wagon.

And then, yeah.

He arrests them for it.

You can't arrest them for casing the joint because walking in front of a store and looking in the window, even if you think it might be shady, not a crime.

But it gets them on the weapons.

So the question is,

does this violate the Fourth Amendment?

The Fourth Amendment says: quote: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

So, Fourth Amendment has two parts, right?

The people have the right to be secure in their persons, houses, papers, and effects from unreasonable search and seizure, and warrants have to be issued upon probable cause, oath or affirmation, etc.

So probable cause is the standard that you need to issue a warrant or to effect an arrest.

It's unclear exactly what probable cause means, whether it really means probable, like literally more than more likely than not, or if it means something more than that.

So this brings up up a bunch of questions.

We'll dig into the vagaries of that later.

Also, worth noting, though, as Rhiannon had kind of alluded to earlier, the remedy for Fourth Amendment violations is not like a lawsuit against the cops or anything.

The remedy is that whatever evidence they find is excluded from consideration.

So, if he found those guns, obviously the guns themselves or the evidence that they had guns on them, that would be excluded from consideration.

That's basically it.

So, there's no real negative impact for the cop if they violate the rights.

They just don't really have a strong case.

Right.

So,

the opinion breaks down like this.

The narrow question is whether the stop and frisk of these men was constitutional.

But it also poses the broad constitutional question of what exactly the standard for a stop and frisk is and whether and when cops can do them constitutionally.

So, the court says that while this is a search and seizure under the Fourth Amendment, it was so brief and limited that it does not require probable cause.

The court says that this is constitutional under a completely separate standard called reasonable suspicion, which is a standard that they entirely made up on the spot.

And they basically say, yeah, sort of interesting.

The court says the concern for the officer's safety outweighs the limited intrusion on the liberty or security of the citizen.

And according to the opinion, Fourth Amendment reasonableness applies to both the stop and the frisk.

The officer needs reasonable suspicion that a crime is happening to stop the person, and a reasonable suspicion that the person is armed to frisk the person.

So

if you're paying attention and none of this is really clicking for you, it's because none of these terms have any objective meaning.

No, it's fucked up.

That's right.

Gobbledygook, it's nonsense.

Probable cause is vague to the point where no lawyer or professor can really define it with any accuracy, right?

Right.

And now the court has introduced an even vaguer standard, reasonable suspicion, and declared that these two terms operate cohesively side by side within the Fourth Amendment, and that we can trust police to enforce them.

And

reasonable suspicion, taken on its own, without context, it's not even just from the meanings of the words.

It's not even clear whether that's supposed to be a more rigid or more lax standard than that.

Well, I mean, what real reason is there to believe, just based on the terminology alone, if you just heard them, that reasonable suspicion is somehow a lower standard than probable cause?

It's just sort of an odd, almost intentionally vague sort of phrasing.

But I mean, we're just putting this in cops' hands.

Look, at the end of the day, at the end of the day, we can trust cops to enforce it.

Really?

We're going to hear more about that from, again, from Staten Island Borough President Joey Double Peppers Venatelli

at the end when he calls in.

So this brings us to

the textualist argument against this decision, which is that there's no real basis in the Fourth Amendment for the creation of a second lower standard, right?

The reasonable suspicion standard that somehow frees police of their obligation to identify probable cause before making a stop or seizure.

It's true that the Fourth Amendment refers to, quote, unreasonable searches and seizures, but what makes the most sense, I think, to me, and I think there's really no other way to read it, is that those two terms are linked, right?

A search or or seizure is unreasonable if it lacks probable cause.

Right.

And as the dissent points out in what I think is its strongest point, if you read the Fourth Amendment any other way, if you read it like the majority is reading it, then police on the streets have more power to authorize a stop or seizure than a judge issuing a warrant.

Right.

A judge who would be informed by a police officer who's acting under oath, right, of why they need a warrant.

That judge, for some reason, is less able or more restricted when they're trying to effect a warrant.

It's absurd on its face, I think.

The majority doesn't address that argument at all.

Right.

Not at all.

And I think you can kind of compare, because it is the same court and the same justices, they chose a completely different approach before this case when they decided the Miranda case.

So the Miranda case comes down, right?

And they say, you know, in order for people's self-incriminating statements to be used against them, their waiver of their Fifth Amendment right, there's a sort of series of like specific prophylactic rules to ensure people know what their rights are first and kind of curb the potential of police coercion, right?

So, Miranda says, like, the police have to tell you these rights up front.

So, the Warren Court is like thinking about this stuff, right?

And they just don't even, it's not even addressed here.

Is there any sense that they're just doing some like real politics here?

Where, like,

there's a point in the opinion where Warren, writing for the court, says,

look, black people, they complain that cops harass them.

And we're not here to question that, but would excluding evidence from these types of stops really stop police harassment of black people?

Right, right.

There's like a sense where I think that maybe they're like, there's only so much we can do.

Right.

Maybe if we did this, cops will just ignore us and it would only undercut our efforts.

I don't want to give them too much credit because this is a shit opinion.

It's a shit opinion, but the comparison, right?

Like they know they're engaging with these issues deeply on other cases, and here they stop doing it.

It's true.

I mean, the only thing I can really say in the Warren Court's defense, and I'll say it once and then never mention, never defend it again, is that the scholarship on the relationship between race and policing was nothing near what it is today.

That's true.

But when they're calling it out in the opinion explicitly, obviously they have some sense.

Maybe Warren was concerned about getting called out on Twitter by the

head of the police union.

That's true.

They're pretty aggressive.

It's a big risk now.

It's a big risk then.

Yeah, I do think it's right that the politics of the time are absolutely relevant.

The court is being lambasted publicly, particularly about what it's doing to quote-unquote give criminals rights or whatever, right?

The public doesn't like that.

And I think there's a feeling,

almost explicit, a tone in the opinion that Earl Warren might just want to kind of wash his hands of it.

Yeah, and we don't know what's happening behind the scenes.

It could be that police officers are sending Earl Warren the heads of rabbits, you know, and the mail is a threat.

Sure.

I don't want to say that they did that for sure on a podcast, but I think it's 50-50, you know.

So I think this brings us to the core issue here, which is that when you start talking about the give and take between citizens' rights and the so-called necessities of policing, what you inevitably mean is

we're going to give discretion to police officers.

And when you give discretion to police officers, they will abuse it, period, right?

I mean, not everyone agrees with this, but later when we have

Tony Bags Mortadella, the Staten Island Borough president and former police officer on the show, he's not going to agree.

But I think that, no joke, the research that exists and everything that every fucking public defender in the country has ever experienced shows that cops will abuse discretion when it's granted to them.

This very case involves a police officer undeniably lying, or at the very least, being incredibly frivolous with the truth about what he saw, and the curtain just regurgitating his statements and exaggerating them, right?

As if they were fact, despite the fact that they all contradicted the initial police report that he made.

Allow me to posit that if a cop says he saw someone walk by a store three times in a police report and then says it was four to five times at a later hearing, and then a trial says it was maybe more, but he didn't actually count, and at no point has his memory or integrity questioned.

It doesn't really matter whether he's being purposefully dishonest or not, right?

What actually matters is that he has a clear disregard for the truth to the point where he didn't even bother memorizing the basic facts of his own police report.

And he probably has that disregard for the truth because at every level of appeal, the court eats up what he says uncritically and will, in fact, embellish it to prove his point.

Trevor Burrus, Jr.: Right.

Until what started three apiece is now 24 times that they were looking in this window.

And it's pretty amazing how much this case sort of anticipates the shape of things to come.

An issue is that when you basically put cops on the honor system and then tell them, well, these are the things you need to see

or say to make this legal, is that they're just going to do whatever the fuck they want.

And then after the fact, they're going to say what...

you know, they know are the right buzzwords or the magic words to make it okay.

And everybody just sort of plays along.

And we see it here with the exaggeration of the facts.

And we see it pretty regularly in modern America.

Yeah, it's kind of beautiful, the exaggeration of the facts, being able to see how it plays out in this really important case, because it goes, like Peter said, with what every public defender knows, which is that like once these cases get to court and once there is an opportunity to sort of question police work, right?

The court is always, always, always going to bend over backwards and do their work for them.

When cops are on the honor system, you know, judges look at that and think, well, I want to believe it because I'm on the honor system too, and we're together in that.

Right.

Right.

So even if you just take what the court's saying at face value, the facts here don't meet the reasonableness standard that Warren says he's using, right?

McFadden knows nothing except these guys are walking up and down the street looking into a window.

He never gets more information before he stops them and starts searching.

I mean, the idea that he had reasonable suspicion that they were armed because they're casing a joint, frankly, now these guys are dumbass criminals, right?

I mean, let's be honest.

They do have guns on themselves at the time.

But if you were a smart criminal, when you were casing a joint, you'd probably not have any contraband on you.

I mean, but even that, the idea that someone is thinking about a crime actively doesn't really say much about whether or not they're armed.

It certainly doesn't bring you up to reasonable suspicion, whatever the fuck that is.

But the whole point of the term reasonable suspicion is that it can give the court court this sort of leeway to be like, yeah, okay,

something.

It's worth noting that in these cases, there's always going to be a gun.

There's always going to be drugs, right?

Because if there aren't, there's no case.

There's no evidence to exclude, and there's nothing to fight in court.

It's only when they actually find something is there something to argue about, something for a judge to rule on, and something to create case law.

Right.

And the other piece that's like ridiculous, in addition to the making up facts and not really fitting them to his rationale.

Warren can't

even string two sentences together in justifying this in a way that makes sense.

You know, he says the officer's suspicion that Terry and his buddy had weapons was reasonable because they appeared to be right on the verge of committing a quote-unquote daylight robbery.

And he says, and nothing in their conduct until the police officer confronted them gave him sufficient reason to negate that hypothesis.

And then in his very next fucking sentence, he says, although the trio had departed the original scene, there's nothing to indicate abandonment of the intent to commit a robbery at some point.

Yeah, I mean, so the stop occurs after the guys leave.

They exit the scene.

Right.

So it may well be that they were casing the joint.

And I think, you know, if I had to guess, they probably were casing the joint, but they absolutely fucking left.

Right.

They weren't going to do it right then.

If the sole fact, which according to Warren is the sole fact that's giving the officer grounds to search them for weapons, is that it could be a daylight robbery, the fact that they left the scene and were exiting

totally undercuts that.

Right.

And all of this is just a signal that, quote, reasonable suspicion means that the court is giving a stamp of approval to any arbitrary police practices and basically saying that only the most egregious police activity is going to be deemed unconstitutional.

Right.

Right.

And this vague standard has led us down a slippery slope over the ensuing decades.

Stop and frisk, based on reasonable suspicion, is now commonly validated on the base of, quote, furtive movements,

carrying suspicious objects, which have included a pillowcase, appearing to be out of place, responding vaguely to questions by police.

These are all things that have been held by courts to be reasonably suspicious.

And though the frisk has to to be for weapons or like for purposes of officer safety, if when patting down an individual an officer develops probable cause to suspect another crime, say drug possession, then they can continue to search the person, search their car, etc.

And police lie about this every fucking day.

Like one thing leads into another, right?

It's a cascading effect.

You create a level of deniability with your initial reasonable suspicion, and then maybe you feel a bump in their pocket.

That might be drugs.

Or, you know, it just one leads to the next until you can conduct a fucking full search of their car or wherever they are, like, you know, their surroundings, their friends.

You grab onto one ostensibly suspicious thing and then turn it into a massive search that is without question a violation of the Fourth Amendment if you had even the slightest bit of interest in what a unreasonable search would look like.

Aaron Powell, right.

There was a modern case quite famously about stop and frisk, and in it there was some testimony from officers on what they thought furtive movements

mean.

And so I just want to read

one explained that furtive movement is a very broad concept and could include a person changing direction, walking in a certain way, acting a little suspicious, making a movement that is not regular, being very fidgety, going in and out of his pocket, going in and out of a location, looking back and forth constantly, looking over their shoulder, adjusting their hip or their belt, moving in and out of a car too quickly,

turning part of their body away from you, grabbing at a certain pocket, getting a little nervous, or stuttering.

Nice.

I especially like acting a little suspicious.

The standard is reasonable suspicion.

You're like, officer, what was the reason for your suspicion?

Like, well, he was acting suspicious.

Yana.

That checks out.

Yarana.

Yeah, in my own experience, right?

Like, I've seen two police reports written by the same officer.

One will say that, like, the suspect looked at me in a way that made me suspicious.

The other police report will say the suspect did not look at me, and that was suspicious, right?

And so anything can be reasonable suspicion.

And what I think comes out of this case and all the subsequent cases on Stop and Frisk really, really clearly is that Fourth Amendment jurisprudence teaches police how to write their police reports and it teaches them how to testify and what to say on the record.

It does not teach police how to police better or properly, right?

When you see this stuff at work every day, the way police write their reports, it's fucking unnatural to the point of being obviously dishonest, right?

So police know that the word furtive is now accepted as reasonable suspicion.

And so all police officers know to put furtive movements in their police reports.

And by the way, what's the percentage chance that the average police officer knows what the word furtive means?

No, they definitely don't.

Zero of them do.

Not a single police officer across the country knows what furtive means.

I would bet my life on that and not even think about it.

Right.

So I don't know if it makes people uncomfortable to like hear police lie.

Also, I didn't know what furtive meant.

I want to say it.

No, I mean, I know what it means now because I took a class where they talked about it, but I was for sure like furtive.

What the fuck are they talking about?

Yeah.

So, no, I don't know if it makes people uncomfortable to hear us say, like, cops lie, but it's something that, like, I mean, it's extremely common.

I mean, it's it's verifiably common you know i mean again we're going to hear at the bottom of the episode from um staten island borough president johnny biglots falcone and he's got a different opinion on this i can't wait i'm so looking forward to that interview but no i look it's it's impossible to know exactly how big of a problem police dishonesty is for a bunch of reasons right Accused criminals generally sign plea deals, so we never see the evidence in those cases.

And you have the fact that a lot of lies, police reports, testimony, et cetera, are just impossible impossible to uncover.

There's no way to double-check them or check them against anything else.

And finally, you have the fact that judges will almost always, or at least very frequently, seal criminal proceedings so they aren't reviewable by the public.

There's no large-scale orchestrated effort that I'm aware of to review the reliability of police testimony.

And I don't think there really could be for those reasons.

There's just too many missing data points.

But a good reference point: the New York Times in 2018 did an investigation into this and quickly uncovered 25 verifiable and documented instances of officers lying under oath in the prior two to three years.

This is a quote from the article.

In these cases, officers have lied about the whereabouts of guns, putting them in suspects' hands or waistbands when they were actually hidden out of sight.

They have barged into apartments and conducted searches only to testify otherwise later.

Under oath, they have given first-hand accounts of crimes or arrests that they did not, in fact, witness.

They have falsely claimed to have watched drug deals happen only to later recant or be shown to have lied.

Pigs.

I mean, just like

an unbelievable fucking amount of people.

Other people's freedom, that like these fucking trash morons who have absolutely no respect for like

other human beings, let alone the Constitution.

It's incredibly brazen.

The Times reported that the primary reason the cops were doing this was to skirt constitutional restrictions on searches and seizures.

Shocking.

They were able to uncover these just by conducting interviews.

They couldn't review the court records, right, which are almost all sealed.

And they expressly note that this is almost certainly just a tiny fraction of the lies and dishonesty that you see in testimony commonly.

It's common enough that cops have a name for this, which I asked you about, Rian, and you were familiar with, testifying.

Yes.

Which is...

a combination of testifying and lying.

It's about as creative as a name for lying during testimony as you could reasonably expect from a cop.

He doesn't know what furtive means.

But apparently, yeah, apparently this is like a well-known term in the police community.

Multiple cops verified it to the New York Times.

Another legal point we want to make is what constitutes a stop under the Fourth Amendment isn't really sufficiently defined here or anywhere else.

When a stop occurs, it's considered a seizure under the Fourth Amendment.

And it's important because that's when the Fourth Amendment protections attach.

And before a seizure occurs, a person is free to leave an interaction with police, right?

If a cop just says, hey, how you doing?

You can walk away.

You don't have to talk to them, right?

They'll shoot you like 10% of the time, but that's, you know, if you want to take that risk, you're free to be constitutional.

But once someone is seized under the Fourth Amendment, they can't leave.

And in this case, The court sort of disregards it, right?

They don't really talk about the stop.

The cop walks up to them, starts patting them down.

That's the frisk, right?

But when he's stopped is very important, and the court really doesn't get into it.

Yeah, not at all.

Yeah, the court decides that the seizure of the person happens when McFadden grabs Terry and starts patting him down.

But they could say that actually these guys are stopped for purposes of the Fourth Amendment when McFadden approaches them and asks them for their name, right?

It's kind of.

Yeah, another way of putting that is maybe when he stops them, right?

I'm not the stop in the stop and frisk.

I'm not.

I'm not on the Supreme Court, you know.

I'm just a regular guy looking at words.

But when a cop stops you on the street, I would think that that's the stop, you know?

Yeah.

Saying the reasonableness standard applies once he's already frisking the guy,

that's problematic for a couple of reasons.

Like, first, it's indicative of a really deep misunderstanding about the power dynamics that are at play when cops approach people on the street, which, like, let's not forget that this is 1968.

This is a white officer approaching two black men.

And secondly,

like, delaying when this encounter can be labeled a stop is problematic because it opens the door for other cases to keep delaying when exactly a stop occurs so that Fourth Amendment protections don't attach until later and later and later in an interaction with the police.

Right, right.

And look, the reality is that when a cop walks up to two people on the street and asks them their names, you know, tell them to keep their hands out of their pockets, blah, blah, blah, that's a restraint on liberty.

And that should be where the Fourth Amendment is implicated immediately.

No one, maybe rich white men, but other than rich white men, no one feels like they're realistically free to leave that kind of interaction.

Cops know that.

They use it.

And the fact that Earl Warren, of all people, didn't see this is because, look, judges, they don't interact with cops the way regular people do.

Yeah, I think that's really it.

They don't know what a normal interaction with a police officer is like, and they don't know what it's like to have interactions with police officers be a normal part of your life.

Right.

Right.

So I think it's time we address the counter-argument here.

Cops have consistently made the argument that it makes their job more dangerous if they can't stop and frisk suspects, right?

That what they're doing is making sure that the people they're interacting with aren't armed.

You know, if they don't do that, they are at some risk from criminals, right?

I mean, there's obviously a rich irony here in how often cops pat themselves on the back for being willing to put themselves in danger, but then turn around and claim that they need to be able to constantly interfere with civilians' rights in order to protect themselves, right?

There's no question that when you're being stopped by police, you're in some level of danger.

They can and will physically restrain you.

It's not unheard of that these encounters ultimately see the use of violent or even lethal force by police officers.

So when the police say that they need to do this for their own safety, what they're really saying is they want to transfer the risk of violence from them to you.

Right.

Right.

It should go without saying that no organization that purposefully seeks to shift the risk of danger from themselves onto the general public can conceivably be seen as protecting the public.

And I again, I don't want to get too into this because, you know, unless you're a seven-year-old who just got the first fucking classroom speech from McGruff, the crime dog, or whatever, you'd have to be an absolute fucking dipshit to think that the goal of the police is to protect the public.

But there is a deep hypocrisy there and a real distance between how police actually act and how they present themselves as acting.

Right.

And around this time, this is in the 50s and 60s, is when we first saw white flight.

Right.

This is when white people were leaving urban areas for suburban or rural areas because of desegregation.

They didn't want to be in the same communities as black people.

But they're also still making up the majority of the police force that is supposedly serving and otherwise occupying these areas that are minority heavy.

Right.

And so what you have is a population of white cops who clearly do not like minorities.

Right.

You know, and like maybe it's not.

And

well, at the very least, they're not from those communities.

Right.

And you still see that today, right?

I mean, we're joking about, you know, our guest from Staten Island, who's coming soon, and I'm very pleased to hear from him.

But fucking Staten Island is that's precisely where all the white people went when they didn't want to deal with black people in Manhattan.

Right.

And I think

a good way to hold police accountable, even though it would be politically tricky, would be that whenever there is a credible accusation of police misconduct in New York, Staten Island Ferry just shuts down that week.

And that's it.

You can't, you know.

Just to bring it back to the judiciary and what Peter, you were saying about like the police hypocrisy about talking about the need for

officer safety over, you know, the sort of like liberty and constitutional rights of the citizen.

Judges are always going to do this.

The court system is always going to do this.

What it's going to do is say that balancing act is important to us, the judiciary, right?

Officer safety is so important to us that there obviously has to be these limitations on the constitutional rights of citizens.

They never, though ask like what the cost is of limiting citizens' constitutional rights, the violence that's enacted then on the community.

They never like put that into the metric.

I think we'll talk later about stop and frisk specifically in New York City and how that's played out.

I have experience seeing how police do this shit, particularly in more rural communities.

And how that shakes out is officers are often in their cars driving on like poor like county roads or whatever.

They see somebody walking because everybody walks in rural communities and people don't have cars and whatever.

They can just say any of this stuff that we've said, right?

So this person was not wearing a jacket and it was cold outside.

Right.

This person was walking really slowly.

This person was running and I didn't know why.

So all of those things.

And so then all of the sudden, it's an interaction with a police officer.

You're by yourself, yourself, you know, like nobody's around.

It's dark outside.

And that happens consistently to fuck with people and to remind people that the cops have power and they're in charge and they can fuck with you whenever they want.

One particularly egregious case, and the only reason that We knew it was egregious is because there was working body cam in this case.

This, again, was in rural Texas in a border town.

An officer is called called to a house because a dad says that his son needs a wellness check, right?

Can you guys go check on him?

He was acting strangely earlier.

The cops get to the house, and the guy who ends up being my client

says,

Fuck you guys, you're not coming in the house, which is totally his right.

And cool, super cool.

Yeah, I like your client.

What happens is an interaction through a bedroom window.

So my client is inside his house, inside his own bedroom, and he's talking to the officer who's outside his bedroom, and they're talking through the window.

The officer is like saying, just come outside.

We just want to talk.

Just come outside.

We just want to talk.

And over and over again, my client smartly asserts his right not to talk and not to come outside.

But at some point in the conversation, the officer asks if there are any guns inside the house.

Again, this is rural.

Texas.

There are guns inside every motherfucking house.

They come with the house.

Right, right, exactly.

My client says, like, yeah, I have a 30-odd six.

That's for hunting.

Like, he starts talking about the guns he has.

The officer at that point reaches inside, pulls him out through the window, and arrests him.

You might ask, for what?

On what grounds?

On what grounds?

The officer then says that in that interaction, when he reached in to pull my client out of his bedroom through the window, that he was assaulted, that the officer was assaulted.

Yeah, yeah, hell yeah.

My client is therefore arrested for a felony in Texas, assault on a police officer.

Yeah.

So

I would just, sorry, I would like to remind the listeners of the text of the Fourth Amendment here,

which is the right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures shall not be violated.

It seems like...

you guys think when he reached into someone's house, grabbed a person, those are the first two, right?

And the amendment,

and removed him forcibly from the house, that perhaps the Fourth Amendment was infringed?

I'm just spitballing here again.

You know, I thought so, and I thought to myself, when that body cam footage landed on my desk, I thought, thank God we have the exclusionary rule, right?

Because this evidence, this arrest, this should all be excluded, and they don't have a case because what the fuck.

Well, guess what?

We did have a hearing on the motion to suppress that evidence, and I will give you one guess how it went.

Well, Chris.

Fuck.

This is why I don't do any sort of like important law that impacts people's lives.

And call me a sellout, all right?

But

I would absolutely be losing my shit day to day.

I would be dead in a ditch for sure.

I mean, I would just.

Now you guys know why I am the way I am.

So, this, it ends up being a different standard, right?

Because this ends up being, does he have probable cause to arrest him?

But he, the judge says that there was probable cause based on my client acting weird and there being guns in the house.

Yeah, yeah.

Yeah.

So when the when the cop reaches in and grabs my client's arm and starts pulling him out, my client uses his other arm to start putting the window down.

A reasonable response.

And the officer, Yeah, and the officer says that he's assaulted.

Oh,

God.

All right.

Before we get into some statistics on stopping frisk, I want to talk about what Warren says about this.

He calls the frisk a, quote, limited intrusion into the citizens' rights, right?

But that misses out on how it plays in practice, right?

Like

the same population is consistently targeted for these searches.

You can maybe argue that one in a vacuum is a limited intrusion into your rights, but when you're being frisked repeatedly, maybe near your home, certainly in your own neighborhood, most likely, every week, every day,

at what point can we admit that this intrusion is not limited, right?

That it's not discrete, that it's not, it shouldn't be viewed in a vacuum.

It's just a complete detachment from how this stuff plays out on the ground.

We should talk about stop-and-frisk statistics in New York City.

Because if Earl Warren could see, and I have some faith in Earl Warren, you know,

if he could have seen Mayor Bloomberg's New York City,

my hope is that he would have taken a step back from his position in Terry the Ohio.

Yeah.

Between January 2004 and June 2012, the NYPD conducted 4.4 million Terry stops.

The number of stops increased from 314,000 in 2004 to 686,000 in 2011.

52% of all stops were followed by protective frisks for weapons.

A weapon was found after 1.5%

of these frisks, which I would like to contextualize

because the standard is reasonable suspicion.

They need to be reasonably suspicious that a weapon is on them.

If what you believe is reasonable leads to an outcome of finding a weapon 1.5% of the time,

is that a fucking reasonable suspicion?

Right.

Not fucking reasonable.

So we're talking over 2 million people frisked where nothing was found.

Nothing.

In a six-year period.

That's Jesus.

Okay.

Okay.

8% of all stops led to a search into the stopped person's clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon or immediately perceived to be contraband other than a weapon.

This must be high, then.

We've got an officer indication.

They've felt something.

So the officer felt something, right?

9% of the frisks turned up a weapon.

91%, if you're doing the fucking math, no weapon.

So wait.

In 14% of the searches, the object was in fact contraband, meaning that it was basically 9% weapons, 5% drugs.

That is obscene.

If you want to fucking tell me that cops are unable to feel what a gun feels like 90% of the time,

you should be immediately fucking fired from your position with the NYPD, making like $130,000 a year to go fucking like

Harass minorities.

Folks, I'm going to lose it.

I don't like the police.

I mean, look, there are two options, right?

One is that they really fucking suck at this.

Right.

Abject incompetence.

Plausible.

That's a plausible explanation.

The other that I think is probably more likely is that they just wanted to look in the guy's fucking pockets.

That they weren't happy, that this guy, you know, maybe was was like giving him a little attitude was maybe a little defiant and a frisk wasn't enough and they wanted to really fucking get at this guy right and so they said they felt something and they went digging through his shit yeah just a theory maybe these cops um feel like asserting their masculinity upon the people around them uh and have been given a platform to do so uh and all of the tools they need to both do that and feel like they are free from any consequences, legal or otherwise.

That's just, I'm just floating the.

You know what, Peter?

That's a really interesting hypothesis.

And I think, you know, the stats on the race of people who are stopped and frisked are pretty much.

Oh, is there a racial disparity?

That doesn't sound yeah.

You know, it's kind of remarkable, but

in 52%

of the 4.4 million stops on New York City streets during this time period, the person stopped was black in more than 50% of those those stops.

31% of the stops were of a Hispanic person, and this fucking really broke my brain.

10%

were white people.

Jesus Christ.

Imagine how shady the white people had to be acting, though, to get

stopped in front of you.

All 10% had the same checkbox in their little form for what the stop was, which was like hanging out with black people.

Right.

Right.

Close association with Hispanics.

That was the suspicious activity.

I'm sure of it.

Yeah.

And just to compare that, the actual population of New York City in 2010, it's 33% white people.

Just so

you guys know.

And there's a point I want to make here really quick, which is that these stats come from the stop and frisk case in New York, which found that New York's practices were unconstitutional in violation of the 14th Amendment.

They said,

we thought if we really just focus it on minorities, then they would not bring weapons out.

Like, let's just do this as racistly as possible and it was definitely yeah

you had a you had police like leadership basically admitting it was racist you had the mayor Bloom Bloomberg am I pronouncing that right mayor Mike Bloomberg

yeah he has had made several statements about it that seemed to indicate that perhaps it was targeting African Americans in the city

so there was a strong equal protection case it's worth noting though that the Fourth Amendment has been whittled down to fucking nothing over the years.

Yeah, they had to scaffold this other constitutional argument on top of the Fourth Amendment violations in the class representatives because this was a class action.

Because

setting aside all the racial shit, I'm just going to put this out there, in my opinion.

4.4 million terry stops in, what, eight years is incompatible with the Fourth Amendment.

Yes.

Period.

Yes.

That's it.

That's the only number you need.

Right.

Like, you're not secure in your person, as the Fourth Amendment guarantees, if the cops on their fucking honor system

can stop people at that rate with

literally no consequences.

Yeah.

That's exactly right.

When I think about these cases, and when I think about the times that I have had a hearing on a motion to suppress,

very quickly lost those hearings, and then right afterwards, you see the judge

having lunch with, laughing with the cop who just testified in the motion to suppress hearing, the cop who violated my clients' rights.

You get this idea that there is a cultural link between those two people, and it's because there's a cultural link between the two institutions.

So, those experiences and this case, Terry v.

Ohio, and its progeny, to me, stand broadly for the proposition that the police function in our society is at once kind of like completely unfettered.

It's a massive imposition, but at the same time, it's unquestioned.

And this case is like this weird forcing of constitutional permission onto a facially dangerous, arbitrary set of facts.

And it shows to me how unworkable like our police systems are in a supposedly free society.

So when you see what the police do every single day, you realize there's no understanding or recognition that the very work of the police is to oppress and to enact and perpetuate violence on all of us.

Nobody wants to think about that because it calls into question sort of everything about how we're policed and how we've like set up these systems.

And so that's how they just sort of go to bed together and feel good about it.

Trevor Burrus, Jr.: Right.

The money and authority is on the side of power, right?

It always has been, it always will be.

You need to construct a counterbalance to that.

And if it's not built and maintained, then it won't be there.

And that's why our public defense systems are a fucking travesty.

Aaron Powell, Jr.: In terms of judges at the federal level, I think even at the state level, although it's going to vary from state to state, being a public defender or a defense lawyer is not a great career path if you want to be a judge.

But you're a district attorney, you're a U.S.

attorney, you're on the prosecution side, you're working hand in hand with cops.

That is a fucking classic career path to being a judge.

And so a lot of these judges come from that background.

They come from a background where they work with cops all the time.

Something to consider is that there are multiple cities now who are trying to make a list of cops who are so regularly dishonest on the stand at trial that they literally have to be forbidden from testifying.

But these cops will not cease to be cops.

They will continue to be police officers who are just incapable of doing

consequences.

Yeah, there's no consequence other than you don't have to go to trial and lie your ass off in front of a jury anymore.

All right.

What's our next case?

Our next case is the National Federation of Independent Businesses v.

Sebelious,

better known as the Obamacare decision,

which many people might remember as a win.

Your hosts at 5-4 have a different opinion.

We're very excited to explain to you why you are so wrong.

Absolutely.

5-4 is presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Nafok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

All right, I think it's maybe time to take some calls.

Yeah, we've got an interview lined up, right?

Look,

we've been working on this for weeks, and we've got.

I didn't think we could get him.

I didn't think we could get him either, but Staten Island borough president and

NYPD police officer for 26 years,

Danny Stroncatoni,

is going to call in and defend the police.

You know, it takes sort of the other side.

Do we have him on the line?

Hey,

there's Danny Stroncatoni here.

Hey, hey, Danny.

Hey,

you're talking a lot of things about police.

You're saying a lot of things.

What you don't know is these people, you don't know what they're going to do, okay?

Ma!

Ma!

Danny.

The meatballs are in the other fridge, Ma.

Look, I think at the end of the day, I don't want to be, I don't want to talk about, look, I got Jews that live down the street.

Okay.

Oh, my God.

Okay.

I'm not going to sit here and say racist stuff.

Okay.

I don't look.

All people were all the same.

You know, a lot of people used to say that Italians

weren't white, you know?

And obviously that was wrong.

Can you just tell us about, like, do you really need to stop and frisk 4 million people?

If you don't frisk them, you got no idea what's on them.

Okay.

You're walking up to someone, you're saying, hey, hey, hey, what are you doing?

And they do they have a gun?

They got five guns.

I don't know.

They're looking one way.

I'm looking the other way.

You never know.

You never know what's happening down there.

Look, I got friends killed in the line of duty, okay?

Two because of gunshots.

Four because they're trying to eat two slices of pizza at once.

All right, that was,

I guess guess that was Danny's Stronkatoni.

We lost him in the middle there.

From the Westwood One Podcast Network.