Document Type

Essay

Publication Date

2004

Abstract

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded by Gould, Mastrofski, and a team including a state appellate judge, a former federal prosecutor, and a government attorney – violated Fourth Amendment prohibitions on searches and seizures. The majority of the unconstitutional searches – 31 out of 34 – were invisible to the courts, having resulted in no arrest, charge, or citation. In fact, the rate of unconstitutional searches was highest for suspects who were released – 44% versus 7% of arrested or cited suspects. Focusing exclusively on stop-and-frisk searches, an even higher proportion – 46% – were unconstitutional. Moreover, 84% of the searches involved black suspects. The searches were conducted and observed in the early 1990s in the midst of an ongoing war on drugs, during a period of increased police discretion nationwide. The study paints a troubling picture of police practices and raises a number of difficult questions about discretionary policing.

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