Proposed NYPD policy changes on searches could be dangerous

The proposed policy changes agreed upon by the New York City Council speaker, police commissioner and mayor will have direct consequences for police officers on the street.

As it relates to stop-question-and-frisk, it presents a real safety concern if a police officer reasonably suspects a person has a weapon and they must ask for permission to frisk.

I can only hope the NYPD will differentiate that fact but, unfortunately, the general public will not truly understand the difference. This will potentially create even more hostility and confrontations on the streets. A policy that can make an officer hesitate before checking a suspect for a potential weapon when there is reasonable suspicion a weapon is possessed can have deadly consequences.

For those that may not understand, law enforcement has always been required to either have a warrant or request permission to search a suspect’s home or a bag that was a distance away from the suspect. There are certain exceptions, which the U.S. Supreme Court granted – i.e. stop-question-frisk, search incident to lawful arrest, the automobile and emergency-exigent circumstances exception, and the plain view exception.

The automobile exception allows law enforcement to search a vehicle if they have "probable cause" to believe evidence is in the car. This exception to the warrant requirement came about because of the mobility of the vehicle. A suspect could move the vehicle and dispose of evidence before a warrant could be obtained. The emergency-exigent circumstances exception allows law enforcement to enter a home without a warrant if they have reasonable cause to believe someone is in immediate danger or evidence is being destroyed inside – i.e. an individual being assaulted or evidence being burned or flushed down the toilet. The plain view exception allows law enforcement to seize unlawful contraband or evidence if they are legally inside a location and discover it open to anyone's view.

The lawful arrest and the automobile exceptions to a warrant require the same burden of proof, probable cause, which is the standard necessary for a judge to grant a warrant. The other exceptions require a lower burden of proof – reasonable suspicion – which is more than just a gut feeling.

With this compromise, the City Council appears to be targeting stop-question-frisk specifically.

For background on that policy, the U.S. Supreme Court ruled in the 1968 case Terry v. Ohio that a police officer can stop and question an individual if they reasonably believe a crime has been or is about to be committed. The Supreme Court added that a state an officer can frisk – pat down an area on a suspect – if there appears to be something like an outline of a gun or knife in the specific area. If, during the frisk, an officer feels what could be a gun or knife, the officer can reach into the area on the suspect and remove it. Keep in mind the officer can reach into that area only. If an actual illegal weapon is discovered the suspect will be arrested and the officer can now conduct a full search incidental to a lawful arrest.

Several years ago, the NYPD administration decided to make stop-and-frisk a measurement of productivity. Unfortunately, it is the department's misguided attempt to show individual officer activity that gave this practice the appearance of a policy.

So until the U.S. Supreme Court overturns Terry v. Ohio, or Congress passes a law preventing stop-and-frisks, every officer should continue to utilize stop-and-frisk as a tool to ensure their safety when the circumstances call for it.

Mike Reilly is the president of Community Education Council 31 and a retired NYPD lieutenant.