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T, Terry v. Ohio,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020

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 (p. 1012) 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.)

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

Wayne R. LaFave