On Friday, an opinion article written by New York State Supreme Court Justice Rena Uviller appeared in the Wall Street Journal. It was titled, “A View From the Bench: Leave ‘Stop and Frisk’ Alone.”
The article was shocking to hear from a current justice, but frankly, with the continuing infringements of civil liberties, especially in New York City, it was not surprising. There are several puzzling statements that were made by Justice Uviller in the article that need to be addressed in order to comprehend what stop and frisk really means in, as The Economist put it, “Liberty’s lost decade.”
Uviller begins by stating her credentials on the subject, specifically that she has “presided over innumerable suppression hearings to determine whether evidence seized in a stop-and-frisk of citizens by police on the streets has crossed a constitutional line.” The judge seems to have worked too much in broken New York statute law and regulations, and ignored the constitutional aspect of unreasonable search and seizure as prescribed by the 4th Amendment.
The 4th Amendment requires police and prosecutors to obtain a specific search warrant from a judge in order to execute a search of an individual’s home, car, or body. If any evidence obtained was done so without a proper warrant, it cannot be brought into court because of the “exclusionary rule,” which was most extensively formulated in Mapp v. Ohio (1961).
Local and state laws of course have worked to wear down the rule, arguing, for example, that while being forced to turn one’s pockets inside out is unconstitutional, a frisk of one’s whole body is fine. Similarly, warrants without a specified nexus, or connection, but using generalized characteristics, have lead to the proliferation of stop-and-frisk operations in New York City. Justice Uviller seems to agree with this constitutional contortion.
In Uviller’s eyes, the purpose of the police is “not just to arrest those who have committed crimes”, but to be “on the lookout …to prevent crime.” Crime prevention practices, however, are still much in question.
The Economist recently investigated crime prediction systems that are being used in the UK and the US, which compile crime statistics in order to better predict where future crimes will occur and which locations to patrol more heavily. Such systems, if used properly, can help to contain crime. This system in itself doesn’t force individuals to surrender their liberty to police. However, crime prevention as perceived by Judge Uviller focuses not on innovations that protect individuals, but on ways to subvert the legal process.
Just today, news came out that the Department of Drug Enforcement had used NSA technology to monitor individuals suspected of being involved in drug trafficking. However, since the information collection was unconstitutional and inadmissible in court, local police used the “parallel construction” technique, creating ways to charge a detainee post factum while quietly erasing their connection to the NSA.
For Justice Uviller, such legal hindrances would be inconveniences in preventing crime. Just as the head of the DEA’s Special Operation division, Derek Maltz, stated in 2011 that the “DEA does not have the luxury of adopting a reactive response to this existing criminal threat,” so too would Uviller argue that constitutional limitations are a “luxury”.
Uviller then accurately states that “[t]he far greater number of street encounters result in no contraband recovery,” later adding that “those encounters…are the primary focus of current ire.” If it only was so. The focus of the ire instead comes from those who are most vehemently persecuted and injured from a police all too eager to fulfill its arrest quota and create reasons on the whim to detain persons.
Uviller simulates her own interpretation of reasonable suspicion when she asks whether a certain stop was “based on an insupportable hunch…or did the officer observe an unsuspecting person being followed or observe a group lingering on a corner at 3 a.m. with no apparent purpose?” Was a mandatory curfew recently enforced in New York? — because otherwise this “evidence” does not extend to a reasonable suspicion of a certain crime and becomes, in fact, an “insupportable hunch.”
Uviller’s biggest legal crime, however, comes closer to the end of the article when she declares that police officers “are not expected to parse court decisions before deciding whether to take action…[t]he variables in street encounters are too great and too fraught.”
Welcome to the age when a legal scholar and practicing court justice openly endorses the infringement of the law!
Just as the burden of proof lies with the prosecution in a case, so too is it important for police to know the law and properly enforce it. No one disputes the fact that much of the work that the police do is fraught with danger. Good police, for their commitment and bravery, are heroes to their community. However, good police are good because they know the law; they are not above the law because they consider themselves good.
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