Traffic Stops, Terry Stops, Policing, the Fourth Amendment, and Your Rights

Episode Notes

Transcript

Aliza Hochman Bloom:

You don’t hear about the hundreds of Terry stops that end without finding of contraband. So when you don’t find drugs and you don’t find a gun, you don’t get a criminal case in a prosecution. You don’t get a criminal appeal and possible precedent talking about what reasonable suspicion is. So for the hundreds and thousands of people that are stopped by police and no contraband is found for the purposes of criminal procedure, it’s as if that Terry stop didn’t happen.

Announcer:

Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to the Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I once in a while write a blog name. May it please the court, but I have three books out titled How To Get Sued the Sled and My newest book. How would You Decide 10 Famous Trials That Changed History? You can find All three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. In a landmark ruling back in 1968, the Supreme Court ruled in Terry v Ohio that it is constitutional for police to stop and frisk a person that they reasonably suspect to be armed and involved in a crime which is different than probable cause and a lesser standard. Over the years, this ruling has been criticized by many, with many saying the decision leads to an abuse of power by police and racial profiling.

Today on Lawyer 2 Lawyer, we’re going to spotlight traffic criminal law, and Terry Stops. We’ll take a look at Traffic Stops, Terry versus Ohio, the constitutionality of policing, the Fourth Amendment, and what rights and individual has when pulled over by law enforcement. And without further ado, we’re joined by our very special guest, Aliza Hochman Bloom. She is the assistant professor of law at Northeastern University School of Law. Aliza is an expert on criminal procedure, community policing, and racial profiling, fourth Amendment doctrine and Criminal sentencing reform. Professor Hochman Bloom’s research focuses on criminal procedure, particularly exploring various aspects of Fourth Amendment doctrine and its application. Before joining the Legal Academy, professor Hochman Bloom worked as an assistant federal public defender in the appellate division of the Middle district of Florida. Welcome to the show, Aliza.

Aliza Hochman Bloom:

Thank you so much for having me, Craig. I appreciate it.

J. Craig Williams:

So how did you become interested in criminal law and procedure? It’s a pretty narrow subject.

Aliza Hochman Bloom:

I think I was interested in it for a long time. Before I practiced in the area, I was particularly interested in Fourth Amendment issues. When I clerked, I clerked for two awesome federal judges who heard quite a few motions to suppress appeals for motions to suppress at the district court and the appellate court level. And then I practiced six years in Tampa in the middle district of Florida representing indigent defendants on appeal before the 11th Circuit and sometimes the United States Supreme Court and then occasionally participating in their Motions to suppress, which is a trial level proceeding. But because of my interest in search and seizure fifth Amendment issues, I was able to occasionally also participate in their motions to suppress and always in the appeals from that. I think that the larger issues then that’s how I became interested in the topic. It was from often losing those appeals and finding the law deeply unfavorable to my clients in the 11th Circuit and in the United States Supreme Court that I became more academically interested in the issue. And I began writing actually about the topic when I was still a public offender. So my earlier articles and writings were very much rantings at the doctrine and precedent in the 11th circuit, which by the way is a federal circuit that covers Florida, Georgia, and Alabama.

J. Craig Williams:

Right. Just out of curiosity, what was your complaint?

Aliza Hochman Bloom:

Well, I don’t know if we have enough time, but there’s so many areas of Fourth Amendment doctrine that I found to be really difficult. I think the easiest way to summarize the difficulty of the doctrine is it’s very, very divorced from the reality of policing, particularly what I like to call pedestrian traffic policing or discretionary policing. And so the ideas of the court assume a certain type of behavior about a good citizen assume a certain type of behavior about consent that is very much divorce from the experience of many, many, many people. And so I think that you could sum up my disappointment with the doctrine and practice as that. That’s the easiest way to sum up. And I don’t have the hours to explain all the different ways, but the ways in which Fourth Amendment doctrine and the remedies for Fourth Amendment violations, namely the exclusionary act, the exclusionary rule, how all those doctrines are super, super divorced from realities of what policing looks like and the coercion that ordinary people feel when they’re in contact with police.

J. Craig Williams:

Right. Well, let’s talk about that pedestrian policing and that stop and frisk is how Terry versus Ohio came to be.

Aliza Hochman Bloom:

Yes.

J. Craig Williams:

So tell us about that. I mean, the facts of Terry I think were that there were three guys walking back and forth in front of a store window police had some kind of suspicion that they were casing the joint and did a stop and frisk.

Aliza Hochman Bloom:

So Terry is this very famous and for 60 years discussed and critiqued case that establishes a new level of criminal suspicion. And the Supreme Court there, the Warren Court creates a new level of suspicion for something that is different than an arrest in that it is just a brief investigatory stop or a brief investigatory stop plus frisk, pat frisk. And that for such a stop, which is going to be less than an arrest, less suspicion is required by the Fourth Amendment. And that lower level of suspicion required for what’s known as a Terry stop is reasonable suspicion and reasonable suspicion. As articulated in Terry, the court tells us is supposed to be specific, particular and individualized particularized facts, and otherwise they tell us in Terry more than a mere hunch that someone is engaged in a criminal activity but less than probable cause. And so for example, in that case, and you mentioned it, Craig, officer McFadden is observing Terry and his companion Chilton doing what is legal activity, which is walking back and forth, but observed by the officer as being out of the ordinary and suspicious. The question is, is Detective McFadden permitted by the Fourth Amendment to do this brief investigatory stop in the absence of probable cause? Probable cause would’ve been the higher standard that Terry was engaged in a crime or that he had committed a crime already? And the court says yes, with this lower level known as reasonable suspicion, that still requires particularized facts and more than a hunch, officers are able to conduct these brief investigatory stops. And that’s how the Terry stop or the investigative stop is born in 1968.

J. Craig Williams:

Right. So is the Terry stop and frisk a one step or a two step process?

Aliza Hochman Bloom:

Great question. It is a two step process. Terry actually articulates that to do a Terry stop, you need reasonable suspicion that a person is engaged in a crime or about to be engaged in a crime. And to do a frisk, you require more, you require the next step, the frisk, the pat down is supposed to require also reasonable suspicion that that person is armed and dangerous. The justifications for the frisk stem from the court’s belief in the need to secure the officer’s safety, and then sometimes in some interpretations also public safety, but the frisk requires more, which is this reasonable suspicion that the person is armed and dangerous,

J. Craig Williams:

Some type of observation, or is it just, Hey, I think you might be armed because anybody can say that.

Aliza Hochman Bloom:

It’s a really great question because many of our, many, many, many omnipresent ubiquitous problems with interpreting Terry in the 60 years since it’s been law is what combination of legal and possibly innocuous behavior can together constitute reasonable suspicion. To answer your specific question about guns or weapons or danger for the frisk, a lot of times courts interpreting Terry, when the reasonable suspicion for the stop has to do with drugs, assume that guns come with drugs that they’re associated in that people who do drugs and sell drugs use weapons. And so oftentimes that second step for the frisk comes from the first step, but as articulated in the case, they’re supposed to be a little bit separate analysis. But probably the biggest problem with interpreting Terry amongst many has been what combination of behavior is enough for an officer to say, I have reasonable suspicion for a stop or for a frisk.

J. Craig Williams:

Right? And that’s where reality sets in. So how’s reality different?

Aliza Hochman Bloom:

Well, in various contexts, in what particular context? I can give you a few

J. Craig Williams:

Contexts. Let’s just stick with the Terry stop and we’ve got Terry and the encasing, the joint or walking back in front of the window and the officer stopping

Aliza Hochman Bloom:

Him. Sure. So Terry, for example, is critiqued for a few reasons. If you want to apply the Terry to itself, to the case of Terry and his friend Shelton when they’re walking back and forth, that’s behavior that’s consistent with legal activity. IE, me and my friend walking back and forth in front of a store multiple times, not illegal. It’s also consistent with what Officer McFadden suspects, which is that they’re about to commit a burglary. The case is critiqued at length by various scholars for inconsistencies in the officer’s description of the walking back and forth that he says it was five times back and forth and these numbers are inaccurate at the trial level. And then on appeal, he says it was 10 times back and forth that his recollection of the suspicious behavior that constituted reasonable suspicion for the stop, that it varied at the different levels of trial between the police report and then the ensuing fight all the way up to the United States Supreme Court in 1968.

So that’s one example of why Terry has critiqued. Another reason that Terry has critiqued is the implication of race. And there is a discussion of race in Terry, but it’s not sort of the discussion that now is more common when discussing Terry stops and reasonable suspicion, which is how do people, because of racialized interpretation of behavior, interpret innocuous activity as suspicious or not? How do our implicit biases influence our interpretations of behavior? And whether someone is walking back and forth in front of a store or whether someone is planning to, in this case burglarize the store was what he thought was going to happen. And so another way in which Terry is critiqued is the then difficulty in the ensuing 60 years of courts and police officers determining how much behavior is enough to support reasonable suspicion and the ways in which racism ties into our interpretation of behavior.

J. Craig Williams:

It really does become an issue involving race, doesn’t it?

Aliza Hochman Bloom:

It really does. There’s a lot of ways in which Terry factors or factors constituting reasonable suspicion are deeply racialized when interpreted. For example, there’s been a big fight in state courts in 2000, in a case very well-known and critique case called Word law. The Supreme Court tells us that flight from police is relevant to the question of whether there is reasonable suspicion for Terry stop. In other words, even though as the dissent claims and word law claims flight can be indicative of a lot of things for a lot of people including not wanting to interact with police, fear of violence from police and escalation of the interaction flight, the court tells us in Ward law is relevant to the question of reasonable suspicion. Several states, including for example, Maryland, Massachusetts, and Washington State, their supreme courts have taken the position that flight from police, particular in the case of black males supported by decades of empirical evidence is not evidence of suspicious behaviors. In fact, a rational response to a decision or interest in avoiding the police interaction altogether and or avoiding escalation to violence at any cost. And so several states have come out in front and changed the calculus of reasonable suspicion and said, race is not flight from police is not relevant, particularly in the case of black males

J. Craig Williams:

At this time. Let’s take a quick break to hear a word from our sponsors and welcome back to Lawyer 2 Lawyer. I’m joined by Aliza Hochman Bloom, assistant professor of law at Northeastern School of Law. It’s sometimes a question and degree and it’s also sometimes a question of time. I think one of my favorite quotes comes from Justice Bedworth in one of his opinions here in Orange County, California where he said that I think it was something like, thus we are called upon to decide whether the police may detain a man with an axe riding a bicycle at three o’clock in the morning as opposed to a man dressed in a plaid flannel shirt with an ax walking into the forest context. And time matters, doesn’t it?

Aliza Hochman Bloom:

Yeah. When it comes to a Terry step or a Terry frisk, it’s a totality of circumstances analysis. And so things that are considered, for example, are time of night. How much this behavior differs from other behavior of other people at the time. One really, really controversial factors that has been largely discredited by academics and scholars and advocates is the relevance of what the so-called high crime area to the finding of reasonable suspicion high crime area. We learned after decades of analysis on New York stop and frisk policy in a litigation called Floyd and its companion case in Lege, we learned that high crime area was used to justify Terry stops and high crime area was used to describe every single block in Manhattan over that period of time. And therefore asking questions as to whether or not high crime being on this list of factors like flight from police or time of night was either totally inaccurate, racialized, just a way to backfill suspicion because of this sort of hindsight bias.

Another big thing about Terry stops that I should say, and I should have said at the outset, is that you don’t hear about the hundreds of Terry stops that end without finding of contraband. So when you don’t find drugs and you don’t find a gun, you don’t get a criminal case in a prosecution. You don’t get a criminal appeal and possible precedent talking about what reasonable suspicion is. So for the hundreds and thousands of people that are stopped by police and no contraband is found for the purposes of criminal procedure, it’s as if that Terry stop didn’t happen for what we know is that that Terry stop certainly happened and that the impact of repeat and routine encounters with police is traumatic. And we know that this is traumatic in a racialized way, in a way that definitely, definitely over proportionately affects marginalized communities. But those many, many thousands of cases where Terry stops don’t uncover illegal activity are completely invisible in the doctrine, right?

Because the doctrine only can be developed in a case where something is found, that thing results in a criminal prosecution, and then after the criminal prosecution or in the course of the criminal prosecution, a criminal defendant says, Hey, I was illegally stopped or I was illegally searched in violation of the fourth Amendment, or this Terry stop lacked the indicia of particularity required for reasonable suspicion, right? So the case law develops in a way that has this tremendous confirmation in hindsight bias and ignores the impact of Terry stops on many, many people that you would either call innocent people, but I would prefer to call people for whom I would rather not have the dichotomy of innocent and guilty people and instead just have people for whom no contraband was found.

J. Craig Williams:

Right. To prompt so many questions and you said a word that kind of prompted a visceral reaction in me as a former public defender, which I understand you were as well backfill. I’ve seen so many instances and I’ve really not ever defined the word as such, but I’ve seen so many instances when police are on the stand, when they make things up to backfill their story to justify up. Terry, stop. What’s your thought about that?

Aliza Hochman Bloom:

So I think one of the hardest things about the calculus itself, this reasonable suspicion calculus, is that it is a totality of circumstances, calculus without real guidance on how much each factor matters, and whether as one seventh circuit judge once said, a whole bunch of zeros can add up to one. And so I think that because inherently when an officer is testifying, there has already, but like I just said, there’s already been contraband found. The stop is going to be explained with a tremendous amount of what is belief to have been reasonable suspicion, but reasonable suspicion, the court tells us, and Terry, the court interprets the fourth amendment needs to be present before the stop or the search in order to justify the intervention. So this backfill comes when, for example, a court says, you can’t look at this. Many state courts have said this high crime area is really invalid.

It really means nothing, and it’s not a great, not all courts, many courts still rely on it, but even when you say high crime area is not that relevant a factor, it may be relevant but not that relevant. A factor for reasons of racialized policing, for reasons of lack of specificity, even then the ability to rely on numerous other innocuous or otherwise legally permissible behavior such as association with other suspected criminals or association with people serving community supervision like probation and parole. Those are other factors that are allowed to, hey, well, if I can’t really rely on this one factor in my bucket, let me backfill or look at all the other things that justified reasonable suspicion with that type of calculus. There’s sort of like an amorphous measuring of different factors and deciding whether or not it adds up to enough to justify a stop, a stop for which there’s only going to be litigation if something is found. So we’re also dealing with this human conundrum of a hindsight bias. Right.

J. Craig Williams:

Let’s take a look at it from the other side. When you as an individual are faced with a Terry stop potential frisk, what should you be saying? What should you not be saying?

Aliza Hochman Bloom:

That’s a great question. It’s a complicated question. It depends who I am. I’m a woman who doesn’t come from any overly policed or historically marginalized community, and my experience with police has not been that of violence or intimidation. I still would be incredibly intimidated in such a situation. So imagine the level of coercion and intimidation and a cherry stop from someone who had historically been stopped a lot or had lots of bad interactions with police or had been followed by police. And so it’s hard to answer your question without taking into account my own position of extreme privilege with respect to what I call discretionary policing. Not to mention my racial and socioeconomic profile. But even given that, what would I advise someone during a Terry stop? Well, it’s really hard to advise someone to say, what’s your basis for this? And by the way, you’re only limited to ask me questions in post Terry precedent.

You can only ask me questions about what the basis for the stop is. So if you suspect me carrying a weapon, you can’t also ask me about possibly illegal drug use. The idea is that you’re supposed to be limited for the stop to the purpose of a suspected criminality. The reasonable suspicion you can’t change topics during the stop. So that type of advice, like ask for the basis of the stop is something that, it’s fine for me to say as a criminal procedure professor and a criminal law professor, but it would be very, very hard for anyone in practice to say, what is the basis of your stop? Or what is the basis of your reasonable suspicion? So I’m not sure I can answer that effectively. I think it’s deeply unrealistic to expect that someone when faced with a police encounter should be able to assert their fourth amendment rights. I think that that’s, again, divorce from reality for many people, let alone those who are in marginalized populations or young people or minors. I mean, there’s tremendous groups for whom the idea that you would be able to mid Terry stop ask for the justification or the reasonable suspicion is delusional.

J. Craig Williams:

Right. Well, there seems to be some kind of social media educational program going on various levels where the prompt response seems to be, I don’t answer questions. Is that safe to say?

Aliza Hochman Bloom:

Yeah. So one of the ways that the courts or the Supreme Court has told us that there’s this family of interactions with police this universe before it becomes a tear stop, which is known as a consensual encounter. And how we know that it’s consensual is that the individual has the ability to terminate the encounter or walk away or the ability to terminate the encounter and say that they’re not going to answer questions. That again, I think is more or less reasonable in particular circumstances. It is particularly difficult for people who are in more exposed to marginalized populations, vulnerable populations, but this idea is definitely contemplated in the cases because the behavior will be judged as whether or not it was a Terry stop or seizure, in hindsight, will be judged by courts as well did this person had the ability to walk away. So if in hindsight illegality is discovered and a court that’s reviewing it six weeks or six months later says, you know what? This individual during that interaction had the ability to walk away, then it will be deemed to have been a consensual encounter, not a Terry stop, and for which no level of criminal suspicion is required. There is no level of criminal suspicion required for a police officer to engage in a consensual talk with you, Craig, or with me, that’s just called a consensual encounter,

J. Craig Williams:

And they can just stop and chat with you, and if you respond, then you’re engaged and you’re subject to being what from that point.

Aliza Hochman Bloom:

So you’re engaged in a consensual encounter up until the moment when you’re not. And so that is this idea that at some point you are seized and not free to leave, and that is when the Terry stop or the frisk has begun. That is when the idea of this brief investigatory stop has begun very much this hypothetical spectrum from when a person is in a consensual discussion with police and when it becomes a seizure is one that’s hotly contested, is one in which many courts, not the Supreme Court, but a few state courts and some federal courts believe that race should be considered in the reality of when an individual feels seized by police versus feels the privilege and ability to walk away or terminate the encounter. And I’m actually not familiar with what Facebook says to do, but not answer questions is a privilege that many people would say is racialized, but it is relevant because the court very much contemplates the universe of consensual encounters as ones in which an individual had the ability to not answer and had the ability to walk away and had the ability to not answer questions.

J. Craig Williams:

Can you create bright lines and say, I don’t answer questions and am I being detained?

Aliza Hochman Bloom:

You could. I think it’s asking a lot of people

J. Craig Williams:

You don’t think people can actually do that?

Aliza Hochman Bloom:

I think probably could. I mean, my students in criminal procedure probably would after me hammering some of these doctrines, unfortunately for several weeks. But I am not sure, and I think it’s probably a good thing to say, but I think we should be cognizant that that’s not going to be said without fear of harassment and or escalation of the encounter to say, I don’t answer questions or to say, do you have a warrant or What’s your reason for detaining? To me, it envisions a type of person that feels confident and able to speak up to police during a stop.

J. Craig Williams:

Let’s take a quick break to hear a word from our sponsors. We’ll be right back. Welcome back to Lawyer 2 Lawyer. I’m back with Aliza Hochman Bloom. She’s assistant professor of law at Northeastern University School of Law. Does it differ with a traffic stop? What elements get added when we put a car or a vehicle in play?

Aliza Hochman Bloom:

Well, what we know about a traffic stop is that the Supreme Court, in a different case that I’m sure you and your viewers listeners are aware of and run, say, as long as there’s probable cause for any traffic violation, including all non-moving violations, a broken taillight expired license, as long as there’s probable cause for any traffic violation, an officer is able to pull a car over and we don’t inquire after there’s that probable cause for the traffic violation into the actual purpose of the stop. And that’s in a case called rent. And so that those types of stops are permissible and we don’t inquire into the subjective motivations. That is a case that is largely considered to be permitting racial profiling in traffic stops, and it continues to be precedent to this day.

J. Craig Williams:

How does racial profiling play into traffic stops? I mean, it seems like it’s a random situation, or is it? Well,

Aliza Hochman Bloom:

I think we have considerable evidence that traffic stops are racially disparate, particularly from the last 20 years, showing that there is a real, real, real difference in the number of traffic stops based on race in various jurisdictions. I can point you to several studies on that, but the question of pretextual traffic stops is where there is a legitimate reason for the stop, like a moving violation, but the question becomes indiscretionary policing, what was the reason for stopping this person who didn’t fail to come to a complete spot as opposed to the other person? It’s in fact the tremendous evidence of racialized policing that led many jurisdictions in states to want to have automated ticketing and automated surveillance and constant surveillance in lieu of traffic stops for revenue when it comes to non-serious driving violations. And again, I’m not talking now about hardcore driving recklessly. I’m talking about mainstream traffic violations, not extremely dangerous traffic violations,

J. Craig Williams:

Speeding red lights and so forth,

Aliza Hochman Bloom:

Or full stop or no signal or expired license. And so it was largely the incredible evidence of racial disparities and traffic policing that led to many jurisdictions wanting to have what you see a lot of now, which is automated speeding tickets. So instead of allowing there to be the discretion of a human being and their implicit biases, instead it’s every third person that passes this point who’s above the speed limit, is getting a ticket that’s sent home the residents on file. That is very much a response to wanting to create revenue without engaging in Rachel profiling when it comes to traffic stops.

J. Craig Williams:

Let’s talk about those traffic stops. You get a ticket in the mail, do you have to pay it or do you have defenses?

Aliza Hochman Bloom:

I don’t think you have a great defense when there’s a video recording of you violating a traffic law because again, probable cause of just violating the traffic law is enough to support the violation. So yes, I think you have to pay the civil violation.

J. Craig Williams:

Alright, well, let’s play the game just a bit. Take it to court and make a foundational objection and make the person that took the video come in and authenticate the video. Do you think that would stand?

Aliza Hochman Bloom:

Yep. I think you can make that challenge, and I think they would authenticate the surveillance and you would still have to pay the ticket

J. Craig Williams:

And probably a bit more.

Aliza Hochman Bloom:

Yeah. Well also if you hired a lawyer for said, if you took off work for said time, I mean, there’s other major obstacles to doing this, but yeah, I do think that these surveillance techniques and traffic stops are designed to survive these challenges, right? There’s going to be an authentication exists in a process to authenticate it, but I use them as examples to show actually that when instead the discretionary traffic enforcement is allowed without such procedures, we see persistent evidence of racialized policing. No question.

J. Craig Williams:

I’m going to give you a soapbox here. How do we solve those issues?

Aliza Hochman Bloom:

I don’t know what part of this half hour hasn’t been a soapbox. It’s my view on the fourth Amendment, but well, it’s tough. How do we solve the issues specifically with respect to traffic tickets or in general,

J. Craig Williams:

Terry

Aliza Hochman Bloom:

Stops, Terry stops. It’s really, really, really hard. So I’ve thought about this hindsight problem that I talk about and the confirmation bias that Terry stops are only challenged when contraband has been found and that the thousands of stops that are traumatic and really, really terrifying and really, really bad for people where nothing is found and the targets are not, there’s no criminal proceeding against the targets. How do we quantify them? How do we elevate the persistent problems of Terry stops? And I don’t have a great solution. And I thought also about this idea that body cams, so most officers now wear body cams and a Terry stop. I’ve thought about the possibility of requiring an officer before engaging in a Terry stop to say two, three reasons why they’re going up to the person. So for example, just to themselves muttering to themselves, in the case of Detective McFadden, he would be saying in the three seconds before he approached Terry and Chilton when they were walking back in front of the store, he would’ve said two males looking suspicious to me, walking back and forth several times before I approached them and then approaching them.

It’s a suggestion that’s possibly unrealistic, but many of these stops are discretionary. They’re not policing in response to a crime or a nine one one call or a crime of violence. The thing that makes these possible solutions possible is it’s because these stops are done by officers in their ordinary job of patrolling and trying to stop crimes in progress and trying to stop crime before it starts. They’re not in response to a nine one one call of a robbery. That’s not the type of stops that I study, nor the ones that you and I have been discussing for this show. And so generally, I would argue that there’s maybe a few seconds to state the basis into some sort of body-worn camera prior to approaching someone.

J. Craig Williams:

Well, the easy way to make that a requirement would be to require it as part of a Terry stop and without it, the stop is a violation of the Fourth Amendment right.

Aliza Hochman Bloom:

And the response is going to be that my consensual encounters develop into Terry stops because of what happens during our interaction. So I approach you, Craig, just because I really want to talk about the law on a Wednesday afternoon, and we’re just having a nice conversation, but in our conversation you say things that are so suspicious and your behavior is so suspicious that I don’t have time in our interaction as it boils into a Terry stop to say six words into my body-worn camera.

J. Craig Williams:

But then everything you’ve said into your body-worn camera so far is compiled into that,

Aliza Hochman Bloom:

Right? Then you also have the evidence of all the suspicious things that came in during our talk, during our talk that went from consensual to Terry. Stop. Yeah. So that’s the only thought I’ve had. And then we have this in terms of practical advice. Then we have this real judicial problem. And the judicial problem is like a tremendous deference to police officers and their training and experience. And of course, the fact that the doctrine is only made, the cases are only made in the instances where Terry stops lead to the exposure of criminal activity and contraband, right? So that’s a structural problem that I don’t know what to do with

J. Craig Williams:

Well, an article, certainly perhaps to have students get together and create a model law that would specify that without the pre-ex explanation of the suspicion, the reasonable suspicion that Terry stop is ineffective, make the proposal.

Aliza Hochman Bloom:

I think you can make it. Why not?

And again, this has worked, worked in the state courts, for example, some proposals like this. Exactly. I’m not sure if some of them that have worked, but I know there are significant oversights of police officers that have been tried in many, many cities in many, many states. But for example, for the states that have changed their state Fourth Amendment corollaries to, for example, find flight from police or nervousness to not be relevant to the justification of reasonable suspicion for a Terry stop, it is because those judges on the state level were presented with compelling evidence, compelling empirical evidence and sociological evidence showing the effect of Terry stops on people or the large history of racially disparate policing leading to, for example, flight being a rational response to avoid police and not indicative of criminality.

J. Craig Williams:

Right. And the other one I’d add to it is being shot in the back would lead to a charge of involuntary manslaughter against the officer. I mean, that’s just to me, ridiculous. Anyway, we’ve just about reached the end of the program. It’s time to wrap up, get your final thoughts, and maybe put this all together for us because it sure is a complicated matter, as you said, would take an hours and in your case a semester to explain.

Aliza Hochman Bloom:

I don’t know. I really appreciate the opportunity to discuss these issues with you. I think what would take a semester would be to talk about all the Fourth Amendment, my critiques with all fourth Amendment doctrine that we haven’t even begun into. But we definitely got into one of the most difficult areas of Fourth Amendment, and that is the reasonable suspicion standard that’s required for Terry stops and how it leads to tremendous, tremendous police discretion. And that is sort of compounded by judicial deference to police when evaluating these stops on a motion to suppress.

J. Craig Williams:

Thank you. And if our listeners want to reach out to you, find out something more about how to take a class from you, what would they do?

Aliza Hochman Bloom:

They can go to the Northeastern website. I teach at Northeastern University School of Law in Boston, and I am on their website.

J. Craig Williams:

Great. Thank you. It’s been an absolute pleasure to have you on the show today. Thank you.

Aliza Hochman Bloom:

Thank you so much, Craig, for inviting me.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. Criminal law and especially criminal procedure in this area is an extremely complicated area of law. And if you’re involved in a traffic stop or a Terry stop or you’re just stopped on the street, law depends on your privilege and on your race. Let’s be honest, if you are in a situation where you are in a so-called high crime area, which really isn’t the case, and you’re stopped by police, the best thing to do if you can do it is to say that you don’t answer questions and ask whether you’re free to leave. I realized how difficult that is for so many people, and all I can do is that we’re working on trying to change and fix it. Well, that’s it for my ran on today’s topic. Let me know what you think. If you’d like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit [email protected] where you can sign up for our newsletter. On our next show, we’ll be spotlighting the legalities of the actions of ice. I’m Craig Williams. Thanks for listening today. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

Announcer:

Thanks for listening to Lawyer 2 Lawyer produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legal talk network.com or on iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, it’s officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

Continue Reading