Streams

On the Street, Cops Say Stop-and-Frisk Is About Judgment Calls

Monday, July 09, 2012

NYPD (Stephen Nessen/WNYC)

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. 

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Comments [21]

rikkimc from brooklyn, ny

How about having officers wear headcams to film the "suspicious" behavior before they can make a stop? Police are increasingly using headcams to have video evidence to contradict alleged bad shootings.

Aug. 22 2012 08:32 PM
Vincent

In my 39 years in law enforcement, I made many stops based on reasonable articulate suspicion. Knowing the area where you patrol and the residents who live there is a start. IF YOU SEE A PERSON RUNNING FROM THE BACK OF A STORE THAT IS CLOSED, OF COURSE YOU WOULD MAKE A STOP. If you see a person standing on a corner looking and making remarks to young ladies passing by this would cause you to stop and inquire and frisk for your own protection. Theres are signs that a police officer after many years on the streets can pick out that persons that don't belong in the neighborhood and are suspicious. It's not gut instincts, its experience.

Jul. 11 2012 07:41 AM
john delgaudio

ANTI JOE GAG, BIG TOUGH GUY NOT USING YOUR NAME. USE THE WORD GUINEA CAME PRETTY EASY TO SAY WHEN YOUR HIDING BEHIND YOUR MOTHERS SKIRT. SAY IT IN PERSON TO SOME ITALIANS OR ITALIAN AMERICANS PUNK.

Jul. 10 2012 08:14 AM
ANTI JOE GAG from nyc

Then if you have such an intimite experience of being profiled just because you are a guinea, then why dont the nypd who always talk of bravery and honor and code , why dont you guys understand what your doing when you roll up to a young black male and rough him up? Why dont you weed out the bad racists cops in your own department? why dont you report bad cops instaed of promoting them? Im for stop anf frisks but as above, if you let the jonh from the office types get off with a warning for driving while drunk, smoking weed on the street or ignoring the buldge of cocke in his pants then how do you expect to be respected..which is really what we are talking about here.

Jul. 09 2012 01:52 PM
Mark

Can't they find a better option than either stop everybody or do nothing? There are places in Jersey where guys just stand on street openly selling drugs all day and the cops come in and do a sweep every six months. Instead of harassing everybody can't the cops just go after the dealers? And it's not that hard to figure out who they are. Just have someone who isn't a beefy white guy with a buzzcut walk by and see who tries to sell to you. Then go in and frisk the hell out of them. Is it that hard?

Jul. 09 2012 01:12 PM
Jon from Ft. Greene

To John from the office: If the police stopped and frisked stock brokers leaving Park Slope and Brooklyn Heights on their way to work they would recover so much cocaine and meth that it would quickly justify a Wall St. stop and frisk. An unemployed black 20-something needs a little weed to get him through the day. A stressed out wall street bankster needs his coke to get him through the day. The only difference? One is harassed and the other is ignored.

Jul. 09 2012 11:54 AM
Jim from NYC

While the article gives some insight in to what police base stops on it misses some points. Police don't just work on hunches and gut instinct. Experience, crime reports, training, past crimes in an area, prior knowledge of a person's criminal history can all be used develop reasonable suspicion. Training for officers needs to be improved to teach them how to better explain their reasons for stopping and possibly frisking a person.
Jane stated that "the vast majority of stops in NY are predicted on hunches that the suspect is involved in something minor", like Marijuana possession. Where does she get this information? I have not yet see statistics released on the crime the stop was based on. Is Jane basing her statement that an arrest for Marijuana or some other "minor" crime may result from a stop. Jane brings up the article stating that 90 percent of the stops resulted in no arrest or summons issued to the person stopped. This does not make reasonable suspicion "groundless", reasonable suspicion is not probable cause. It is a lesser burden of proof and does not need to be 100 percent.

While abuses do occur in Law Enforcement and the Stop and Frisk is an area that could be (and I'm sure at times has been) abused, it is an investigative aided that can help to prevent crime or help an officer effect an arrest. Sadly, the media has poorly reported on the Stop and Question controversy and the Mayor and the Police Department has not adequately discussed and explained what Stop and Question entails. The fight to keep data related to Stops from being released didn't help either.

Jul. 09 2012 11:35 AM
clive betters

just imagine, someone from outside of their[the average cops neignborhood] coming into their town, to make "judgement calls". this is not in any way, different from south africa,not that many years ago. lets's run with their idea for a moment: even if this works on some level,who in their right mind,can't see, that this is something that stirs up anger,distrust and resentment. obviously, the mayor, and the comish, are oblivious, or, they just don't care. and, the averge cops does not care,or, it's just about the paycheck and following orders. we all know, that most cops, don't even have the sense, to know that wall street, does not give a crap about them either.

Jul. 09 2012 10:25 AM

I am Joseph Guagliardo ( in the Article ) I was a resident of Red Hook projects growing up. It's not about race it's about crime. I remember Housing Police stopping me all the time, just cause. I was taught to stop when challenged by an officer. and I did so. Lets challenge the law, if it's unconstitutional so be it. NYPD will have to find new tools to protect all. In the meanwhile, it is an NYPD and law enforcement policy. Each officer has to make an individual decision based on many factors. If wall street brokers commit robberies and rapes in high crime areas as one voicer stated. They would be subject to the same policies and officers scrutiny. They commit other crimes and are monitored by Attorney Generals and the Securities Exchange Commission. Maybe they should be crying that they are being stereotyped because they were suts and work on wall street. As an Italian American I was often called a "Little Guinea" and chased from the corners of the "White side of Red Hook" now called Carroll Gardens. they were Irish Officers. If I went home and said Sgt Gannon Chased me and called me a Guine bastard, I'd get punished at home. I wasn't stereotyped, I wasn't disciminated against. People in the neighborhood where afraid when we hung out on corners. period. If its unconstitutional so be it, if not then it is working.

Jul. 09 2012 09:29 AM
john from office

Jane

It is caused reasonable suspicion and probable cause, both having been found to be constitutional. You dont like that non whites are stopped more then others. That is not the fault of the police, but of who and where crime occurs.

Please move into the Marcy projects and then argue with me. I grew up in New York when it was not a "safe" city, when it was ruled by people like you and it was a basket case.

I suspect you are an outraged white woman, living in "white" brooklyn.

Jul. 09 2012 09:27 AM
Jane from Brooklyn

@ John - Wow. Just wow.

... Part of me wants to excuse you having never read the Constitution - but no, there is no excuse.

The only way to justify Stopping & Frisking people (when 90% ARE NOT GUILTY OF ANYTHING), is to have everyone pay the price of this "safety" you allege is being proved by the NYPD. -OR - just have the practice ruled Unconstitutional (as it clearly, already is). OR Amend the Constitution.

Jul. 09 2012 09:11 AM
john from office

Her from NYC
NYPD keep up the good work. that means even protecting the liberals.

Please reach out to Jane, she wants white people stopped, just for the hell of it. Stop and frisk by Liberal standards, stop an equal number of white people, so peoples feelings are not hurt.

3RDANSWER from UESNYC
Blame the people who caused "white" people to fear you. "Black Criminals"

Jul. 09 2012 09:02 AM
Her from NYC

NYPD keep up the good work. that means even protecting the liberals.

Jul. 09 2012 08:50 AM
3RDANSWER from UESNYC

I'm a Black male who has lived on the Upper east side for over 30 yrs. In my building I am seen with fear an suspision even by those who watched me grow up until the "recognise me". Even then they are so filled with fear that they dont see me. I agree with the stop and frisk program but my problem is that when an innocent Black male is killed "accidently" or a Black person is injured by police brutality, the nypd will protect those officers even though they know they are wrong!! There are racists on the nypd..we all know this...there are racists thugs on the nypd, we all know this. But as long as you police "THEM" like that and not "ME" like that then I will support you. Rember the hasidic riot in brooklyn? It was described as "youthful energy". I did not know that turning over police cars and burning them was considered a viable outlet for "youthful energy". But alas how may were arrested? 1. How many injured? NONE. ! man was arrested and he sid that the white police officer told him "see..now we have to treat you like the n*****s. Even this peice by an obious americanized asian woman to end with the statistic 96%murdered/killed are Black or hispanic reaks of racism. I am a light skinned Black male. Even when the "perp" is a "very dark skinned" Black male they never say that. Just to say Black is sufficent. I have to live with white fear everyday and have grown to despise the people who have it. I am reminded everyday that I am "of color" since I dont usually think of myself in those terms. But I do now after decaades of being treated as a perpetual suspect. I can honestly say now, without a hint of regret something I was raised never to think or believe: I HATE YOU ALSO.

Jul. 09 2012 08:47 AM
Jane from Brooklyn

John,

You said "these cops deal with crime & criminals, not stock brokers leaving Park Slope for work."

Thank you for making my point for me: If they stopped the stock brokers as often as they stopped poor/minority people, the city would be up in arms. 9 times out of 10 they ARE NOT stopping crime(s) or criminals. Do you not understand that?

If Stop & Frisk resulted in arrests 85% of the time for WEAPONS maybe I could validate your claim ... but they don't.

Stop & Frisk is supposed to be about OFFICER SAFETY- and 9 times out of 10 officer safety was not in jeopardy and an innocent person was subjected to unlawful conduct by people with badges- If you don't think this is a problem- you need to re-read the Constitution.

Jul. 09 2012 08:46 AM
Avery from Brooklyn, NY

How curious that the officers kept complaining about how difficult it is to make an instant decision. And yet almost none of the incidents they described required instant decisions. Rather, the ones who actually found weapons described watching suspects and observing the suspect and gathering information to justify reasonable suspicion. The ones who did not find weapons went with off the cuff hunches instead of actually doing the police work of simply watching the suspect to see whether their hunches would be justified by articulable reasonable suspicion, or whether their hunches would prove unfounded. No one is suggesting that police shouldn't be able to stop individuals when they can articulate reasonable suspicion. What we are suggesting is that they actually take the time to make an informed decision based on articulable reasonable suspicion, and not rely on hunches.

Lastly, the justification for using race as a factor in reasonable suspicion because most homicides in NY involve blacks or Hispanics is a nonstarter, since very few stops are based on suspicion that the suspect is involved in a homicide. Let's not lose track of the fact that the vast majority of stops in NY are predicated on hunches that the suspect is involved in something minor. If an officer stops a suspect on suspicion that he has a bag of pot on him, statistics about homicides are irrelevant.

Jul. 09 2012 08:43 AM
Ingrid

Waaaaah, it is hard being a racist instrument of state violence.

Jul. 09 2012 08:31 AM
Pete from out of town

I found this article extremely interesting. Retired cop, Joe Guagliardo has given us a glimpse into a world where virtually everyone is under intense police suspicion. His world is one where the difference between criminal and citizen lies entirely within the discretion of the police. Their value judgements are based upon the smallest and most subjective of things. This self-described paramilitary police work, based upon adrenaline pumping, non-explainable, gut instincts explains why NYC has become a police state. I'm quite sure the police interviewed for this story feel totally justified in their actions as do a great many NYC citizens. And that's the problem

Jul. 09 2012 08:31 AM
Brenda from Jersey City, NJ

I agree that crime leans toward a certain ethnic group, either because they are the attackers or are being attacked. This happens in every city and I know this because I am Hispanic and have heard of several Hispanics who were attacked or killed by black men in Trenton, NJ. Now that I don't live there, I do not know how bad it is, but I can assure you that most Hispanic people being attacked are much smaller than their attackers.

Jul. 09 2012 08:30 AM
John from office

Jane, do you live in the projects or some white enclave in Brooklyn, where you can actually walk on the street at night. These cops deal with crime and criminals, not stock brokers leaving Park Slope for work.

So easy to judge from your patio.

Oh, I forgot you live safe "because of the police"

Jul. 09 2012 08:28 AM
Jane from Brooklyn

From the Article: Almost 90 percent of the time, the person stopped was neither arrested nor issued a summons.

That means that 9 times out of 10 their "Reasonable Suspicion" was groundless. 9 times out of 10. These statistics make it more than obvious that the officers are violating the Fourth Amendment of the Constitution.

Jul. 09 2012 07:53 AM

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