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Young men of color in high-crime neighborhoods are surrounded by poverty and crime, yet distrustful of the police who frequently stop, frisk, and arrest them and their friends. Every encounter with the police carries the potential for a new arrest or worse, fostering a culture of fear and distrust of law enforcement. That culture exacerbates the problems facing the officers patrolling these neighborhoods as more crimes go unsolved because witnesses are unwilling to come forward.

In the past several decades, officers have responded by using a stop-and-frisk technique of dubious constitutionality to control crime. Despite its disastrous implications for the young men of color who are stopped, the technique was an attractive, proactive response to stubborn crime rates. But as stops-and-frisks have fallen into public and judicial disfavor, officers have deployed a new tactic to obtain evidence of crimes from young men of color: suspicionless witness stops.

In suspicionless witness stops, officers stop individuals in high-crime neighborhoods that they believe may be witnesses to another crime—even though the officers do not suspect that the witnesses themselves have committed any offense. Thus, officers can justify stops without fabricating even the reasonable suspicion of criminal activity typically required to conduct a stop-and-frisk, all by using an analogy to police checkpoint cases like Illinois v. Lidster.

A robust revival of Terry v. Ohio’s reasonable suspicion standard can curb the vast potential for discriminatory deployment of suspicionless witness stops. But early court responses have been tepid and confused. Courts should instead soundly reject the analogy to checkpoint cases. The constitutionality of checkpoints arises from their general applicability to wide swaths of the population, not from their aim to locate witnesses. To encourage witnesses to aid investigations, jurisdictions might instead statutorily grant transactional immunity protection to witnesses that officers stop without suspicion. Otherwise, suspicionless witness stops will only perpetuate the cycle of distrust and unsolved crime

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Harvard Civil Rights-Civil Liberties Law Review



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