Terry v. Ohio (1968) – Terry Stops – PLSC 337-01: The American Legal System

On an afternoon in downtown Cleveland, John Terry and Richard Chilton paced the street, each time taking a moment to stare into the window of a store. The duo repeated this approximately 24 times, and after making their pass would confer with a third man, Carl Katz, a few blocks away. Officer-Detective Martin McFadden was on the same street at the time on patrol in plain clothes, and the 39-year veteran of the force recognized the pattern as what he believed to be casing a store for robbery. Accordingly, he confronted the three men and asked them to identify themselves. After evasively mumbling a response, McFadden chose to pat Terry down and found a pistol. Upon this discovery, he promptly patted the other two men down, found another weapon, and arrested the trio.

In the 8-1 decision, the Court ruled that McFadden’s behavior constituted a reasonable search under the Fourth Amendment, and the evidence was admissible in Terry’s conviction. The Court opinion, delivered by Chief Justice Warren, establishes that following that for an officer if “criminal activity may be afoot and the persons with whom he is dealing may be armed and presently dangerous,” then one may “conduct a limited search of outer clothing.” In his concurring opinion, Justice Harlan wrote briefly to clarify one particular matter of the case. He wished to “make explicit what I think is implicit,” stating that the officer’s “right to interrupt Terry’s freedom . . . arose only because circumstances warranted forcing an encounter with Terry.”

Justice Douglas wrote the lone dissenting opinion, insisting that a seizure may only be reasonable under the guidance of the Fourth Amendment if “we require the police to possess ‘probable cause’ before they seize him.” In this opinion, Justice Douglas places a much greater emphasis on the facts of the situation rather than the beliefs of the officer, and declares that if this precedent is to be established, it must be done by a “deliberate choice of the people through a constitutional amendment.”

In my assessment of Terry v. Ohio, I agreed with the majority opinion’s assessment of the situation and reasonable behavior for the officer. Despite the Court’s declaration that they “emphatically reject” the notion of differentiating between a “stop” and arrest/seizure, and a “frisk” and “seizure,” they were nonetheless able to demonstrate the constitutionality of McFadden’s actions. Their belief is that any distinction between the two serves only to obscure constitutional analysis of initial actions by officers.

With this matter settled, the Court moved to address what they believed to be the more crucial aspect of the case, in whether there was “justification for McFadden’s invasion of Terry’s personal security” in an investigative search. I agree with the court that it would be “unreasonable to require police officers to take unnecessary risks in the performance of their duties,” and concurrently, that it is “clearly unreasonable to deny the officer the power to take necessary measures” in determining if a weapon is present. Specifically to this case, McFadden conducted the search judiciously, and in a broader sense he was acting for his own safety. While Justice Douglas expressed his belief of the ruling’s excessive scope, officers must still possess the ability to protect themselves and the immediate community. If the Court ruled that officers are unable to exercise their judgment as McFadden did, then it would have exposed them to greater violence in the future.

Christopher Sullivan says:

March 22, 2017 at 1:19 pm

I agree with Travis that the search and seizure in this particular case was reasonable and constitutional under the Fourth Amendment. I am concerned, however, with the precedent Terry v. Ohio left and how that precedent has been exploited over the years. The NYPD’s “stop and frisk” protocol, for example, has been the subject of recent debate, even between the presidential candidates of the 2016 election. The debate is summarized well by Kent Zimmerman in the Wall Street Journal video below.

https://www.youtube.com/watch?v=QyItoIlOYHw

Zimmerman talks about how the initial case of Terry was upheld as constitutional, but the decision has since resulted in the unconstitutionally disproportionate stopping and frisking of racial minorities, “without reason,” in New York City. The specific case he is referring to is the 2013 district court case, Floyd v. City of New York, in which a federal judge ruled that the disproportionate stopping of Black and Latino citizens—84 percent of all those stopped—violated the Fourth (and Fourteenth) Amendments. You can learn more about the case here: http://ccrjustice.org/home/press-center/press-releases/landmark-decision-judge-rules-nypd-stop-and-frisk-practices. Whether this statistic is evidence of implicit bias within the NYPD, or just a consequence of the NYPD surveillance of neighborhoods with high crime rates, is also a question in the “stop and frisk” debate. Regardless, the mere possibility that the police may be targeting specific races, and that such discretion could be upheld under Terry as long as the police can make a case that there was suspicious activity, raises concern. This is especially so when one considers how something as vague as “furtive movement” is enough for the NYPD to label activity as suspicious and worthy of “stop and frisk” (http://www.nytimes.com/2011/12/18/opinion/sunday/young-black-and-frisked-by-the-nypd.html). Even Floyd did not call for a complete ban of Terry stops, but the case suggested (correctly, in my opinion) that “stop and frisk” requirements should be made clearer or stricter in detailing what counts as a constitutional safety search.

Alexandra Abreu says:

March 22, 2017 at 11:12 pm

I also agree with the decision of the Supreme Court in Terry v. Ohio. I believe that the facts of the case were the primary reason why the Justices voted as they did. If the police officer’s lives weren’t in grave danger, there most likely would have been greater dissent. Balancing citizen’s rights, including those of the 4th amendment, and protecting human lives is never an easy battle. Just as police officers vow to protect the lives of citizens, they are entitled to protection themselves.

However, the dissent makes a strong point, that police power can be abused and reach farther than a magistrate’s. Ultimately, I argue that the safety of the officer outweighs the potential for police abuse of frisking an individual if there is evidence that he or she may be armed.

I’d also like to add to the comment above concerning the modern day application of Terry v. Ohio. Greater education and training for law enforcement may be necessary in order to prevent police abuse and only implement stop and frisk when it is absolutely necessary. As seen in New York City and other locations across the country, there are a few law enforcement officers who go above and beyond in searching potential criminals. However, I do believe these abusive cops are the minority, not the majority. Precedent set by Terry is necessary in order to best protect the lives of civilians and officers, but clearer regulations should be put into place. In this way, officers who do violate these clear and concise guidelines will be held accountable for their actions. The goal should be to protect the immediate safety of the persons present at the time of the arrest.