Are you saying that law if in another state and identical is also unconstitutional? or is on the WI law unconstitutional? And what if another judge in a different part of the country had ruled it previously constitutional. Does that now get overturned by what is decided for the WI law?

Okay. I just saw the post by JD21, so I get the distinction being drawn now. Definitely agree that stop & frisk for no reason is unconstitutional. Terry v. Ohio says as much.



I don't know anything about NY's practice, other than the fact that it appeared to be discriminatorily applied, which was the basis for declaring it unconstitutional according to the judge. If the pat down went further than allowed by Terry, then I agree, discrimination has nothing to do with that. I've just never heard that the NY practice was more invasive than what Terry permitted.


I have no idea, but I can't say that a high number of such instances necessarily makes the stop and search unconstitutional. If the circumstances exist to justify the stop, how can we really know that the cop's real motive was to search for something else? Sometimes it may be obvious, but other times it may not. I'm not sure a bright line exists.

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

I don't think the issue was that NY's policy went further than the normal stop and frisk. It was that people felt that being black or Hispanic became "reasonable suspicion" that a person posed a threat to the officer.

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Slowguy

(insert pithy phrase here...)

If the pat down went further than allowed by Terry, then I agree, discrimination has nothing to do with that. I've just never heard that the NY practice was more invasive than what Terry permitted.

I don't know if the frisks themselves were more invasive than what Terry permitted, but they really don't need to be. My problem is that I believe the stops were unconstitutional. I don't believe they were conducted out of a reasonable suspicion that a specific crime had been committed, or was going to be committed. The stops were strictly pretexts to conduct the search. The program was not in accord with Terry, in other words. They were stopping people without cause or articulable suspicion for the specific purpose of carrying out a search. They weren't stopping people they actually suspected of a crime and then doing a simple pat down for officer safety.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

You consent to those searches by entering a military base or operating a boat. Same thing with driving a car. When you get a license you consent to submitting blood, breathe or urine for the purposes of checking blood alcohol content.

I work on military bases often and at the entrance to every single one of them is a sign saying they can search you at anytime. When I get my vehicle pass they have me sign for it. In doing so I am consenting to being searched at any time.

I do work at Vandenberg AFB and there are areas so secure that I must actually be searched (patted down) and have my work truck completely rummaged through, and surrender my phone, camera and any other elctronic device. I also have an escort with me at all times, including while I'm taking a piss.

If I want to exercise my right not to put up with that shit I do so by not entering the property.

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Civilize the mind, but make savage the body.

- Chinese proverb

Totally agree - and I grew up getting searched all the time although I don't recall our house ever being searched. I'm an avid sailor and I'm not sure where I've explicitly consented to search or waived my 4th amendment rights by being out on the water as sailing does not require any licensing. The Coasties do this under the 'safety inspection' rule. But it's really a search for drugs and weapons along with the safety inspection.

So, theoretcally, could a state or city enact a law stating that by entering such state you consent to 'stop and frisk'? We are all subject to search at an airport in any city in the U.S. under the 'security' banner. Hell, at my kids school dances all kids are searched AND breathalyzed going in and coming out, no probably cause. By entering the airport or school dance you consent. Why not a state or city?

Well, I'd have to know the circumstances of each stop, but absent the police officer admitting that he didn't actually suspect the person, how do you prove his state of mind if there are circumstances present that would lead a reasonable officer to suspect some involvement in criminal behavior? For instance, if a person is seen leaving a known crack house and is seen putting a small vial or container in his pocket as he leaves and looking around furtively, would that be reasonable suspicion to stop the guy for buying/selling drugs? If so, what if the observing officer didn't actually, subjectively believe the guy had bought or sold drugs, but knew the suspect had been jailed on illegal weapon charges in the past and wanted to see if the guy had an illegal gun. He stops the guy, pats him down, and finds an unregistered handgun and a vial containing Tylenol. Constitutional or unconstitutional?

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

Well, I'd have to know the circumstances of each stop, but absent the police officer admitting that he didn't actually suspect the person, how do you prove his state of mind if there are circumstances present that would lead a reasonable officer to suspect some involvement in criminal behavior?

First, I suppose, you force the police officer to actually articulate what his reasonable suspicion was.

For instance, if a person is seen leaving a known crack house and is seen putting a small vial or container in his pocket as he leaves and looking around furtively, would that be reasonable suspicion to stop the guy for buying/selling drugs?

Possibly. Probably, even. But I don't think many of the stops met even that standard.


If so, what if the observing officer didn't actually, subjectively believe the guy had bought or sold drugs, but knew the suspect had been jailed on illegal weapon charges in the past and wanted to see if the guy had an illegal gun. He stops the guy, pats him down, and finds an unregistered handgun and a vial containing Tylenol. Constitutional or unconstitutional?

Unconstitutional. And yeah, maybe that's hard to prove, but only if the officer lies, and I don't know how to guard against that. But again, I don't think many of the stops even met this kind of condition. More like, "I saw a young black male in a high crime area, and therefore suspected him of a crime."

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Right, but all they manage to do is take the gun and do plead out a lesser charge. If I know I'm going to get 10 years for a gun charge, I may be more careful about carrying one. If I'm caught selling an illegal gun and face 15 years, I might not take the risk. But if I know a weapons possession by a felon or stolen gun going to be pressed to a misdemeanor or some simple possession of stolen property charge, I have little to fear.

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"In the world I see you are stalking elk through the damp canyon forests around the ruins of Rockefeller Center. You'll wear leather clothes that will last you the rest of your life. You'll climb the wrist-thick kudzu vines that wrap the Sears Towers. And when you look down, you'll see tiny figures pounding corn, laying stripes of venison on the empty car pool lane of some abandoned superhighway." T Durden

Well, this is what I mean when I say a bright line test that includes subjective intent is likely unattainable. I think you'll see most courts err on the side of upholding a search if it occurs incident to circumstances that could lead a reasonable cop to suspect that there is criminal activity, whether or not the cop actually believes it. As you say, all the cop has to do is lie and unless we have a witness to (or a tape recording of) the officer articulating his lack of suspicion, I think 99 times out of 100, the court will uphold the stop and frisk as constitutional.

As for your characterization of what the NY policy might've been like, yeah. I agree that it's unconstitutional. But, even your example injects race into the mix: reasonable suspicion exists (at least in part) because the person I was was black (or Hispanic, or whatever). That necessarily makes unlawful discrimination part of the consideration. I don't know that the race of the person should ever play a role in determining reasonable suspicion (maybe it should in some limited circumstances).

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

Well, this is what I mean when I say a bright line test that includes subjective intent is likely unattainable.

Yes, and that's why "reasonable articulable suspicion" is the standard. It's not really any different from saying that the cop who pulls you over for speeding might have an ulterior motive, subjectively. It's definitely true. Cops pull people over all the time for traffic offenses, when what they really want to do is check for some other more serious offense. Still, we require them to have a legitimate reason to pull you over.

But, even your example injects race into the mix: reasonable suspicion exists (at least in part) because the person I was was black (or Hispanic, or whatever).

The suspect's race in my example was incidental, for the most part. He was in a high crime area, which happens to be black, and in which most crime is committed by black people. It's not that the cop targeted him out of racial bias, it's that he lives in an area that the police are concentrating stop and frisk efforts. He could as easily have been white, and in the wrong neighborhood. My point is, the stop is unconstitutional because there's no specific, articulable, reasonable suspicion of a crime- not because the policy affects blacks more than whites.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Rudy Giuliani has a piece in today's WSJ on stop and frisk. I don't know if this link will work, but here are some points:

(1) Terry frisks are routine part of police work everyday, everywhere in USA (watch any reality cop show and you'll see that is true).

(2) While he was mayor of NYC police made about 100,000 stops per year (not clear it is per year but that his how I read it).

(3) Justice Dept examined practice under Giuliani and filed no charges.

(3) Under Bloomberg and Ray Kelly police were making 600,000 stops per year, mostly african american.

(4) Judge Scheindlin found the practice unconstitutional as practiced under Bloomberg (but not in general),

(5) On appeal, the 2nd Circuit criticized the way Judge Scheidlin had the case funneled to herself and removed her from the case, and also granted a stay allowing Bloomberg and police to continue their process while they considered the merits of the appeal. Subsequently, Blasio was elected and dropped the appeal.

Of the three talking Monday night, I think Holt and Hillary were more wrong about stop and frisk than Trump.

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It doesn't really matter what Phil is saying, the music of his voice is the appropriate soundtrack for a bicycle race. HTupolev

No, just the WI law. Then it goes to the 7th Cir for review. My point was - the 7th Cir already said this language was constitutional in the IN law. So, they will almost certainly overturn this decision and hold the WI law is valid.

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

Trump is a jerk. He should have been nice like Romney and just said, "ok you are right."


Trump NEVER admits when he's wrong. NEVER apologizes for anything. NEVER takes responsibility for anything - other than self-praise and being Great!

I find people like this particularly repellent.

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Steve Fleck @stevefleck | Blog

Not far off from most people trolling around here.

Not far off from most people trolling around here.


Trolling?

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Steve Fleck @stevefleck | Blog

Posting?