----

**PolicePractices and Civil Rights in New York City**

----

**Chapter5**

**Stop,Question, and Frisk**

----

Each year inNew York City, the NYPD stops and frisks thousands of individuals. During eachof these stop and frisk encounters, the right of individuals to be free fromarbitrary and unwarranted intrusions by government authorities coincides withthe duty of those agents to prevent crime and apprehend criminals. Achieving anappropriate balance between the right and the duty presents a challenge for anymetropolitan police force.

The currentsituation presents a formidable dilemma. On the one hand, it is well settledthat individuals are entitled to be free from arbitrary police encroachments ontheir privacy. At the same time, effective law enforcement and maintenance ofsafe streets require that officers be granted some discretion to stop andquestion individuals whom they reasonably suspect to be engaging in criminalactivity.

In recentyears, there has been a growing perception that the NYPD has sacrificed theprotection of individuals� civil liberties in order to achieve quantifiablelaw enforcement gains.[1]The department�s stop and frisk practices are at the heart of this highlypublicized debate.[2]

This chapterof the report begins by discussing the applicable federal and state legalstandards governing the NYPD�s stop and frisk policies and practices. Next,there is an assessment of the NYPD�s principal training mechanisms for stopand frisk encounters. This chapter then includes an analysis of the NYPD�s�UF-250� stop and frisk data for the calendar year 1998. Lastly, the chapterconcludes with findings and policy recommendations.

**LegalStandards**

**The FourthAmendment**

The FourthAmendment of the United States Constitution protects individuals againstunreasonable searches and seizures by police officers. The Constitution providesthat

> 
[t]he    right of 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.[3]

The UnitedStates Supreme Court has recognized that �[n]o right is held more sacred . . .than the right of every individual to [be] . . . free from [the] restraint orinterference of others, unless by clear and unquestionable authority of law.�[4]The framers of the United States Constitution specifically drafted the FourthAmendment �to safeguard the privacy and security of individuals againstarbitrary invasions by governmental officials.�[5]The Fourth Amendment generally requires that all searches and seizures be madepursuant to a warrant based upon probable cause. Accordingly, on numerousoccasions, the United States Supreme Court has examined a variety of stop,search, and frisk issues that are relevant to determining whether a FourthAmendment violation exists.

In thelandmark decision of *Terry v. Ohio,*[6]the Supreme Court confronted the issue of whether to create a narrow exceptionto the Fourth Amendment�s probable cause and warrant requirements to permit apolice officer to briefly stop a citizen, question him, and frisk him toascertain whether he possesses a weapon that could endanger the officer. Inupholding the �stop and frisk� procedure employed by an Ohio police officer,the Court concluded that the appropriate constitutional standard should be�reasonable suspicion� rather than probable cause.[7]

To justify astop under the Supreme Court�s *Terry*decision, a police officer must have �a reasonablesuspicion� of some wrongdoing. In determining reasonableness, an officer�must be able to point to *specific andarticulable facts*� that warrant the governmental intrusion; reliance on�inchoate and unparticularized suspicion or [a] �hunch� � is notpermissible.[8]Furthermore, the scope of any resulting police search must be narrowly tailoredto match the original reason for the stop. The Court emphasized that a searchmust always be �strictly circumscribed by the exigencies which justif[ied] itsinitiation.�[9]In *Terry*, the Court identified thepolice officer�s safety as the primary purpose for the search, and concludedthat a frisk is permissible if �a reasonably prudent man in the circumstanceswould be warranted in the belief that his safety or that of others was indanger.�[10]However, this case established the legal precedent that police officers coulddraw conclusions based on their experiences to ascertain if an allegedsuspect�s conduct is an indication of criminal activity.[11]If a police officer surmises that an individual�s conduct is ambiguous, thenthe officer can briefly detain the person and conduct a limited search for thesafety of him/herself and others.[12]

Moreover,police officers do not infringe upon an individual�s constitutional rights ifthey approach alleged suspects in a public location, and inquire whether he orshe would be willing to answer some questions.[13]However, the Court in *Florida v.**Royer*further explained that

> 
[t]he    person approached . . . need not answer any question put to him; . . . he    may decline to listen to the questions at all and may go on his way. . . .    He may not be detained even momentarily without reasonable, objective    grounds for doing so; and his refusal to listen or answer does not, without    more, furnish those grounds. . . . If there is no detention�no seizure    within the meaning of the Fourth Amendment�then no constitutional rights    have been infringed.[14]

In subsequentcases, most court rulings began to allow police officers� interpretations ofsigns of alleged criminal activity as a foundation for the required degree ofreasonable suspicion.[15]For example, in *United States v. Cortez*,[16]the United States Supreme Court granted more deference to a police officer�sperceptions of the totality of the circumstances involving an alleged suspect,when accessing whether the requisite degree of reasonable suspicion existedprior to the stop and frisk episode:[17]

> 
The idea    that an assessment of the whole picture must yield a particularized    suspicion contains two elements, each of which must be present before a stop    is permissible. First, the assessment must be based upon all of the    circumstances. The analysis proceeds with various objective observations,    information from police reports, . . . and consideration of the modes or    patterns of operation of certain kinds of lawbreakers. From these data, a    trained officer draws inferences and makes deductions�inferences and    deductions that might well elude an untrained person. The process does not    deal with hard certainties, but with probabilities. . . . Finally, the    evidence thus collected must be seen and weighed not in terms of library    analysis by scholars, but as understood by those versed in the field of law    enforcement. The second element contained in the idea that an assessment of    the whole picture must yield a particularized suspicion is the concept that    the process described must raise a suspicion that the particular individual    being stopped is engaged in wrongdoing.[18]

The SupremeCourt granted a greater degree of reliance on police officers� assessments ofpotential criminal activity in a drug courier profile case, *UnitedStates v. Sokolow*.[19]Here, the majority considered the defendant�s overall behavior and activitiesthat preceded the stop and frisk. The Court concluded that law enforcementauthorities satisfied *Terry�s*�reasonable suspicion� requirement, when the agents determined that thedefendant�s actions corresponded to the Drug Enforcement Agency�s (DEA) drugcourier profile.[20]

In 1990, theCourt decided a sobriety checkpoint case, *MichiganDepartment of State Police v. Sitz*.[21]In this decision, the majority maintained that although the Saginaw CountySheriff�s Department had no overt evidence of drivers with impaired physicalconditions, all motorists were required to stop as they approached thecheckpoint.[22]A balancing test was used to compare the minimal nature of the intrusion of thestop and questioning imposed on the privacy of drivers, versus the seriousnessof the drunken driving problem.[23]As a result, while relying upon its 1976 decision in the *Martinez-Fuerte* case, the Court reasoned that

> 
the    circumstances surrounding a checkpoint stop and search are far less    intrusive than those attending a roving-patrol stop. Roving patrols often    operate at night on seldom-traveled roads, and their approach may frighten    motorists. At traffic checkpoints the motorist can see that other vehicles    are being stopped, he can see visible signs of the officers� authority,    and he is much less likely to be frightened or annoyed by the intrusion.[24]

Hence, the *Sitz*Court determined that the checkpoint stops were constitutionally�reasonable,� despite the lack of suspicion of drunken driving inrelationship to any particular motorist.[25]

In *Californiav. Hodari D.*,[26]the Court examined when an individual has been �seized� pursuant to theparameters of the Fourth Amendment. The *Hodari*decision relied upon the Court�s observation in *Mendenhall*, which indicated that an individual has beenconstitutionally seized, �only when, by means of physical force or a show ofauthority, his freedom of movement is restrained. Only when such restraint isimposed is there any foundation whatever for invoking constitutionalsafeguards.�[27]As a result, the majority concluded that the objective test for establishingthis �show of authority� is whether a reasonable person would haveunderstood the police officer�s words and actions to mean that the citizen isbeing ordered to stop.[28]

Thus,citizens are generally not obligated to answer a police officer�s inquiries.However, although constitutional safeguards exist that generally protectindividuals from unreasonable governmental searches and seizures, a policeofficer who has reasonable suspicion that persons are involved in existingcriminal activity are legally permitted to approach them in public locations,detain and question them, and conduct limited searches for the officer�ssafety. Furthermore, courts have relied upon a police officer�s assessment ofexisting criminal activity when evaluating whether the reasonable suspicionperquisite for stop and frisks has been met. This assessment of existing illegalactivity now includes determining if alleged suspects� actions and appearancescorrespond to criminal profiles.

**The EqualProtection Clause and Race**

Althoughneither the Fourth nor the Fourteenth Amendment prohibits the use of race whenit must be employed and does not result in an unfair application of the laws,the Constitution forbids police officers from targeting individuals forinvestigation *solely* on the basis oftheir race.[29]Thus, if a law enforcement officer �adopts a policy, employs a practice, or ina given situation takes steps to initiate an investigation of a citizen basedsolely upon that citizen�s race, without more, then a violation of the EqualProtection Clause has occurred.�[30]Skin color does not justify heightened suspicion for all members of a particularrace.

Nevertheless,this does not mean that where race is a part of the description of a particularsuspect, it may not be used as a legitimate basis for questioning. In *Brownv. Oneonta,*[31]the Court of Appeals for the Second Circuit considered the extent to whichpolice officers may rely on a physical description consisting primarily of asuspect�s race and gender in the investigation of a crime. In that case, anelderly woman in Oneonta, New York, reported being attacked by a young blackmale. She could not, however, identify her assailant�s face or provide adetailed physical description.[32]Fewer than 300 blacks live in Oneonta, and the police proceeded to conduct a�sweep� of the town, questioning more than 200 persons of color over thenext several days.[33]In addressing the plaintiffs� constitutional claims, the court concluded thatthe stops of black men in Oneonta were not based solely on race, but �on thealtogether legitimate basis of a physical description given by the victim of acrime.�[34]In the *Oneonta*court�s estimation,the policy of the police �was race-neutral . . . [they] investigate crimes byinterviewing the victim, getting a description of the assailant, and seeking outpersons who matched that description.�[35]Accordingly, *Oneonta* grants policeofficers greater latitude to rely on race where it constitutes the principalelement in a victim�s physical identification of a suspect.

While *Oneonta*permits police officers to use race as a factor in establishing reasonablesuspicion, such reliance creates an opportunity for the abuse of policeauthority:

> 
Although    this permissible use of race as an identifying characteristic serves as a    necessary and efficient means for police to narrow their investigative    efforts, police often lower their standards of investigation when a suspect    has been described as a minority, thus intruding upon a greater number of    individuals who meet the racial description than if the suspect had been    described as white.[36]

Often, it isdifficult to evaluate the use of race by police officers during streetencounters. Because of the multiplicity of race-neutral factors an officer maycredibly use in order to establish the requisite degree of articulablesuspicion, a discriminatory intent may only at times be inferred from thetotality of relevant facts, including evidence of discriminatory impact. As theUnited States Supreme Court observed in *Washington v. Davis,*[37]�the discriminatory impact . . . may for all practical purposes demonstrateunconstitutionality because in various circumstances the discrimination is verydifficult to explain on nonracial grounds.�[38]While police officers and courts infrequently cite race as an element increating the suspicion necessary to justify police intrusions, evidence ofstrong disparate impact may indicate that race plays a more important role thanmay be conceded.

**NewYork Law**

New York�sCriminal Procedure Law (CPL) essentially codifies the United States SupremeCourt�s holding in *Terry*,authorizing police officers to make limited intrusions upon the liberty ofpersons in public places for investigative purposes, when the attendantcircumstances provide an articulable basis to suspect involvement in criminalactivity. Section 140.50 of the CPL authorizes a police officer �to stop aperson in a public place . . . when he reasonably suspects that such person iscommitting, has committed or is about to commit either (a) a felony or (b) amisdemeanor.�[39]Once such a stop has been made, New York law authorizes a frisk of the persononly if the officer �reasonably suspects that he is in danger of physicalinjury.�[40]These provisions form the core of what is popularly referred to as New York�s�Stop and Frisk Act.�

While the CPLgenerally codifies the *Terry*standard, the New York Constitution, as interpreted andapplied by New York courts, generally accords greater protection to individualliberty and privacy interests than does the federal Constitution. Article I,Section 12 of the New York Constitution provides that

> 
[t]he    right of 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.

The right    of people to be secure against unreasonable interception of telephone and    telegraph communication shall not be violated, and *ex    parte* orders or warrants shall issue only upon oath or affirmation that    there is reasonable ground to believe that evidence of crime may thus be    obtained . . .[41]

Despite thesimilarities between the New York and federal Constitutions, the New York courtshave considerably broadened the scope of conduct that constitutes animpermissible search or seizure. New York courts, for example, have concludedthat encounters between a police officer and a citizen must be scrutinized forreasonableness from their inception, and not just from the point where a seizureor forcible stop occurs.[42]In *People v. Torres,*[43]the New York Court of Appeals specifically stated that �this court hasdemonstrated its willingness to adopt more protective standards under the StateConstitution [than those imposed under federal law] when doing so best promotes�predictability and precision in judicial review of search seizure cases andthe protection of individual rights of our citizens.� �[44]Thus, a New York police officer who obeys the mandates of the U.S.Constitution�s Fourth Amendment may still be in violation of the New YorkState Constitution.[45]New York police officers are held to a higher standard with regard to theprotection of individuals� civil liberties.[46]

The leadingNew York case governing the actions of police officers during street encounterswith private citizens is *People v. De Bour*.[47]In *De Bour*, the New York Court ofAppeals addressed the question of when and under what circumstances a policeofficer, in the absence of any concrete indication of criminality, may approacha private citizen on the street for the purpose of requesting information.[48]The court held that the police officer�s conduct was justified at all stagesof the encounter. However, in its opinion, the court articulated a four-tieredapproach for evaluating the constitutionality of police encounters with thepublic. At the first or lowest level, the court concluded that police officersmay approach individuals to request information �when there is some *objectivecredible reason* for that interference not necessarily indicative ofcriminality.�[49]In contrast, any police intrusion �undertaken with intent to harass or . . .based upon mere whim . . . or idle curiosity� violates the Constitution.[50]At the second level, the court held that police officers have a �common-lawright to inquire� and to request �explanatory information� when there is�a founded suspicion that criminal activity is afoot.�[51]At the third level, police officers may conduct a forcible stop and seizurewhere there is �a reasonable suspicion that a particular person has committed,is committing or is about to commit a felony or a misdemeanor.� Finally, atthe fourth level, the court held that police officers may arrest and detainindividuals based on �probable cause.�[52]

*DeBour*essentially creates a sliding scale for assessing police conduct; NewYork police officers are only permitted to increase the intensity of theirintrusions as the degree of articulable suspicion increases during the course ofa street encounter.[53]Further, each successive governmental intrusion must be judged on its own meritsto determine �whether or not it was reasonably related in scope to thecircumstances which rendered its initiation permissible.�[54]By delineating multiple levels of intrusion and requiring a separate level ofpolice justification for each, the court in *DeBour* expressed a heightened concern with �protecting citizens against . .. arbitrary and discriminatory government intrusions.�[55]

**Stopand Frisk Practices**

**Stop andFrisk Reports: UF-250s**

There is nolegal requirement that NYPD officers record stop and frisk encounters withprivate citizens. Instead, documenting certain types of street encounters hasbeen a longstanding NYPD practice �designed to provide protection to both thepolice and the public, so that full information is available should followup orinvestigation of the stop become necessary.�[56]Under NYPD policy, the completion of a �stop and frisk report��(or UF-250form) is only required under the following circumstances: (1) a person isstopped by use of force, (2) a person stopped is frisked or frisked andsearched, (3) a person is arrested, or (4) a person stopped refuses to identifyhim or herself.[57]Accordingly, if a person is stopped and questioned without official use of forceand gives his or her name, a UF-250 is not required, provided that theindividual is neither frisked nor arrested by NYPD officers.[58]

The standardUF-250 form requires officers to document, among other things, the time, date,place, and precinct where the stop occurred; the name, address, age, gender,race, and physical description of the person stopped; factors that caused theofficer to reasonably suspect the person stopped; the suspected crime that gaverise to the stop; the duration of the stop; whether the person stopped wasfrisked, searched or arrested; and the name, shield number, and command of theofficer who performed the stop.[59]When a UF-250 is completed, the Patrol Guide Manual indicates that officers mustsubmit the form to the desk officer in the precinct where the stop occurred.[60]The desk officer is then required to bring the report to the attention of thecommanding officer.[61]

The number ofUF-250 forms completed by NYPD officers has increased significantly over thepast 10 years.[62]According to information received from the department, the number of UF-250sfiled by officers increased from 42,805 in 1989 to 114,825 for 1998.[63]

In 1997,Police Commissioner Howard Safir initiated a policy to make the filing of UF-250forms a �rigorously enforced� priority.[64]As figure 5.1 demonstrates, this policy change resulted in a noticeable increasein the number of stop and frisk encounters reported by NYPD officers between1997 and 1998.**The UF-250 policymodification also coincided with the establishment of the department�sinitiatives to combat quality of life crimes.

In 1997, theNYPD announced �Strategy �97�Goal Oriented Neighborhood Policing.�Strategy �97 was an effort designed to address �concerns that have the mostimpact on New York City�s Neighborhoods,� including property crime, qualityof life violations, illegal guns, and drugs.[65]As part of this initiative, the NYPD�s Street Crime Unit (SCU), a group ofplainclothes officers assigned to apprehend violent criminals with guns, wasaugmented by 300 officers to a total complement of 438.[66] Concomitantly, the primary mission of the SCU wasexpanded to address �all forms of street level crime,� including drugs,robbery, and assorted quality of life violations.[67]The Street Crime Unit was also directed to commence efforts targeted atentrenched pockets of crime as identified by precinct borough commanders.[68]

Despite therecent marked increase in the filing of UF-250s, a significant number of stopand frisks may still remain unreported.[69]During the Commission�s May 1999 hearing on police practices in New York City,Lieutenant Eric Adams estimated that in �1 out of 30 [stop and frisks] . . . aUF-250 [is] prepared.�[70]Moreover, he testified that the UF-250s on file are �mere child�s play onthe number of people who have been harassed by [the NYPD].�[71]

Anotherpolice officer, Sergeant Anthony Miranda, provided these comments: �[A] stop,question and frisk report . . . sometimes gets prepared and may not getprepared. . . . [t]hey do this randomly.�[72] New York State Attorney General Eliot Spitzer has alsoexpressed skepticism regarding the adequacy of the pool of reported UF-250s. Asa result, the Attorney General�s Civil Rights Bureau disseminated a �Stopand Frisk Information Collection Form,� that was designed to allow individualcitizens to report stop and frisk encounters. State investigators would then�compare [these forms] to the 250s to see what the correlation might bebetween the 250s that . . . are within the city�s repository, which is claimedby the [NYPD] to be essentially the totality of the stop and frisk universe.�[73]

Legitimatequestions may also be raised as to the reliability of reported UF-250 data.Because individual officers involved in street encounters are responsible forcompleting the actual UF-250 forms, the accuracy of critical data�such as thelegal predicate for a stop and frisk�may be open to challenge. As PoliceCommissioner Safir acknowledged in his April 1999 statement before the New YorkCity Council, �there is no foolproof way to conduct a paper audit to determinewhether reasonable suspicion was present in a street encounter, since the[UF-250] forms are self-generated by the officer taking action.�[74]

Concernsabout the reliability of the reported UF-250 data are exacerbated by claims thatnew quotas may have been instituted, both at the precinct level and within thespecialized units, to produce suspects, summonses, guns, arrests, and stop andfrisk reports.[75] Officer Hiram Monserrate provided the followingtestimony before the Commission:

> 
These    quotas vary from unit to unit, but precinct officers on patrol are given    specific goals, like 25 summonses a month and at least 2 arrests per    quarter. . . . [I]n the Street Crime Unit, 2 felony arrests and a 15 stop,    question, and frisk report per quota are the mandate.[76]

Similarly,Sergeant Noel Leader testified before the Commission regarding the pressure onSCU and other NYPD officers �to just produce numbers.�[77]Although there is anecdotal testimony regarding quotas for UF-250s, it isunclear to what extent such quotas are in place and whether they are ameaningful indication of police effectiveness.[78]

Moreover,until recently, no uniform practice existed for non-precinct units to processand record UF-250s. Unlike officers assigned to precinct divisions who haddetailed procedures concerning the processing and submission of UF-250s, therewas no uniform procedure across non-precinct divisions as of March 1999.[79]Most UF-250s completed by officers in both city and boroughwide special unitswere reviewed by the unit supervisor and then forwarded to the precinct ofoccurrence for processing. The specialized divisions often did not retain anyindependent records. Furthermore, the SCU and Organized Crime Control Bureau,which includes the Narcotics, Organized Crime Investigation, and Auto CrimeDivisions, were the only specialized units to maintain independent records ofthe number of UF-250s prepared.[80]Accordingly, there is no meaningful way to assess the stop and frisk activitiesof these other specialized units.[81]

Non-precinctunits within the Patrol Services borough units maintained equally variedprocedures.[82]For example, all non-precinct units in Patrol Borough Manhattan South and North,[83]except certain units within Patrol Borough Manhattan South,[84] independently process UF-250s. Similarly, all Bronxnon-precinct units, except the Yankee Stadium detail, recorded the preparationof UF-250s in the unit, immediately forwarding them to the precinct ofoccurrence.[85] Brooklyn South non-precinct units, including PatrolBorough Brooklyn South units, forward UF-250s to the precinct of occurrence witheach unit maintaining a record of the number of completed UF-250s.[86]Most Brooklyn North non-precinct units record UF-250s in the unit of occurrence,with only the Brooklyn North Narcotics and the Brooklyn North Task Forcemaintaining separate records of the number of UF-250s completed in 1998.[87]In the Borough of Queens, non-precinct units employed a myriad of approaches.Patrol Borough Queens South, including Queens South Task Force (and its formersubunits Queens South Robbery Task Force and Auto Larceny Units), forwardUF-250s to the precinct of occurrence but also retain independent records.[88]Lastly, Staten Island�s non-precinct units generally process UF-250s in theprecinct of occurrence.[89]

The Housingand Transit Districts, which recently became a part of the NYPD, all maintainedseparate UF-250 statistics for uniform personnel assigned to the Housing Bureau.[90]The Transit Division, which recently came within NYPD, forwards completedUF-250s to the precinct of occurrence.[91]

Few, if any,of these units maintained adequate information to determine whether their stopand frisk practices disproportionately targeted particular racial or ethnicgroups.[92]

**CitywideData**

Thedepartment�s UF-250 data that was furnished to the U.S. Commission on CivilRights lack certain fields or include particular codes which hinders us fromproviding a complete assessment of the NYPD�s stop and frisk practices.[93]For example, the NYPD�s UF-250 data do not contain sufficient detailedinformation to determine how many stops initiated by NYPD officers result inarrests. Further, the NYPD�s data do not provide the reasons police officersfurnish in their UF-250 reports for stopping civilians. Nevertheless, ouranalysis should be considered in light of the following shortcomings:[94]

TheCommission had access only to the department�s computerized UF-250 data for1998.[95]This information demonstrated that during that year, NYPD officers completed139,409 UF-250 forms.[96]Of these, 52.3 percent of the data subjects were identified as black, 32.9percent Hispanic, 13.17 percent white, and 1.7 percent Asian. The population ofNew York City is approximately 31.7 percent black, 20.3 percent Hispanic, and9.7 percent Asian.[97]

TheCommission agreed to use the NYPD computations for the total number of uniqueUF-250 forms filed in 1998. The number of unique filings for 1998 is 138,872,out of a total of 147,787 UF-250 forms filed. For years prior to 1998, no meansfor screening duplicate reports exist. Therefore, in examining the data for the10 years ending in 1998, the larger 147,787 figure for 1998 must be used inorder to accurately display the growth trend in the filings. The borough andprecinct data appearing in this report will be recalculated to screen outduplicate filings. These recalculations do not change any of the findings ofthis report.

The NYPD�sBrooklyn units logged the largest number (37,825, or approximately 27 percent)of stop and frisk reports in 1998. Of these reports, 64.6 percent were for blacksubjects, 22.7 percent were for Hispanics, 11.9 percent were for whites, and 0.7percent were for Asians. Approximately 88 percent of all stop and frisk subjectsin Brooklyn were members of ethnic minorities. The population of Brooklyn isapproximately 41 percent black, 35 percent white, 17 percent Hispanic, and 6.7percent Asian.[98]

Queens�NYPD units generated 33,848 stop and frisk reports in 1998 (24.3 percent). Ofthese, 43.6 percent of the data subjects were described as black, 35 percentwere Hispanic, and 17.8 percent were white. The population of Queens isapproximately 41.3 percent white, 23.1 percent black, 18.5 percent Hispanic, and16.6 percent Asian.[99]

The Bronx hadthe next largest number of stop and frisks reported at 30,519 (21.9 percent). Ofthese, 50.2 percent of the data subjects were identified as black, 42.6 percentwere Hispanic, and 6.9 percent were white. The population of the Bronx isapproximately 42.4 percent black, 34.2 percent Hispanic, 18.6 percent white, and4 percent Asian.[100]

Manhattan�sNYPD units produced 28,359 (20.3 percent) stop and frisk reports in 1998. Ofthese, approximately 48.6 percent were classified as black, 37.4 percent asHispanic, 11.6 percent as white, and 2 percent as Asian. The population ofManhattan is approximately 41.9 percent white, 26.7 percent black, 20.5 percentHispanic, and 10.3 percent Asian.[101]

Finally,Staten Island had 6,090 (4.4 percent), which was the lowest number of stop andfrisks reported for New York City�s boroughs in 1998. Approximately 51.6percent of Staten Island UF-250 subjects were identified as black, 32.4 percentwere classified as white, and 15.5 percent were described as Hispanic. Thepopulation of Staten Island is approximately 75.4 percent white, 9 percentblack, 8.6 percent Hispanic, and 6.7 percent Asian.[102]

**StreetCrime Unit and Precinct-level Analysis**

Nearlyone-third of the 139,409 UF-250 reports filed by NYPD officers in 1998 wereattributable to five units: the Street Crime Unit (SCU), the 40th Precinct, the120th Precinct, the 43rd Precinct, and the 47th Precinct.[103]We provide a closer examination of the stop and frisk practices of the StreetCrime Unit, as well as the precinct units that produced the greatest number ofstops in 1998.

***TheStreet Crime Unit***

In 1998, theSCU filed 27,061 stop and frisk reports, which was the greatest number generatedby any NYPD unit.[104]This figure represented a 37 percent increase over the SCU�s reported UF-250figures for 1997. However, according to the NYPD�s preliminary tabulation thatwas prepared for the April 19, 1999, City Council hearing, the Street Crime Unitonly produced 8,722 UF-250s in 1998. The demographics of UF-250s subjects wereas follows: 64.5 percent black, 20.7 percent Hispanic, 6.3 percent white, and .5percent Asian.[105]

Thedisproportionate nature of the SCU�s stop and frisk practices is portrayed inthe UF-250 statistics for the top 25 precincts in which the SCU was deployed in1998.[106]These figures reveal that the racial and ethnic composition of the communitiessurrounding these precincts in which the SCU was deployed most frequently in1998 was approximately 45 percent black, 28 percent Hispanic, 22 percent white,and 4 percent Asian. Thus, the SCU was more commonly deployed indisproportionately African American and Hispanic neighborhoods.[107]

Specifically,63 percent of the UF-250 forms filed by SCU officers from these precincts in1998 involved African American civilians. Hispanic civilians were the subject of30 percent of the filed UF-250s, while white civilians were mentioned in 6percent of the forms, and Asians were involved in 1 percent of the stop andfrisk incidents. Hence, SCU officers stopped blacks and Hispanics with a greaterfrequency than their actual presence in the predominately minority communitiesin which SCU officers typically operated in 1998. For example, the Street CrimeUnit was deployed to the 71st Precinct in the southern end of the Crown Heightssection of Brooklyn for 52 weeks in 1998. According to the 1990 census, 78.3percent of the residents of the 71st Precinct were black, 10.7 percent white,9.4 percent Hispanic, and 1.2 percent Asian. However, in 1998, 94.5 percent ofall of the UF-250 subjects in that precinct were black, 1 percent were white,4.1 percent were Hispanic, and .4 percent were Asian.

Moreover,within specific precincts, the NYPD�s data on the SCU�s stop and friskpractices reveal more pronounced racial disparities. For example, in the 6thPrecinct, which covers West Greenwich Village, blacks composed 3.4 percent ofthe resident population. However, African Americans constituted 52.2 percent ofthe subjects in all UF-250 reports filed by SCU officers.[108]In the same precinct, Hispanics were 5.4 percent of the population, yetaccounted for over 24 percent of UF-250 subjects. Similarly, in the 104thPrecinct in northwest Queens, blacks were only .5 percent of the residentpopulation, but accounted for 44 percent of UF-250 reports filed by SCU officersin 1998.[109]Data from the 110th and 115th Precincts in Queens also indicate significantdisparities.[110]Hispanics made up 41.8 percent and 43 percent of the population in theseprecincts, and accounted for 75.8 percent and 70 percent of all UF-250 reportsfiled by SCU officers, respectively. In nearly all of the 25 precincts in whichthe SCU was deployed in 1998, SCU officers stopped either blacks or Hispanics,or both, well out of proportion to their presence in the relevant population.

***The40th Precinct***

The unitfiling the second largest number of UF-250s was the 40th Precinct, whichregistered approximately 5,058 stop and frisk reports in 1998 alone. The 40thPrecinct encompasses an area of approximately 3 square miles in the South Bronx.[111]The command includes such neighborhoods as Port Morris (below East 138thStreet), Mott Haven (roughly East 138th Street to East 149th Street), andMelrose (north of East 149th Street). The resident population of the 40thPrecinct is approximately 77,000.[112]

Of the 5,058reports filed in the 40th Precinct, 51.4 percent were recorded for Hispanicsubjects, 45.4 percent for black subjects, and 1.8 percent for white subjects.Accordingly, nearly 95 percent of all subjects stopped in the 40th Precinct in1998 were Hispanic or black. Although the NYPD did not submit population figuresfor this precinct by ethnicity, relevant figures for the Bronx provide anestimation for comparison (42 percent black, 34 percent Hispanic, 18 percentwhite).

***The120th Precinct***

Policeofficers in the 120th Precinct generated 4,489 UF-250 reports in 1998. The 120thPrecinct is located on the North Shore of Staten Island and encompasses all ofthe area north of the Staten Island Expressway.[113]The precinct services an area of approximately 14.1 square miles and apopulation of 141,500.

Of the 4,489reports filed in the 120th Precinct, 64.4 percent were recorded for blacksubjects, 18.3 percent for white subjects, and 16.2 percent for Hispanicsubjects. Although the NYPD did not submit population figures for this precinctby ethnicity, available population figures for Staten Island indicate that thepopulation is 75 percent white, 9 percent black, 8 percent Hispanic, and 7percent Asian.

***The43rd Precinct***

Officers inthe 43rd Precinct produced 4,176 UF-250 reports in 1998. The 43rd Precinct issituated in the southeast section of the Bronx.[114]It is primarily a residential and commercial area consisting of 20 housingdevelopments, one- and two-family private homes, as well as numerous apartmentbuildings.[115]The 43rd Precinct encompasses an area of 4.3 square miles and includes apopulation of approximately 170,000.

Of the 4,176reports from the 43rd Precinct, approximately 50.6 percent were filed for blacksubjects, 45.5 percent for Hispanic subjects, and about 2 percent for whitesubjects. According to NYPD data, the population of the 43rd Precinct is 31percent black, 53 percent Hispanic, 11 percent white, and 3 percent Asian.[116]

***The47th Precinct***

There were4,196 UF-250 reports from the 47th Precinct filed in 1998. The 47th Precinct islocated in the North Bronx and includes neighborhoods in Woodlawn, Wakefield,Williamsbridge, Baychester, Edenwald, Olinville, and Fishbay.[117]The precinct encompasses an area of 5.5 square miles and includes a populationof approximately 130,000.[118]

Of the 4,196UF-250 reports that were recorded in the 47th Precinct, 81.4 percent were filedfor black subjects, 13.7 percent for Hispanic subjects, and 3.3 percent forwhite subjects. According to NYPD data, the population surrounding the 47thPrecinct is 60 percent black, 19 percent white, and 18 percent Hispanic.

**Analysisof UF-250 and Demographic Data**

Anexamination of the UF-250 data indicates that NYPD officers routinely stopblacks and Hispanics out of proportion to their presence in the generalpopulation.[119]In many precincts, as noted above, significant disparities exist between theactual population of Hispanics and primarily African Americans within NewYork�s communities, and the racial distribution of UF-250 subjects reported bythe NYPD. In addition, a number of minority New York City residents also contendthat they are more likely to be stopped and frisked, as well as detained by thepolice.[120]During the Commission�s hearing on police practices in New York City, thetestimonies of several community residents reflected a great deal of frustrationwith this situation.[121]For example, Arthur Mims, a New York City resident, stated that while on his wayhome one evening in November of 1997, he was stopped by police officers from theMidtown North precinct. �They came over to me and asked me what is in my�f-ing� bag, and they didn�t say �f-ing.� I said I work here. I wentover to the door, rang the bell, co-workers came out and said he works here. Andwith that I was maced.�[122]

Similarly,Anthony Rivera, a corrections officer of the New York Department of Corrections,informed the Commission of another potentially serious incident that involvedthe Street Crime Unit:

> 
I was    also stopped by a fellow officer while picking up my daughter one day at    school, by the Street Crimes Unit. They just came out of their vehicles,    about three vehicles, like cowboys from the wild, wild west, with their guns    drawn. Luckily I had a shield, and my friend, my fellow officer, had his    shield. But if it was a regular Latino out there, we might have been a    statistic that you talk about today, our brothers being shot without    probable cause, or for any reason.[123]

Otherwitnesses maintained that minority youth in particular are especially likely tobe stopped and frisked in New York City. According to Hyun Lee, program directorof the Committee Against Anti-Asian Violence,

> 
[y]outh    of color who sit on their front stoops these days are routinely subjected to    illegal stops and frisks during random neighborhood drug sweeps conducted by    the NYPD. After illegally searching the youth and coming up with absolutely    nothing, the police continue the process of detention and questioning for    several hours, hoping to acquire leads on other cases. During the detention,    the police officers also take illegal Polaroid snapshots of the youth.    Although the youth has committed no crime and have no prior record, his or    her face is now logged into the criminal justice system. These illegally    acquired mug shots are later used to facilitate the selection of suspects    when a crime is reported.[124]

The mayor�soffice and NYPD officials interpret these differences in the racial distributionof those individuals who are recorded as UF-250 stop and frisk subjects as anindication of known crime suspects� profiles, as reported by crime victims.[125]According to Mayor Giuliani, �[t]he stops the [NYPD] makes are largely drivenby the victims� description of the person who committed the crime.�[126]Echoing this perspective, Commissioner Safir commented:

> 
We do not    select our suspects, as they are identified not by us but by the victims. We    deploy our officers where violent crime occurs, and we question individuals    who fit the description of crime suspects. This is basically strategy    implemented without regard to race or ethnicity but, rather, as a part of    our commitment to eradicate crime in every neighborhood in our city.[127]

Furtherexamination of the mayor�s and police commissioner�s explanations for thereason minorities are more frequently the focus of stop and frisk incidentsyields another possible cause. Noel Leader testified that the NYPD selects itsown UF-250 subjects without the assistance of victim identifications. The SCUand the other specialized units do not respond to radio calls providing physicaldescriptions drawn from victim identifications. Generally, he suggested that themandate of these units is to root out crime by searching for individuals who maybe engaged, or about to be engaged, in criminal activity (e.g., carrying anunlicensed gun).[128]Thus, in the case of the SCU, as Attorney General Spitzer observed, �it is theofficer�s own observation that initiates the stop and frisk.�[129]Sergeant Noel Leader�s testimony confirmed this point:

> 
Street    Crime rides around the city. And they stop individuals with no complainant,    with no victim. They arbitrarily of their own initiation stop individuals. .    . . Street Crime . . . stops male black and Latinos randomly in the street    without any victims.[130]

In addition,many stops conducted by both the specialized and nonspecialized units arise outof victimless crimes, including the assortment of quality of life violationsthat the NYPD has recently targeted as part of its Strategy �97 patrolinitiative.[131] As Lieutenant Adams stated:

> 
Look at    the . . . complaints in UF-250s. Those are [largely] complaints that are    generated not by the public but merely by police officers that are using . .    . too many times their own biases on who they�re going to stop. Victimless    crimes are our problems.[132]

Thus, it isprobable that a significant proportion of the UF-250s that were filed by NYPDofficers in 1998 did not originate from victim identifications.[133]

**RacialProfiling in Stop and Frisks**

The NYPD�sdata strongly suggest that racial profiling plays some role in the stop andfrisk practices of the overall department, and particularly in the SCU.[134]The department�s explanation that the ethnic breakdown of UF-250 subjectssimply mirrors the racial breakdown of victim descriptions does not adequatelyaccount for the *particularized*suspicionrequired by the Constitution to effect a stop. The Fourth Amendment specificallymandates that the justification for a search be supported by a warrant�particularly describing . . . the persons or things to be seized.�[135]However, the mayor and the police commissioner indicate that racial disparitiesin UF-250 data may be explained by reference to precinct and citywide�profiles� of violent criminals. As Commissioner Safir testified, �theracial, ethnic distribution of the subjects . . . reflect *the demographics*of known violent crime suspects as reported bycrime victims.�[136]As a result, this explanation may implicitly sanction racial profiling.Specifically, police officers are provided with this rationale as their basisfor stopping a proportionate number of people who match a statistical profile ofsuspects that are based on victim descriptions.

Stopping anindividual based on statistical probabilities or demographics is prohibited;individualized suspicion remains the relevant standard for initiating a legalstop. As the United States Supreme Court concluded in *Terry*,�[the] demand for specificity in the information upon which the police actionis predicated is the central teaching of this Court�s fourth amendmentjurisprudence.�[137]Accordingly, the premise that NYPD officers were justified in stopping adisproportionate number of minorities in 1998 because of historical crime datamust be rejected.

Although itwould be problematic to verify that the NYPD has racially biased motivationswhen initiating stop and frisk encounters with civilians, the department�sdata demonstrate that the consequences of these police encounters areindications of racial profiling in New York City.[138]Moreover, the NYPD, as noted above, has not documented that a majority of UF-250subjects are stopped on the basis of victim identifications. One of the realproblems with many forms of �profiling� is that the characteristics that aretypically compiled tend to describe a very large category of presumably innocentpersons. This point was expressly recognized by the United States Supreme Courtin *Reid v. Georgia*, 448 U.S. 438, 441(1980) (*per curiam*). Indeed, usingprofiles that rely on racial or ethnic stereotypes is no better, and in manyrespects is far worse, than allowing individual officers to rely on inchoate andunparticularized suspicions or �hunches,� which is clearly not permittedunder Fourth Amendment jurisprudence.[139]

In addition,it is possible that the intense demand for increased arrests may induce officersto search for perpetrators by using simple racial and ethnic stereotypes, unlessthe department�s cultural training practices are strengthened and complexpolice investigations are uniformly employed.[140]This may explain, at least in part, the growth of arrests that are notprosecuted because of insufficient evidence or an improper arrest.[141]For example, in 1998, 18,000 of 345,000 arrests failed to reach the arraignmentphase of prosecution. The rate of these �pre-arraignment� arrests increasedby 41 percent in the Bronx and 23 percent in Manhattan, compared with 1997figures.[142]Moreover, 1998 marked the first time in NYPD�s history, that the arrest totalsurpassed the number of reported crimes.[143]

Even if theNYPD demonstrated that victim identifications led to a majority of stop andfrisk encounters, the reliability of the calls themselves may be subject toquestion. Members of the Street Crime Unit have been quoted as stating that, ifa person who was stopped complains, police officers would then

> 
phone in    a bogus 911 call of an armed man matching a description of the �perp�    they just stopped, and then make sure the guy knew it, then they�d go on    to say we�d fill out a stop and frisk report to cover ourselves. But we    knew what we were doing.[144]

In March2000, the United States Supreme Court, noting the unreliability andunaccountability of anonymous tips, held that an anonymous tip giving the race,gender, clothing, and location of an individual, absent other information,clearly was insufficient to provide reasonable suspicion to stop and search theindividual.[145]

**Findingsand Recommendations: Chapter 5**

**Finding5.1:** Persons are afforded greater protections against intrusions on theirindividual liberty and privacy interests by law enforcement officials under NewYork law than under federal constitutional law, as interpreted by the SupremeCourt.

The CatoInstitute recently released a report in which it was concluded that in New YorkCity �experience has shown that stop and frisk tactics unnecessarily endangerthe police, the suspect, and bystanders. Policymakers in New York and elsewhereshould discontinue the freewheeling stop-and-frisk searches and restore theconstitutional standard of probable cause without delay.�[146]

Based on theanalysis of UF-250 data submitted to the Commission, the department�s use of�pattern descriptions� of alleged suspects is a possible indicator of racialprofiling. This practice apparently has been a factor in the stop and friskpractices of the NYPD, including its specialized units.

Testimony atthe Commission�s hearing indicated that perhaps only 1 out of 30 stop andfrisk encounters resulted in a filed UF-250 form. This criticism was echoedrecently in a preliminary report by the CCRB, whose investigators havedetermined, based on a study of hundreds of instances in which people had beenstopped and frisked, that NYPD officers routinely fail to file the requiredpaperwork after stopping and frisking people on the streets of the city.

Therefore,the combination of the testimony and the analysis of the UF-250 data could leada reasonable observer to conclude that racial profiling has been practiced byNYPD officers.

**Recommendation5.1:** The NYPD should take steps to ensure that indicators of racialprofiling do not occur. Racial profiling violates the law and undermines publicconfidence and respect for the police, which may cause deadly altercations.

These stepsshould include the immediate adoption and implementation of a written departmentpolicy that carefully defines, expressly prohibits, and stiffly penalizes racialprofiling as the sole motivation in the stopping and searching of individuals.There should also be a departmental system of records established to permit theconsistent collection and evaluation of data to determine whether racialprofiling is occurring, and if so, when and why.

Secondly, theNYPD should use existing mechanisms (i.e., planning and community boards,churches, schools, local organizations, etc.) to begin or expand its efforts toinform local residents regarding what constitutes a legitimate stop, search, andfrisk. Further, the department could also advise the public what civiliansshould and should not do during an encounter with police officers. These effortsmay serve to help eliminate the public�s concerns about the possibility ofbeing stopped by the police, particularly in minority communities. 

----

[1]*See* Diane McWhorter, �Killing by    N.Y. Police Raises Ghosts of Past,� *USA Today*, Mar. 29, 1999. �Many criminal justice experts long have    been skeptical about the aggressive �quality of life� policing (�zero    tolerance� for even petty crime) pioneered by the New York Police    Department in 1994 and exported vigorously around the country.� Alexandra    Marks, �Trust in Police Has Slipped,� *The    Christian Science Monitor*, Mar. 15, 2000, p. 1. Professor Richard Fox of    Union College in Schenectady, New York, conducted a survey of Bronx, NY,    residents on their confidence in interacting with police. Eleven percent of    the respondents felt that the police treated community residents fairly, and    16 percent were comfortable about dealing with the police. Eight percent of    the respondents felt that police treated people respectfully. Ibid. *But see* New York City Police Department, *New York City Response to the Draft Report of the United States    Commission on Civil Rights�Police Practices and Civil Rights in New York    City,*May 16, 2000 (page numbers omitted)     (hereafter cited as *NYPD    Response*). The NYPD maintains that several criminal justice experts    consider the department as an example of proper policing.

[2]*See,**e.g.,*Leslie Casimir et al., �Blacks, Latinos: Cops Harass Us,� *N.Y. Daily News Online*, Mar. 26, 1999. The perception of racial    profiling appears widespread in New York City at this time. There have been    numerous articles by the New York City newspapers interviewing residents of    the five boroughs to determine whether they have been stopped and frisked.    In particular, young black and Latino males increasingly perceive themselves    as being unfairly targeted by NYPD officers for pretextual stops and frisks    on the basis of their race. Of the 100 males interviewed by the *New York Daily News* for the Mar. 26, 1999, article, 81 said they had    been stopped and frisked by a police officer. Sixty-six percent believed    that police officers viewed them with suspicion because of their racial    background.

[3]U.S. Const. amend. IV (emphasis    added).

[4]    Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

[5]    Camara v. Municipal Court, 387 U.S. 523, 528 (1967).

[6]    392 U.S. 1 (1968).

[7]*Id.* at 20�22.

[8]    392 U.S. at 21, 27 (emphasis added). 

[9]*Id.* at 26.

[10]*Id.* at 27*.    See*Sibron v. New York, 392 U.S. 40 (1968). *Sibron*    was a companion case to *Terry*,    which began to define the scope of *Terry�s*    stop and frisk guidelines. According to the Court, �[t]he police officer    is not entitled to seize and search every person whom he sees on the street    or of whom he makes inquiries. Before he places a hand on the person of a    citizen in search of anything, he must have constitutionally adequate,    reasonable grounds for doing so. In the case of the self-protective search    for weapons, he must be able to point to particular facts from which he    reasonably inferred that the individual was armed and dangerous.� *Sibron*,    392 U.S. at 64; Chimel v. California, 395 U.S. 752 (1969). The scope of the    search is restricted to the alleged suspect�s person, and to the area    within his or her immediate control. *Chimel*,    395 U.S. at 762. 

*See also*    Brown v. Texas, 443 U.S. 47 (1979). The Court in *Brown*    concluded that a person�s presence in a neighborhood that was frequented    by drug users was an insufficient basis for determining that the individual    was engaged in criminal activity. Hence, *Terry�s*    �reasonable suspicion� prerequisite was not satisfied for the stop and    frisk that occurred in this case. *Id.*    at 52�53. *But see* New York v.    Belton, 453 U.S. 454 (1981). In *Belton*,    police officers searched the interior of a suspect�s vehicle, although the    driver and the car�s occupants were away from the vehicle and were unable    to reach inside of it. Nevertheless, the Court permitted this search and    interpreted it as being incident to a lawful arrest. *Id*.    at 456, 457�58, 462�63.

[11]*Terry*, 392 U.S. at 30.

[12]*Id.*

[13]    Florida v. Royer, 460 U.S. 491, 497 (1983). *See    also**id*. at 497 (citing *Terry*,    392 U.S. at 32�34; United States v. Mendenhall, 446 U.S. 544, 556 (1980)).    Further, constitutional protections are not violated when the individual�s    voluntary responses to these inquiries are used as evidence in a subsequent    criminal prosecution. *Id.* at 497    (citing Dunaway v. New York 442 U.S. 200, 210, n. 12 (1979)). 

[14]    460 U.S. at 497�98.

[15]    David A. Harris, �Factors for Reasonable Suspicion: When Black and Poor    Means Stopped and Frisked,� *Indiana Law Journal*, vol. 69 (1994), p. 665 (hereafter cited as    Harris, �Factors�).

[16]    449 U.S. 411 (1981).

[17]    Harris, �Factors,� p. 665.

[18]*Cortez*, 449 U.S. at 418. *See    also* Reid v. Georgia, 448 U.S. 438 (1980). In *Reid*,    the Court ruled that petitioner�s stop and seizure was improper when a law    enforcement officer based it on his observation of the individual engaging    in separate acts of innocent activity. However, the opinion indicated that    the court would have supported the petitioner�s seizure, if there were    additional evidence of suspicious activity. *Id.*    at 441; Harris, �Factors,� p. 667.

[19]    490 U.S. 1 (1989). Drug Enforcement Administration (DEA) agents stopped the    defendant, Andrew Sokolow,**when he arrived at Honolulu International Airport. The agents    ultimately uncovered 1,063 grams of cocaine in his carry-on luggage. When    the stop was made, �the agents knew . . . that (1) he paid $2,100 for two    airplane tickets from a roll of $20 bills; (2) he traveled under a name that    did not match the name under which his telephone number was listed; (3) his    original destination was Miami, a source city for illicit drugs; (4) he    stayed in Miami for only 48 hours, even though a round-trip flight from    Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip;    and (6) he checked none of his luggage.� *Id*.    at 3; *see* Harris, �Factors,�    p. 667. 

[20]*Sokolow*, 490 U.S. at 9�10. �A    court sitting to determine the existence of reasonable suspicion must    require the agent to articulate the factors leading to that conclusion, but    the fact that these factors may be set forth in a �profile� does not    somehow detract from their evidentiary significance as seen by a trained    agent.�*Id*. at 10.

[21]    496 U.S. 444 (1990).

[22]*Id.* at 448. During the 75 minutes    that the checkpoint was in operation, 126 drivers were stopped and    questioned, and two arrests were made. *Id.*

[23]*Sitz*, 496 U.S. at 451�52. *See    id*. at 451. The Court relied upon their prior decisions in Treasury    Employees v. Von Raab, 489 U.S. 656 (1989); and United States v. Martinez-Fuerte,    428 U.S. 543 (1976), a case that dealt with highway checkpoints established    for detecting illegal aliens. �[W]here a Fourth Amendment intrusion serves    special governmental needs, beyond the normal need for law enforcement, it    is necessary to balance the individual�s privacy expectations against the    Government�s interests to determine whether it is impractical to require a    warrant or some level of individualized suspicion in the particular    context.� *Sitz,*496 U.S. at**450�51    (citing *Treasury Employees*, 489    U.S. at 665�66).

[24]*Sitz,* 496 U.S. at 453 (citing *Martinez-Fuerte,*    428 U.S. at 558). 

[25]    496 U.S. at 453, 455.

[26]    499 U.S. 621 (1991). 

[27]*See id.*at 627�28 (citing *Mendenhall*,    446 U.S. at 553)*.*

[28]*Hodari*, 499 U.S. at 628. *See    also* Whren v. United States, 517 U.S. 806 (1996). In *Whren*,    the Court confirmed that it is reasonable for a police officer to stop a    motorist when the officer has probable cause to believe that the civilian    has committed a traffic violation.Hence, there is no Fourth Amendment violation of unreasonable    searches and seizures. *Id.* at    809�10.

[29]*See,**e.g.*,**United States v. Brignoni-Ponce, 422 U.S. 873 (1975). The Court    determined that the appearance of Mexican ancestry does not furnish    reasonable belief for questioning the occupants of a car in search of    illegal aliens. United States v. Avery, 137 F.3d 343 (6th Cir. 1997). Police    would violate the Equal Protection Clause if they investigated a suspect on    suspicion of drug trafficking solely on the basis of race. People v.    Johnson, 102 A.D.2d 616, 622, 478 N.Y.S.2d 987, 993 (N.Y. App. Div. 1984).    In *Johnson*, the Court found that the �color of a person�s skin . .    . cannot serve as the sole basis for suspicion.� *But cf. NYPD Response*. The NYPD maintains that the Equal Protection    Clause has no bearing on the *Terry*    analysis. Ibid.

[30]    Avery, 137 F.3d at 355.

[31]    195 F.3d 111 (2d Cir. 1999), *reh�g denied*, 203 F.3d 153 (2d Cir. 1999).

[32]*Id.* at 116.

[33]*Id.*

[34]*Id.* at 119.

[35]*Id.*

[36]    �Developments in the Law�Race and the Criminal Process, Section III:    Racial Discrimination on the Beat: Extending the Racial Critique to Police    Conduct,� *Harvard Law Review*,    vol. 101, no. 7 (1988), pp. 1472, 1505; Emily J. Sack*,*�Police Approaches and Inquiries on the Streets of New York: The    Aftermath**of*People v. De Bour,�**New York    University Law Review*, vol. 66 (1991), pp. 512, 539 (hereafter cited as    Sack, �Police Approaches�). �[W]hen the suspect is described as a    minority, the police often lower their standards of investigation . . . thus    intruding upon a greater number of individuals who meet the racial    description than if the suspect had been described as white.�� Ibid.

[37]    426 U.S. 229 (1976).

[38]    Davis, 426 U.S. at 242. 

[39]    N.Y. Crim. Proc. Law �    140.50(1) (Consol. 1999).

[40]*Id.* at � 140.50(3).

[41]N.Y. Const., art. I, � 12. *See*Robert M. Pitler, �Inde�pendent State Search and Seizure    Constitutionalism: The New York State Court of Appeals� Quest for    Principled Decisionmaking,� *Brooklyn Law Review*, vol. 62 (1996), pp. 1, 13. The second    paragraph, directed at wiretapping, was expressly intended to reject the    view of the United States Supreme Court that nontrespassory wiretapping was    neither a search nor a seizure within the meaning of the Fourth Amendment.

[42]*See**e.g.*,    People v. De Bour, 40 N.Y.2d 210, 352 N.E.2d 562, 386 N.Y.S.2d 375 (N.Y.    1976).

[43]    74 N.Y.2d 224, 230, 543 N.E.2d 61, 65, 544 N.Y.S.2d 796, 800 (N.Y. 1989).

[44]*Id.* at 228.

[45]*See* Douglas Holden Wigdor,    �What�s in a Word? A Comparative Analysis of Article I, � 12 of the New    York State Constitution and the Fourth Amendment to the United States    Constitution As Interpreted by the New York Court of Appeals and the United    States Supreme Court,� *Touro Law    Review*, vol. 14 (1998), pp. 757, 759. The court noted that New York    police officers operate under a different set of rules than officers bound    only to follow the Supreme Court�s holding in *Terry*.

[46]*But see**NYPD    Response*; �The Governor�s Attack on the Judges,� *The    New York Times*, Feb. 3, 1996, p. 22; Steven Duke, �Crime and    Punishment,� *The New York Times*, Mar. 31, 1996, p. 8. The NYPD maintains that a    higher standard does not necessarily indicate that the legal guidelines are    clear. Some authorities, such as New York Governor George Pataki and former    New York Supreme Court Judge Harold Rothwax, have considered stop and frisk    law ambiguous. *Cf.* Editor�s    Note. The latest United States Supreme Court decision on the stop and frisk    doctrine was unanimous, and not indicative of an unclear doctrine (citing    Florida v. J.L., 120 S. Ct. 1375 (2000)). 

[47]    40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). 

[48]    40 N.Y.2d at 213. In this case, two uniformed police officers observed Louis    De Bour walking alone in their direction at 12:15 a.m. in an area of    Brooklyn with a high incidence of drug traffic. When De Bour came within 30    or 40 feet of the officers, he crossed the street, and the two policemen    followed suit. When he reached the officers, one of officers asked him what    he was doing in the neighborhood. De Bour replied that he had just parked    his car and was going to a friend�s house. One of the officers then asked    De Bour for identification. As he was answering that he had none, the    officer noticed a bulge in De Bour�s coat and asked him to �unzipper�    the coat. When De Bour complied with this request, the officer observed a    revolver protruding from his waistband and arrested De Bour for gun    possession. *Id.* at 213�14. 

[49]*Id.*at 223 (emphasis added).

[50]*Id.* at 217.

[51]*Id.* at 223.

[52]*Id.*

[53]*Id.* �[V]arious intensities of    police action are justifiable as the precipitating and attendant factors    increase in weight and competence.�*Id.*

[54]*Id.* at 222.

[55]*See*Sack, �Police Approaches,�    pp. 512, 527. 

[56]    Howard Safir, New York police commissioner, statement to the New York City    Council Public Safety Committee, New York, NY, Apr. 19, 1999, p. 10    (hereafter cited as Safir Statement to Public Safety Committee); State of    New York, Office of the Attorney General, Civil Rights Bureau, *The    New York City Police Department�s �Stop & Frisk� Practices: A    Report to the People of the State of New York from the Office of the    Attorney General,�* 1999, p. 64 (hereafter cited as OAG, *Stop    & Frisk**Report*). �The overall purpose of the UF-250 is several-fold: In    addition to informing the court what circumstances led the officer to    believe that a stop was necessary, the report also serves to protect the    officer and the Department from allegations of police misconduct which may    sometimes arise from the proper performance of police duty.� Ibid. 

[57]*Patrol Guide*, pp. 116�33; *see*Safir Statement to Public Safety Committee, p. 10. *See also**NYPD Response*.    The NYPD�s policy for completing stop and frisk reports is above the    constitutional requirement. Ibid. 

[58]**Safir Statement to Public Safety    Committee, p. 10.

[59]*Patrol Guide*, pp. 116�33; OAG, *Stop    & Frisk Report*, p. 63. 

[60]*Patrol Guide*, pp. 116�33.

[61]    Ibid.

[62]    OAG, *Stop & Frisk Report*, p.    65; *see* Editor�s Note. The    earliest written reference that the Commission has found regarding this form    is 1986. *But* s*ee**NYPD Response*. The department has    asserted that the UF-250 form has been mandatory since 1964 and was amended    in 1973. 

[63]    Memorandum from Director Central Records Division to Executive Director    Support Services Bureau, Apr. 5, 1999, p. 1. The numbers of UF-250s for the    intervening years are as follows: 1990�41,438; 1991�44,209;    1992�46,371; 1993�43,014; 1994�47,665; 1995�44,654; 1996�56,353;    1997�85,768; *see* Editor�s    Note. These figures are the only source of data covering the entire 10-year    period. Although the NYPD database indicates that the number of stop and    frisk incidents for 1998 is greater than what is stated in the Apr. 5, 1999,    memorandum, the memorandum�s total is used to more accurately show the    annual trend in stop and frisk incidents.

[64]    Ibid.**

[65]    New York City Police Department, �NYPD Strategy �97: Goal-Oriented    Neighborhood Policing� (hereafter cited as �Strategy �97�). 

[66]    Ibid., p. 6. 

[67]    Ibid., p. 7. 

[68]    Ibid.

[69]    OAG, *Stop & Frisk Report,*pp.    71�72. �Among the officers interviewed by the OAG . . . there was no    clear consensus about the degree to which �stop� encounters are    underrreported, or why. . . . [O]ne former supervisor of a specialized unit    reported that, in his experience, UF-250 forms were completed �fairly    regularly,� but not always. The supervisor stated that a �stop� which    leads to an arrest is most likely to be the kind of �stop� for which no    UF-250 is completed. In an arrest situation, the supervisor explained, the    arresting officer must complete an on-line booking sheet, a property    voucher, and other paperwork to process the prisoner; �[UF-] 250�s are    just excess Rosario material��that is, material that defense lawyers can    use to cross-examine the officer at trial.

On the other hand, other officers    stated their belief that, routinely, �stops� are not reflected in    completed UF-250�s forms. Some estimated that only one in three    �stops� is documented; others said only one in five. The reasons for    this (perceived) failure to adhere to the rules were varied: considerations    of time, convenience, and necessity were frequently cited. Notably, the    general consensus was that officers were more likely to complete the forms    and document a �stop� where there was the possibility that a civilian    might later complain about the officer�s conduct.� Ibid. 

*See* Editor�s Note, �Unreported stops� are defined as those for which    UF-250 forms should have been filed according to NYPD guidelines but were    not. *But see**NYPD Response*. �[T]here is no legal or Department requirement for    officers to fill out a stop and frisk form for many stops. Additionally, at    least some of the stop and frisk reports that were actually recorded need    not have been prepared given the NYPD�s policy.� Ibid.

[70]    Eric Adams, testimony before the U.S. Commission on Civil Rights on *Police    Practices and Civil Rights in New York City*, hearing, New York, NY, May    26, 1999, transcript, p. 306 (hereafter cited as New York Hearing    Transcript). *But see**NYPD Response*. The    NYPD contends that there is no evidence to support the testimony of this    witness. The department indicates that the Commission should have surveyed a    random sample of police officers.
[71]    Adams Testimony, New York Hearing Transcript, p. 310. 

[72]    Miranda Testimony, New York Hearing Transcript, p. 311.

[73]    Spitzer Testimony, New York Hearing Transcript, pp. 242�43. The results of    the OAG comparison between the Stop and Frisk Information Collection Forms    and UF-250s have yet to be published.

[74]**Safir Statement to Public Safety    Committee, p. 12; OAG, *Stop &    Frisk Report*, p. xiv. The OAG *Stop    & Frisk Report* found that in �one out of every seven �stops� .    . . the facts that the officer provided as a basis for �stopping� the    individual did not meet the legal test of �reasonable suspicion.� �    Ibid.

[75]*See* Rocco Parascandola and Larry    Celona, �Case Prompts Probe Into Unit�s Gun Use,� *New    York Post*, Feb. 14, 1999, p. 3; Cynthia Cotts, �Deconstructing    Diallo�s Death,� *Village Voice*,    Feb. 24�Mar. 2, 1999, issue, at Press Clips Column; Jodi Wilgoren,    �Police Profiling Debate: Acting on Experience, or on Bias,� *The    New York Times*, Apr. 9, 1999, Metro Section; Cynthia Cotts, �By the    Numbers,� *Village Voice*, Apr.    14�20, 1999, issue, at Press Clips Column; Nat Hentoff, �Lawless Arrests    Under Giuliani,� *Village Voice*,    Oct. 27�Nov. 2, 1999, issue; William K. Rashbaum, �Police Demote    Commanders of 2 Precincts,� *The New    York Times*, Jan. 8, 2000, Metro Section; Kevin Flynn, �Ranking    Officers Retiring as Opportunities Call and Pressures Mount,� *The    New York Times*, Jan. 16, 2000, Metro Section; Dan Barry, �One Legacy    of a 41-Bullet Barrage Is a Hard Look at Aggressive Tactics on the    Street,� *The New York Times*, Feb. 27, 2000, Metro Section. *But    see**NYPD Response*. Data extracted from UF-250 forms may be inadequate    for purposes other than those originally intended.

[76]    Officer Hiram Monserrate, NYPD, second vice president, Latino Officers    Association, Testimony, New York Hearing Transcript, p. 292.

[77]    Sergeant Noel Leader, NYPD, member of 100 Blacks in Law Enforcement Who    Care, Testimony, New York Hearing Transcript, p. 326.

[78]*See**NYPD    Response*. The NYPD contends that it does not maintain formal or informal    quotas on the filing of UF-250 forms.

[79]*See* Memorandum from Deputy    Commissioner, Policy and Planning, to Chief of Department et al., re: Follow    up to UF-250 Process Meeting Held Mar. 22, 1999 (Mar. 22, 1999), pp. 1�3. *But see**NYPD Response*    (citing NYPD, Operations Order 30, 2000). �Reports are to be filled out in    units and sent to the precinct for processing. Supervisors are required to    sign the report. Copies may be made for local use by outside units. Since    copies go to the precinct and then to Central Records Division (including    those in specialized units) a uniform procedure for collecting and numbering    the reports is in place. A new procedure is now in effect in which a Stop    and Frisk Log is to be maintained in commands that fill out the report and    photocopies of each report are also maintained in this log.� Ibid.

*Cf.* Editor�s Note. The procedure for processing UF-250 forms was changed    on May 4, 2000, after the draft version of this report was submitted. The    new procedure requires the forms to be completed in units and sent to the    precinct for processing. Nonpatrol precinct commands submit forms through    the precincts concerned. 

[80]    Memorandum from Commanding Officer Street Crime Unit, Follow-up to UF-250    Meeting Held on Mar. 25, 1999 (Mar. 25, 1999), NYP 008870. Members of the    Street Crime Unit prepared 19,821 UF-250s in 1997; 27,061 in 1998; and 3,863    in 1999 as of Mar. 25, 1999. Ibid. Memorandum from Chief Organized Crime    Control Bureau re: Accountability of the UF-250 Process (Apr. 1, 1999), p.    1. Officers assigned to (1) Narcotics completed 1884 UF-250s in 1997 and    1,396 in 1998; (2) Vice completed 18 in 1997 and 10 in 1998; (3) OCID    completed 47 in 1997 and 38 in 1998. The Auto Crime Division, although it    does not maintain a log separate from those maintained in the precinct of    occurrence, noted however that �due to the covert nature of this    assignment it is estimated that less than 50 reports were prepared during    the last five years.� Ibid. *But see**NYPD Response*. The number of stop    and frisk reports for the Street Crime Unit is incorrect. Correct figures    are available through the UF-250 database. *Cf.*    Editor�s Note. The UF-250 database breaks down filings into precincts, but    does not allow for the screening of Street Crime Unit filings from other    filings within a precinct. 

[81]*See* Memorandum from Commanding    Officer, Homeless Outreach Unit, Follow up to 250 Process Meeting Held on    Mar. 22, 1999 (Mar. 25, 1999), NYP 008871; Memorandum from Commanding    Officer Harbor Unit, Follow Up to UF-250 Process Meeting Held on Mar. 22,    1999 (Mar. 24, 1999), NYP 008872; Memorandum from Commanding Officer,    Emergency Service Unit, Follow Up to UF-250 Process Meeting Held on    Mar. 22, 1999 (Mar. 25, 1999), NYP 008874. Homeless Outreach, Harbor,    Anti-Graffiti/Vandalism and Emergency Services Unit do not maintain    independent records of the number of UF-250s prepared by officers assigned    to those units. Ibid. Memorandum from Commanding Officer, School Safety    Division, UF-250 Processing (Mar. 26, 1999), p. 4. School safety agents are    not authorized to perform stop and frisks under New York law. Ibid.

[82]*But see**NYPD    Response*. All stop and frisk reports are processed through the precinct    of occurrence, regardless of the particular unit. *Cf.*    Editor�s Note. The NYPD�s process has now been changed to uniformly    process filings through the precinct of occurrence, but this change did not    take place until May 4, 2000.

[83]    Memorandum from Commanding Officer, Patrol Borough Manhattan North, to Chief    of Patrol, UF-250 Survey (Mar. 26, 1999), pp. 1�2. Patrol Borough    Manhattan North non-precinct units, which include Manhattan North Task    Force, Northern Manhattan Initiative, Central Harlem Initiative, and East    Harlem Initiative, process UF-250s similarly; however, no individual units    retain records of the UF-250s issued. Ibid.

[84]    Memorandum from Commanding Officer, Manhattan South Task Force, to    Commanding Officer, Patrol Borough Manhattan South, Processing of Stop and    Frisk Reports (Mar. 25, 1999), p. 1. These units include the Manhattan South    Task Force, Peddler Task Force, and Grand Larceny Task Force. Patrol Borough    Manhattan South has maintained its own log since June 6, 1995. As of Dec.    17, 1998, Patrol Borough Manhattan South prepared 1,589 UF-250 reports.    Ibid. 

[85]*See* Memorandum from Commanding    Officer, Patrol Borough Bronx, re: Processing and Forwarding UF-250 Reports    (Mar. 26, 1999), p. 1. The non-precinct units comprising the Patrol Borough    Bronx and the number of 250s they prepared are as follows: Bronx Rape    Apprehension Team�5,594; Bronx Task Force�4,300; Bronx Zoo Detail�11.    Yankee Stadium Detail forwards UF-250s immediately to the 44th Precinct.    Bronx Warrant Module was not in service until 1999. 

[86]*See* Memorandum from Commanding    Officer, Patrol Borough Brooklyn South, UF-250 Records (Mar. 26, 1999), p.    1. For example, in 1998 the Brooklyn South Task Force recorded 345 UF-250s,    Brooklyn South Gang Unit reported 100, and the Brooklyn South Corridor Unit    recorded 74. The numbers for the previous year were 370, 30, and 53,    respectively. 

[87]Memorandum from Commanding Officer,    SATcom Brooklyn North, Follow-up to UF-250 Process Meeting (Mar. 26,    1999), p. 1.

[88]    Memorandum from Commanding Officer, Patrol Borough Queens North (Mar. 25,    1999), pp. 1�2. For 1998, each unit�s UF-250s, respectively, were 44,    234, and 1,117. Patrol Borough Queens North�s non-precinct units also    retain copies of UF-250 forms: Queens North Task Force�440 forms; Auto    Larceny Unit�805 forms; and the B.R.A.V.E. Unit formerly known as Robbery    Task Force. 

[89]*See* Memorandum from Commanding    Officer, Patrol Borough Staten Island (Mar. 25, 1999), pp. 1�2. Staten    Island included records of individual units, with the exceptions of the    TRACER units, which processed UF-250s through the precinct of occurrence.    TRACER units maintained their own records which reveal that 477 UF-250    reports were prepared for the period of July 1998 through December 1998. 

[90]    Memorandum from Chief of Housing Bureau to Deputy Commissioner, Policy and    Planning, pp. 1�2. Uniform units assigned under the Housing Bureau special    services to the PSA where the stop occurred. 

[91]    Memo from Commanding Officer, Special Investigations Unit, to Commanding    Officer, Transit Division (Mar. 25, 1999), p. 1. The total number of UF-250s    filed by Transit Police for 1994�1998 was 10,085. The Transit Police    Department was merged into the NYPD on Apr. 2, 1995. Prior to the merger,    Transit Police completed a similar stop and frisk form entitled a TP-65. All    records of Transit Department�s TP-65s filed before the merger have been    destroyed. Ibid. 

[92]*See NYPD Response*. The units had    the appropriate forms and used them as intended.

[93]*But see**NYPD    Response*. The department maintains that the Commission has all UF-250    data, and did not properly analyze it. *Cf.*    Editor�s Note. The arrest data are sporadic and incomplete. Many of the    arrest fields of the database were left blank, which made an accurate    determination of arrests impossible.

[94]*But see**NYPD    Response*. The NYPD asserts that the Commission�s subsequent analyses    of UF-250 data citywide and by borough are misleading. �[K]ey information    regarding critical crime complaint data supplied by crime victims is    ignored.� Ibid. *Cf.* Editor�s    Note. The Commission was unable to confirm whether stop and frisk incidents    were predicated on victim identifications, since the NYPD did not provide    the necessary information. The precinct demographics cited were those    provided to us by the NYPD, which characterized the census data as precinct    information and not boroughwide census data. 

[95]*But see**NYPD    Response*. The NYPD indicates that the Commission did not use UF-250    tabulations from their comprehensive computerized stop and frisk database,    which are more accurate than the April 1999 memorandum from the Central    Records Division. *Cf.* Editor�s Note. The use of the NYPD�s suggested information    does not change the fact of an increase in UF-250 filings. The source of the    NYPD data is unclear since the database contained only information for 1998.    The database also uses a different system of tabulation than the data    previously used. This makes a 10-year study inaccurate, as 1997 to 1998    would show an increase that is due to methodology change. The number used in    the following graphs may contain duplicate filings, as no system was in    place before 1998 to determine duplicative findings. 

[96]*See* Editor�s Note. This number    of stop and frisk incidents for 1998 and all subsequent borough and precinct    information, with the exception of data for the Street Crime Unit, is    derived from the NYPD database. The NYPD has suggested a procedure for    screening the database for duplicate records, which we have followed to the    fullest extent possible. *But see**NYPD    Response*. The department contends there were 138,872 UF-250 reports    filed in 1998, due to the erroneous inclusion of duplicate reports.

[97]    U.S. Bureau of the Census, �Index of Population/Estimates/County� *<*http://www.census.gov/population/estimates/county>.

[98]    Ibid.

[99]    Ibid.

[100]    Ibid.

[101]    Ibid.

[102]    Ibid.

[103]*But see**NYPD    Response*. The correct number of stop and frisk incidents in 1998 was    138,872. �The more accurate number of stop and frisk reports prepared by    the Street Crime Unit is contained in the database (subtracting out any    duplicates that are in the data base itself). Specifically, the data base    documents that the Street Crime Unit made 15,324 unique stop and frisk    reports in 1998.� Ibid. *Cf.* Editor�s Note. The trend of the numbers is substantially    increasing, regardless of whether database numbers are used or not. 

[104]    Memorandum from Commanding Officer, Street Crime Unit, Follow-up to UF-250    Meeting Held on Mar. 25, 1999 (Mar. 25, 1999), NYP 008870; *see*Editor�s Note. Stop and frisk reports for the Street Crime Unit cannot    be determined in the database since that unit files UF-250 forms through the    precinct of the incident�s occurrence. Therefore other sources must be    used for information on Street Crime Unit data.

[105]    New York, NY, City Council, hearing, �Stop & Frisk Report: Preliminary    Crosstabs, Tabulations for April 19, 1999� (May 25, 1999), p. 6. The    preliminary tabulation statistics include all 121,339 UF-250s that were    entered into the NYPD�s computer system as of 5:00 p.m. on Apr. 15, 1999.    Of these, 13,436 were excluded since they were from other years, duplicate    serial numbers, or did not reflect the major racial or ethnic groups. This    resulted in a raw file of 107,993 that served as the basis for the NYPD�s    analysis. *But see**NYPD Response*. �[T]his was a preliminary figure [8,722] because    the complete database was not finished when the April hearing was conducted    (the Department was still in the process of entering stop and frisk reports    into the computer). Therefore, the 8,722 figure is only a partial figure.�    Ibid.

[106]*See*NYPD List of Top Twenty-Five    Precincts in Which SCU was Deployed, 1998, p. 1 (hereafter cited as �Top    25 Precinct Data�). As noted earlier, the SCU, like many other    non-precinct units, reports its UF-250s through the precinct of occurrence.    As a result, the data supplied by the department, describing the number of    stop and frisk reports for the top 25 precincts in which the SCU was    deployed, are only provided on a precinctwide basis. Since the SCU likely    contributed to a marked increase in the number of UF-250s completed within    each precinct in which they are deployed, it is probable that the precinct    data can be readily interpreted as a proxy for the number of UF-250s    completed by the SCU. *But see**NYPD    Response*. The database should have been used for the 1998 stop and frisk    figures, instead of employing data from the top 25 precincts in which the    Street Crime Unit was deployed. There were 15,324 stop and frisk reports    prepared by the SCU in 1998. Ibid. *Cf.*    Editor�s Note. According to the NYPD�s policy, this unit should submit    reports to the precinct in which the encounter occurred; the stops of the    unit could not be separated from those of the precinct in the database    provided to the Commission. The NYPD provides figures that show 9,004 stops    by the SCU occurred in 1997, and 15,324 stops in 1998. Even if these numbers    are accepted, a sharp increase can be seen. 

[107]*But see**NYPD    Response*. The Street Crime Unit was deployed to minority neighborhoods,    due to the higher rates of crime in those communities. Ibid.

[108]    �Top 25 Precinct Data,� p. 9. The SCU was deployed in the Sixth Precinct    for 28 weeks. 

[109]    Ibid., p. 11. The SCU was deployed in the 104th Precinct for 20 weeks. 

[110]    Ibid., p. 5. The SCU was deployed in the 110th Precinct and 115th Precinct    for 38 and 41 weeks, respectively. 

[111]*See*NYPD, �Patrol Services    Bureau�the 40th Precinct� (visited Apr. 12, 2000) <http:/www.ci.nyc.ny.us/html/nypd/html/pct/pct040.html>.

[112]    Ibid.

[113]*See*NYPD, �Patrol Services    Bureau�the 120th Precinct� (visited Apr. 12, 2000) <http:/www.ci.nyc.ny.us/html/nypd/html/pct/pct120.html>.

[114]    Ibid. 

[115]    Ibid.

[116]    �Top 25 Precinct Data,� p. 12.

[117]*See*NYPD, �Patrol Services    Bureau�the 47th Precinct� (visited Apr. 12, 2000) <http:/www.ci.nyc.ny.us/    html/nypd/html/pct/pct047.html>.

[118]    Ibid.

[119]*See also**NYPD    Response.* On a number of    occasions, the Police Commission has acknowledged that blacks and Hispanics    are stopped in numbers greater than their proportion to the population. �A    more plausible interpretation is that officers are stopping individuals    based on descriptions given by current victims as well as descriptions    collected from continuing crime patterns (e.g., rape pattern, robbery    pattern) in the area being policed. Those individuals who fit these pattern    descriptions (from either immediate incidents or continuing patterns) along    with those who officers actually observe committing crimes or violations are    those most likely to be stopped by police. . . . [C]omplaint data is a very    strong indicator of the demographics of the individuals committing actions    that would lead an officer to develop the    reasonable suspicion necessary to conduct a street stop.� Ibid. *But    see* Editor�s Note. The use of the term �pattern descriptions�    appears to indicate the use of profiling.

[120]*See* National Congress for Puerto    Rican Rights v. City of New York, 191 F.R.D.52, 1999 U.S. Dist. LEXIS 19244    (S.D.N.Y. 1999). The plaintiffs in this case are six New York City Latino    and African American men from the boroughs of the Bronx and Brooklyn. Each    plaintiff alleges that he has been stopped and frisked without the    prerequisite standard of reasonable suspicion. They assert that NYPD    officers, who were thought to be from the Street Crime Unit, conducted these    acts based upon each plaintiff�s race and national origin. As a result of    these incidents, the plaintiffs maintain that they have been injured and    they are apprehensive about the possibility of future stop and frisk    incidents. *Id.* at 53. *See also*Michael A. Riccardi, �Suit That Alleges Racial Profiling    in Stops Revived*,� New York Law    Journal*, Dec. 16, 1999, p. 1; Adam Nagourney, �Giuliani�s Ratings    Drop Over Actions in Dorismond Case,� *The**New York Times*, Apr. 7, 2000, p.    A1. New York City residents who responded to an April 2000 New York    Times/CBS News poll believed that the NYPD was �more likely to use deadly    force against black suspects than white ones, and that brutality against    minorities was widespread.� Ibid. 

[121]*But see**NYPD    Response*. The Commission included anecdotal evidence from witnesses who    had negative contact with police officers. Instead, statements from a random    sample of New York City residents should have been used. *Cf.*    Editor�s Note. The Commission received testimony from numerous persons who    were not pre-selected by the Commission, but who volunteered to testify    under oath about their relevant experiences involving the department. 

[122]    Mims Testimony, New York Hearing Transcript, pp. 544�45; Fersedy Miorcea    Testimony, New York Hearing Transcript, pp. 512�16. The witness provided    testimony of alleged incidents of police brutality toward him and his family    members from officers of the 114th Precinct. Ibid. *See*    Carmen Torres Testimony, New York Hearing Transcript, pp. 534�38. Ms.    Torres testified about the death of her cousin, Yvette Marin Kessler, who    died while in police custody in Central Booking in September of 1998. Ms.    Kessler�s body and face were allegedly badly beaten. The family was    informed that Ms. Kessler died from a drug overdose, although there was no    evidence of drugs in her system. Ibid. 

[123]    Rivera Testimony, New York Hearing Transcript, pp. 542�43. *See*Councilman William Perkins, New York City Council, Testimony, New York    Hearing Transcript, pp. 578�79. A Central Harlem constituent testified at    a hearing that community members did not want to contact the NYPD to remove    a mentally ill person from their neighborhood, due to their fear that the    police would harm the individual. Ibid.**

*See also*Councilwoman    Margarita Lopez, District 2 of Manhattan, Testimony, New York Hearing    Transcript, pp. 561�64. �In 1993, June 22, I was participating [as] . .    . a community borough member, in community borough three, in which I was    appointed by [former] Manhattan borough president . . . Ruth Messinger. . .    . [A] situation erupted in that meeting, where the police [were] . . .    ordered to arrest citizens that were asking to speak, and to allow to speak    in the public session that that community board, by mandate, had to allow.    The chairman of the community board did not wish to let these people speak,    because they were speaking against certain positions that he had, and    ordered the police to begin arresting the people who were ready to speak,    called prior by himself, to the microphone. At that moment the police came    down, and began arresting people. One of the individuals who was arrested    was thrown on the floor by one police officer. This police officer began    beating up this man, and some point this man began bleeding. I was sitting    in the front row of the seats in that place, at the time, and when I saw the    bleeding coming out of the head of this man, I stood up from my chair, and I    yelled at the police officer, �He is bleeding, don�t do that, don�t    beat him up, he is bleeding.� At that moment the chairman of the board saw    me, and immediately stood up and ordered the captain of the precinct to move    forward and arrest me. The captain of the precinct, together with other four    police officers surrounded me, arrested me, put handcuffs behind my back,    dragged me to the front of the dais in the area where we were, throw me in    the floor, kick me and beat me.

By    the end of that process I was taken to the precinct, the Seventh Precinct. I    was retained in the Seventh Precinct until 2 o�clock in the morning.    Another community board member was arrested with me when she tried to    explain to the police officers that I was a community board member. Just for    that reason she was also arrested, and the same fate happened to her. At 2    o�clock in the morning I was let go from the precinct. . . . I was let go    with pretty much the following charges: resisting arrest, impairing police    business, and inciting to riot. But before I was let go I asked why I was    arrested, what was the reason, who was the officer arresting me, please    indicate to me my charges. Can I call a lawyer, can I please get to phone?    None of these things were allowed for me. . . . [A]t some point I was    transported from the cage in which I was put to a closet, a broom closet, a    janitor closet. And in that janitor closet a police officer strip searched    me, made me take my clothing off, and I was naked, and I was strip    searched.� Ibid. 

[124]    Lee Testimony, New York Hearing Transcript, p. 353. *See    also* ibid., pp. 357�58. �Immigrants who work 12-hour days in public    or semi-public spaces and, therefore, frequently interact with the general    public as well as the police, such as cab drivers, dollar van drivers,    street vendors, food delivery people, and small shop keepers, are subject to    routine police abuse and harassment. For a food vendor in Chinatown, for    every action from where she sets up her display to the size of her display,    where she keeps her cardboard boxes, to how she keeps her fingernails is    regulated and policed. . . . Having to pay a heavy fine for the smallest    violation has become so routine that it is figured into her monthly    operating cost. . . . Paying the fine turns out to be less expensive than    closing up shop for the day. Such vigilant policing has resulted in a    dramatic decline in the number of street vendors in Chinatown from 300 to 60    in the last 5 years.� Ibid. 

Payne Testimony, New York Hearing    Transcript, p. 439. Police officers ask minority youth to show their    identification to prove that they live in their neighborhoods, and then ask    them how their parents could afford their homes. Ibid. 

Adams Testimony, New York Hearing    Transcript, pp. 307�08. �If you will only examine the total number of    new arrests, first-time arrests, by African American and Latino youth in    this city, it would be mind-boggling how under this administration they are    now being arrested for riding their bicycles on the sidewalk. They are . . .    spen[ding] 2 days in jail for not having a bell on their bicycle. They are    being arrested for not having identification, for having an open can of beer    in their hand, normal summonses offenses that are normally dealt with    without penalizing someone�s record. I had a male in the prison cell the    other night. He lost his job merely because he was�he had to stay    overnight for only having an open container of alcohol in his hand. We    should not be incarcerating people in this city merely for having an open    container of alcohol.� Ibid. 

*See* Sarah Francis, Testimony, New York Hearing Transcript, pp. 587�88.    Ms. Francis maintained that her son was beaten and choked while he was    handcuffed in police custody. As a result, her son still suffers ill    effects. Ibid.

[125]    �Top 25 Precinct Data,� p. 1. 

[126]    Giuliani Testimony,**New York Hearing Transcript, p. 49.

[127]    Safir Testimony, New York Hearing Transcript, p. 165.

[128]*See* David Kocieniewski, �Success    of Elite Police Unit Exacts a Toll on the Streets,� *The**New York Times*, Feb. 15, 1999, p.    A1 (hereafter cited as Kocieniewski, �Success�). In 1999, police    officers in the Street Crime Unit made up less than 2 percent of the NYPD,    but confiscated 40 percent of all illegal guns that were seized in New York    City; Rose Marie Arce, �Queens: Our Future�Chapter 5: 21st Century    Government, On Guard�Surveillance and DNA Testing are Among the Latest    Police Weapons; But How will We Balance Fighting Crime and Preserving Civil    Rights?� *Newsday*, May 30, 1999,    p. A17. �Another anti-crime tactic being used increasingly is so-called    suspect profiling, where police use just a rough description of the race,    territory and habits of a suspect to aggressively stop and frisk people who    match the profile, searching for illegal guns. . . . The strategy has also    exacerbated racial tensions because it is most often used in tandem with    another police tactic: mapping out areas of particular criminal activity and    dispatching units to target them. The . . . Street Crimes Unit, known for    using this strategy most aggressively, is 82 percent white, while the people    the officers stop and treat as potential suspects are virtually all black or    Latino. In response to the Diallo shooting, [Police Commissioner] Safir has    put the plainclothes unit�s officers back in uniform and reserved 50 new    slots for minority officers.� Ibid.

[129]    Spitzer Testimony, New York Hearing Transcript, p. 249; *see*    Kocieniewski, �Success.� �[The Street Crime Unit�s] success, even    their lives, depend on the ability to spot and seize a handgun before a    suspect can use it. So street crimes officers pride themselves on the    ability to read the walk, mannerisms and subtle movements of someone    carrying a concealed weapon.� Ibid. *But see**NYPD Response*. The    Commission does not understand the nature of police work, since officers    make stops based upon observations, �known patterns� and crime problems.    Officers who observe quality of life violations have reasonable suspicion    for a stop and frisk. *Cf.*    Editor�s Note. The use of the term, �known patterns� again may be    indicative of profiling. Stops or arrests for quality of life violations may    show discriminatory enforcement if not uniformly applied to the population.

[130]    Leader Testimony, New York Hearing Transcript, p. 314. Kocieniewski,    �Success.� �Some street crime officers also said they felt pressured    by the department�s emphasis on crime statistics, and that they are forced    to adhere to an unwritten quota system that demands that each officer seize    at least one gun a month.� Ibid. *But    see* ibid., p. A1. During a February 1999 news conference, the mayor    indicated that the Street Crime Unit was not forced to reduce crime rates.    �They are under tremendous pressure from supervisors to keep the city    safe, and many of them put that pressure on themselves. . . . But that�s    no different than being in the narcotics unit and being under tremendous    pressure to arrest narcotics dealers, or    being a homicide detective and being under tremendous pressure to    investigate homicides. . . . Police work is highly pressured work.    It�s very intense.� Ibid.

[131]    Strategy �97, p. 7. 

[132]    Adams Testimony, New York Hearing Transcript, p. 307.

[133]    The Commission did not have access to any existing NYPD records or radio    report transcripts that provided victim identifications, which could account    for the disproportionate stop and frisk practices.

[134]    �Racial profiling� may be defined as the detention, interdiction, or    other disparate treatment of an individual based upon racial or ethnic    stereotypes and that has the effect of treating persons of color differently    from other persons. *See* P.    Verniero, Attorney General of New Jersey, *Interim Report of the State Police Review Team Regarding Allegations of    Racial Profiling*, April 1999, p. 8 (hereafter cited as Verniero, *Report    on Racial Profiling*).

[135]U.S. Const. amend. IV.

[136]    Safir Testimony, New York Hearing Transcript, p. 165 (emphasis added).

[137]*Terry*, 392 U.S. at 21. *But    see**NYPD Response*. Standards    for a warrant search requiring a description with particularity do not apply    to stop and frisk encounters.

[138]*But see**NYPD    Response*. This report does not include sufficient evidence that the    department engages in racial profiling. �The Commission has not examined    the demographics of suspect descriptions provided by victims, has not    determined what proportion of stops were self-initiated by officers, and has    not concluded what percentage of stops were legally justified.� Ibid. *Cf.*    Editor�s Note. The Commission subpoenaed the NYPD for information on the    details of victims� accounts. None was provided. However, the department    now criticizes the Commission�s report on the issue of victims�    identification data, without noting the source of this new information.    Secondly, the NYPD denounces the report�s concluding line of the paragraph    that mentions �historic crime data,� when the department itself must use    such data to create the �crime patterns� mentioned in its response. 

[139]    Verniero, *Report on Racial Profiling*,    p. 61. 

[140]*But see**NYPD    Response*. The department objects to the assertion that increased demands    for arrests may result in officers using racial profiling taught to them    through cultural training classes. 

[141]*But see**NYPD    Response*. The department contends that this assertion is erroneous.    Other causes may contribute to declined prosecutions, such as various    factors controlled by each district attorney (i.e., policies, staffing,    etc.); noncooperative victims and witnesses; the increased number of cases    eligible for prosecution that are generated from quality of life    initiatives; and new domestic violence laws and policies that require the    police to make an arrest for misdemeanor cases and violations. Moreover, the    department�s Interim Order 67 works to address declining prosecutions in    each borough by working with the district attorney�s offices. 

[142]*See*Ford Fessenden and David    Rhode, �Dismissed Before Reaching Court, Flawed Arrests Rise in New    York,� *The**New York Times,*    Abstracts, Aug. 23, 1999.

[143]*See*Nat Hentoff, �The Big    Apple�s Rotten Policing,� *The**Washington    Post*, Sept. 4, 1999, p. A29.

[144]    Rocco Parascandola and Larry Celona, �Case Prompts Probe Into Unit�s Gun    Use,� *New York Post*, Feb. 14,    1999, p. 3. *But see**NYPD    Response*. The NYPD indicates that this anecdotal statement is    unsubstantiated, and should not be included in this report. 

[145]    Florida v. J.L., 120 S. Ct. 1375 (2000).

[146]    Timothy Lynch, �We Own the Night: Amadou Diallo�s Deadly Encounter with    New York City�s Street Crimes (sic) Unit,� *Cato    Institute*, Mar. 31, 2000, p. 8.