ABSTRACT
Young minority men in high-crime neighborhoods are surrounded by poverty and crime, yet distrustful of the police that frequently stop, frisk, and arrest them and their friends. Every encounter with the police carries the potential for a new arrest or incarceration, fostering a culture of fear and distrust of the authorities. That culture exacerbates the problems facing officers patrolling these neighborhoods, as more crimes go unsolved because witnesses are unwilling to come forward.

In the past several decades, officers have responded by using a stop-and-frisk technique of dubious constitutionality to control crime. Despite its disastrous implications for the young minority men stopped, the technique was an attractive, proactive response to stubborn crime rates. But as stops-and-frisks have fallen into public and judicial disfavor, officers have deployed a new tactic to obtain evidence of crimes from young minority men: suspicionless witness stops.

In suspicionless witness stops, officers stop individuals in high-crime neighborhoods that may be witnesses to another crime — even though the officers do not suspect that the witnesses have committed an offense. Thus, officers can justify stops without fabricating even the reasonable suspicion of criminal activity typically required to conduct a stop-and-frisk, all by using an analogy to police roadblock cases like Illinois v. Lidster.

Only a robust revival of Terry v. Ohio’s reasonable suspicion standard can curb the vast potential for discriminatory deployment of suspicionless witness stops. But early court responses have been tepid and confused. They should instead soundly reject the analogy to checkpoint cases. The constitutionality of checkpoints arises from their general applicability to wide swaths of the population, not from their aim to locate witnesses. To encourage witnesses to aid investigations, jurisdictions might instead statutorily grant transactional immunity protection to witnesses that officers stop without suspicion. Otherwise, suspicionless witness stops will only perpetuate the cycle of distrust and unsolved crime.

Citation:
Gentithes, Michael, Suspicionless Witness Stops: The New Racial Profiling (July 16, 2019). Available at SSRN: https://ssrn.com/abstract=3420816