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

• 392 U.S. 1 (1968)
• Vote: 8–1
• For the Court: Warren
• Concurring: Harlan, Black, and White
• Dissenting: Douglas

A police officer in plain clothes, Martin McFadden, was patrolling downtown Cleveland when he observed two men acting suspiciously. They were walking back and forth in front of a store, pausing to look into the window. They soon were joined by a third man, who talked with them.

Officer McFadden thought the three men were preparing to rob the store. He confronted the three men, identified himself as a police officer, and frisked them to see if they were armed. He found that one of the men, John Terry, was carrying a pistol. A second man also had a concealed weapon. So McFadden arrested them on concealed weapons charges.

Terry and his companions were convicted. Terry, however, appealed to the U.S. Supreme Court. He claimed that his 4th Amendment and 14th Amendment rights had been violated because Officer McFadden had searched him without a warrant.

The Issue

Was the warrantless search of Terry a violation of the 4th Amendment protection against unreasonable searches and seizures and the 14th Amendment guarantee of due process of law in state proceedings?

Opinion of the Court

The Supreme Court decided against Terry. The policeman's “stop and frisk” action in this case was constitutional because it was reasonable under the circumstances. The Court made its decision “by balancing the need to search against the invasion which the search entails.”

Chief Justice Earl Warren concluded, “[W]here a police officer observes unusual conduct which leads him reasonably to conclude…that criminal activity may be afoot and that the person … may be armed and presently dangerous … 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.”

Significance

Terry was the first case to recognize “stop and frisk” as a legal practice by police officers under certain conditions. It has become an established exception to the standard requirement of a search warrant. However, police can stop and frisk a person only when they have reason to believe their lives are in danger. The search must be limited to the area of the body in which the police suspect the presence of weapons.

See also Searches and seizures

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 stems 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 codefendant 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 twenty-four times.

Based on his training as an officer and thirty-nine years of experience on the police force, including thirty-five as a detective, McFadden believed that the suspects were "casing" the store for a stickup. 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. Having chosen to investigate further, the Court said it was reasonable for McFadden to assure himself that none of the suspects were 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 hamstrung from doing 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.

See: search and seizure; stop and frisk.

Terry v. Ohio
Supreme Court of the United States
Argued December 12, 1967 Decided June 10, 1968
Full case name: John W. Terry v. State of Ohio Citations: 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889; 1968 U.S. LEXIS 1345; 44 Ohio Op. 2d 383 Prior history: Defendant's motion to suppress evidence denied, 32 Ohio Op. 2d 489 (1964); defendant convicted, 95 Ohio L. Abs. 321 (Cuyahoga Common Pleas 1964); affirmed, 214 N.E.2d 114 (Ohio Ct. App. 1966); review denied, Ohio Supreme Court, Nov. 19, 1966; cert. granted, 387 U.S. 929 (1967)
Holding
Law enforcement officers may stop and frisk someone for weapons if they have a reasonable suspicion that a crime has taken or is about to take place and the subject is armed and dangerous without violating the Fourth Amendment prohibition on unreasonable searches and seizures. Supreme Court of Ohio affirmed.
Court membership
Chief Justice: Earl Warren Associate Justices: Hugo Black, William O. Douglas, John Marshall Harlan II, William J. Brennan, Potter Stewart, Byron White, Abe Fortas, Thurgood Marshall
Case opinions
Majority by: Warren Joined by: Black, Brennan, Stewart, Fortas, Marshall Concurrence by: Harlan Concurrence by: White Dissent by: Douglas
Laws applied
U.S. Const. amend. IV

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures was not violated when a police officer stopped a suspect on the street and searched him without probable cause to arrest.

The Court held that police may briefly detain a person if they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Because of the important interest in protecting the safety of police officers, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a “stop and frisk”, or simply a “Terry stop”. The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops.

The rationale behind the Supreme Court decision revolves around the understanding that, as the opinion notes, “the exclusionary rule has its limitations”. The meaning of the rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers).

Case

On October 31 1963, Cleveland police detective Martin McFadden saw two men (John W. Terry and Richard Chilton) standing on a street corner and acting suspiciously. One would walk past a certain store window, stare in, and walk back to the other and converse for a short period of time; this was repeated for a total of 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man who left swiftly. Suspecting the two men of “casing” the store for a robbery, McFadden followed them and saw them rejoin the third man a couple of blocks away. The officer approached the three men, identified himself as a policeman, and asked their names. When they “mumbled something” in response, McFadden patted them down for weapons and discovered that Terry and Chilton were armed. He removed their guns and arrested them for carrying concealed weapons. When the trial court denied his motion to suppress, Terry pleaded guilty and was sentenced to three years in prison.

The Ohio Court of Appeals affirmed the conviction, and the Ohio Supreme Court declined to hear the case, claiming that no “substantial constitutional question” was involved. The U.S. Supreme Court then agreed to hear the case.

Majority Opinion

Chief Justice Warren's opinion for the Court began by reciting first principles. The Fourth Amendment protects "people, not places," against "unreasonable searches and seizures." The question the Court confronted was whether "in all the circumstances of this on-the-street encounter," Terry's reasonable expectation of privacy had been impermissibly invaded.

The procedure called "stop and frisk" was not uncontroversial. Police argue that they require a certain flexibility in dealing with quickly evolving and potentially dangerous situations that arise during routine patrol of the streets. On the other hand, those suspicious of giving the police broad investigatory power contended that the police should not be able to assert their authority over citizens without some specific justification upon intrusion into protected personal security, coupled with judicial oversight to ensure that the police do not routinely abuse their authority. For the Court, however, the question was not the propriety of the police actions in the abstract but the admissibility of the evidence obtained through that police action. "In our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents." For this purpose the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961), had evolved and been applied against both state and federal agents.

Thus the question was not whether the stop-and-frisk procedure was proper by itself, but rather whether the exclusionary rule was an appropriate deterrent of police misconduct during such encounters.

“	Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be effectively used to control, may exact a high toll in human injury and frustration of efforts to prevent crime.	”
	— Terry v. Ohio, 392 U.S. 1, 14-15

In view of these concerns, the Court next asked whether it is "always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest."

When is a person seized?

The Fourth Amendment only applies to seizures, and so the Court had to confront a necessary threshold question -- when is a person "seized" for purposes of the Fourth Amendment? The Court rejected the idea that a "stop and frisk" could categorically never be a search or seizure subject to the protection of the Fourth Amendment. Instead, it made room for the idea that some police action short of a traditional arrest could constitute a seizure -- that is, "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Even searches that start out as reasonable may "violate the Fourth Amendment by virtue of their intolerable intensity and scope." Thus, the scope of the search must be justified by the circumstances that led the police to undertake it in the first place.

Thus, when the police detective took hold of Terry and patted him down on that Cleveland street, the detective "seized" Terry and subjected him to a "search" within the meaning of the Fourth Amendment. Thus, Terry could win his case only if the seizure and search were unreasonable -- if they were not justified at the inception and reasonably related to the circumstances that justified the interference in the first place.

What is reasonable?

The Court assessed the reasonableness of the police activity here by comparing it to activity that would ordinarily require a warrant. “... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” In a situation where the police obtained a warrant, they would have brought these facts and inferences to the attention of a judicial officer before embarking on the actions in question. Post hoc judicial review of police activity is equally facilitated by these facts and inferences.

The Court also emphasized that the standard courts should employ is an objective one. “Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Lesser evidence would mean that the Court would tolerate invasions on the privacy of citizens supported by mere hunches—a result the Court would not tolerate. Moreover,

And simple “‘good faith on the part of the arresting officer is not enough.’ . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” — quoting Beck v. Ohio, 379 U.S. 89 (1964)

The reasonableness inquiry takes into account the “nature and extent of the governmental interests involved,” including the general interest in crime prevention, the officer’s specific concern for his own safety, the citizen’s interest in his own privacy and dignity, and the extent to which the particular search in question intruded upon those interests. “Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”

The stop and frisk of Terry was reasonable

These principles led the Court to conclude that the evidence found on Terry's person was properly admitted because the search was reasonable. The detective had observed Terry and his companions acting in a manner he took to be a preface to a stick-up. A reasonable person in the detective's position would have thought that Terry was armed and thus presented a threat to his safety while he was investigating the suspicious behavior he was observing. The events he had witnessed made it reasonable for him to believe that either Terry or his cohorts were armed. "The record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so."

In situations such as the one presented in this case,

“The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (392 U.S. 1, at 29)

The police detective here limited his search to the outer surfaces of Terry's clothing. Thus, the search was reasonably related in scope to the concern for his own safety that justified the stop from the beginning. Accordingly, the Court concluded that the revolver found on Terry's person was properly admitted into evidence.

Is such a search a “petty indignity”?

“... it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is 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.” (392 U.S. 1, at 16–17)

Concurring opinion

Justice White joined the opinion of the Court but suggested that

“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” (392 U.S. 1, at 34).

With regard to the lack of obligation to respond when detained under circumstances of Terry, this opinion came to be regarded as persuasive authority in some jurisdictions, and the Court cited these remarks in dicta in Berkemer v. McCarty, 468 U.S. 420 (1984), at 439. However, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that neither of these remarks was controlling in a situation where a state law required a detained person to identify himself.

Dissenting opinion

Justice Douglas strongly disagreed with permitting a stop and search absent probable cause:

“We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action. We have said precisely the opposite over and over again.” (392 U.S. 1, at 37).

“To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.” (392 U.S. 1, at 38).

Subsequent jurisprudence

Terry set the precedent for Michigan v. Long, 463 U.S. 1032 (1983). In an opinion citing Terry written by Justice O'Connor, the Supreme Court ruled that car compartments could be constitutionally searched if an officer had reasonable suspicion.

The scope of Terry was extended in the 2004 Supreme Court case Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), which held that a state law requiring the suspect to identify himself during a Terry stop did not violate the Fifth Amendment privilege against self-incrimination.

See also

• List of United States Supreme Court cases, volume 392

External Links

• OYEZ project, Northwestern University
• Full text, findlaw.com
• Full text, LII, Cornell University
• Transcript of the oral argument
• Case Summary and Explanation

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