Terry v. Ohio (1968) – PLSC 337-02: The American Legal System

Officer McFadden, on patrol and dressed in civilian clothes, observed two individuals, John Terry and Richard Clinton, pace together back and forth in front of a store and peek into its window for two dozen times, conferring with one another each time. A third man, Carl Katz, would join them on occasion. Officer McFadden decided to engage the individuals and ask for their names. John Terry mumbled something, so Officer McFadden proceed to frisk him and found a gun on him. He then ordered the other individuals to raise their hands and go up against the wall. He frisked the other individuals, found another gun, and arrested them on a concealed weapons charge.

As this case rose through the judicial system, the pivotal question became: Did Officer McFadden’s stop and frisk of the individuals violate the Fourth Amendment’s search and seizure clause?

The vote break down was 8-1 upholding the arrest was legal and the evidence could be used against the individuals. Justice Warren wrote the majority opinion and found that McFadden’s actions would be considered justifiable to any reasonable man, and his actions were simply those of a good policeman. Further, the Court argued because American criminals are notorious for violence and the government’s interest to prevent crime, the officer acted reasonably in engaging and patting down the individuals. They also point to the facts of the case which would make any reasonable person suspicious of the activity. The majority also struck down the idea that stop and frisk is different than search and seizure. Or that a stop and frisk is merely an inconvenience. Justice Harlan, Black, and White concurred but made their opinion explicit that once an officer engages a suspect; they have the right to take measures for their own protection.

However, Justice Douglas disagreed with the Court’s ruling and dissented. He argued that allowing officers the ability to make judgment calls is essentially giving into a totalitarian rule. He believes “There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today”.

Over four decades later, we see a federal judge strike down the Stop and Frisk policy in New York City that President Trump is an advocate for. Supporters believe it helps reduce crime. However, as Justice Douglas pointed out over forty years ago, there is a danger in allowing officers to search people without regulation. The evidence is in the numbers. Over 75% of those stop and frisked were either Black or Latino, suggesting racial bias. The number of gun related crimes did not change after the introduction of the policy. However, crime rates are dropping even without the stop-frisk policy.

The majority, back in 1968, cemented the idea that searches and frisks were legal so long a reasonable man would agree. However, there lies the problem. The decision comes four years after the Civil Rights Act and during a time that lots of racial tension existed and that still exists today. So a reasonable man, pointing to statistics, might generalize and construct biases that may hamper the effectiveness of the policy. It might seem like a far-fetched idea but data shows that, although Black and Latinos only made up 8% of the residents in areas like SoHo and Greenwich Village in New York City, minorities made up about 77% of those who were stopped and frisked.

It is troubling that as a Latino man, there is a strong probability that I would be stopped and frisked because of how I look. Growing up in New York City, I witnessed police officers in subway stations stopping and searching individuals for no apparent reason. The process was meant to be random but like I mentioned earlier, our experiences make it difficult to not have any sort of bias.

To combat bias/harassment from police officers, The Right to Know Act is a proposed standard. It would require officers to be explicit in the reasoning to stop an individual.

“New Yorkers should have the right to know the identity of police officers that interact with them, and the reason for law enforcement activity that prompts those interactions. Intro 182 would:

Require officers to identify themselves and provide the officer’s name, rank, command and a phone number for the Civilian Complaint Review Board at the end of police encounters that do not result in an arrest or summons.
Require officers to provide the specific reason for their law enforcement activity (e.g. vehicle search, stop-and-frisk)”

The second prompt is pivotal to not interfering with police work and not violating the fourth amendment. It might just be a policy that should be adopted nationwide.

Sources:

https://www.dnainfo.com/new-york/20160927/east-harlem/donald-trump-stop-and-frisk-hillary-clinton-unconstitutional-donald-trump-presidential-debate-nypd

http://changethenypd.org/RightToKnowAct

Gia Nyhuis says:

March 22, 2017 at 4:59 pm

When considering the constitutionality of the stop and frisk policy under Terry v. Ohio, I think it is crucial to not only analyze the reason why the court permitted this type of search but also the application of this ruling and the resounding impact of stop and frisk policies. Looking at the narrow question posed by Chief Justice Warren, is it always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for arrest, I agree with the majority opinion that it is not always unreasonable. Therefore, I agree that just as there are exceptions to the warrant requirement, a police officer does not always need to meet the bar for probable cause to stop and frisk someone if they believe a potential suspect will imminently commit a crime or is a risk to public safety. However, Justice Harlan’s concurring opinion is particularly important in analyzing the implication of stop and frisk policies because he emphasizes that only particular circumstances warrant a stop and frisk search. Specifically, Justice Harlan explains that Officer McFadden’s right to search Terry only existed because the circumstances warranted an encounter with the suspect, in other words, because Terry and his companions exhibited specific indicators that they were about to commit a crime. Like you pointed out Brian, the incredibly high rate of minorities being the subjects of Terry Searches highlights the utilization of racial profiling and therefore abuse of this police tactic. Therefore, I agree with you that there should clear guidelines and procedures set in place for stop and frisk searches. As Chief Justice Warren states, during this type a search, a police officer should identify himself and make “reasonable inquiries.” To mitigate the risk of police misconduct, I agree that there should be a standard like the Right to Know Act implements. Having a measure like this one, where a police officer must not only identify the fact that he is an officer but must also provide his name, rank, command and phone number as well as assert his reason for the search, would help to ensure that reasonable suspicion is met before an officer conducts a search. Of course, standards such as this one will not eliminate racial profiling, however, I believe that it is necessary and beneficial step forward.