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Terry v. Ohio
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In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the U.S. Supreme Court ruled that the Fourth Amendment to the U.S. Constitution permits a law enforcement officer to stop, detain, and frisk persons who are suspected of criminal activity without first obtaining their consent, even though the officer may lack a warrant to conduct a search or Probable Cause to make an arrest. Now known as a Terry stop, this type of police encounter is constitutionally permissible only when an officer can articulate a particularized, objective, and reasonable basis for believing that criminal activity may be afoot or that a given suspect may be armed and dangerous.
The case stemmed from an incident in Cleveland, Ohio, in 1963. Police officer Martin McFadden observed three men engaging in suspicious behavior near the corner of Euclid Avenue and Huron Road. One of the suspects was the defendant, John Terry. Along with code-fendant Richard Chilton and a third man, known only as Katz, Terry was seen pacing in front of a downtown store. Occasionally, the men would pause to confer with each other. More often, McFadden witnessed the men peering into the store's front window. Over a period of ten to twelve minutes, the three men looked into the same store window approximately 24 times.
Based on his training as an officer and 39 years of experience on the police force, including 35 as a detective, McFadden believed that the suspects were "casing" the store for a Robbery. Attempting to forestall a possible robbery, McFadden approached the three men and identified himself as a police officer. Not being familiar with any of the suspects, McFadden asked for their names. When the men mumbled unintelligibly in response, McFadden grabbed Terry, quickly patted down his overcoat, and discovered a .38-caliber revolver. After removing the pistol from Terry's coat pocket, McFadden patted down the other two suspects, finding another revolver in Chilton's overcoat. Katz was not armed.
Terry and Chilton were charged with carrying concealed weapons. Prior to trial the two defendants brought a motion to suppress the incriminating evidence seized by McFadden. The defendants argued that the weapons were inadmissible because McFadden had discovered them during an unlawful search. McFadden, the defendants pointed out, possessed neither a valid Search Warrant authorizing the pat down nor probable cause to detain them. Denying their motion to suppress, the court scheduled the matter for trial where both defendants were found guilty. The Supreme Court of Ohio affirmed the convictions, and the defendants appealed to the nation's highest court. The U.S. Supreme Court divided its opinion into three parts.
First, the Supreme Court ruled that the defendants enjoyed qualified protection from temporary police detention under the Fourth Amendment. Before a court will examine the propriety of police activity under the Fourth Amendment, it must first determine whether the interests asserted by a defendant are constitutionally protected. The Fourth Amendment governs areas where individuals maintain a reasonable expectation of privacy, including a zone of personal freedom in which every individual is secure from unnecessary and unreasonable governmental intrusion. Walking down the streets of Cleveland, the Court said, Terry and Chilton held a reasonable expectation that their personal liberty would not be unlawfully restrained by law enforcement.
Second, the Court ruled that the defendants' freedom was effectively impeded by their encounter with McFadden. Any time a police officer accosts an individual to detain him for questioning, the Court emphasized, the officer has "seized" that person within the meaning of the Fourth Amendment. It would be nothing less than "torture of the English language," the Court added, to suggest that McFadden's pat down of the suspects' clothing was anything other than a "search" as that term is defined in the Constitution.
Third, the Court ruled that McFadden acted reasonably during his encounter with the defendants. Acknowledging that the Constitution generally requires probable cause to effect an arrest and a lawfully executed warrant to conduct a search, the Court identified a third area of police activity that is permissible under the Fourth Amendment, though it may amount to neither a full-blown search nor a technical arrest. The central inquiry under the Fourth Amendment, the Court wrote, is whether the police have acted reasonably under the circumstances. The express language of the Fourth Amendment does not prohibit all warrantless searches performed without probable cause, but only those that are unreasonable.
In dealing with rapidly unfolding and increasingly dangerous situations, the Court said, police may find it impractical or impossible to obtain a search warrant before choosing to intervene. In other situations, injury or harm may result to bystanders if law enforcement is made to wait until it has probable cause before acting. The Court indicated that the Fourth Amendment gives law enforcement flexibility to investigate, detect, and prevent criminal activity. According to Terry, this flexibility includes the right of police officers to stop persons suspected of criminal activity and detain them for questioning. If during questioning police are led to believe that a suspect is armed and dangerous, an officer may frisk the suspect without violating the Fourth Amendment.
In this case the Court noted that McFadden personally witnessed the two defendants engaging in what appeared to be preparations for a robbery. It would have been negligent, the Court thought, for McFadden to have turned a blind eye to such behavior. Given that he chose to investigate further, the Court said, it was reasonable for McFadden to assure himself that none of the suspects was armed, especially after they failed to respond intelligibly to his request for identification. In patting down and frisking the defendants, McFadden chose a prudent course to stave off threats to his security and the security of others.
The Court reached its holding by Balancing the legitimate needs of law enforcement against the privacy interests of individuals. Forcible detention of individuals for questioning is far from a petty indignity. Even a limited search of outer clothing, the Court stressed, constitutes a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." At the same time, law enforcement must not be restricted from performing its job in a proficient manner. The Fourth Amendment does not restrict police from intervening until after a crime has been committed. Crime prevention is a bona fide goal of law enforcement, the Court said, and the Fourth Amendment places only reasonable restrictions upon pursuit of that goal.
Outlining these restrictions, the Court said that no police officer may lawfully stop and detain a person for questioning unless the officer first observes unusual conduct that arouses a reasonable suspicion of criminal activity. A stop may be no longer than necessary to confirm or dispel an officer's suspicion and must not be unnecessarily restrictive or intrusive. During the period of detention, no searches may be performed unless the officer has an objective and particularized basis for believing the suspect is armed and dangerous. Any search must be limited to the suspect's outer clothing and may be performed only for the purpose of discovering concealed weapons. Evidence obtained during searches that comport with these restrictions, the Court said, is admissible under the Fourth Amendment. Evidence obtained in violation of the limitations set forth in Terry may be suppressed under the Exclusionary Rule.
Bandes, Susan. 1999. "Terry v. Ohio in Hindsight: The Perils of Predicting the Past." Constitutional Commentary 16 (winter).
Lichtenberg, Illya D., Alisa Smith, and Michael Copeland. 2001. "Terry and Beyond: Testing the Underlying Assumption of Reasonable Suspicion." Touro Law Review 17 (winter).
Whitebread, Charles H., and Christopher Slobogin. 2000. Criminal Procedures: An Analysis of Cases and Concepts. New York: Foundation.
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Brief for Appellee
Opinion of the Supreme Court, January 22, 1973
Search and Seizure
Stop and Frisk
31) The idea that certain government seizures can be supported by less than probable cause was most notably articulated by the Supreme Court in Terry v.
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Part I of this Note explains the Fourth Amendment reasonableness standard and discusses the line of Supreme Court cases from Terry v.
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