TERRY V. OHIO

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.

further readings

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.

cross-references

Search and Seizure; Stop and Frisk.

Terry v. Ohio, 392 U.S. 1 (1968), argued 12 Dec. 1967, decided 10 June 1968 by vote of 8 to 1; Warren for the Court, Harlan, black, and White concurring, Douglas in dissent. For years police have engaged in an investigative practice commonly referred to as stop and frisk, involving the stopping of a suspicious person or vehicle for purposes of interrogation or other brief investigation, sometimes accompanied by a patting down of the clothing of the suspect to ensure that the person was not armed. Terry was the first in a now‐substantial line of Supreme Court cases recognizing stop and frisk as a valid practice.

In Terry, a policeman became suspicious of two men when one of them walked up the street, peered into a store, walked on, started back, looked into the same store, and then conferred with his companion. The other suspect repeated this ritual, and between them the two men went through this performance about a dozen times before following a third man up the street. The officer, thinking they were “casing” a stickup and might be armed, confronted the men, asked their names and patted them down, thereby discovering pistols on Terry and his companion. In affirming Terry's conviction for carrying a concealed weapon, the Supreme Court concluded that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, … he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him” (p. 30).

This rather cautious holding fell short of resolving all the important legal issues surrounding this practice; many were ultimately answered in subsequent decisions. But Terry did settle two fundamental points: stop and frisk neither falls outside the Fourth Amendment nor is subject to the usual Fourth Amendment restraints. In rejecting “the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a ‘technical arrest’ or a ‘full‐blown search’” (p. 19), the Court wisely concluded that the protections of the Fourth Amendment are not subject to verbal manipulation. It is the reasonableness of the officer's conduct, not what the state chooses to call it, that counts.

In concluding that a stop and frisk does not require probable cause, the Court in Terry explained that because the policeman had acted without a warrant his conduct was not to be judged by the Fourth Amendment's Warrant Clause (which contains an express “probable cause” requirement) but rather “by the Fourth Amendment's general proscription against unreasonable searches and seizures” (p. 20). Dissenting Justice William O. Douglas objected that the majority had held, contrary to earlier rulings of the Court, “that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action” (p. 36). Douglas was correct in this, but his point casts into question only some of the reasoning in Terry, not the result.

The Terry result is grounded in the balancing test of Camara v. Municipal Court (1967), which the Court quoted and specifically relied upon. Camara, which concerned the grounds needed to obtain a warrant to conduct a housing inspection, quite clearly involved the Warrant Clause of the Fourth Amendment and its probable cause requirement. Yet the Court adopted a significantly lower probable cause standard for such warrants than is typically required to satisfy the Fourth Amendment, and it did so by “balancing the need to search against the invasion which the search entails” (p. 537). It thus makes sense to view Terry as a case in which probable cause is required, albeit a lesser quantum of probable cause than is ordinarily needed to justify Fourth Amendment activity because the intrusion into privacy and freedom is quite limited and the law enforcement interest being served is substantial.

Under the search part of the Terry doctrine, policy may pat down the detained suspect on reasonable suspicion that the suspect is armed and may then remove any object from the suspect's clothing that by its size or density might be a weapon. An object so discovered is admissible in evidence whether it turns out to be a gun or something else seizable as contraband or evidence; in Michigan v. Long (1983), the Court rejected the notion that to ensure against pretext frisks only weapons should be admissible. (Long also holds, by rather strained logic, that the protective search allowed by Terry may extend to the passenger compartment of a vehicle to which the suspect has access.)

Bibliography

George E. Dix , Nonarrest Investigatory Detention in Search and Seizure Law, Duke Law Journal 85 (1985): 849–959.

Wayne R. LaFave