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Are Hub cops violating rights?

FIO data suggests pattern of unconstitutional stops, searches

Yawu Miller
Yawu Miller is the former senior editor of the Bay State Banner. He has written for the Banner since 1988.... VIEW BIO
Are Hub cops violating rights?
Modesto Sanchez, a youth organizer with Bikes Not Bombs, says he and his friends were stopped and searched by police while on their way to a skating rink in a 2010 incident. Entries from the Boston Police Department’s FIO database suggest police are searching people without consent or probable cause.

A cold winter afternoon in 2010 started off like any other. Modesto Sanchez and a group of 14 friends set off to go ice skating at the Kelly Rink in Jamaica Plain. Walking along Amory Street, the group was stopped by four police cruisers.

None had engaged in suspicious or illegal activity before or during the walk, Sanchez says.

“We were just walking down the street, enjoying ourselves,” he recalls. “They put all 14 of us against a wall.”

Sanchez and his friends were searched.

“They searched all of us,” he says. “They went through my front and back pockets. Three kids got arrested because they had weed on them.”

While the teens who had marijuana were in violation of the law, so too were the officers who searched them without probable cause. In a scenario that teens and youth workers say is all-too-common, Boston teens are routinely stopped and searched by police despite having committed no crimes.

Under U.S. law, police officers cannot search people or their property unless they have probable cause for arrest — a standard that requires police to have sufficient evidence that a crime has been committed. The standard, which is based on the Fourth Amendment’s guarantee of protection against illegal search and seizure, is meant to protect U.S. residents from dragnet investigations. The amendment has its roots in the 18th century, when British soldiers ransacked the homes of American colonists suspected of harboring seditious literature without first obtaining a warrant.

By the numbers

149,545 Number of entries in FIO database

3,533 Number of “reasonable suspicion” searches

34,375 Number of stops, frisks, searches justified solely by “Investigate, person”

58 Percentage of persons investigated identified as “black”

22.8 Percentage of persons investigated identified as “white”

While a police officer can lawfully stop and question a person if he or she has reasonable suspicion that individual has committed a crime, that standard is lower than probable cause. The standard for a frisk is “reasonable suspicion” that a suspect is armed and dangerous. Even under that standard, an officer cannot search the individual, their property or vehicle without their consent.

But according to electronic entries in the department’s Field Intelligence Observation Record database, illegal nonconsensual searches are not uncommon. Boston Police officers tracking encounters with the public recorded 3,533 nonconsensual searches, which they justified by citing “reasonable suspicion,” between 2010 and July of 2015.

That data, which police released earlier this month in response to a lawsuit filed by the American Civil Liberties Union of Massachusetts, details police entries into the FIO database. In the database entries, police can list the suspicious behavior that led to a stop and the justification for a search — whether it was consensual or the officer had probable cause. By citing reasonable suspicion, the officers appear to have documented 3,533 illegal searches.

Sanchez and his friends may well be among those encounters. Or they may be among the 2,295 searches in which officers gave no explanation whatsoever — failing to check “consent,” “reasonable suspicion” or “probable cause.”

The Boston Police Department’s Media Relations Office did not respond to a request for an interview. Nor did it respond to questioned emailed from the Banner.

Recording stops

Police are required to file a record of every stop or observation of a person in the department’s FIO database. Officers can check the database to monitor the behavior and associations of criminally-involved people while investigating crimes or tracking gang activity.

Last year, the department released data from 2007 to 2010 after several years of demands from the ACLU of Massachusetts. That data showed that blacks, while making up just 24 percent of the city’s population, accounted for 63 percent of all stops. While the 2010-2015 data show blacks accounted for 58 percent of the stops, their proportion remains more than twice their percentage of the city’s population.

“We have what looks like raced-based policing,” said Carl Williams, an attorney with the ACLU of Massachusetts. “The police department needs to fix that. The first thing they need to do to fix it is to acknowledge that it’s a problem in the city of Boston.”

For those stopped, the encounters put them a greater risk for arrest and often mean they can be subjected to higher levels of police scrutiny. Sanchez, who says he has been stopped multiple times by police, says the officers who stopped him in 2010 ratcheted up the pressure on him, telling him they were entering his name in a separate gang database as a member of the Latin Kings. He says neither he nor any of his friends were gang-involved.

“That bothered me,” he said. “I’ve never been arrested, but anytime anyone looked me up, I would come up as a gang member. That shook me up.”

Additionally, anyone stopped with Sanchez could be entered into the gang database as “gang-affiliated.” Those police department-defined labels are among the indicators police use to justify stopping, frisking, questioning and observing people in Boston.

A disparate impact

While police justify their frequent stops of blacks, citing higher levels of criminal activity and gang membership in black neighborhoods, youth activists say black and Latino youths are targeted by police regardless of whether they’re criminally involved — the very dragnet approach that the nation’s founding fathers meant to outlaw with the Fourth Amendment.

“These data show what people in the community and particularly people who work in the criminal justice system have known for years,” Williams said. “That is: People get stopped in the city based on race.”

In the records from the FIO files, numerous stops police logged in — 34,375 out of 149,545 — were explained solely by the line “investigative” — citing no other reason for the stop. On paper, police appear to be justifying stopping people, the majority of whom were black, by saying they simply wanted to investigate them. That pattern resembles the New York Police Department’s discredited “stop-and-frisk” policy that led to a 2010 lawsuit, which the department settled last year after a judge ruled the practice unconstitutional.

While police in Boston have denied they have a stop-and-frisk policy, the department’s data appears to substantiate the claim of youth workers, teenager and adults who say black and Latino teens are routinely stopped by officers without having engaged in criminal or overtly suspicious behavior.

“Most of my friends have had the same experience that I’ve been through,” Sanchez says. “We all know what it is like to be profiled and stopped. It’s a cycle that continues.”

Ivan Espinoza-Madrigal, executive director for the Lawyers’ Committee for Civil Rights and Economic Justice, said the department’s data underscores a need for greater training and supervision.

“We need to make sure there’s accountability, that supervisors are reading these forms to make sure officers are making stops within legal bounds,” he said. “We want to make sure that the people who are policing our communities are doing so in a way that is transparent and legal.”