Terry v Ohio in the trenches: A glimpse at how courts apply "reasonable suspicion

St. John's Law Review, Summer 1998 by Thomas, George C III

The papers by Professors Saltzburg1 and Harris2 are both splendid-in the best tradition of legal scholarship. Each paper is thoughtful, insightful, and provocative. I want to suggest that, in a sense, they are both right. How can this be?

Professor Saltzburg presents Terry3 in its aspirational stance. This is Terry as Chief Justice Warren and the other members of the Terry majority wanted it to be-permitting flexible, cautious law enforcement responses to fluid, potentially dangerous street encounters, but always requiring the police to demonstrate specific facts which give rise to permissible inferences that crime is afoot. Professor Saltzburg is satisfied with Terry, I think, because he believes it comes close to that aspiration.

Professor Harris, on the other hand, is a cynic. He sees the loose language that has evolved as a Terry standard-reasonable suspicion-and he believes that prosecutors can drive a truck through that language. He believes that judges will wink or nod or doze and rule in favor of the prosecution on very thin evidence. In the Terry opinion itself, the Court fretted about the burden of aggressive policing on racial minorities, noting that the exclusionary rule has no effect on the "wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain."4 If prosecutors win almost all Terry suppression hearings, it means the police can hassle just about anybody who happens to be in or near a high-crime area, which means the burden of Terry's loose standard falls disproportionately on racial minorities.

It seemed to me when I was reading these papers that each writer is right, in the sense that if the world feared by Professor Harris is the one we inhabit, there is good reason to reject Terry. But if the world is closer to that envisioned by Professor Saltzburg, then Terry may be more beneficial than harmful. So the issue, I think, is how best to determine which world we inhabit.

More than a half century ago, the legal realists rejected the notion that law was a science that could be applied the way engineers apply math.5 Instead of pretending that judges are bound by a rigid rule of law (which would be a ridiculous claim for Terry's standard of reasonable suspicion), the legal realists called for a better understanding of how judges apply law at the "wholesale" level of trial courts. This, they argued, would tell us more about law than any study of doctrinal categories. One way to understand how judges apply law is to count what they dowho wins, who loses. Examining this empirical reality would give us more confidence when describing how law works-in this case, how effectively the lower courts limit the discretion of police officers to make stops and frisks based on hunches or on class and race stereotypes.

Few researchers took the legal realist challenge to gain an empirical understanding of law.6 The reasons for this are varied, ranging from habit (if creating or clarifying doctrinal categories was good enough for Blackstone and Wigmore, it is surely good enough for us) to the tedious, time-intensive nature of most empirical projects. There has recently been a resurgence of interest in the empirical question of how Miranda v. Arizona7 has affected police interrogation and the confession rate. Professors Richard Leo and Paul Cassell have each undertaken recent field studies of police interrogation (Cassell was assisted by Bret Hayman).8 Closer to Terry's Fourth Amendment "home," Professor Peter Nardulli in the 1980s conducted two major studies of pre-trial motions to suppress, lumping into a single category all motions seeking to suppress physical evidence.9

I do not know of any similar research that isolates how Terry issues are decided. Without that kind of insight into what Terry means at the level of the day-to-day operation of the criminal justice system, I can claim that both Professor Saltzburg and Professor Harris describe a world that could be the world we inhabit. Stated differently, we can endlessly debate the value of Terry at the level of abstract theory and never resolve anything because we do not know whether we have the "good" Terry or the "bad" Terry10 operating when courts decide motions to suppress.

Professor Harris presented some examples of how lower courts have evolved pernicious Terry categories as a substitute for the hard work of applying the fact-sensitive standard of reasonable suspicion.11 While I mostly share his criticisms of these cases, we don't know how representative they are. Indeed, a Westlaw search for "Terry v. Ohio" & "reasonable suspicion" turned up more than 5,000 state and federal cases. If that many cases are in the Westlaw database, which consists predominantly of appellate cases, there must be tens of thousands of Terry cases decided at the trial stage. We need a random sample to tell us what is really happening at the level of the motion to suppress.

The best kind of study would be one like Nardulli's-where a researcher isolates the motions to suppress that decide Terry reasonable suspicion issues and then records which party won at the trial level. There are two problems in applying this methodology to the Terry issue. First, I could not undertake such a study in time to present it as part of the St. John's University Law School Terry conference. Second, and more fundamental, it is unlikely that a written motion to suppress will always, or even often, disclose that Terry is the crucial issue. Rather, I suspect that most Fourth Amendment motions to suppress are something along the lines of "move to suppress evidence found in a search of defendant's person and vehicle, conducted in violation of the Fourth Amendment." Why would a defendant raise Terry? Defendants would prefer to litigate the search as a failed search incident to arrest or vehicle search, both of which require probable cause. The prosecution is the party who would, at the hearing on the motion to suppress, raise Terry as a safe harbor in case the judge found the search and seizure to lack probable cause. If this is right, researchers cannot use court records to construct a database, as Nardulli did, and would be forced to attend the motions to suppress or, alternatively, persuade judges to permit the taping of the hearings. Both of those arrangements are difficult, time-consuming tasks.