Term Paper: Discretionary Situations for a Police

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[. . .] The discretion of the police to make arrests is often challenged by individuals who offer proof that the police purposely targeted a minority due to their race.

The second situation discretionary situation is the police "Stop" and "Frisk" policy. The appropriateness and inappropriateness of this discretion policy was recently seen in the 2011 review of the New York Police Department practice of over 684,000 stops. According to the Police Commissioner Kelly Raymond who defended the policy, said that the practice had reduced crime and reduce the number of drugs and guns on the streets. Unfortunately, the legal director of the New York Civil Liberties Union, Dunn Christopher, found the policy needed to be reformed and curbed, as it accounted for minorities making over 90% of the stops. However, it has been reported by criminologists that the "Stop" and "Frisk" police tactic has increased intrusive police action, consequently building community tension and civil right lawsuits (Maykuth, 2008). This is situation has created a serious problem for the police administration on the application of the policy while maintaining civil rights.

The discretion warranting police officers to carry out "Stop" and "Frisk" actions is regulated by the Supreme Court's Fourth Amendment jurisprudence which mandates that warrants are required for all searches (Schinner, 2009). This mandate also applied to cases where there was conclusive evidence of the presence of illegal activities. However, the Supreme Court recognized that the strict mandate could be waivered in some cases, under police discretion. Despite this waiver, the Supreme Court did not completely abandon the requirement for warrants, as indicated in the Terry v. Ohio court ruling.

There are alternative control regulations used by the Commissioner of Police and Police Chiefs to emphasize the "Stop" and "Frisk" discretion policy among officers. The NYPD has a mantra that all police departments are there by their chiefs of police are to emphasize that searches are to be conducted according to laws and regulations (Maykuth, 2008). In addition, police officers are directed to thoroughly document the grounds used to a "Stop," so that if any evidence is confiscated in the Frisk process is admissible in the court (Maykuth, 2008). These administrative directives and documentations are used by Chiefs of Police to protect police officers in cases where their conduct comes under legal challenge. These protective regulations give alternative mean for police officers to carry out legal searches even in instances where they do not have warrants, as long there is a good reason for reasonable doubt.

The reason why it is legal of a police officer to carry out a "Stop" and "Frisk," even in a case where racial profiling is suspect is due to the Terry v. Ohio ruling. In the case, the court ruled that a police officer can frisk a suspect, if they have a strong basis for "reasonable suspicion" that the suspect is up to criminal activities (Maykuth, 2008). The reason given by police administration for the use of the "Stop" and "Frisk" policy, is that a frisk, is not as thorough as a full search, which is only carried out under the law when an officer has probable cause as supported by the Fourth Amendment. According to Schinner (2009) though courts do not need probable cause for a street stop and search, the three levels of citizen-police encounters- voluntary meeting, arrest, and Terry stop-, require distinct suspicion to validate the officers discretion. Following Terry, the first level of encounter is taken as a consensual encounter, which does not entail any coercion or pressure to stop or search, therefore, the Fourth Amendment will not apply (Schinner, 2009). The Terry stop and frisk is the second level, which a short intrusion on the freedom of movement of an individual, in which the police discretion must be supported by reasonable suspicion. Lastly, is the arrest level, which involves a high level of disruption, and requires strong probable cause for the officer to defend his discretion to stop, search and arrest.

The reasons given by police administrators for the need for greater discretion in "Stop" and "Frisk" instances is that they will retort to a greater number of suspicious situation and exercise their judgment when making decisions on which situations need investigation (Schinner, 2009). However, the creation of minimal suspicion standards by police chiefs will cause greater discretion for officers, which increases the risk of intrusion on the privacy of citizens who are innocent. This regulation would be inappropriate since it would create problems in any search and seizure situation, no matter how minor. The other problem that arises from this policy is a breach of abuse of discretion by officers, like the unfair burden on Africa Americans and other minority communities due to the standard. Consequentially, a low suspicion standard for "Stop" and "Frisk" would be appropriate for police departments that have jurisdiction over urban areas like inner cities, where there is a high population of blacks (Frase, 2005). The argument made in defense of a greater discretion for officers from departments that have jurisdiction over such areas is that, such these sections of the city have the highest recorded rates of crime. Therefore, it is only appropriate for the police chief to allocate a high number of police officers, give them minimal suspicion standards for "Stop" and "Frisk" in areas with higher minority populations, to have greater discretion to curb crime rates (Frase, 2005). The minimal suspicion standard for "Stop" and "Frisk" would thereby be inappropriate as it would increase the likelihood of racial discrimination practices by officers

The minimal suspicion standard for "Stop" and "Frisk" would increase civil right issues against officers who violate the law especially where there is doubt on the foundation of their establishment of probable cause. This makes it more difficult for officers to determine the probable cause for minor infractions- like loitering, standing by a car outside a business premise or holding an open alcohol container- as a basis for stop and legal frisk of suspect (Maykuth, 2008). However, police administration feel that many officers have the ability to make an informed judgment on whether to search and arrest people stopped with minor infractions. This is because as stipulated by the NYPD "Stop" and "Frisk" policy, a police officer can stop and frisk individuals if there is reasonable suspicion founded on "specific and articulated facts" rather than hunches (Maykuth, 2008). The police department feels that officers have the discretion to stop and frisk an individual with probable cause supported by factors like known criminal record, evasive behavior, being in a high crime area, flight, police bulletin information and fugitive gestures (Maykuth, 2008). The level of "Frisk" is also left to the discretion of the officer, but limited by the presence of items that may cause harm to the officer. The justification offered for minimal suspicion for greater discretion for officers in "Stop" and "Frisk" situations is the need for the protection of officers and citizens within the immediate vicinity, under the reasonable suspicion standard. The effectiveness of the police will be due to the greater discretion officer will have while intervening in many circumstances. The argument made by police chiefs is that if police officers are given greater ability to investigate, a greater number of crimes would be prevented (Schinner, 2009). This they reason would be particularly useful for crimes like burglaries and drug sales.

The other argument made for the use of minimal suspicion and a flexible citizen-police encounter is the creation of better level of consistency in the analysis of the Fourth Amendment. The use of minimal suspicion and flexible citizen-police encounter would imply better reasonable cause ad use of warrant in many of the stop and frisk circumstances, especially given the increase in crime and the involvement of government and politics in administrative searches (Schinner, 2009). This would lead to better reasonableness in the intrusion of an individual's privacy and the interest of the police department in intruding ad determination of the cause of the intrusion. The need for balance is believed to be a way to reduce racial and civil right complaints on police officers due to their actions during a "Stop" and "Frisk" situation.

There is a need for police chiefs to give their officers the power of discretion especially given crime rates, the lack of consensus on the determination of minimal suspicion, reasonable doubt and probable cause by the law. Similarly, in the two discretionary situations given for criminal arrest, the need for police discretion ascends from factual details that it is only the individual officer in direct contact with an arrest situation and a suspect can make the best judgment on the level of risk involved. While the law may seek to create regulations to protect the civil rights of suspects, and those of police officers, it is the police officer who has the power of discretion to determine how… [END OF PREVIEW]

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