Stop and Search ruled illegal

[Ekiqa]

http://www.guardian.co.uk/uk/2010/jan/1 ... top-search

European court condemns police misuse of stop and search

Officers using Terrorism Act against citizens on 'a hunch' means serious risk of discrimination, say judges


The home secretary, Alan Johnson, app­ears to be in serious trouble over a ruling today by the European court of human rights against the unlawful police use of ­counter-terrorism stop and search powers on peace protesters and photographers.

If the seven European judges, including the British judge Sir Nicolas Bratza, had simply ruled that the use of the powers was not "sufficiently circumscribed", a simple amendment to the crime and security bill could have put it right.

But the judgment – in the case of Kevin Gillan and Pennie Quinton, who were stopped and searched on their way to a demonstration outside the Excel Centre in east London in 2003 – is far wider than that. It criticises the entire process by which section 44 stop and searches under the Terrorism Act 2000 are authorised by the home secretary, and highlights a lack of adequate parliamentary and legal safeguards against abuse.

The judges say that because officers' decisions about whether to stop and search someone in a designated area are based solely on a hunch or professional intuition, the effect is "a clear risk of arbitrariness".

The concerns over this power being so widely framed have led the judges to draw attention to a serious risk of discrimination against black and Asian people, and misuse against demonstrators. There were more than 117,000 searches under these powers in 2008, by 12 police forces across England and Wales, which shows that what is at stake is a key element of the government's counter-terrorism strategy. Home Office lawyers were tonight combing the judgment to see if they could advise the police to carry on with searches while lodging an appeal to the 17-member grand chamber of the European court of human rights.

Ministers took this step in one other high-profile case recently. They challenged the ECHR ruling that prisoners should be given the right to vote, a decision on which, four years later, the government has still not complied.

It now seems the decision by the Met last year to scale down use of section 44 searches was a calculated attempt to avoid this outcome at the European court.

A key factor in the judgment was that all of Greater London was quietly designated as suitable for these searches, and this power remained in force for several years. The powers were supposed to be used in limited areas designated by the police, confirmed within 48 hours by the home secretary and renewed every 28 days.

The sheer scale of the stop and searches has made clear that these counter-terrorism powers – under which police are supposed to be searching for "articles that could be used in connection with terrorism" – have become another tactic in daily police encounters with the public, regardless of whether people are tourists taking photographs or peace protesters outside an arms fair.

Use of the powers has quadrupled since they were used to throw Walter Wolfgang out of the Labour party conference for heckling Jack Straw in 2005. Last year the Met tried to restrict the use of section 44 to certain areas, for example near parliament. But that move goes nowhere near complying with this judgment.

Lord Carlile, the official reviewer of terrorism laws, said today a change in the law was needed, including clarification that the searches had to be "necessary" rather than just "expedient". He also thought chief constables would have to give much closer consideration to the granting of authorisation to use the powers.

But the group Liberty, which brought the case for Gillan and Quinton, believes the power should be used only if there is a specific threat of terrorism, and only for 24 hours. Renewals longer than a week would require the home secretary's approval. But Johnson has chosen to fight the judgment. So every time the police stop someone , there will be a question mark.

Alan Travis

117,000 searches of suspected terrorists in 2008.

Also, http://www.guardian.co.uk/uk/2010/jan/1 ... ys-illegal police used the 1984 Police and Criminal Evidence Act to search 11 year old twins. The Act requires the police to have reasonable suspicion that an individual is carrying prohibited weapons. These twins, and an unspecified number of the 3,500 protesters herded through "airport-style" checkpoints, were illegally searched.

It isn't safe to be in Britain with a camera, or anywhere near a protest now.

[Darth Wong]

How invasive are these "stop and search" operations? Are we talking about strip searches, body cavity searches, pat-downs, or simple questioning?

[NecronLord]

I think they largely consist of pat downs and ferreting through the 'suspect's' stuff. They're being used as an excuse to remove journalists' cameras when there's a protest on, and IIRC remove and on occasion destroy film. They're not required to provide any information or reason, which is different from any other search the police are empowered to carry out.

[SirNitram]

They're common along the US/Canada border. Notepads, computers, cameras and the like can be seized for no reason.

[Beowulf]

They're common along the US/Canada border. Notepads, computers, cameras and the like can be seized for no reason.

Customs does not require suspicion of wrong doing to seize items. But they are also limited to needing to be searching someone at the border. This was a random search by policemen, in the middle of cities.

[Glocksman]

Here in the US, we do have a standard for a limited 'pat down' weapons search similar to what the British law is intended to permit.

Terry stop

A "Terry Stop" is a stop of a person by law enforcement officers based upon "reasonable suspicion" that a person may have been engaged in criminal activity, whereas an arrest requires "probable cause" that a suspect committed a criminal offense. The name comes from the standards established in a 1968 case, Terry v. Ohio.

The issue in the case was whether police should be able to detain a person and subject him to a limited search for weapons without probable cause for arrest. The Court held that police may conduct a limited search of a person for weapons that could endanger the officer or those nearby, even in the absence of probable cause for arrest and any weapons seized may be introduced in evidence.

When a police officer observes unusual conduct which leads him or her to reasonably suspect criminal activity may be occurring and that the persons with whom he is dealing may be armed and presently dangerous, the officer might approach and briefly detain the subjects for the purpose of conducting a limited investigation. The officer must identify himself or herself as a police officer and may make reasonable inquiries. If after initial investigation the officer still has a reasonable fear for the safety of himself and others, the officer may conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault him or her.

I'm sure Kamikaze Sith could elaborate on what justifies a Terry stop and whether or not any non-weapon evidence discovered (say a couple of joints or a loose baggie of weed) during the search would be admissible as evidence.

[FSTargetDrone]

Interesting. The Philadelphia Police Department has a "Stop-and-frisk" policy. I can't find any article from it more recent than April 2008, but as far as I know, the policy is still in effect.

04/14/2008

Philly cops ready to up stop-and-frisk tactics

By Andrew Maykuth

The Philadelphia Inquirer

PHILADELPHIA — Demonstrating a frisk, Sgt. D.F. Pace moved his hand along Martin Klepac's belt before his fingers slipped into Klepac's right pants pocket.

"Whoa!" shouted several Philadelphia police officers observing the demonstration, recognizing that the instructor had crossed a serious legal boundary when his fingers entered the subject's pocket: A pat-down had just become an illegal search.

"Still have your wallet?" somebody in the audience shouted as Klepac, a sergeant in the Sixth District, took his seat during the training session Thursday at the Philadelphia Police Academy.

All joking aside, the instruction was serious business, and much is riding on it politically: The Police Department began preparing officers last week to respond to Mayor Nutter's promise to step up stop-and-frisk tactics to help rid the streets of illegal weapons.

Department officials insist there is really nothing new to stop-and-frisk - the courts have long-established rules that set limits on pat-downs to protect the public from unreasonable searches.

But Police Commissioner Charles H. Ramsey wants officers to increase the number of legal searches they conduct as part of a strategy the department calls "aggressive but intelligent policing."

"We're not asking you to do anything illegal or unconstitutional in any way," Lt. Francis T. Healy, a department lawyer, says in a training video being shown to patrol officers. "We just want you to do what you're doing today, but step it up a bit."

Though officers already are trained in the finer legal points of conducting a frisk - a protective pat-down can be conducted only to detect weapons, not to search for drugs - police say they want to reinforce the training to reduce confusion that has arisen over Nutter's promise to respond aggressively to the city's high rate of violent crime.

"Stop-and-frisk does not, under any circumstances, mean stopping people for no reason, throwing them up against the wall, patting them down, frisking them," said Healy, a special adviser to Ramsey. "That is not what we're talking about."

More than 600 field supervisors - mostly sergeants, but some corporals and lieutenants - began attending the two-hour training sessions at the academy on Thursday; the classes will continue through this week. The supervisors will be responsible for training their field officers in the department's 23 districts. Officers expect to see an immediate increase in stops.

Criminologists say that stop-and-frisk tactics, used most famously by the New York City police, demonstrably reduce the number of illegal weapons on the street and reduce violent crime. But the more intrusive police action inevitably builds community tensions and, if done insensitively or incorrectly, can result in expensive civil rights lawsuits against police.

In New York, the practice has raised some eyebrows and allegations of racial bias. Of 500,000 pedestrian and vehicle stops conducted in 2006, 89 percent involved nonwhites, though white suspects were 70 percent likelier to have a weapon on them, according to the department's analysis.

Police acknowledge that apprehension about stop-and-frisk is widespread, particularly among people of color. Former Police Commissioner Sylvester M. Johnson warned last year that Nutter would have "a problem" with discontent - or worse, civil unrest - if heavy-handed police tactics undermine public goodwill.

The mantra now in the department is to emphasize that the searches must be conducted according to the law, and officers are under orders to thoroughly document the grounds that lead to a stop so that any evidence confiscated is admissible in court. The documentation also protects the police if their conduct comes under legal challenge.

"If officers do their jobs right, we will never have to worry about a civil suit," said Lt. John Bradley of the department's advanced training unit, which is conducting the instruction.

"We want to avoid the problems New York had," he said. "We want to have a partnership with the community, and don't want them to be upset with us being there."

According to the 40-year-old court ruling in Terry v. Ohio, police can conduct a frisk if they have "reasonable suspicion" that a person is up to something criminal. A frisk, or pat-down, is not as thorough as a full-fledged search, which can be done only if the officer establishes probable cause that a person has violated the law.

The training involves more than instructing officers to be careful, legal and polite.

The supervisors also encourage officers to be clever and resourceful about using even minor infractions - something as routine as spitting, littering, loitering, or holding an open container of alcohol - as a rationale to stop a suspect person and conduct a legal frisk.

"We want you to make as many lawful stops as you can," Healy says in the video for the field troops. "The more people we come in to contact with lawfully, the more chances you're going to come across bad guys and guns."

At the same time, the lawyer reminded officers that many people they stop will be "decent folks" who have committed minor infractions, and that the officers still can use their best judgment whether to issue a citation or let someone go with a warning.

"Don't go out there and hammer everyone you come in contact with," he said. "That's not what we want to do. ... Use discretion."

Legal Police Frisks

The courts have limited the circumstances under which officers can stop and frisk individuals.

The police must have a reasonable suspicion that a crime has been, is being, or is about to be committed.

"Reasonable suspicion" must be based on "specific and articulable facts," not just a hunch. The factors may include a person's known criminal record, presence in a high-crime area, evasive conduct, furtive gestures, flight, and information from a police bulletin.

The scope of a frisk is strictly limited so that the officer seeks only items that could be used to harm him or her.

The sole justification is the protection of the police officer and others nearby.

Police can "frisk" a vehicle, but are limited to the "grabbable" areas where a weapon may be placed or hidden, including closed, but not locked, containers.

[The Yosemite Bear]

I remember when the Orange County officers stopped a group of us comming home from Rocky Horror, Although walking several blocks dressed in Drag, with mixed ethnicity and gender group, (we couldn't get a cab to pick us up) (although I would have to admit my later to be ex-girlfriend's future girlfriend looked damn hot as Colombia)

Also got stopped and searched by Rampart, for waiting at a bus stop for a transfer comming home from the dentists. (they confiscated my very legal perscription paper from the dentist)

[Kamakazie Sith]

I'm sure Kamikaze Sith could elaborate on what justifies a Terry stop and whether or not any non-weapon evidence discovered (say a couple of joints or a loose baggie of weed) during the search would be admissible as evidence.

Terry stops/searches are very limited. Justification for a stop is based upon reasonable suspicion that a crime is, has, or is about to be committed. A terry search would depend on the circumstances.

Example - A robbery in progress. White male, 6'ft, med build, black shirt, blue jeans.
You see a person that matches that description within walking distance of the robbery within a reasonable time frame. Since robberies are crimes of violence then you could articulate a reasonable need to conduct a terry frisk, which means a pat down of that person for weapons. If during your terry frisk of this robbery suspect you felt a mass that you immediately concluded was a large roll of cash you could seize that, but I wouldn't. I'd just wait for the witness to ID him, or ask for consent to search.

Basically, you could seize non-weapon items but only if it was immediately apparent to you that that lump in the guys right front pocket is an illegal item, or evidence of a crime. That's very difficult to prove in court, but it has been done. Most of the time it's just better to wait for a witness to identify, get consent, or get a search warrant.

[Kamakazie Sith]

I remember when the Orange County officers stopped a group of us comming home from Rocky Horror, Although walking several blocks dressed in Drag, with mixed ethnicity and gender group, (we couldn't get a cab to pick us up) (although I would have to admit my later to be ex-girlfriend's future girlfriend looked damn hot as Colombia)

Also got stopped and searched by Rampart, for waiting at a bus stop for a transfer comming home from the dentists. (they confiscated my very legal perscription paper from the dentist)

Why did they confiscate your perscription paper work? It sounds like someone grabbed it and then forgot to give it back to you. Did you ask for it?

[White Haven]

What reason would they have to 'take it' in the first place, KS? I'm actually curious here, even if they took it and should return it, why would they seize paperwork in the first place?

[Darth Wong]

They're common along the US/Canada border. Notepads, computers, cameras and the like can be seized for no reason.

Customs officers are in a legal free-fire zone. They can do pretty much whatever they want, and there's not a damned thing you can do about it. Whatever you do, don't complain or mention your rights. They'll use that as an excuse to take your car apart and then laugh at you when you ask how the fuck you're supposed to get home with a disassembled car.

[Akhlut]

What reason would they have to 'take it' in the first place, KS? I'm actually curious here, even if they took it and should return it, why would they seize paperwork in the first place?

My guess would be suspicion of prescription drug fraud, ie, getting a fake prescription to get stuff like morphine or vicodin.

[The Yosemite Bear]

What reason would they have to 'take it' in the first place, KS? I'm actually curious here, even if they took it and should return it, why would they seize paperwork in the first place?

1. It was a gang and drug sweep of a bus stop. I was obviously incohaerent and stoned on something. (I had a perscription for a controlled substance Vicodin). So while I was detained briefly, I was released when one of the senior sheriff's deputies noticed that the drooling, unable to speak, but able to nod/shake and other behavior was consistant with someone who had been given Novacaine and drugged. Since there were several deputies involved at the time, literally searching everyone waiting at the bus stop, stopping traffic on the street, and searching cars, and confiscating any "drugs", the person who released me and allowed me to board a bus, was different from the person who searched me for anything that fit the loose definition of "Confiscate all "Drugs""

[Kamakazie Sith]

What reason would they have to 'take it' in the first place, KS? I'm actually curious here, even if they took it and should return it, why would they seize paperwork in the first place?

Akhlut had a good guess.

Another reason to review paperwork is if that person has prescription medication on their person. It is illegal to have prescription medication without the actual prescription on you. This is usually accomplished by the prescription being printed on the bottle itself.

[Kamakazie Sith]

What reason would they have to 'take it' in the first place, KS? I'm actually curious here, even if they took it and should return it, why would they seize paperwork in the first place?

1. It was a gang and drug sweep of a bus stop. I was obviously incohaerent and stoned on something. (I had a perscription for a controlled substance Vicodin). So while I was detained briefly, I was released when one of the senior sheriff's deputies noticed that the drooling, unable to speak, but able to nod/shake and other behavior was consistant with someone who had been given Novacaine and drugged. Since there were several deputies involved at the time, literally searching everyone waiting at the bus stop, stopping traffic on the street, and searching cars, and confiscating any "drugs", the person who released me and allowed me to board a bus, was different from the person who searched me for anything that fit the loose definition of "Confiscate all "Drugs""

Sounds like they forgot. There's no reason to seize paperwork for prescription medication unless it was forged.

[The Yosemite Bear]

also It was the same anti-gang/anti-drug task force of the LA sheriffs that they based the TV show the Shield off of, so forgetting to return a full script for 3 months worth of daily Vicodin, wouldn't be too uncommon.