Terry v. Ohio, Stop and Frisk, and the Making of the American Police State
W. E. Smith, Editor, The Social Democrat
Police State: “a political unit characterized by repressive governmental control of political, economic, and social life, usu. by an arbitrary exercise of power by police [italics mine] . . .” (Merriam Webster’s Collegiate Dictionary, 11th Edition)
On an ordinary autumn afternoon in 1963, on a banal commercial block in Cleveland, a series of events occurred that have profoundly impacted policing in the United States, inaugurating a legal regime responsible for uncountable acts of police arrogance, abuse and, yes, outright terror.
Cleveland veteran detective Martin McFadden was patrolling his usual city beat on that otherwise quiet afternoon when two men attracted his attention. According to McFadden’s testimony, the two men, John Terry and Richard Chilton, took turns walking up and down a block of shops, each stopping to peer into the windows of one or more establishments. McFadden’s suspicion that the men were casing stores to rob was heightened when Terry and Chilton briefly conferred with a third man who arrived on the block, before all three moved off on an intersecting street. McFadden moved in and accosted the three men.
When his request for the defendants’ names was met with what he characterized as a “mumbled” response, McFadden bodily seized Terry and patted him down. Finding a pistol in Terry’s overcoat pocket, he ordered the three men into an adjacent store, where he patted down the others as well, turning up another pistol on Chilton. He then asked the store owner to call the station, and Terry and Chilton were arrested and charged with carrying concealed weapons.
At trial Terry and Chilton petitioned to have the pistols removed from evidence, claiming that Detective McFadden’s search of their clothing was unlawful under the 4th Amendment of the United States Constitution. The trial court allowed the evidence, and Terry and Chilton’s appeals, after running through the Ohio court system, finally reached the U.S. Supreme Court in 1968. In agreeing with the lower court that Officer McFadden possessed the authority both to detain the men and to search them for weapons, the Court fundamentally altered U.S. law governing searches and seizures, significantly diminishing, in the process, your right and mine to go about our affairs without incurring arbitrary interference by armed officers of the state.
The 4th Amendment
At issue in the case were two protections guaranteed by the 4th Amendment of the U.S. Constitution: that against unlawful searches and that against unlawful “seizures.” In detaining Terry and his co-defendants, McFadden had “seized” them within the meaning of the Amendment. When he proceeded to pat them down for weapons he, of course, “searched” them. Since the Court ruled only on Terry and Chilton’s petition to exclude the results of that search—the pistols—from evidence, the decision’s only strictly binding language refers to McFadden’s search of the defendants’ garments. Yet the Court also went out of its way to first justify McFadden’s “seizure” of the two men; it is this language, and the jurisprudence which has flowed from it, that this article will address.
A rich tradition had grown up, prior to the Terry case, governing under what circumstances police officers are entitled to detain persons. In essence, the quasi-magical phrase “probable cause,” a phrase found in the 4th Amendment itself, had come to govern such interactions. In the 1964 Beck vs. Ohio case, the Supreme Court offered the following definition of probable cause as it had come to be understood by the time of Terry: “whether at the moment [of arrest] the facts and circumstances within [the officers’] knowledge and of which they have reasonably trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” The Court had gone out of its way, on numerous occasions, to point out that something more definitive than a “mere hunch” is required: there must be “independently verifiable factual information that supports the conclusion that “there is a ‘fair probability’ that a crime occurred or that a particular person was involved in a crime.” [1]
What happened in Terry v. Ohio is that the 1968 Warren Supreme Court, otherwise known for expanding citizens’ rights vis-à-vis the police, acquiesced in allowing McFadden to “seize” Terry and Chilton based on what was actually little more than a “mere hunch.” In attempting to explain what initially drew his attention to Terry and Chilton (before they began to walk up and down the block), for example, McFadden testified, “they didn’t look right to me at the time.” McFadden was unable, however, to articulate what “didn’t look right” about the two men. As law professor Lewis Katz points out in his excellent article, “Terry v. Ohio at thirty-five: a revisionist view,” “the two men were dressed in topcoats, the standard dress of the day” and “were engaged in no unusual behavior.” As Katz and numerous commentators have noted, it is quite possible that what attracted McFadden’s attention to Terry and Chilton is the mere fact that they were African-American, a theme that continues to characterize unconstitutional stops—on which more later. Other weaknesses in McFadden’s account further undermine his case for stopping the men. In his initial report, filed the day of the arrest, McFadden wrote that the men had walked up and down the block “about three times each.” A year later, at the evidence suppression hearing, McFadden claimed that the defendants had walked up and down the block “at least four or five times apiece.” Yet later, at trial, McFadden’s numbers ranged from three to five, “maybe a little more, maybe a little less.” McFadden admitted, “I don’t know, I didn’t count the trips.” Even more disturbing: when Chief Justice Warren wrote the U.S. Supreme Court’s majority opinion on the case, he claimed that the men paused to “stare in the same store window roughly twenty-four times.”
Not only did Warren have his way with the number of trips the defendants allegedly took up and down the block, there is considerable doubt about whether the men were even “staring” into the same store window. As Professor Katz points out, “Officer McFadden was never sure which store was the subject of the suspects’ attention.” In his police report, McFadden indicated that the men were looking into an airline ticket office. At the suppression hearing, however, he mentioned both the airline ticket office and a jewelry store. [2]
To understand the watershed marked by the Terry decision, we must briefly examine the 4th Amendment itself, and the jurisprudence that has grown out of it. The text of the Amendment is brief and as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Framers did not do us the favor us clarifying what is meant by “unreasonable,” nor did they offer a definition of the all-important phrase, “probable cause.” It has been left to the courts—and ultimately the Supreme Court—to add specificity to the Amendment’s language.
The historical roots of the Amendment serve as a key guide to the provision’s meaning. Britain’s North American colonists, particularly as the Revolution approached, were weary of officers of the British Crown intruding upon their homes and places of business, searching for contraband pursuant to the hated trade laws by which England maintained its colonies in a state of economic subordination. Particularly disliked were what were known as “general” warrants: a warrant which gave permission to officers of the Crown to search and seize anyone, anywhere, at their own discretion. (By contrast, a specific warrant, issued by a magistrate, authorized the officer to search or seize only specified places, persons or goods.) Colonial-era lawyers objected strenuously to the idea that “petty” or “subordinate” officers be allowed, upon their own discretion, to violate the liberties of English subjects. “The nature of the complaints that were actually made about general warrants . . .” writes legal scholar Thomas Davies, “. . . that it would not be ‘fit’ to have ordinary officers decide whom to arrest or where to search . . . demonstrate a deep-rooted distrust and even disdain for the judgment of ordinary officers.” [3] The British subjects of North America insisted that a magistrate alone be entrusted with the authority to determine when facts at hand warranted intrusion upon the sacrosanct privacy of a subject’s dwelling, or even worse, the seizure of his person.
Memories of British Crown practice were naturally very much alive when the U.S. Constitution’s Framers—many of whom were, of course, actively involved in resistance to the Crown’s practices—got around to drafting the 4th Amendment in 1789. If we examine the Amendment’s language, we see the Framer’s desire to guard citizens of the new United States against the kinds of arbitrary intrusions and seizures practiced under British rule. We note that warrants can only issue upon “probable cause, supported by oath or affirmation,” and that they must “particularly describe the place to be searched, and the persons or things to be seized.” The Framers clearly wanted no more to do with the British Crown’s general warrants, allowing “ordinary” officers to go on fishing expeditions throughout the populace, randomly searching for evidence of illegal activity.
A second feature of the Amendment’s wording needs special emphasis, for it has taken on critical importance in Supreme Court rulings on searches and seizures—beginning especially with Terry v. Ohio. In writing the Amendment, the Framer’s created a two-clause provision. The first clause reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
Then comes the second clause:
. . . and no Warrants shall issue, but upon probable cause, etc . . .
As with any disagreement over constitutional language, a great deal of ink has been spilled (how many angels can fit on the head of a pin?) over how the Amendment’s two clauses relate to one another. But the ongoing controversy over the matter drives current debate about the limits of police power, so we must grapple with this scholarly disagreement if we are to understand how the Supreme Court created the mess we find ourselves in today.
Proponents of the “warrant” camp argue that the Framers intended that no search or seizure should take place without a warrant (specific, of course) issued by a magistrate. In this view, the Amendment’s first clause establishes the general proposition that searches and seizures must be reasonable; the second clause further defines reasonableness as the issuing of a specific warrant. For the “warrant” camp, the historical background makes clear that the Framers, who abhorred the idea of leaving decisions to intrude upon a person’s privacy or impair his freedom of movement to the judgment of a “petty” or “ordinary” officer, were relying on the reader’s understanding that warrants would be required.
The other camp, the “separate clauses” group, argues that the two clauses of the Amendment supply two completely separate directives: (1) that searches and seizures cannot be “unreasonable,” and (2) if a warrant is issued, it must be supported by probable cause (as well as “particularly describe the place,” etc.) For proponents of this view, the only real requirement for a search or seizure is that it be reasonable. It is only when a warrant is issued that the second clause—regarding requirements for a warrant (including “probable cause”)—comes into play.
U.S. courts have generally held with the “warrant” camp, and with good reason. In arguing for interpreting the clauses as two unrelated directives, the “separate clauses” camp claims that “petty officers” can execute searches and seizures without warrants as long as they are “reasonable.” This interpretation not only assumes a silly level of linguistic incoherence on the part of the Framers (why begin talking about reasonableness, and then switch to warrants, if the two ideas weren’t connected in their minds); it also posits the outlandish idea that the Framers, who distrusted the judgment of “petty officers,” would permit such officers to execute searches and seizures on their own discretion, bound only by a vague sense of “reasonableness”—while at the same time placing magistrates, whose judgment they trusted more, under specific, stringent requirements for the issuing of warrants?
While generally preferring warrants, however, the Supreme Court had over the years carved out certain exceptions to the requirement that a magistrate must issue a warrant before an “ordinary” officer may search or seize one of his fellow citizens. For reasons we will not go into, the Court came to require warrants for virtually all searches, while allowing arrests to take place without warrants (the “seizure” of a person, in the language of the Amendment): though only for felonies, and only when the suspect is in a public place. For such warrantless arrests to pass constitutional muster, however, it still had to be shown that the arresting officer was acting on the basis of the magical “probable cause.” The Court remained vigilant, until the time of Terry, against granting police too much discretion to detain and search the citizenry, manifesting a sentiment famously summed up by Justice Brandeis in the 1912 Olmstead case. Looked at broadly, Brandeis wrote, the 4th Amendment granted to American citizens the “right to be let alone.”
This brings us back to Terry.
Terry’s new standards
As we have seen, the Court in Terry allowed Officer McFadden’s public seizure and search of John Terry and Richard Chilton to stand, and it allowed the evidence obtained (the pistols) to serve as the basis for the two men’s conviction on weapons charges. In order to make this finding under longstanding practice of the Court, the justices would have been required to find that there existed “probable cause” that the defendants were involved in a felony: in this case, the specific felony of carrying concealed firearms (neither McFadden nor the prosecution ascribed any other criminal activity to the accused). Records of the justices’ deliberations, however, show that they experienced great difficulty fitting McFadden’s suspicions into the existing definition of “probable cause.” As we have noted, probable cause, as traditionally understood, must be based on a good deal more than a “mere hunch” on the part of the officer. Previous cases dealing with probable cause had turned on such matters, for example, as whether tips from informants might constitute adequate basis for a search or seizure (if specific enough, such tips were allowed; anonymous tips were too vague). In McFadden’s case, we merely have two men walking up and down a block, looking into store windows. While it is true that they may have been casing stores, they may equally plausibly have been killing time while waiting for the third man to arrive; taking turns moving from one corner to the other because they did not know on which street the awaited friend might approach. Alternatively, they may have been considering opening a shop themselves, and were interested in how other merchants displayed their wares. Even if a case could be made that the men were “probably” casing the stores to rob them, the “probable cause” needed in this case was probable cause that the defendants were carrying concealed firearms—the issue for which they were brought before the bar of justice. Looking in store windows, even while contemplating robbing one of them, is not a crime.
Before we see how the Warren Court got around their “probable cause” problem, it will be helpful to see if we cannot demystify that talismanic phrase. If we ignore two-plus centuries of jurisprudence and countless references on television cop shows, we are left with two simple English words. Starting at the easy part, the end of the phrase, “cause,” obviously refers to whatever has “caused” the officer to make the seizure. Turning then to “probable,” Merriam Webster’s Collegiate Dictionary (11th edition) defines the term as follows: “supported by evidence strong enough to establish presumption but not proof,” also “likely to be or become true or real.” The essence, in other words, is that if something is “probable,” it is more likely than not to be true. The Warren Court justices deliberating the facts of Terry in 1968 quite understandably found themselves unable to concur that a reasonable observer of Terry and Chilton’s behavior that fateful October afternoon would conclude it more likely than not that the two men were carrying concealed weapons.
The Court did not wish to let the matter go at that, however; for reasons we may never know (perhaps the national reaction against a late-1960s increase in crime and disorder) a majority on the court wanted to justify McFadden’s seizure and search. Unfortunately, in doing so they created a new, weaker, and dangerously vague standard for judging the constitutionality of police conduct.
First the justices played fast and loose with the definition of “seizure.” “Seizure” had consistently referred to any detention of a citizen by the police. In the Terry decision, however, the Warren Court now distinguished between a “formal arrest” and a mere “investigatory stop.” In the justices’ view, one might say that Terry and Chilton were only “a little bit” seized (in the same sense that a person can become “a little bit” pregnant). It had generally been considered that a person is “seized” if that person no longer feels they are free to leave. Terry and Chilton were certainly not free to go on their way, with Officer McFadden bodily grappling Terry while training his gun on the other two men. Given the facts, therefore, the Court was indeed forced to concede that the suspects had been “seized”—but under a new sub-category of seizing that the Court referred to as an “investigatory stop.”
A “stop” was to be distinguished from an “arrest” in both the lack of formal charges and transport of the suspect to the station, as well as in its duration: a “stop” would result in seizing the suspect for a shorter duration than an arrest, though a precise time limit was not provided.
Get it?
Next the Court had to invent something other than the traditional standard of “probable cause” to justify the seizure, since they had decided that the observable facts could not warrant a presumption that Terry and Chilton were carrying concealed weapons. Here the nine robed men tipped their hats to the “separate clauses” camp of 4th Amendment interpretation. The “separate clauses” camp, you will recall, claims that the 4th Amendment’s two clauses—one proscribing unreasonable searches and seizures, the other listing requirements for obtaining warrants—provide two unrelated directives. In line with separate-clauses thinking, the Court majority now declared that in the case of their newly invented “stops” (but not “arrests”), the officer merely need to possess a “reasonable suspicion” that a suspect is involved in criminal activity. Sensitive to long-standing prohibitions against seizures based on “mere hunches,” the justices took pains to explain that such “reasonable suspicion” must be based on “articulable facts.” In the context of the Terry case, McFadden’s statement that the defendants “didn’t look right” or that he “just didn’t like them” were not articulable facts. The Court did find, however, that the procession of the men up and down the block, looking into store windows (and then meeting the third man) were “articulable facts” capable of creating “justifiable suspicion” in the mind of the officer.
The Supreme Court, in the Terry opinion, thus created fateful new distinctions: two new classes of police action, with two new constitutional criteria to govern them. Previously a seizure was a seizure. Now a seizure could be either an “arrest” or an “investigatory stop.” Most importantly, these two police actions would now be held to different standards. Whereas previously seizures could only be justified by probable cause, the newly created category of “investigatory stop” allowed officers to detain citizens based upon the newly created, watered-down criterion of “reasonable” suspicion. The critical distinction here is that a suspicion can be “reasonable,” without being supported by enough evidence to establish a presumption of truth, i.e., that criminal activity is “probable”. The Court found no way to precisely clarify what constitutes reasonableness, but said that the “totality of circumstances” involved in the case would guide their decisions as to whether such “stops” satisfy the requirement of “reasonableness.”
If you are feeling that this is all somewhat vague, you are right. With “probable cause” we have the Framers clear guidance, followed for generations, that before a person can be constitutionally seized, the evidence must be such to lead a reasonable person to conclude that criminal activity is more likely than not to be afoot (“probable”). The chances must be greater than 50/50; we have something quantifiable to rely upon. With “reasonableness,” determined by “the totality of the circumstances,” we have come dangerously close to what the Framers labored specifically to prevent: ordinary officers using vaguely defined discretion to seize and search citizens. The only cogent reading in the Terry opinion comes in William O. Douglas’s dissent, who wrote that in allowing police to seize persons based upon a “mere inkling,” the Court was granting to ordinary officers “greater power than a magistrate,” and took “a long step down the totalitarian path.” For, Douglas continued, “if the police can pick up [a citizen] whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
The legal aftermath of Terry
The concerns Douglas expressed in the Terry dissent were prescient. The Terry decision supported a body of further Court decisions, and police practices reliant upon that case and its progeny, which have seriously eroded our right as citizens to be “let alone.” The “full debate by the people of this country” never occurred; instead nine robed men (and later women), unelected and serving for life, have created exactly the new regime Douglas feared: one of greatly expanded discretion granted to police officers to stop, seize and otherwise harass the citizenry.
The Warren Court’s decision in the Sibron case, the same year as the Terry judgment, looked to keep the new criterion of “reasonable suspicion” within narrow boundaries, the Court holding that merely chatting with known drug addicts did not establish sufficient “reasonable suspicion” to justify a seizure and search. This tight line of reasoning held steady when the Court again addressed the issue of “investigatory stops” in two 1979 cases. In the Brown and Ybarra cases, the Court ruled that merely being in a high-crime area, or even in the same bar with known addicts, was not adequate cause for an investigatory stop.
A key change occurred in the nature of the Court, however, when the liberal Chief Justice Earl Warren retired, and newly elected president Richard Nixon appointed Warren Burger to replace him. During his campaign, capitalizing upon a surging crime rate featuring a wave of illicit drug use as well as unrest related to the civil rights struggle and the Vietnam War, Nixon ran as a “law and order” candidate. Nixon’s appointment of the conservative Burger began the Court’s transition, furthered by additional appointments of both Nixon and Gerald Ford, from a Court that was protective of civil liberties to one which “seemed little inclined to consider individual due process concerns raised by criminal defendants.” [4] This process bore its darkest fruit beginning in the 1980s, when the last bastions of the Warren Court had been replaced by right-wing justices. It is particularly during the era of the Rehnquist Court (1986-2005) that 4th Amendment protections suffer serious erosion. (The Roberts Court, in place since then, has followed the same course.)
In the 1980 Mendenhall case, for example, the Court ruled that a woman stopped by police in an airport concourse for questioning had not been “seized” under the Amendment, concluding that a “reasonable person” would have felt free to ignore the officers and leave them at will. (If you have ever been accosted by the police, you will know how specious an argument that was.) A year later, in deciding upon the propriety of a vehicle stop by immigration police, the Court ominously instructed lower courts to show deference to the judgment of officers in their decisions to detain. (Here we have the Court explicitly granting to “ordinary officers” greater influence than magistrates!)
After the elevation of Rehnquist to chief justice, the Court followed an even greater law-and-order bent. In the 1990 case, Alabama v White, the Court upheld a vehicle stop based solely upon an anonymous tip (a practice which the Court had explicitly forbade in the 1962 Aquilar case ); that same year the Court authorized random sobriety checkpoints. Though we have become acclimated to this latter practice, permitting police to detain drivers who had broken no observable laws marked a sharp departure from traditional conceptions of our right to be “let alone.” As White and Fradella put it in Stop and Frisk: the Use and Abuse of a Controversial Policing Tactic, in allowing random checkpoints the Court “sanctioned stops without any individual suspicion at all.” [italics mine] [5]
Two “unprovoked flight” cases further eroded citizens’ right to live free of police interference. In Hadari (1991), the defendant ran at the sight of police and one of the officers gave chase. At issue was whether a bag of drugs that Hodari discarded as the officer chased him could be used as evidence: if the Court ruled that chasing Hodari down constituted “seizing” him, the evidence obtained as a result of that “seizure” could not be used unless the “seizure” was based on “reasonable suspicion.” The only possible basis for “reasonable suspicion” was the fact that Hodari ran at the sight of the police—not very compelling evidence of some specific crime being committed. The Court evaded this problem by simply ruling that the officer had not ‘seized’ Hodari by the act of pursuing him. The bag of drugs, which were collected from the ground before the officer tackled Hodari, were therefore not the ‘fruit’ of an unconstitutional ‘seizure,’ and could be used as evidence. In ruling that chasing down Hodari did not constitute a “seizure,” the Court created a “large loophole,” according to legal scholars Michael C. Gizzi and R. Craig Curtis Gizzi: “Even if you do not have reasonable suspicion to stop somebody,” Gizzi and Curtis write, “make a show of authority [i.e., order them to stop running] and hope they do not comply, and thus there will automatically be reasonable suspicion for failure to comply with a police officer’s order.” [6] In his dissent, Justice Steven’s wrote of Hodari: “The ruling narrows the range of encounters that come under the heading of a ‘seizure’ and means that innocent citizens may remain secure in their persons . . . against unreasonable searches and seizures only at the discretion of the police.”
In Wardlow, a second “unprovoked flight” case (2000), the Court ruled that while simply being in a “high-crime” area cannot validate an investigatory stop (as the Court had ruled in 1979), the combination of a high-crime setting and flight at the sight of police constitutes adequate justification for a seizure. As Justice Stevens pointed out in his dissent on this case, the majority failed to acknowledge that “people may not want to interact with the police.”
Freddie Gray comes to mind.
On allowing a reliance, even partial, on a “high-crime” setting to justify investigatory stops, the Court was beginning to validate long-standing police practices that disproportionately burdened minority communities with unwanted police interactions. In State v Bobo, decided in 1988, Ohio police officers moved in to investigate two individuals seated together in a parked car at 11:30 in the evening. Their vague rationale for suspecting criminal activity was threefold: (1) the hour was late; (2) the car was parked in an area of known drug activity; and (3) at one point Bobo, the defendant, ducked down and popped up again. Here the Rehnquist Court again gave deference to the officers’ “experience and training,” ceding the power of the magistry to those same “ordinary officers” so mistrusted by the Framers. As law professor Lewis Katz wrote of the Wardlow case, “the clear message is that in ‘high crime’ or ‘high drug activity’ areas, i.e., the inner city, the possibility of criminal activity is so substantial as to make everyone in the area subject to police inquiry.” One of the passengers in the Bobo case was a woman, Katz points out, suggesting that they were probably involved in a romantic tryst. “Similarly weak facts are responsible,” he goes on, “for the constant seizures of countless innocent citizens whose only ‘crime’ is being poor, a minority, or in a high crime neighborhood.” [7]
Whren v U.S.(1996), cemented another foundation of racialized policing: profiling. At issue was what are known as “pretextual” stops. A “pretextual” stop occurs when police detain an individual under a pretext: for example, they stop a car for a broken tail light, but really want to search the car for drugs. The Court ruled, in Whren, that as long as there is the slightest “pretext” for making a stop, it is immaterial if the officer’s underlying motivation is racial profiling. Once the stop is justified, all manner of other ills, including searches and intrusive questioning, now become equally justified. These ill-considered rulings, enabling police to stop and harass people based on what neighborhood they happen to be in, or their ethnic identity, have borne bitter fruit, which more on later.
One final case, Hiibel v Sixth Judicial District Court, breached another longstanding bulwark against police intrusion in our lives: the right to remain anonymous. A passerby witnessed Hiibel and his daughter, who were driving a Nevada highway in their pickup truck, having a heated argument during the course of which Hiibel’s daughter struck him. A Humboldt County deputy sheriff responded and came across Hiibel and daughter parked on the shoulder of the road, where they were now more calmly discussing their disagreement. Responding to the officer’s inquiries, Hiibel daughter assured him that all was well and that she did not require assistance. The officer then ordered Hiibel père out of the truck and asked for identification. Hiibel refused, stating that he had broken no laws, was minding his own business, and was not required, as a free American citizen, to identify himself upon demand. Hiibel was arrested, charged and convicted under a Nevada statute for “willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge his duties.” Hiibel fought his case all the way to the Supreme Court, where the Rehnquist bench allowed his seizure, though he had broken no laws. Prior to this case, writes legal scholar Arnold Loewry, “the Supreme Court had never so much as hinted that the state could punish a person for refusal to identify himself in the absence of probable cause to arrest.” Yet, in this case, “the Court held that a rural rancher/cowboy, lawfully parked by the side of the road, could be deemed a criminal simply for refusing to identify himself to a police officer, notwithstanding that he was guilty of no other crime.” [8]
The American police state
Armed with the diminished constitutional protections effectuated by the Terry decision, conservative Supreme Courts over the last several decades have permitted the construction of an America where the very “ordinary” officers of whom the Constitution’s framers were so chary now rule the streets. Don’t take my word for it. Consider this passage from To Protect and Serve, a recent indictment of police misconduct written by Norman Stamper. Stamper is no mere outside observer: he led Seattle’s police department from 1994 to 2000:
“Many younger cops have been instructed by their seniors to act like they own the streets. They are in charge—of everyone and everything. Run from these officers and they will chase you, whether on foot or in a vehicle—innocent citizens be damned. Ask these officers a naïve or impertinent question, offer a suggestion, or, worse, criticize them or challenge their authority, you will be made to understand, in words, demeanor, or both: I am a cop, and you’re not.” [9]
Referring to the Ferguson, Missouri, force, Stamper writes:
They stop and frisk everything that moves . . . They make ‘skinny’ arrests, most for low-level, nonviolent drug offenses and a panoply of constitutionally shaky municipal code violations, often fabricating ‘probable cause’—if they bother with it at all. They misuse their batons, their dogs, their Tasers. And they pepper their speech and e-mails with racial slurs . . . [10]
In the following passage, Stamper trenchantly portrays the insanity to which the Court’s relaxation of criteria for detaining citizens has led. The passage relates what happened one summer day in 2014, when Officer Cynthia Whitlatch of the Seattle force, while patrolling in her vehicle, came upon an innocent Seattle resident taking a walk:
“Captured in living color on her patrol car’s video and audio cam, she stops an African American man on a street corner in the Capitol Hill neighborhood. Minding his own business, the elderly veteran leans against a golf club, a putter, as he waits for the light to change. The officer gets out of her car, tells him to ‘drop the golf club!’ To which William Wingate replies, in explanatory but firm fashion, ‘No. This is my golf club . . . I’ve had it for twenty years.’”
Officer Whitlatch vehemently orders Wingate to drop his golf club over twenty times, to no effect.
Finally, she approaches Wingate, seizes the ‘evidence,’ handcuffs him behind his back, and escorts him to a prisoner van, which he has difficulty boarding, for transportation to jail. But with no ‘audio- and video- recorded’ evidence to support her claim that the man took a swing at her, or otherwise threatened her, he’s released. The charges are quickly dismissed, and his makeshift cane, used on his daily ten-mile walks, is returned to him. [11]
In a sense, the 70-year old Wingate, who is now suing Seattle in federal court, was lucky. As Stamper acknowledges, “Wingate, who knew he’d done absolutely nothing wrong, took a chance that sunny afternoon in Seattle.” [12] Perhaps due to his age, or because the arresting officer was a female not fueled by rage-inducing testosterone, he was not subjected to the sorts of tender mercies that killed Eric Garner, and drove Sandra Bland to end her own life in a Texas jail cell.
A serious pattern of unconstitutional police stops based on the Terry decision has been documented in major cities all over the country. But nowhere is there such a mass of damning evidence, nor has so much attention been applied, as on the NYPD. After adopting a philosophy variably known as “broken-window,” “zero-tolerance,” or “order-maintenance” policing, New York City, starting in the 1990s, began to make heavy use of Terry stops. “Order-maintenance” policing was based on the idea that if police put constant pressure on the populace, particularly in high-crime neighborhoods, over even the most petty offenses, the rate of more serious crimes would decrease as well. In practice, this meant that the more stops officers made in these neighborhoods, the more likely they were to find contraband, whether it be illegal weapons or illegal drugs. Unfortunately, according to criminologists Michael White and Henry Fradella, the practice quickly veered from aggressive policing of observable offenses to the interdiction of potential future offenses. Officers began to be rated and promoted based on a “numbers game,” with an “exclusive” focus on “stops and arrests.” Furthermore, officers “were encouraged to aggressively enforce misdemeanor laws and employ SQF [stop-question-frisk].” Predictably, Terry stops became increasingly common. In fact, White and Fradella note, stop and frisks “grew exponentially over the next decade” until “the strategy became a quantitative measure of both individual officer and department-wide performance.” [13] Officers were now being rated merely on the number of times they stopped and frisked citizens, regardless of whether the stops turned up any evidence of wrongdoing—or whether they passed constitutional muster. In the vast majority of cases, indeed, no wrongdoing was found: the percentage of NYPD Terry stops which led to arrests remained constant from year to year, at between five and six percent. And this percentage just takes into account the reported stops. A 1999 study commissioned by Eliot Spitzer, then New York attorney general, estimated that at least 15% of stops made by New York City officers were not recorded, as required by departmental rules. Other studies have found even higher percentages of unreported stops in various police departments around the nation. In a Philadelphia lawsuit, the ACLU presented evidence that 43-47% of stops being made by that city’s force did not even meet the loose and vague standards of Terry v Ohio. And it is probably safe to assume that unreported stops would be those of the most questionable constitutional validity: officers would not want to report an abusive stop. White and Fradella quote one officer as saying, “We frisk 20, maybe 30 people a day. Are they all by the book? Of course not.” [14]
New York City’s stop and frisk mania reached its peak in 2011, when the city’s citizens were stopped on the vague Terry standard of “reasonable suspicion “ a total of 685,724 times. Yes, you read that correctly. A calculation from the arrest rate, hovering between five and six percent, yields the conclusion that at least 644,580 of the people detained and harassed by the NYPD that year were committing no crime when they were subjected to the indignity of detention and possible pawing by police officers. To add further indignity, since the city’s efforts at “order-maintenance” policing were concentrated in high-crime areas, which also happen to be minority neighborhoods, African-American and Latino citizens bore the overwhelming brunt of these abusive practices. Fully 80% of all reported stops were conducted against these two groups. Studies also found that, once stopped under Terry, African American and Latino suspects were considerably more likely to be frisked or subjected to force than those of European descent. [15] The abuse was continual and unrelenting: 45% of surveyed respondents reported having been stopped at least nine times!
In 2008 the Center for Constitutional Rights, an advocacy group, aided four plaintiffs (David Floyd, Lalit Clarkson, David Ourlicht, and Deon Dennis) in bringing suit in federal court over unconstitutional stops and frisks. The court’s analysis of police data supported the plaintiffs’ contention that New York City’s stop and frisk practices unfairly targeted ethnic-minority neighborhoods in contravention of the 14th Amendment’s guarantee of equal treatment under the law. Judge Shira Scheindlin ordered New York City to undertake several remedies, which included new “policies, training, supervision, documentation and disciplinary action,” as well as further study, community involvement and a court-appointed monitor to insure compliance. [15-A] Floyd v City of New York brought the matter of unconstitutional seizures to the foreground and, along with the election of Bill Blasio as New York mayor, led to a major reduction in Terry stops by New York officers. 45,787 were reported in 2014, a far cry from 2011’s 685,000-plus figure. We don’t know how many of these stops were constitutional, however, even under the weak Terry standard, or how many additional, unrecorded stops occurred.
New York City presents the most widely known and best-documented example of stop and frisk run amok, but it is by no means unusual. As already noted, several other American cities have been in the courts over abusive and racially disparate stops. Along with Philadelphia, there are Chicago, Boston, Newark and others. A study of Miami Garden’s force found over 65,000 annual stops in that community of only 113,000-some people. Disturbingly, some 1,000 respondents had been stopped more than 10 times each.
Terry must go
The Terry decision was an aberration in American jurisprudence, a departure from longstanding standards requiring probable cause before an “ordinary” officer might detain a person. The decision did little damage while the rights-conscious Warren Court still influenced the high bench. But with the advent of the conservative law-and-order courts under Burger, Rehnquist and now Roberts, the decision has been used to open a Pandora’s box of police-state tactics against we the people of America. The decision has particularly been used to justify abusive police practices targeted at “we the people” who don’t look like the European-descended majority citizens of the nation.
There are several reasons why the Terry decision and its lesser standard of “reasonable suspicion” must go. First, it is out-of-step with traditional American conceptions of a citizen’s right to be “let alone.” Being stopped and detained by men and women wearing guns; being roughly ordered about by strangers prepared to do you violence if you don’t obey; being forced to answer prying questions about your personal affairs; being pawed and manhandled against your will: these are all grave indignities that, if committed against you by a private citizen, would both provide a basis for criminal charges and constitute a cause of action in civil court. The framers of our constitution and courts from that time until Terry understood this basic reality, and thereby tightly constrained the circumstances under which a police officer might commit these acts. By insisting upon probable cause, these jurists insisted that such indignities not be visited upon any of us unless it is more probable than not, given the available evidence, that we are involved in criminal activity. Consider the evidence from New York City, where millions of Terry stops were committed, of which only 5% led to arrests. If probable cause had been the standard applied (i.e., it is more probable than not that a crime is being committed) we would expect at least 51% of stops to lead to arrests. The vast gulf between that and the actual percentage of stops leading to arrests suggests how far we have come from the intentions of the Framers, and how much liberty we have lost.
Stops and frisks, in and of themselves, do not generally inflict lasting bodily harm, although the psychological harm of suffering abuse at the hands of the state, sometimes extending to such highly invasive practices as body cavity searches, can certainly be significant and debilitating. But we must consider the obvious: the more stops that occur, the greater the odds that violence will ensue, when citizens rightly resist being improperly detained or otherwise fail to placate the imperious egos of police officers trained to believe, as Stamper wrote, that “they own the streets.” The video-recording of the stop of Sandra Bland in Texas was noted chiefly for the violent rampage of Texas state trooper Brian Encina once his ego was bruised. But even before that sickening moment, there is much to be appalled at. The stop was for a minor traffic violation: Bland had failed to signal when she changed lanes in front of the officer. Even by the weak standards of Terry, Encina was authorized to detain Bland only for the purpose of delivering a traffic citation, and for only as long as that function required. But as he lingers at her door while acquiring her license and registration, he grills her about her life. “How long you been in Texas?” he asks. And then, even more disturbing: “Where are you heading to now?” (No, we are not required to tell police officers how long we have been in their state or where we are going!) Bland would have been perfectly within her rights to have told Encina that it was none of his damned business how long she had been in Texas, where she had been before that, where she was going or any other details about her personal life. The police are not guidance counselors to whom we must report our affairs. Unfortunately, knowing what we now know about Encina’s low boiling point, such resistance would have likely merely gotten Bland onto the ground with Encina’s knee in her back at an even earlier point in their encounter.
When Encina returns to Bland’s car with the citation, he can see that Bland is upset and inquires whether something is wrong. Of course, he knows what is wrong—she’s unhappy about the ticket. (As Bland later explained, disconcerted by the officer tailgating her, she had quickly pulled into the other lane.) Once again, Bland’s state of mind is none of his business: here is a police officer who believes he owns not only the streets, but also access to every citizen’s intimate thoughts and feelings! Next he asks Bland to put out her cigarette, presumably so he can hang around and interrogate her further, and this is where the whole tragedy begins to unravel. If Encina had skipped the invasive probing, and been content to hand Bland a ticket and be on his way, a bright and caring young woman would still be with us today.
Aside from being un-American and dangerous, the continual use of Terry stops has almost irreparably ruined police departments’ rapport with the citizens they are hired to protect and serve. Study after study have shown pervasive feelings of distrust toward police officers in some neighborhoods, where police are looked upon as an occupying army, not public servants. A study conducted by the Center for Constitutional Rights reports that “residents of some New York City neighborhoods describe a police presence so pervasive and hostile that they feel like they are living in a state of siege.” [16] When citizens and police square off as mutually antagonistic forces, legitimate police work is greatly hindered: people don’t report crimes, they refuse to come forward or testify as witnesses and are more likely to aid and abet lawbreakers, as they now share a common enemy—the police.
In spite of the grave problems Terry has caused, police departments and many informed observers still argue in favor of the lesser standard of “reasonable suspicion” for “investigatory stops.” They claim that the practice can help reduce crime, an assertion that is not wholly unfounded. Indeed, the defendants in the Terry case both had records, and it is quite possible they were casing the stores on the Cleveland block. The fact that John Terry was killed the year before the final Supreme Court ruling in a shoot-out with police while conducing (no kidding) a hold-up, lends credence to the assertion of Justice Warren that Officer McFadden’s actions constituted a brilliant piece of intuitive police work. In the early years of New York City’s heavy adoption of stop and frisk, to take another example, significant numbers of illegal weapons were confiscated during Terry stops, as well as copious amounts of illegal drugs. (In subsequent years, however, the gun haul dropped precipitously—perhaps because the low-lying fruit had already been collected.) Whether the crimes uncovered justified subjecting millions of law-abiding citizens to detention and possible frisking, however, is another question. After all, if we had a squad of officers search each of our homes every day at three in the afternoon and three in the morning, they would also probably turn up some criminal activity. Missing some criminal activity, however, is the price we pay for the right to be “let alone.” And we must remember that most of the “criminal” activity being sought in these invasive detentions is the use of drugs: an activity that in this writer’s opinion should not be a crime at all.
Criminologists White and Fradella, whose study of stop and frisk I have already referenced, believe that stop and frisk constitutes a useful tool in the crime-fighting toolbox. They argue that abuses can be eliminated through new practices ranging from hiring, to “violence reduction training,” to clear rules of engagement and external oversight. This assertion, however, is brought into doubt by their own lengthy treatment of the concept of suspicion heuristic, a subconscious mechanism that skews our judgments, incorporating racial biases which, as White and Fradella relate, operate “below the level of conscious awareness” and are therefore very difficult to control. [17] Even more troubling is ex-Seattle chief Norm Stamper’s suggestion that some significant though unspecified percentage of “ordinary officers” are struggling with mental illnesses and have difficulty controlling anger. [18] Both authors comment on education levels as important: to expect officers with less-than-advanced educations to regulate their activities in accord with complex and fuzzy legal doctrines is unrealistic. The Framers, aware of such factors, preferred that “ordinary officers” go to magistrates for warrants before harrassing the citizenry. We might paraphrase Plato: giving ordinary officers the authority to detain and search citizens on their own discretion will not work until police officers become jurists or jurists become police officers.
Neither is likely to happen soon.
As a practical matter, ridding our society of the scourge of Terry will not be simple. With the Supreme Court already leaning well right, we are looking at one and possibly two more Trump appointments (or Pence appointments, if Trump doesn’t last out the term). Whereas decisions of lower federal courts, such as that in Floyd vs. New York, may continue to help rein in the worst abuses, especially those where racial disparity can be demonstrated, we are not likely to see the Supreme Court overturn Terry. It will therefore be up to state legislatures to regulate the practice or, better yet, to Congress, once in more enlightened hands, to take up a constitutional amendment to make explicit the constraints which the 4th Amendment strongly suggests. Meanwhile the establishment of citizen review boards in every community, with standing legal counsel, subpoena power and the authority to dismiss officers they don’t feel are properly serving their communities, will be required to keep police in line. We must put the relationship of the police and the citizenry back on its proper footing. Just as the nation’s military bows to civilian authority, police officers are our public servants, there to do our bidding—not to call the tune to which we must dance. Their badges and guns authorize them to conduct tightly constrained acts in the constitutional pursuit of criminals, and that is all. Changing Terry will not solve all policing problems, of course. Much effort is needed on use of force, de-escalation techniques, recruiting and training to name a few. But a jettisoning of Terry stops will go a long way toward removing a constant source of police bullying—and consequent community disaffection. Returning to the pre-Terry world of more tightly constrained police-citizen interactions will remind “ordinary officers” that they are not all-powerful ombudsmen, authorized to roam the community, stopping citizens left and right, prying into our lives on the flimsiest of pretexts and conducting invasive searches and seizures—as if they have a pre-agreed right to invade our bodies. In rectifying the relationship of citizen and police, everyone will benefit: the citizenry will regain the right to be “let alone,” and police officers will regain the respect they deserve for the dangerous job they do in our behalf.
[1] Neubauer and Fradella, America’s Courts, 34-35, quoted in White and Fradella, Stop and Frisk, p.22
[2] All quotes from Lewis Katz, “Terry v. Ohio at thirty-five: a revisionist view,” in Cynthia Lee, ed., The Fourth Amendment: Searches and Seizures, 142-143
[3] Thomas Y. Davies, “Recovering the original Fourth Amendment,” in Cynthia Lee, ed., The Fourth Amendment: Searches and Seizures, 142-143
[4] Michael C. Gizzi & R. Craig Curtis, The Fourth Amendment in Flux, p. 9
[5] Michael White and Henry Fradella, Stop and Frisk, p.74
[6] Michael C. Gizzi & R. Craig Curtis, The Fourth Amendment in Flux, p. 73
[7] Lewis Katz, “Terry v. Ohio at thirty-five: a revisionist view,” in Cynthia Lee, ed., The Fourth Amendment: Searches and Seizures, 143-144
[8] Arnold Loewry, “The cowboy and the cop: the saga of Dudley Hiibel, 9/11, and the vanishing Fourth Amendment,” in Cynthia Lee, ed., The Fourth Amendment: Searches and Seizures, 284
[9] Norman Stamper, To Protect and Serve, p. 145
[10] Norman Stamper, To Protect and Serve, p. x
[11] Norman Stamper, To Protect and Serve, 148-149
[12] Norman Stamper, To Protect and Serve, p. 149
[13] White and Fradella, Stop and Frisk, 85-87
[14] White and Fradella, Stop and Frisk, p. 63
[15] White and Fradella, Stop and Frisk, p. 103-109
[15-A] White and Fradella, Stop and Frisk, p. 105
[16] White and Fradella, Stop and Frisk, p. 109
[17] White and Fradella, Stop and Frisk, p. 65
[18] Norman Stamper, To Protect and Serve, p. 63
