So there the justices were, stuck between a “no search and seizure” rock and a “probable cause” hard place.

  What the Terry Court ultimately did was to toss probable cause overboard. As we have seen, there are two clauses in the Fourth Amendment, one that states the people have a right to be free from “unreasonable searches and seizures” and one that specifies the requirements about warrants, including that any warrant must be based on “probable cause.” The separation of these clauses, as we learned last chapter, has allowed some to argue that warrants are not a requirement. But even if the justices have not always insisted on a warrant, until Terry they had consistently maintained that probable cause was a necessity.

  Breaking with hundreds of years of tradition, the Terry Court concluded that rather than requiring probable cause, “the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” In other words, rather than looking to see if there was probable cause to stop and frisk Terry and Chilton, they would simply ask whether what Officer McFadden did was “reasonable.” Once again, this is precisely the sort of open-ended analysis that inevitably leads to judges reducing our rights.22

  In fairness, the justices in Terry tried hard to make clear that in relying on the Fourth Amendment’s “unreasonable” language alone they were making but a tiny inroad into probable cause. The Chief Justice said they were addressing the “quite narrow question” of “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.”23

  But despite his attempt to write narrowly, Warren’s Terry opinion contained the seeds of enormous discretion for law enforcement, which police and prosecutors would capitalize upon—ultimately with the Court’s gradual blessing—in the years to come.

  THE COSTS OF INSUFFICIENT CAUSE

  What the justices in Terry failed to do adequately was explain when police could stop people in the first place. The Terry opinion’s most precise holding was about the frisk: “[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual.” Justice Harlan, concurring, felt the problem with the majority opinion was its failure to explain why the police could engage in a “forcible stop.” After all, if the police have no reason to hold someone against their will, and thus be in that person’s presence, the justification for the frisk—danger to the officer—evaporates as well. The justices’ not very helpful guidance was that “[e]ach case of this sort, will, of course, have to be decided on its own facts.”24

  The result of this omission is that the police, unencumbered by any clear standard to limit their discretion, stop unfathomable numbers of people and shake them like fruit trees, hoping something juicy topples out. Back when probable cause mattered, it provided a way of distinguishing those trees that deserved attention, and those that should be left alone. With probable cause out the window, lots of people get stopped and frisked by the police, and comparatively little evidence or contraband is found. This high intrusion and low success rate should surprise no one; the whole point of probable cause is to indicate when a search for evidence might prove fruitful.

  Symptomatic of the problem is law enforcement’s reliance on a so-called drug courier profile. All over this nation, on highways, on streets, at bus stops and train stations, thousands of government agents are engaged in drug interdiction. When drugs are found on someone, the agents must explain why they detained the person in the first place. What was the “reasonable” basis for the stop? One of the Drug Enforcement Administration’s favorite tricks is to tell courts that the suspect they nabbed fit a “drug courier profile”—a set of facts that supposedly yields reasonable suspicion of illegal activity.25

  In United States v. Condelee, for example, Agent Carl B. Hicks of the DEA claimed to have a “tip”—it is never disclosed where it came from, and never verified that he had it at all—that “sharply dressed” women were acting as couriers carrying drugs from Los Angeles through the Kansas City airport. Hicks saw a well-dressed woman arriving there from LAX, and followed her. He then approached her, showed his badge, and asked her for ID. She seemed nervous, opened her purse on a trash can so Hicks couldn’t see inside, and handed her ID to him. He showed his badge a second time, informed her he was a DEA agent looking for drugs, and asked if she had any. She responded no. Hicks next asked to search her garment bag, and she agreed. The search again turned up nothing. So he asked to search her purse, at which point Condelee replied that she had no drugs, and told him to get a search warrant if he wanted to bother her further. Hicks persisted nonetheless. Condelee asked to go to the bathroom. Hicks said she could, but also said she couldn’t take her purse. The pressure continued, until Condelee broke down crying and owned up to having drugs in the purse.26

  Forget the drugs for a moment—you’ll have reason to be skeptical about the magical detection abilities of DEA agents soon enough—and ask where Hicks was getting the authority to hound someone through an airport like this. What justified his persisting in hassling her when she said “enough” and told him to get a warrant? Where did he get the power to decide who can use the restroom and under what circumstances? What if it were you?

  Hicks’s argument was that the stopping and harassment of Condelee was justified because she met the “drug courier profile.” As he explained, because a “sharply dressed” woman had arrived from the “source city” of LA, and moved rapidly through the airport carrying little luggage and not looking around her, he was entitled to hassle her till she broke down and admitted she had drugs. The court bought Hicks’s story, holding that those facts “created a reasonable, articulable suspicion that Condelee had committed or was about to commit a crime.”27

  Really? That’s reasonable, articulable suspicion? Those same facts describe most women professionals on out-of-town overnight business. The dissenting judge was flabbergasted, pointing out, among other things, that the tip on which Hicks purportedly was acting said nothing about any particular person or flight. To see how thin Hicks’s basis for stopping Condelee was, consider the fact that she went to jail on a 3–2 vote in her favor; the magistrate judge who first considered her motion to exclude the evidence, and the trial judge, both agreed with the dissenting judge on the three-judge appellate panel that the facts did not support Hicks’s actions.28

  Agent Hicks and his supposed “drug courier profile,” it turns out, was ubiquitous in Kansas City airport drug busts. In another of Hicks’s cases, one judge, Richard Arnold, asked the million-dollar question. “It would be interesting to know,” Judge Arnold mused, “how many innocent people have been stopped, either for questioning alone, or for search of their luggage. This information, which we never seem to get in these cases, would go far towards enabling us to say whether the kind of police tactic we have before us is reasonable, which is, after all, the controlling criterion in applying the Fourth Amendment.”29

  What Judge Arnold wanted to know, in other words, was Agent Hicks’s “hit rate.” In what percentage of his stops did his tactics yield contraband? After all, if it was high, then maybe there was something to Hicks’s idea of a profile. On the other hand, if not, then maybe the “profile” was simply natural fertilizer.

  Judge Arnold got no answer to his critical question, but another judge, in another part of the country, did. In a drug courier profile case out of Buffalo, Judge George Pratt blew the whistle on the DEA. The problem, Judge Pratt boldly stated, was that “the drug courier profile is laughable because it is so fluid that it can be used to justify designating anyone a potential drug courier if the DEA agents so choose.” For example, in the case before him the agents justified the seizure, as they did in Condelee’s case as well, because the defendant had traveled to Buffalo from a “source city” for narcotics. But at argument in the case “the government conceded … that a ‘source city’ for drug traffic was virtually any city with a major airport.” That bit of honesty “was met with deserved laughter in the courtroom.”30

  Judge Pratt did a little research to compile a list of the various factors DEA agents regularly rely upon to justify conduct as falling within the drug courier profile. Here’s the list (supported in the original by copious citations to actual cases). People are couriers if they:

  Arrived at night

  Arrived early in the morning

  One of the first to deplane

  One of the last to deplane

  Deplaned in the middle

  Used a one-way ticket

  Used a round-trip ticket

  Carried brand-new luggage

  Carried a small gym bag

  Traveled alone

  Traveled with a companion

  Acted too nervous

  Acted too calm

  Wore expensive clothing and gold jewelry

  Dressed in black corduroys, white pullover shirt, loafers without socks

  Dressed in dark slacks, work shirt, and hat

  Dressed in brown leather aviator jacket, gold chain, hair down to shoulders

  Walked rapidly through airport

  Walked aimlessly through airport

  Flew to Washington National Airport on the LaGuardia Shuttle31

  You get the idea.

  Not only that, but Judge Pratt got a specific answer to Judge Arnold’s question: How often do agents stop suspects and hassle them like this, only to come up with nothing? The agents in the case before him testified they “spend their days approaching potential drug suspects at the Greater Buffalo International Airport.” In 1989 “they detained 600 suspects … yet their hunches that year resulted in only ten arrests.” Ten hits out of six hundred people harassed. Less than a 2 percent hit rate. Judge Pratt concluded, “It appears that they have sacrificed the fourth amendment by detaining 590 innocent people in order to arrest ten who are not—all in the name of the ‘war on drugs.’” In other words, it could be you.32

  This phenomenon that Judges Arnold and Pratt identified is precisely what repeatedly caught Nicholas Peart in the NYPD’s relentless snares. In one of the lawsuits against the NYPD for its program of muscling people without cause to ferret out supposed crime, the judge ordered the defendants to produce data on how often people were stopped and how successful those stops were. (The NYPD was already collecting the data, because of an earlier lawsuit challenging similar practices.) Of the “2.8 million documented stops between 2004 and 2009” in almost 90 percent of the cases the police released the target without even a summons for any criminality. Arrests were about 5 percent, the rest received a summons for a minor crime. Only slightly better than in the Buffalo airport.33

  The reason for these low hit rates—i.e., the reason so many completely innocent people get hassled—is directly attributable to the Terry Court’s failure to state when stops are permissible. Lower the level of cause enough and we are all susceptible to law enforcement intrusion on something that goes by the name of “hunch,” but in common parlance could as easily be whim or caprice. The case law has evolved to allow almost anything to count. In one case, for example, police received an anonymous tip that a car was being driven erratically and had forced someone to the roadside; police located and tailed the vehicle for five minutes seeing no evidence of anything erratic, but the justices okayed a stop of the vehicle anyway.34

  FRISKING AS THE GOAL

  Not long after Terry, one of history’s most famous judges, Henry Friendly—a man who wasn’t much for mollycoddling criminals—worried that “[t]here is too much danger that instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true.” Judge Friendly proved prescient; rather than stopping on cause and frisking for protection, over time the search became the goal and the stop merely a means to that end.35

  In drug cases in particular, the courts almost invariably approve a frisk, on the theory that whenever there might be drugs, there might be guns. Symptomatic was a 1994 District of Columbia case, United States v. Clark. Some undercover cops were buying doughnuts (true story) when a person offered to sell them pot. When he produced a ziplock bag full of marijuana, the cops arrested him. The dealer then volunteered to snitch out the guy with the “stash” if the cops would go easy on him. The informant directed the cops to Edward Clark, Jr., who was getting into his car. The police pulled Clark from his car at gunpoint and had him kneel behind the car while they searched him and the car for weapons. Finding none, the cops next threatened to seize the car if there were drugs in it, at which point Clark broke down and revealed where cocaine base (note: not marijuana) was hidden.36

  The judges agreed there was no probable cause to search Clark, but concluded the tip was suspicion enough for a “stop.” And given the alleged crime of drug dealing, the “frisk” was automatically acceptable, with no other facts to think Clark was armed and dangerous. But in explaining why what the police did to Clark was acceptable, you can just hear the ambivalence dripping out of the judges’ mouths: “Taking a citizen out of a car, putting him on his knees, and then searching the car … [it] gets to a point eventually you wonder what the police are limited in doing at all under our law.”37

  These drug cases have a narcotic effect, leading judges to approve conduct of police officers that most of us would view as simply insane: pulling a man from his car on the word of a drug dealer the cops did not know from Adam, and having him kneel at gunpoint while they searched him.

  It’s true the police found drugs on Clark, but the question that always needs asking is how often the police are frisking or otherwise searching people and finding nothing. Are they acting on fact-based hunches or stabbing in the dark?

  Once again, the NYPD figures are telling.

  A stunning number of the arrests actually made by the NYPD following stop-and-frisk were for possessing small amounts of marijuana—stunning because possession of a small amount of marijuana is not an arrest-worthy offense in New York unless the marijuana is burning or in public view. But cops apparently solved this problem by putting their hands into suspects’ pockets—as they did repeatedly with Peart—and pulling out marijuana, then arresting people for having it in “public.” But when it came to finding weapons, particularly guns—the basis for the frisk in the first place—as we’ve seen the cops largely were coming up empty.38

  New York is hardly alone. Lawsuits in Philadelphia and Boston have revealed similar evidence. In Los Angeles, car and pedestrian searches are no more productive. In 2008, a study of LAPD data found not only that racial minorities were far more likely to be stopped, to be frisked when stopped, to be arrested when stopped, and to be searched, but also that they were substantially less likely to be found with weapons, drugs, or other contraband after a frisk. In other words, the hit rate was lowest in the groups facing the most police scrutiny. Hit rates vary, but they are low across the boards.39

  It is plain from what is happening on the nation’s streets, and in its airports, that Terry’s elimination of the probable cause standard has set the police loose on the rest of us. Not just to stop us, but to place their hands on our bodies and possessions. The police still ostensibly need articulable suspicion to forcibly stop people—that much is clear—but what counts as articulable suspicion is deeply suspect, and the Supreme Court has done virtually nothing to rein in this sort of conduct. The stops occur, the frisks follow almost automatically, and the bodily integrity of millions of people is violated without good cause.

  FIXING THE PROBLEM

  The Constitution says precisely how much cause is appropriate. Probable cause. For roughly four centuries the meaning of what was required before government seized or searched someone or their property was relatively constant. Only in recent decades did the Supreme Court muddy this up, choosing lesser gradations of cause—reasonable cause, articulable suspicion, and the like—that no one quite knows what they mean.40

  The question is whether there is any reason to tolerate this alteration of the Constitution’s precise test for police intrusions.

  One reason given to justify the lesser standards is the historical argument debunked in the last chapter: that the Constitution does not require warrants or probable cause, only that searches and seizures not be “unreasonable.” But the Constitution certainly tells us in unmistakable terms what does make a search or seizure reasonable, and that is probable cause. There is no evidence that the ratifying generation, many of whom were hysterical about government overreaching, thought something less was appropriate.41

  The other reason is, as we saw in Terry, the claim of necessity. If we adhere to the probable cause standard, the concern is we will be unable to investigate and thereby foil real crime.42

  It’s not at all clear that this claim of necessity is accurate either. Probable cause itself is an accommodation between society’s need to investigate and the individual’s liberty to be free of government intrusion. That’s where the Constitution drew the line. But it may be more than that. The probable cause standard spells the line between when following every lead and every suspicion is a waste of time, and when it is worthwhile to investigate. As we’ve seen—indeed as we keep seeing—all this relentless searching on less than probable cause is turning up very little in the way of misconduct.

  It’s not just people’s liberty at stake; it’s resources that could be devoted to something more productive. Neither public budgets nor the size of police forces is infinite. Resources must be allocated. Lowering the cause standard sends officers on wild goose chases, without many wild geese to show for it. Was it worth the money to plant officers in Buffalo’s airport for a year detaining six hundred people to arrest ten? Could they have been doing something else to make us safer?

  Having said that, it is not obvious that eliminating stop-and-frisk entirely is the right answer either—or even feasible. Police have long insisted on the need to question people based on their intuition that something is amiss. For years, police relied upon vagrancy and loitering laws to remove people who seemed problematic or out of place. When the law properly clamped down on this practice, finding such laws unconstitutionally vague or otherwise in violation of First Amendment rights, police forces turned to stop-and-frisk. Even before the Supreme Court authorized the practice in Terry, some states had stop-and-frisk statutes on the books.43