Court Shuts Down NYPD's Argument That When Searching For Black Male Suspects, Any Black Male Will Do

from the stop-and-friskiness-costs-NYPD-a-conviction dept

Wed, May 27th 2015 9:02pm — Tim Cushing

Racial profiling certainly appears to be a problem for some law enforcement agencies. It's not often you hear the government arguing that it should be allowed to profile citizens racially, but that's exactly what it did. Unsurprisingly, the government body arguing for the right to search any black male simply because a black male is being sought is the NYPD -- an argument which highlights the sort of behavior its "stop and frisk" program encouraged.

A couple of years ago, the NYPD was searching for a robbery suspect with the following description:

On the morning of April 2, 2013, New York City Police Officers Christopher Vaccaro and Damon Valentino were ordered to locate and arrest Chauncey Butler, a third-degree robbery suspect. The officers were provided with a photograph of Butler from a previous arrest and an investigation card, or “I-Card,” that contained “pedigree information.” Based on these records, the officers had at their disposal Butler’s race, black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19; and home address, on Valentine Avenue in the Bronx.

In addition, one of officers had direct knowledge of Butler's physical features, having arrested him previously on drug charges. Despite this info, the officers looking for Butler decided -- after a fruitless ninety-minute search -- that another black male could be made to fit the description.

[A]t about 5:00 in the afternoon, when it was still light out -- [the officers[ came across Watson and stopped to observe him. Watson is black, 6’2” tall, and was 180 pounds and 25 years old at the time.

Watson was in the vicinity of the description, but didn't necessarily fit it. But when Watson's later actions proved he wasn't the sought suspect, the officers tried to pin their illegal search on something else.

The officers testified that when they first caught sight of Watson, they “believed” he was Butler. At that time, moreover, he was with two other individuals and appeared to be engaged in a drug sale. After seeing a hand signal that they recognized as indicative of a drug transaction, the officers exited the car. Officer Vaccaro then immediately drew his gun and, approaching the three men from behind, “announced himself as a police officer.”

Watson was then searched for weapons and contraband by the officers, who found 27 baggies of crack in his pockets. That was the officers' take on the events leading up to the search. Watson, however, argued that he was not engaged in a drug deal (although he was carrying a weapon). He was instead walking with a friend when he was ordered to turn around by the NYPD officers. One of the officers asked Watson if he was Butler, which he (obviously) denied. He then handed his ID card to the officers. The officers then asked if he was carrying any contraband, which he (obviously, but for different reasons) denied. The officers performed the search anyway, despite lacking the reasonable suspicion to do so and being well-aware they weren't dealing with the robbery suspect they were looking for.

This search was the officers' undoing.

In an oral ruling delivered from the bench, the district court found that the search was unconstitutional for two reasons. The first -- which we conclude we need not address on this appeal -- is that the officers would have lacked authority to frisk Butler had they actually encountered him because he was only charged with third-degree robbery, which, unlike first- or second-degree robbery, does not involve use of a firearm or deadly weapon. This, combined with the fact that “[t]he government offered no evidence that Butler had ever committed a crime using a weapon,” led the district court to conclude that Officer Vaccaro had no reasonable basis to believe that Butler, had he actually been present, might have been armed and dangerous.

Second, and of relevance here, the district court determined that, even assuming arguendo that the officers would have had authority to search Butler if they had encountered him, the search of Watson was objectively unreasonable because the officers had no reasonable basis to believe he was Butler and did not in fact believe he was Butler. Furthermore, the officers had no alternative ground to search Watson, for, as the district court found, the officers did not observe any hand signals indicative of a drug transaction; no third person existed or escaped from the scene; and Watson’s coat was closed and the butt of his gun was concealed.

Judge Scheindlin -- who has never been one to oblige the NYPD's excesses -- made it clear in her ruling that the officers had no reason to search Watson, no matter which line of logic it pursued.

Vaccaro testified that he saw Watson clearly and still believed that Watson was Butler. Although Vaccaro previously arrested Butler and spent time with him, he admitted that he was not sure whether or not Watson was Butler until after he ran Watson's fingerprints because “on a yearly basis [he] arrests or comes into contact with over a hundred individuals.” I do not find this testimony credible. Butler and Watson do not look [a]like. This is evident from a comparison of the photographs of Butler and Watson, as well as my observation of Watson at the hearing.

In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.

The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.

The NYPD appealed this decision, using some truly regrettable arguments -- ones that not only suggest racial profiling might be OK because people sometimes have certain features in common, but that its officers are sometimes so visually impaired they can't tell the difference between the person depicted on a NYPD "ID card" and the person standing right in front of them, presenting identification that proves otherwise.

The Government argues, inter alia, that, to the extent that the district court’s finding that the two men do not look alike was based on its in-person observation of Watson, we should discredit it because the district court had an extended opportunity to view Watson in a well-lit courtroom, whereas Officer Vaccaro viewed him for only a minute. But the testimony in the record shows that it was light out at the time of the stop, and that, once he exited his car, Officer Vaccaro’s view was not impaired. A material difference in skin tone, facial features, and height is not something that takes a long time to process. Thus, we see no reason to conclude that the factual findings of the district court are clearly erroneous.

Quite obviously, this isn't the outcome the NYPD's lawyers were hoping for when it laid down its suspect arguments. But even if this wasn't exactly what it meant, this was the only conclusion the court could reach. And it's a severely ugly conclusion.

The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face.

The officers had no reason to search Watson because he didn't physically match the description and had provided ID stating the contrary. Ah, but some will say, what about the drug deal the officers observed? Well, that description of the events was considered so contradictory to other testimony that the lower court discredited it completely. And, while the officers first attempted to justify their search with the "we saw a drug deal" story (rather than basing it on the momentary "belief" that Watson was Butler), the government's lawyers did not rely on this disputed narrative during the case's trip to the Second Circuit Court.

So, for all intents and purposes, the only narrative that survives is Watson's, and in his, he's not dealing drugs nor displaying a weapon. Instead, he's walking down the street being just black enough to "fit the description." And, according to the government's own arguments, that's all it needs to justify a search.

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Filed Under: 4th amendment, nypd, probable cause, search

45 Comments

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OldGeezer (profile), 27 May 2015 @ 9:50pm

I'm surprised that these racists didn't argue that "they all look alike"!
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Captain Obvious, 27 May 2015 @ 9:53pm

So the government was saying that all the cops need to feel justified in conducting a search is that a person be black? At least they're being honest for once.
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Anonymous Coward, 27 May 2015 @ 9:57pm

The first -- which we conclude we need not address on this appeal -- is that the officers would have lacked authority to frisk Butler had they actually encountered him because he was only charged with third-degree robbery, which, unlike first- or second-degree robbery, does not involve use of a firearm or deadly weapon. This, combined with the fact that “[t]he government offered no evidence that Butler had ever committed a crime using a weapon,” led the district court to conclude that Officer Vaccaro had no reasonable basis to believe that Butler, had he actually been present, might have been armed and dangerous.

Wait. According to the lower court, if they had actually encountered the robbery suspect, they wouldn't have been able to frisk him? Even though they were "ordered to locate and arrest" him? That makes zero sense. I'm pretty much 100% sure that officers are allowed to frisk people they arrest.
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Anonymous Anonymous Coward, 27 May 2015 @ 10:56pm

Re:
Arrest first, then frisk and they might have gotten away with it, but that is now what happened, or was alleged. They frisked first and that is not what is allowed.
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You are being watched (profile), 27 May 2015 @ 11:54pm

Black AND carrying? Watson is truly a lucky guy to still be alive.
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Anonymous Coward, 28 May 2015 @ 1:22am

Basically it sounds like they suspected this guy of a crime but didn't actually see it and used this other case as an excuse to actually search him to find evidence to arrest him.

If that's the case I understand their motivation but its still unacceptable since they knew he wasn't their actual suspect.

On the other hand if they just searched him for the hell of it because he's black...thats insane.
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Richard (profile), 28 May 2015 @ 2:56am

Have they never seen..
Have they never seen "In the Heat of the Night"?
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Anonymous Coward, 28 May 2015 @ 4:11am

We can easily use this against the NYPD. if we see a cop commit a crime or use brutality why not just sue any cop we come across instead of that specific one. I am sure they are guilty of something since so few ever speak out against the corruption of their fellow officers
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Anonymous Coward, 28 May 2015 @ 4:14am

Re:
much like how the US government states any person over the age of 12 killed by a drone strike is classified as a terrorist after the fact.

So, if your black in New York your screwed as the police will use you for target practice. Though not as much if your male in Afghanistan
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Anonymous Coward, 28 May 2015 @ 5:28am

Re:
Concerned Citizen + angry mob: Officer Vaccarro! Stop right there! We are placing you under arrest!

Police Officer: Sorry, I'm Patrolman Scorsese from the 3rd Precinct. Vaccarro is with the 5th Precinct.

Concerned Citizen + angry mob: That's him! That's Vaccarro! Get him boys! We can sort things out after we beat him up....
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Anonymous Coward, 28 May 2015 @ 5:39am

Let's see, the guy was carrying a gun (very illegal in NYC) and had 27 bags of crack in his pocket.

Quite a few people would say getting this guy off the streets is a good thing.
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MDT (profile), 28 May 2015 @ 5:57am

RE: Off the streets a good thing
Yes, Anon Coward, getting him off the street would be a good thing.

Which is why this is so infuriating. Rather than do their job correctly, and make sure they had everything done legally so he would be off the streets for a good stretch, these idiots decided to take shortcuts and violate the law. And because these morons in blue decided they were above the law they are supposed to be enforcing, this guy walks.
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That One Guy (profile), 28 May 2015 @ 6:07am

Re:
Not at the price of his rights and due process though. I don't care how bad a person is, do it right, do it according to the law, and give them the same treatment someone completely innocent would get right up to the court-house doors, or don't bother.
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Anonymous Coward, 28 May 2015 @ 6:27am

I would assume the defendant did not get his drugs and firearm returned to him, but did not read if they ever apprehended the suspect they sought. Must also say that something similar to this happened to me in another jurisdiction, I don't go jogging in shorts and a T-shirt any longer. I am Caucasian.
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Anonymous Coward, 28 May 2015 @ 6:34am

Re:
Let's see....the man didn't fit the description, the officer knew it, but decided to harass him anyways. And a court agreed the officer was out of line.

I'd argue quite a few people would say getting this cop off the streets would be a good thing.
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Anonymous Coward, 28 May 2015 @ 6:38am

Re:
Yes, it would be a good thing to get him off the street.

But in fact, there are three possible outcomes to a cop performing an illegal stop and search of a person.

1. Person has nothing on their person. Cop says thank you for your time, you're free to go and the person leaves... The press never hears of this story.

2. Person has nothing on their person. Cop says thank you for your time, you're free to go and the person presses legal charges. I suspect that this happens rarely.

3. Person has something illegal on their person. Cop arrests person.

Frankly, I would much rather let the person in case number 3 go free in order to stop the police from performing case numbers 1 and 2.....
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Anonymous Coward, 28 May 2015 @ 6:41am

What happens when case number 3 happens and the person later goes on to distribute crack that kills 20 junior high school kids? What happens when the person gets in a shootout over a drug deal gone sour and 5 innocent high school kids are killed?
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bureau13 (profile), 28 May 2015 @ 6:56am

Re:
The same thing that happens when the person in case 3 is acquitted because the cops cut corners. This is why they are supposed to follow procedures and carry out actual legal investigations, in order to stop this type of behavior.
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Chris Rhodes (profile), 28 May 2015 @ 7:05am

Re:
Won't somebOdy think of teh childrun?!??
You may be chomping at the bit to give up any or all of your essential rights in a fit of pearl-clutching hyperventilation, but not all of us are as prone to fainting spells.

If you really wanted to prevent those things, you'd oppose the war on drugs, since it's the policy causing shootouts and dangerous product in the first place.
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Anonymous Coward, 28 May 2015 @ 7:15am

Re:
You should ask the cop who was too lazy or incompetent to perform his job correctly.
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Anonymous Coward, 28 May 2015 @ 7:16am

Re:
Cocaine is a drug with remarkably low lethality. Sure, a regular coke habit ain't good for you, but "killing twenty kids" is so far removed from reality as to be laughable.
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David, 28 May 2015 @ 7:18am

Re: Re:
This is supposed to be the basis of the Bill of Rights and of our legal system: It is better to let a guilty person go free, than imprison or violate the rights of the innocent.
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nasch (profile), 28 May 2015 @ 7:23am

Re:
On the other hand if they just searched him for the hell of it because he's black...thats insane.

They couldn't have seen his weapon, couldn't convince anyone they saw a drug deal, didn't reasonably mistake him for the robbery suspect, so the only reason left is that he was walking while black.
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Eponymous Coward (profile), 28 May 2015 @ 7:33am

Re:
Ooh, Worst-Case Scenario, the Home Version, I love this game!! My turn.

What happens when, in case 1 or 2, the cop performing the search is too busy violating his oath and the citizen's rights to notice the bug meteor that is heading their way? His diverted attention allows the meteor to continue unimpeded, and when it strikes the ground it vaporizes 3 million soup kitchen workers and one very unfortunate alpaca named Constance. Sadly, the illegally detained citizen was a super scientist who was seconds from finishing his anti-meteor shield, and had he been able to get to his lab on time we would have been spared this horrible, alpaca-rending fate.

I'll always win this game, because your vision of unreality is too limted.
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Eponymous Coward (profile), 28 May 2015 @ 7:38am

Re: Re: Re:
You're thinking of Blackstone's formulation, "It is better that ten guilty persons escape than that one innocent suffer"

It places a much higher value on preservation of rights, as it should be.
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JustMe (profile), 28 May 2015 @ 8:28am

Chauncey Butler?
All of these on-topic responses and not one person recognized the name? More goofing off, people!

http://www.imdb.com/title/tt0078841/
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Anonymous Coward, 28 May 2015 @ 8:55am

Re: Re:
While I don't agree with how the US uses drone strikes. Several terrorist groups do train children to kill people.
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Anonymous Coward, 28 May 2015 @ 9:19am

RE: "Think of the children!"
And the officers fucked it up, which allowed the guy to go free.

And for the "well, the ends (guy out of circulation) justify the means (cutting corners and acting in a way detrimental to the whole "rule of law" idea we have going)" idea you've got?

Yeah, that's not gonna fly. Our judicial system is deliberately set up to control the power the different agents (law enforcement, etc) have *for very good reasons*. We don't want to live in a society in which people can be stopped, frisked and harassed by police officers on a whim.
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Anonymous Coward, 28 May 2015 @ 9:28am

Response to: Anonymous Coward on May 28th, 2015 @ 6:41am
What happens when cases one and two, instead of being let go, are beaten for asserting their rights, locked up for 'destruction of police property' for bleeding on their uniforms, dragged through legal proceedings they cant afford?

Two can play the 'what happens' game.

Here's a better one.

What happens if the police do their damn jobs properly?
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Anonymous Coward, 28 May 2015 @ 9:59am

Re: Response to: Anonymous Coward on May 28th, 2015 @ 6:41am
What happens if the police do their damn jobs properly?

The incredible imbalance of improbability will cause the world to explode and be replace by a potted fern.

What you don't realize is that the police are all sacrificing their honor to maintain the probability balance and save us all. We should be grateful.
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Anonymous Coward, 28 May 2015 @ 10:00am

Re:
Oh, the 'What happens' game! Let me try a few.

What happens when case 1 and 2 don't get to leave, but instead are arrested and beaten brutally for 'obstructing an officer'?

What happens when police plant evidence to justify a wrongful arrest after the fact, knowing their word carries more weight?

What happens when innocent people are dragged into legal issues over a policemans 'hunch' over any standing evidence (or lack thereof), leading to innocent people being incarcerated for weeks on end, affecting their jobs and homelife?

What happens when harmless people can be shot and killed with little more than a 'He was dangerous' to justify it?

What happens when you are faced with someone able to beat, incarcerate or even kill you with little consequence, using the fact that you look 'nervous' as their only justification?

And the best one yet!

What happens when police do their jobs right?

I have an answer for the last one! People provably guilty of crimes DON'T walk off free.

If you're happy being mugged, arrested, mishandled, abused and searched by power tripping thugs with no accountability over their heads so a few guilty people get caught in the net, that is your business. That makes it neither right, legal, nor the way things should be.
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ltlw0lf (profile), 28 May 2015 @ 10:08am

Re:
Wait. According to the lower court, if they had actually encountered the robbery suspect, they wouldn't have been able to frisk him? Even though they were "ordered to locate and arrest" him? That makes zero sense. I'm pretty much 100% sure that officers are allowed to frisk people they arrest.

The Terry Patdown is only allowed when you have reasonable suspicion that the individual has committed a crime, is committing a crime, or is about to commit a crime, and a reasonable belief that the individual may be a risk to you in that they may have a weapon and may use it against you.

It cannot be used without reasonable suspicion that the individual has committed a crime, is committing a crime, or is about to commit a crime, and the courts determined that no reasonable suspicion existed.
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Anonymous Coward, 28 May 2015 @ 11:13am

Re: Re:
Poor Constance. :'(
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Anonymous Coward, 28 May 2015 @ 11:42am

Re:
So we have black males covered, they are black.

How about Jews have to wear a star on their shirt so we can tell they are Jews when the cops are looking for one.

The Irish could wear a clover leaf.

Italians an olive branch.

And so on... this would make the extremely hard job of the courageous and patriotic police officers a little safer and therefore safer for society. Curfews and martial law would also help keep us safe.
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Zonker, 28 May 2015 @ 12:55pm

Re:
Nah, carrying a gun is what saved him. They only shoot unarmed people or when they know the gun is just a toy. If he has a real gun he might be able to shoot back and that scares them too much to risk it.
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Zonker, 28 May 2015 @ 1:10pm

Re:
I'd much rather encounter that guy on the street than the NYPD officer who violated his rights. I'm much more likely to end the encounter unmolested and intact.
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Anonymous Coward, 28 May 2015 @ 1:34pm

Re:
I could care less that he had drugs or that he sells them.
Morality laws are imoral and should be repealed.

He has a right to bear arms, so no big deal he had a gun.
If he had, was in the process of or planning to kill/injure/intimidate someone with the gun then arrest him for that.
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Anonymous Coward, 28 May 2015 @ 7:48pm

Re:
Whilst the war on drugs is utter BS, it's still the law...
The guy should go to jail.
That said the cops also behaved illegally, from a position of power. They should be thrown off the force and into jail too.
I'm sure things would play out nicer if there were real punishments for cops that ignore the rules.
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nasch (profile), 28 May 2015 @ 8:46pm

Re: Re:
Whilst the war on drugs is utter BS, it's still the law...
The guy should go to jail.

You know what else is the law? The rules about when and why police are allowed to search people. Have you heard of the doctrine of the fruit of the poisoned tree? Jailing people because of the results of illegal searches is the same as allowing any and every search the police feel like conducting, for any or no reason.
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Anonymous Coward, 28 May 2015 @ 9:49pm

Re: Re: Re: Re:
Nah, this is the age of Cheney's revision, "I'm more concerned with bad guys who got out and released than I am with a few that, in fact, were innocent."
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Pragmatic, 29 May 2015 @ 3:03am

Re: Re:
He would not have been in a position to use it, Zonker.
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Richard (profile), 29 May 2015 @ 3:52am

Re: Re:
I'll always win this game, because your vision of unreality is too limted.

Not so this time - I think the AC below( May 28th, 2015 @ 9:59am) has beaten you!
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Ninja (profile), 29 May 2015 @ 9:00am

Re: Re:
Please make this hit the funniest of the week. Pure gold!
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Just Another Anonymous Troll, 1 Jun 2015 @ 5:16am

Re: Re: Re:
That doesn't make all children enemy combatants. Also, I thought that you only became a target after turning 18.
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Anonymous Coward, 7 Jun 2015 @ 12:14pm

After seeing a hand signal that they recognized as indicative of a drug transaction, the officers exited the car.

If hand signals are being given and the police know them, why aren't there even more people in jail.
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