

by Peter Moskos

October 31, 2015

Terry v. Ohio

For such a Landmark Case, I was curious how Terry v Ohio (1968) was reported at the time. I was thinking it would have been hard to see its potential implications at the time (though William Douglas did so in his dissent).

Indeed, on June 11, 1968 the New York Times said:
Held, 8 to 1, that the police may constitutionally stop and frisk suspicious persons, even if the officers do not have probable cause to make an arrest.
That's it.

In July 1974, the Times gave Terry six paragraphs in a long obituary on Earl Warren:
One notable exception to this ["'anti police' pattern"] came in 1968, when a political backlash was building up against the Court's restrictions on the police, and even some liberals were beginning to wonder if the Court had not been too rigid in ruling out all evidence obtained in violation of the Supreme Court's procedural rules.
He then declared, with obvious reluctance, that weapons sized by "frisking" could be used in evidence -- a decision that civil libertarians lamented as a serious breach in the Fourth Amendment's shield against unreasonable searches and seizures.
One way to see the growing influence of Terry is to look at the increase in citations over time. Using ProQuest's newspaper search, there were only 3 references to "Terry v Ohio" in the entire decade of the 1970s. This grew to 7 in the 1980s, 11 from 1990 to 1999, 36 in the 2000s, and 56 in the 6 years since 2010.

It's interesting to me, listening to the oral argument (for the first time as I didn't know you could do that!) that a big part of the debate circles around the idea of whether Terry was "arrested" at the moment he was stopped and not free to leave. The answer now seems obvious, but this is where "stop" -- the idea of "temporary detaining" -- got put in "stop and frisk."

Brennen asks:
It's certainly not an arrest in the sense of taking him to the station house and booking him for a crime; but, if he's detained, isn't it in the nature of an arrest?
Lawyer Payne:
The first seizure of the person was at the time that he ordered them into the store.
Brennan, Jr.:
You mean when he took Terry and swung him around there was no seizure of the person?
I think there was a temporary detaining, or interference with his person.
Brennan, Jr.:
Well, he had his hands on him and he switched him around.
Surely -- there was no seizure of the person?
What is the difference between seizure and arrest?

You know, a seizure -- you don't seize a man -- I mean, you may seize him because you seize something tangible, but that's not what you are talking about in a seizure in the Fourth Amendment.

I thought it was an arrest?
...and some may term that as a seizure of the person himself; but I would not term that it as a seizure of the person himself unless he has the intention of taking that person into custody, even though he may lay hands on him at that particular time.
Payne won the day.

[As a refresher course, Terry was extended to allow drugs based on "plain feel" if "immediately obvious" in Minnesota v. Dickerson (1993). (People v. Diaz says this does not apply in New York State.)]


Adam said...

That's interesting. Ultimately, though, all the justices agreed that for Fourth Amendment purposes, Terry was "seized" when he was stopped and "searched" when he was frisked. The dissent's gripe was that the police normally need a warrant and probable cause to perform searches and seizures. Of course, if you just read the words of the Fourth Amendment, it doesn't say that anywhere. You need probable cause for a warrant, but searches and seizures just have to be "[]reasonable." For decades, we've taken the first half of the Fourth Amendment and woven it together with the second half, even though they can (and should) be read separately. The whole idea of requiring warrants and probable cause for searches and seizures is a judicial creation. The Court got it right in Terry and wrong just about everywhere else.

Alex Elkins said...

The stop/detention v. arrest was major for the folks coming out of the late 1950s ABF study, like Remington and LaFave. They organized their thinking about the arrest (and stop-and-frisk) on that distinction. If I understand it correctly, their great big question was when, precisely, an arrest began, and the rights of a person from initial contact to the patrol wagon to the station house. The only reason I know anything about this is because my dissertation (in addition to examining early stop-and-frisk policing) looks at the flipside of that equation: the right to resist unlawful arrest.