As the debate over the NYPD’s stop-and-frisk tactics continues, so too does the debate over what exactly constitutes reasonable suspicion of criminal activity before an officer can stop someone.
Twice in one week this summer, a New York appeals court overturned a handgun conviction after finding the police did not have reasonable suspicion to stop, and then frisk, the individuals.
Both former and current cops tell WNYC “reasonable suspicion” may be easy for lawyers and judges to define, but on the street deciding when to stop someone can be a difficult judgment call involving grey area choices in split-second moments.
As defined by the courts, a police officer has sufficient “reasonable suspicion” to stop and frisk someone if he has good reason to believe that person has committed a crime, is committing a crime, or is about commit one.
But cops say that legal standard doesn’t always translate easily on patrol.
A Black Object
Joe Guagliardo, a retired NYPD officer, said what most people don’t get is that a lot of things can look like a gun. He stopped people regularly during the 1980s while working as a housing cop in Brooklyn South. Many of those stops did not result in arrests, but he says that doesn’t mean they were bad stops.
One morning Guagliardo was patrolling a housing project in Red Hook and saw a black man in a heavy blue coat enter an elevator. He was 5-foot-10 and muscular.
“And he was putting a black object into his belt, as if it was a gun,” Guagliardo recalled.
Racing through Guagliardo’s mind at that moment were several thoughts: this was a housing project known for drugs, there had just been a rape inside the building the week before, and residents were clamoring for more police presence.
Guagliardo stopped the elevator door from closing on the man and drew his own gun.
“I asked him to step outside, and then put him up against the wall. I reached in, and I came out with a flashlight,” he said.
It turned out the man was a transit employee, on his way to work. He carried that flashlight for the job.
The man was infuriated after being stopped. He filed an intent to sue the city and Guagliardo. He also lodged a complaint with the Civilian Complaint Review Board. The lawsuit never proceeded, but if it had, Guagliardo said he thinks he would’ve been on solid ground because seeing that black object in the waistband gave him “reasonable suspicion of criminal activity.”
In February 2010, another police officer saw a black object in someone’s hand. A 14-year-old boy was walking in the Morris Heights section of the Bronx. The cop stopped and frisked the teen. And this time, it turned out the black object was actually a gun.
The boy’s lawyers challenged the conviction, arguing that the officer had no reasonable suspicion because all he saw at the time was a black object. The cop testified he had no idea what the item was.
Last month, on June 26, an appeals court agreed there were not enough circumstances to give rise to reasonable suspicion of criminality activity, and reversed the boy’s gun possession conviction.
Current and former members of the police department said they were deeply disappointed by the decision. Some guessed that the officer just didn't fully articulate for the court why he feared the boy was carrying a weapon. They pointed out the incident was an example of when stop and frisk works.
“It got a gun off the street,” said Gary Gorman, a retired cop who patrolled East Harlem in the 1970s and 1980s. “There’s probably someone that might be alive today because that gun’s off the street.”
Seven days after the appeals court overturned that gun conviction, an appeals court in New York overturned another boy’s gun conviction, finding the police did not have reasonable suspicion of criminal activity to stop, frisk and then search a 14 year old in West Harlem. The court found that reasonable suspicion could not be formed simply based on the officers’ observation of an object in the boy’s waistband when the object “bore no obvious hallmarks of a weapon.”
Relying On Subtle Signs
Gorman said trying to figure out if gun possession or other criminal activity is afoot often means relying on extremely subtle signs. That’s policing, he said, watching for those cues. Officers will notice the way someone shifts his body weight when he walks, or the way he adjusts something under his coat. Cops watch how someone crosses the street when they approach or — ever so slightly — quickens his pace.
Even the way someone’s facial expression changes when he spots plain clothes cops is a clue, Gorman said. It’s one hint that someone may be hiding something. He said just as officers are trained to watch for criminals, criminals know learn how to recognize police.
“Doesn’t have to be an unmarked car. It could just be like, a UC, an undercover car — you know, like a gypsy cab. They’ll still know. These two guys, they don’t belong in the neighborhood. They don’t look like they’re gonna buy drugs. They’re probably anti-crime,” Gorman explained.
But what an experienced police officer will notice and react to doesn’t always qualify as “reasonable suspicion of criminal activity,” according to the courts in New York. State judges have decided an individual's presence in a high crime neighborhood isn’t enough. Neither are an officer's vague, general concerns about age, race or gender. And courts have disagreed with police officers as to whether certain kinds of seemingly furtive behavior can form the basis for reasonable suspicion.
But cops argue defining suspicious activity is an inexact science. Finding out if someone is going to do something illegal often means focusing on what looks like perfectly legal activity.
Grace Ridley worked midnight shifts patrolling southeast Queens. She remembers regularly stopping people walking by stores in the middle of night.
“At that particular time at night — one, two, three o’clock in the morning — where there’s nothing open, and they're walking past the store two or three times with hands in pockets, you don’t know what that person is thinking of doing,” Ridley said.
Ridley said she, therefore, has to err on the side of caution because maybe the person is actually casing the store to steal something, you never know.
Reacting In an Instant
Police conducted more than 685,000 stops in the city last year. Almost 90 percent of the time, the person stopped was neither arrested nor issued a summons. Critics of the NYPD’s stop and frisk tactics point to this statistic to suggest that the vast majority of stops are excessive and improper.
But Guarliardo said sometimes an officer has trouble articulating what prompted a stop after it’s over, even though the stop may still have been reasonable. He said when a cop catches a glimpse of something potentially suspicious, the adrenaline can kick in and then it’s difficult – even 24 hours later — to describe what he saw — or thought he saw. Especially months later to a judge.
When Guagliardo was on the force, he says the department trained officers to react moment-to-moment in a paramilitary fashion — to go on gut instincts.
“There is no one else to turn to and say, ‘So, what do you think about that ruling of the appellate court? Do you think I should tell him to take his hands out of his pockets so the guns and drugs fall out?’” Guagliardo explained. “While all of that stuff would be nice, according to the law, in reality, we must be able to make an instant decision.”
Critics of the NYPD’s stop and frisk practices say those instant decisions often amount to racial profiling.
But Guagliardo says it’s unfair to accuse cops of being racist. He remembers days when he’d line up for roll call, and when his commanders would read out suspect descriptions, they’d be almost all black men.
“And it doesn’t matter whether I’m on Court Street or I’m in the Red Hook or Gowanus projects,” he said. “What matters is that, I’ve just been wound up, and all the crime committed that we’re looking for starts off with ‘Male Black’ and that’s it. So what else am I looking at?”
Those opposed to the city’s stop and frisk policy keep pointing out that more than 85 percent of people stopped are black or Latino.
But Mayor Michael Bloomberg says those critics keep ignoring some important crime statistics. Ninety-six percent of shooting suspects in the city are black or Latino. And 90 percent of all people murdered here are also black or Latino.