PhillyTalk: Ask the Writers and Experts

The Philadelphia Police Department, under Commissioner Johnson, took the bold step back in 2003 to implement a policy that expressly prohibits the use of race or ethnicity when making law enforcement decisions. This policy was advocated by the Police Executive Research Forum (PERF) as a model policy and sets the standards for all police contacts and identifies when race or ethnicity can and should be a factor in policing. Equally important, this policy is also meant to assure the public that the Philadelphia Police Department is providing services and enforcing the laws in an equitable manner. Nevertheless, this policy does allow race to be considered under certain circumstances. Specifically, 

"[A]n officer may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s). However, race/ethnicity can never be the sole basis for probable cause or reasonable suspicion."

Thus, to answer your question,  race can absolutely be a factor in determining who gets stopped by the police, but can never be the sole factor. For example, if the police are searching for a white male wearing blue jeans and a  grey hoodie for a recent robbery, race will definitely be a factor in the officer's decision to stop and investigate certain people. Despite this fact, race should never be the reason to "frisk."  This would violate  departmental policy. Remember, a frisk is a pat down of the exterior clothing for weapons to protect the officer and is only authorized when the officer can articulate specific reasons why the they believe person stopped is possibly armed. The person's actions and behavior is what indicates possible danger to the officer, not someone's race. And finally, as mentioned above, a "frisk" is a pat down for weapons only. It is intended to assure the officer that the person stopped does not have any weapons - it is never initiated with the intent to recover evidence or contraband.  

To answer the first question, Terry v. Ohio sets forth the requirements that allow a police officer to stop someone. Simply stated, before a police officer may briefly detain a person, there must be reasonable suspicion of criminal conduct and before a police officer may pat-down or frisk a person for weapons, there must be reasonable belief that the suspect is presently armed and dangerous. This is the law on how and when a police officer can stop and frisk a person. There are no exceptions to this rule in high crime areas, drug areas, or for the type of crime being investigated.

This being said, you asked whether personal bias of the officer can affect who is stopped. The answer is obvious - of course it can! Despite what many people may believe, police officers are only human. We have our faults like everyone else. The only difference is that, as professionals sworn to uphold the constitution, we must not allow ourselves to act upon these biases. We are held to a higher standard and are expected to do our job impartially. However, unlike other professions, if we act upon our biases, we are held directly accountable. Remember, the Philadelphia Police Department is one of the only major police departments in the country that has an explicit policy prohibiting the use of race when making law enforcement decisions. While, race can and should be a factor when searching for a specific suspect, it is important for the public to know that every stop a Philadelphia Police Officer makes is documented and reviewed by a supervisor. The purpose of this documentation is twofold; it's clearly to protect the public from improper stops and frisks, but also to protect the officers. 

Police Officers make mistakes. The issue of what is "reasonable suspicion," which is the basis for a lawful stop, is not so readily defined. In fact, judges and lawyers debate this issue everyday, but in the safety and luxury of a courtroom.  Police officers, however, must make this decision in a heartbeat. They must assimilate everything around them in an instant and make a decision. Their life depends on it. Every time an officer makes a stop, they place themselves in danger. It's our job and we do it willing, but we still get scared, get hurt and sometimes killed. So, yes, we sometimes make mistakes, but we learn from these mistakes. In Philadelphia we counsel and train and move on. All due respect to a person's rights, but I would gladly deal with a complaint or lawsuit from an honest mistake, rather than a funeral. I'll back these officers to the end. But if and when we find officers that intentionally act inappropriately, the Philadelphia Police Department will respond accordingly. Racially biased policing will not be tolerated by the Philadelphia Police Department and we have safety mechanisms in place to identify if and when these anomalies occur.

The average Philadelphia Police Officer, like all police officers, is a strange breed.  They go places and do things that most people never want to hear about. But from sick assists to "stop and frisks", they do so with the utmost professionalism and dedication. While the Police Department, officially, will not tolerate racially biased policing, it's incredibly important to note that the honest, hard working officers of the Philadelphia Police Department won't tolerate it among their ranks as well - which is the hallmark of true professionals.

First, the notion that "stop and frisk" is a tactic that can be employed or not by a police department is incorrect. It is this misnomer that has caused so much confusion. Police Officers can not stop and frisk people at will, nor has anyone advocated that they will.  What has been advocated is a plan similar to New York City wherein the police department embarked upon an aggressive campaign against low level or quality of life infractions. This allowed the police to lawfully interact with more of the criminal element, thus coming across more guns and wanted criminals. But what they didn't do was embark upon a campaign of stopping people for no reason.  The rules are very simple, police officers must have, at the very least, reasonable suspicion that the person stopped is or has been involved in criminal activity. When the officer has the person lawfully stopped, if the officer reasonably believes that the person could have a weapon, the officer can conduct a pat down or frisk for any weapons. There are no exceptions to these rules for guns. These rules are based upon the United States and Pennsylvania Constitutions and are meant for the protection of its citizens to be free from "unreasonable" searches and seizures, despite whether criminal charges are filed or not. Constitutional rights still exist and there are consequences for violating these rights at the federal level for the officer. So, to directly answer your question, even if we chose not to prosecute someone, a police officer is still bound by the law - the ends never justify the means.

According to Terry v. Ohio you are absolutely correct that the police are authorized under the Fourth Amendment to stop and temporarily detain citizens when they can point to “specific and articulable facts” causing them to have reasonable suspicion that criminal activity may be afoot. If police reasonably believe that they may be in danger, they may conduct a limited pat-down of the suspect’s outer garments for weapons. Nonetheless, I believe you are incorrect when it comes to your interpretation of Commonwealth v. Hawkins. This case concerned whether a police radio broadcast that a man of a particular description is carrying a gun may serve as the justification for a search of that person and the seizure of the gun he was carrying when the arresting officer is unable to authenticate the telephone call on which the radio call was based or provide an independent basis for the stop. Basically, the Court held that there is no exception to the requirements set forth in Terry v. Ohio when police respond to gun calls.

However, nowhere in this case does the Court state or infer that “the mere presence of a gun is not sufficient to have reasonable suspicion of a crime because people with valid licenses to carry firearms may carry their guns unconcealed or concealed in Philadelphia.” Actually, the Court states the direct opposite. Specifically it stated, “Except in Philadelphia, firearms may be carried openly without a license” (emphasis added).

Accordingly, all persons are expressly prohibited from carrying a concealed firearm on one’s person or in a vehicle. Additionally, according to the Pennsylvania Crimes Code, it is expressly prohibited for any person to carry a firearm, rifle, or shotgun upon the public streets or upon any public property in a city of the first class (i.e. Philadelphia). The way the statutes are drafted, this is the general rule of law in Philadelphia, but there are obvious exceptions.

When evaluating any police officer’s actions against the Fourth Amendment and Article I, sec. 8 of the Pennsylvania Constitution, the standard is whether, under the totality of the circumstances, the actions of the officer were reasonable. Thus, it is my personal belief that since the general rule of law states that it is illegal to carry a concealed or unconcealed firearm in Philadelphia that it would be entirely reasonable for a police officer to stop and investigate any individual when they can point to “specific and articulable facts” that would lead them to believe the person is violating the “general rule of law.” Remember, officers don’t need to know absolutely that criminal activity is afoot, but rather have reasonable suspicion that it may be afoot.

This being said, there are exceptions to this general rule of law, such as for police officers, the military, and, yes, people licensed to carry concealed firearms. However, despite these exemptions, unless an officer is aware that a specific person is exempt, (i.e. licensed, an off duty police officer, etc.) I believe it’s completely reasonable and, thus, lawful for the officer to temporarily stop and investigate. While a crime may not be actually occurring, it is entirely reasonable for officers to conclude that it may be occurring in these scenarios, until a brief investigation can prove otherwise.