Furtive Movements

December 30, 2011

The New York Times recently ran an article about the number of people stopped and frisked by the police each year in New York.  There are over 600,000 stop and frisks every year.  Over half of those are based on furtive movements.  A furtive movement is basically any movement that the officer believes shows the suspect is trying to hide something illegal.  Furtive movement interpretation is necessarily subjective, and most judges will defer to the officer on the street when reviewing whether a movement really was furtive.  Judges often feel that the officer has the most relevant experience, thus will trust the officer when he says the suspect was acting suspiciously and made a furtive movement.

The problem with the furtive movement justification for stopping someone is that if the officer finds something illegal on the suspect then his search seems justified, if he doesn't, then he simply lets the suspect go.  When the officer lets the suspect go, he may or may not record that he stopped and searched someone.  The U.S. Constitution guarantees all of us the right to remain free of unreasonable searches by authorities.  Just because an officer has a hunch that illegal activity is afoot does not give him the automatic right to search you.  As a society we have said that it is better to let ten criminals escape detection that to let one innocent person go to jail - this is called Blackstone's ratio, or Blackstone's formula.  Yet, in a post 9-11 world we are seeing dramatically increased invasion of personal privacy by authorities at every level.  Police are flying drones over US airspace; the feds are tracking everything you do, say, or see online, your cellphone is a GPS tracking device that the police can access under the right circumstances.  All of this may make sense piecemeal, but does it make sense collectively?

It is rather easy to justify any single program the police are using to keep track of us when the program is viewed as a stand alone item.  But, when you begin combining all of the programs that the police are using and you realize that there is nothing you do, say, or see whether online or walking down the street that is not subject to police observation and recording, then it begins to get a bit scary.  What happened to the reasonableness standard? 

I meet people all the time out in public, and they will sometimes tell me a story of someone they know who was arrested after being stopped and searched by the police.  Then they'll ask, "Is that legal?  Can the police just stop anyone they want and search them?"  The answer to the first question is "It depends," and to the second is, "If they can get away with it they can."  And, that's the point.  If the police find something illegal, then it seems that they did good police work.  If they don't, then they argue no harm - it was a brief interruption of the suspects right to move about freely.

Here are some suggestions to help you document illegal police stops in the San Antonio or Austin, TX areas:

  • Turn on your cellphone video camera and record the encounter.
  • Ask the officer to pronounce his name and badge number.
  • Ask why you are being stopped.
  • Do not consent to a search.  Tell the officer that you have done nothing wrong and want to leave.  If he detains you longer than necessary you may have a defense to anything you may be arrested for.
  • Do not run or fight the officer.  You will only give him greater justification to continue the detention.

If you get arrested, call us.  We want to help you defend your rights and freedoms.