On December 18, 2011, Nicholas published a piece in The New York Times Sunday Review titled “Why Is the N.Y.P.D. After Me?” Good question. In it he describes three instances over the course of four years in which multiple police officers took possession of him, held guns to his head, pushed him to the ground or against walls, ran their hands over his body, and picked through his pockets, his wallet, and his clothes. The first was his eighteenth birthday, when he was sitting with a cousin and friend on a bench; squad cars suddenly appeared, officers jumped out, held guns on them, and forced them to the ground. One officer took Nicholas’s wallet out of his pants, looked through it, found his driver’s license, and tossed it back, saying sarcastically, “Happy birthday.” The second time, he was leaving his grandmother’s house in Flatbush.2

  The third was the most startling. Walking home from the gym, Peart was accosted by officers who took his cell phone, wallet, and keys. They handcuffed him and put him in the back of an unmarked police car. Then, while Peart was restrained down the block, one of the officers used Peart’s keys to enter the building where Nicholas and his family lived, and actually tried to get into their apartment. His younger sister, hysterical, had been warned not to let strangers in and kept the door barred. She tried frantically to call Nicholas, but he could not answer to reassure her: the police had his phone.3

  Peart, who has never been in any trouble with the law—well, unless you count the law hijacking him repeatedly—is hardly alone. Between 2004 and 2011 there were more than four million similar stop-and-frisk actions documented by the NYPD, and apparently countless undocumented ones as well. You’d think these were a lot of bad people getting jumped all over by armed officers, but you’d be wrong. The only legal justification for frisking someone in this manner is that an officer has “articulable suspicion” that the person possesses a dangerous weapon. Yet the NYPD has found weapons roughly 1.5 percent of the time, and guns in less than 0.1 percent of the stops. Barely ever. If the officers were really acting on “articulable suspicion,” and still finding this few weapons, we’d worry about their ability to distinguish what is suspicious from what is not. But that’s not what is going on here at all. A precinct sergeant was secretly recorded instructing officers, as they headed out to the beat, “Shake everybody up. Anybody moving, anybody coming out of that building … Everybody walking around. Stop ’em.” Or a deputy inspector, on Halloween night: “[T]hey got any bandanas around their necks, Freddy Krueger masks, I want them stopped, cuffed, aright, brought in here, run for warrants. They’re juveniles, we’re gonna leave ’em in here till their parents come and pick ’em up.” 4

  Let’s take this for what it is. In an effort to keep guns off the street and crime rates down, the NYPD—with nothing remotely approaching a legally sufficient reason, or “cause”—subjected people to stop-and-frisks simply to ensure they would not misbehave. The NYPD, which was sued over the practice, denied this is its policy. Yet, at the same time (making for an odd litigation strategy), then-Commissioner Ray Kelly explained that it is a “deterrent to criminal activity, which includes the criminal possession of a gun.” What the Commissioner was saying is that if police stop people indiscriminately—meaning without cause—then people will never know when they might be searched, and so they will simply leave weapons and contraband at home.5

  We condemn this sort of indiscriminate use of government force when it happens in other countries. We like to imagine it doesn’t happen here. But it does. And it’s not just stop-and-frisks, of which there are millions every year throughout the country.6 In train terminals and on buses, on the streets and roadways of America, police seize us, and search our persons and possessions, without anything approaching a sufficient reason. It all has happened because the Supreme Court has backed away from the Constitution’s requirement of “probable cause.”

  This sort of activity is not costless. It has turned wide swaths of the American public, innocents as well as guilty, into criminal suspects. As a result, many do not trust the police. Peart explains how it feels, the anger, the fright, how “the mood just changes and your heart kind of drops.” Most of all, the humiliation: “Other people see you’re being stopped and frisked and they’re looking at you saying what did he do.” It is degrading and humiliating. As often as this cliché gets tossed around inappropriately, it is fair to say that if the Framers of our Constitution were here to see this, they’d be mortified.7

  Something has gone terribly wrong. Some of these police activities are entirely legitimate, while others are so far off the mark as to be intolerable in any society that calls itself free. The problem is that we’ve lost the ability to tell the difference. This chapter tells the story of how this happened, how, bit by bit, the Supreme Court loosened the requirement of just cause to the point that government officials were left with no clear guidance of what is in and what is out. And what unguided power in police hands has meant to the rest of us.

  WHAT’S CAUSE?

  There’s nothing in the least bit novel about the idea of requiring just cause before one’s body or property is forcibly violated. The concept has been part of our legal tradition for hundreds of years. By the time James Madison penned the Fourth Amendment, the idea of probable cause already had been a feature of English law for almost two centuries.

  English judges emphasized the importance of probable cause as early as 1611, in Sir Anthony Ashley’s Case. Sir Anthony was a minor aristocrat who had fallen into some disgrace, accused of embezzlement, when Sir James Creighton decided he wanted to get his hands on Ashley’s holdings and income. When other attempts failed, Creighton and his coconspirators cooked up a plot to accuse Ashley of having murdered a fellow named William Rice, who had died some eighteen years before. The plot failed and the tables were turned on Creighton and the others, who were then tried for conspiracy. At the heart of the case was the question of whether Creighton and his collaborators had been justified in arresting Ashley in the first place. (This was the time before organized police, when private parties enforced the criminal law.) The court’s answer was no; an arrest was out of the question unless “he who doth arrest hath suspicion upon probable cause.” Such cause was altogether lacking in this instance: “the said William Rice did not die of any poisoning, but of another horrible disease, that he had got by his wicked and dissolute life, which with reverence cannot be spoken.” 8

  Sir Anthony Ashley’s Case highlights why such a requirement of sufficient cause is so important. Police might act, like Sir James, out of ill motives. Or they might simply act without sufficient care. Either way, if people can be searched or arrested without cause, then everyone is at risk of having their liberty taken away at any moment. That is why, no matter what it has been called—including “probable suspicion,” “cause and probability of suspecting the party,” and “reasonable cause”—this idea of sufficient cause to intervene has long been part of our tradition.9

  In 1948, in a case called Brinegar v. United States, the Supreme Court offered the definition of probable cause that is used to this very day. At about six o’clock on the evening of March 3, 1947, federal officers watched Virgil Brinegar drive his car heading west toward the Oklahoma-Missouri border. Missouri was a “wet” state, Oklahoma a “dry” one, and federal law made it illegal to transport alcohol from one to the other. The feds had arrested Brinegar for the illegal transport of booze just five months earlier, and in the intervening months had on several occasions observed his loading crates of alcohol in Joplin, Missouri. So when they saw Brinegar in his apparently heavily laden Ford coupe pass them about five miles east of the Oklahoma border, they took off after him, figuring he was up to his usual tricks. Once the feds caught up with Brinegar a mile later, he admitted he had twelve cases of liquor. The issue in the case was whether the federal agents had probable cause to pull him over in the first place. In deciding yes, the Supreme Court explained that probable cause means more than “bare suspicion.” It “exists where the facts and circumstances within … [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”10

  That’s all there is to it: Is there enough evidence to make a reasonable person think a crime is being committed or evidence of a crime will be found? It’s a hard call whether there actually was probable cause to pull Brinegar over. The justices of the Supreme Court disagreed with one another vehemently on the question, as did the judges in the lower courts. But the point is that at least in Brinegar’s case there was a debate—everyone thought that before the police went stopping people they needed good evidence of a reason for doing so.

  Within fifty years of Brinegar, this most basic rule of criminal procedure had broken down completely. What had endured as a foundational principle of policing for centuries began to unravel in 1968. And it has continued to unravel ever since.

  THE JUSTICES’ DILEMMA

  The NYPD’s aggressive stop-and-frisk policy that entangled Nicholas Peart was built on the Supreme Court’s 1968 decision in Terry v. Ohio. So was much other invasive policing. Yet Terry was, from the start, an unstable edifice on which to build. Resolving Terry put the justices in a terrible bind. They chose the path they thought would do least harm, but their guess has proven terribly incorrect.

  Terry arose on the streets of Cleveland, Ohio, on the afternoon of October 31, 1963. Detective Martin “Mac” McFadden was on his usual beat, patrolling the downtown shopping district in plainclothes. McFadden, a thirty-eight-year veteran of the force, specialized in nabbing pickpockets and thieves of the local department stores; he’d covered this very same shopping area for thirty years.11

  As he was patrolling his beat that Halloween afternoon, something caught McFadden’s eye. Walking northeast on Huron Street, McFadden spotted two men standing on the corner of Huron and Euclid. “Now in this case when I looked over they didn’t look right to me at the time.”12

  His suspicions aroused, McFadden hastened his pace until he could slip into the lobby of a nearby store to observe what was happening. “I get more purpose to watch them when I seen their movements.” The two men were taking turns walking up and down Huron Street. Each would walk west a few hundred yards, look into a store window, and then walk back. McFadden could not tell which store window exactly, but he “didn’t like their actions”; he “suspected them of casing a job, a stick-up.” After the two men had walked the circuit two or three times, a third man appeared and spoke with them, then walked away. The two men took another couple trips up and down Huron, then abandoned their task.13

  McFadden, still suspicious, tailed the two men down Euclid, but he did not have to go far. Soon he watched the two reconnoiter with the third man, in front of Zucker’s Department Store. Deciding the time was ripe for action, McFadden approached the men and asked their names. When someone “mumbled something,” McFadden grabbed one of the men, who proved to be John Terry, and spun him around so that he was facing the other two. McFadden then “patted” or “tapped” Terry’s body and “felt something that seemed like a gun.” Unable to pull it out easily, he “ordered the three of them into the store,” telling the occupants to call the paddy wagon. McFadden made his prisoners face the wall with their hands up, and frisked the three of them. From Terry’s pocket, and from that of his partner Richard Chilton, McFadden pulled out two .38 revolvers.14

  Both men were charged with possessing concealed weapons. Whether the charges against Terry and Chilton could stick depended entirely on whether McFadden’s actions on Euclid Street that day were lawful. Their lawyer argued that McFadden had violated the men’s rights under the Fourth Amendment when he seized them and patted them down, and that the guns he recovered should be excluded from evidence.15

  As Judge Bernard Friedman of the Cuyahoga County Court of Common Pleas saw the question, it was whether “an officer who has long experience as a detective is justified based upon what he saw and observed to stop and frisk an individual.” It had long been the rule that police could search someone they were arresting, but Judge Friedman didn’t think there had been a lawful arrest at the time the frisk took place. He also believed “it would be stretching the facts beyond reasonable comprehension” to claim there was probable cause to arrest at the time that McFadden stopped the men to question them. Still, the judge believed McFadden was in the right to investigate the activity he’d observed, and he concluded that once McFadden stopped the men to investigate, he was entitled to pat them down for his own protection. No doubt the judge’s conclusion was colored by the fact that a week earlier Cleveland had buried a cop who had sprung upon an armed man unawares.16

  The case arrived at the Supreme Court as both a political and a legal hot potato. At that moment in history the justices were under terrific pressure to defend law and order. Crime rates were skyrocketing, the country was afraid, and the justices were being criticized in heated terms for their pro–defendants’ rights decisions. Deciding against the stop-and-frisk practices of McFadden and other officers would be seen as taking away yet another arrow in the beat cop’s quiver.17

  Still, deep down the justices had concerns about stop-and-frisk, which was an increasingly common and increasingly controversial practice on the troubled streets of the United States of America in the 1960s. Between ghetto riots and protests of all sorts—against the Establishment and the Vietnam War; for civil rights—the country’s public spaces were seen as out of control. Martin Luther King, Jr.’s assassination triggered widespread rioting and looting in the District of Columbia just months prior to the resolution of the Terry case, and Bobby Kennedy was shot and killed just five days before. Police claimed they needed the sort of authority McFadden had used just to keep the peace. But those on the streets resented it. Two crime commissions that decade fingered this very sort of police conduct to be the source of great hostility in minority communities.18

  While the justices were inclined to okay what McFadden had done—their initial vote on the case was unanimous—justifying it as a legal matter was going to prove no easy matter. The question the justices were forced to answer in Terry was whether—even if getting a warrant was impossible given the exigency that someone like Officer McFadden faced—a “search” or “seizure” was ever permissible in the absence of probable cause.

  Note that one way to approve McFadden’s actions was simply to declare that what he did was neither a “search” nor a “seizure.” If this were true, then the Fourth Amendment said nothing about it, and the guns were admissible. Yet calling it neither a “search” nor a “seizure” meant this sort of police conduct would be entirely unregulated by the Constitution. Police could toss people against walls and frisk them as they wished.

  On the other hand, if it was a “search” or “seizure,” then under precedents going back to the 1600s, McFadden needed probable cause. Yet, as Judge Friedman had noted, it was hardly apparent that McFadden had probable cause at the time he acted.19

  So, what to do? That was the justices’ dilemma.

  THE BIRTH OF “REASONABLENESS”

  The justices flatly rejected the first fork of this dilemma, refusing to accept that “‘stop’ and ‘frisk’ … is outside the purview of the Fourth Amendment.” Chief Justice Earl Warren’s opinion for the Court was positively eloquent on the subject. Fending off arguments that stop-and-frisk was no big deal, he wrote that “it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’” “[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’” He described how “[a] thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” Stop-and-frisk, the Court concluded, is “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”20

  But if McFadden had both seized and searched Terry, was there probable cause to justify it? On this question the justices, despite their initial agreement, began to splinter. Probable cause of what? Sure, McFadden was suspicious of what was going on, thinking the men were “casing a job, a stick-up.” But all they’d done was walk up and down the street looking in a store window. “Store windows,” the Court recognized, “are made to be looked in.” And as Justice Douglas, who ultimately proved the lone dissenter, pointed out, “[T]he crime here is carrying concealed weapons; and there is no basis for concluding that the officer had ‘probable cause’ for believing that that crime was being committed.”21

  What really worried the justices—and everyone else watching the case—was that if they called the facts observed by McFadden “probable cause,” that would seriously lower the bar on police interfering in people’s lives. The Fourth Amendment doesn’t kick in until something is a “search” or “seizure.” But once there is probable cause, then almost any searching or seizing short of injuring or killing a person, or gratuitous ransacking, is permitted. The Fourth Amendment, up to this point in history, was notoriously short on middle ground. The same cause that would have justified the brief frisk of Terry would also, under existing law at the time, have allowed a full search of his body and anything he was carrying. It would have permitted McFadden, without ever saying a word to Terry, to arrest him then and there. Did McFadden have enough evidence, at the moment he confronted the men outside Zucker’s Department Store, to simply load them into the police wagon and imprison them?