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Jacob Sullum: Cops can’t search you for nothing

FILE - In this Sunday June 17 2012 file phoRev. Al Sharptcenter walks with thousands along Fifth Avenue during silent

FILE - In this Sunday, June 17, 2012 file photo, Rev. Al Sharpton, center, walks with thousands along Fifth Avenue, during a silent march to end the "stop-and-frisk" program in New York. A federal trial is scheduled to begin in New York on Monday, March 18, 2013, where the NYPD’s practice of stopping, questioning and frisking people on the street will face a sweeping legal challenge. The outcome could bring major changes to the nation's largest police force and could affect how other departments use the stop and frisk tactic. (AP Photo/Seth Wenig, File)

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Updated: April 28, 2013 6:31AM

The first time David Floyd was stopped and frisked, on an afternoon in 2007, he was walking a few doors from his house in the Bronx when two police officers confronted him, demanding to know where he was going, what he was doing and whether he was carrying weapons. Floyd, at the time a freelance film editor, presented his driver’s license and explained that he was walking home.

Unsatisfied, one officer searched Floyd, feeling under his shirt and inside his pants pockets. He found nothing illegal. Testifying last week in federal court, Floyd said the incident left him feeling “humiliated, because it was on my block where I live, and I wasn’t doing anything.”

Floyd’s experience seems to be typical of the 5 million or so street stops recorded by the New York Police Department in the last decade. Police almost never discover guns, and nearly nine times out of 10 they do not make an arrest. The class-action lawsuit that bears Floyd’s name persuasively argues that such harassment of innocent people violates the Fourth Amendment’s ban on unreasonable searches and seizures.

The legal basis for the NYPD’s stop-and-frisk program is supposed to be a 1968 Supreme Court decision arising from a police encounter quite different from the ones described by Floyd and other New Yorkers, overwhelmingly black or Latino, who are hassled by cops for no apparent reason every year. The case, Terry v. Ohio, involved a Cleveland detective who saw two men take turns walking back and forth in front of a store, peering into the window, about a dozen times, conferring with each other between trips.

The detective surmised that the two men were casing the store, which they planned to rob along with a third man who joined them later. Confronted by the detective, the three men “mumbled something,” whereupon the officer grabbed one of them and patted down his overcoat, finding a revolver. The Supreme Court said the detective’s actions were consistent with the Fourth Amendment because he reasonably suspected that the men were engaged in criminal activity and that they were armed.

The track record of the NYPD’s stop-and-frisk program suggests that its officers’ suspicions of criminal activity are frequently less than reasonable, since they turn out to be right only 12 percent of the time.

When she certified Floyd v. City of New York as a class-action last year, U.S. District Judge Shira Scheindlin noted that in 2009 “officers listed no coherent suspected crime” on more than a third of the forms.

As the number of stop-and-frisks initiated by the NYPD grew from about 100,000 in Michael Bloomberg’s first year as mayor to almost 700,000 in 2011, the share of stops yielding guns fell from 0.38 percent to 0.033 percent. Bloomberg says that trend shows the program is working, because “the whole idea . . . is not to catch people with guns; it’s to prevent people from carrying guns.”

If so, the policy is inconsistent with the Supreme Court’s Fourth Amendment rulings, which do not allow random searches aimed at deterring crime. Rights are not contingent on the effectiveness of the police tactics that violate them.

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