Terry v Ohio: A practically perfect doctrine

St. John's Law Review, Summer 1998 by Saltzburg, Stephen A

I. INTRODUCTION

Thirty years ago the Supreme Court announced its 8-1 decision in Terry v. Ohio,1 and placed its imprimatur on forcible police encounters with citizens when police lack both probable cause and a warrant. We have now had three decades of experience with Terry, and this is more than enough time to assess how well the decision has worked to guide law enforcement officers as to what is permissible and what is not, and also to protect the legitimate privacy rights of citizens.

Chief Justice Earl Warren assigned the Terry case to himself. It is apparent from the way the opinion is written that he knew the case was important. Chief Justice Warren left the Court not long after he wrote Terry,2 and we do not know what more he would have had to say about stop and frisk or whether he would have approved of how the Terry case would be used over time. Chief Justice Warren was looking forward as he wrote Terry. We are looking backward as we review the decision. We can ask ourselves how prescient the Chief Justice was and how well his approach has stood the test of time.

My thesis is rather simple and straightforward. It has four prongs. First, Terry itself failed to provide a clear enough yardstick for law enforcement, and without further elaboration by the Supreme Court, the doctrine might have become unworkable. Second, subsequent Supreme Court elaborations on Terry have developed a standard that is as clear as most Fourth Amendment standards can be and that is adequate to distinguish permissible from impermissible law enforcement confrontations with citizens, at least as far as stops are concerned. In fact, the results reached under Terry are practical, reasonable and defensible. They are practically as perfect as we are likely to get. Third, the extension of Terry to a number of different situations that are analogous to stops has been, for the most part, logical and defensible. Fourth, the aspect of Terry that is most problematic and that requires a more subtle approach than the Court has offered thus far is "the frisk."

In order for me to develop these points, I want to return to the facts of Terry and its companion cases, and to the way the Court framed the issue before it. It is important to know the nature of the police activity and the choices that the Court examined in its landmark decision.

II. RETURNING TO TERRY

A. The Facts

A veteran Cleveland police detective, Martin McFadden, whose name would become a staple in all criminal procedure casebooks that were first born from the many criminal procedure decisions of the Warren Court, was patrolling downtown in plain clothes when he saw John Terry and Richard Chilton standing on a street corner.3 Terry and Chilton were strangers to McFadden, who had patrolled this vicinity of Cleveland for 30 of his 39 years as a police officer.4 McFadden's principal assignment was to patrol for shoplifters and pickpockets, but he had developed "habits of observation" which resulted in his paying careful attention to people he observed while on duty.5 According to McFadden, when he looked at Terry and Chilton, " `they didn't look right to me at the time.' 6

Once he decided that the two men did not look right to him, McFadden took no action to interfere with the men's freedom of movement. Instead, McFadden decided to continue to observe them.7 He saw them take turns walking from the corner a short distance to a store window, pause in front of the window, and then return to the corner where they would confer together.8 McFadden saw them do this perhaps a dozen times in total before a third man, Carl Katz,9 unknown to McFadden, approached Terry and Chilton on the corner and engaged them in conversation.10 Katz left, and Terry and Chilton resumed their pattern of taking turns walking to the store and back described above for 10 or 12 minutes.11

Detective McFadden became "thoroughly suspicious" at the pattern he observed, because it appeared to him that Terry and Chilton might be " `casing a job, a stick-up.' "12 But, he took no action to intercept the men, to reveal that he was a police officer, or to move closer to them while they were walking to and from the store until the two men walked away from the corner in the same direction Katz had gone.13

Although the men were no longer "casing" the store, McFadden concluded that it was his duty to investigate the men and developed a fear that they might be armed.14 He followed the pair and saw them stop in front of a store to talk with Katz.15 McFadden, with no information about any of the three, other than what he had observed, approached the group, identified himself as a police officer, and asked for their names.16 They mumbled something in response, but did nothing to resist or avoid McFadden. McFadden grabbed Terry, spun him so that he and Terry were facing Chilton and Katz, and moved Terry in front of him so that he could frisk him while observing the others.17 Feeling a pistol, McFadden unsuccessfully attempted to remove it from Terry, and ordered the three men into the store.18 McFadden then removed Terry's coat, took a pistol from it, and ordered the three men to face the wall with their hands raised so that he could pat them down. He felt a gun in Chilton's overcoat and removed it, but discovered nothing that felt like a weapon as he patted the outer clothing of Katz. McFadden took all three men to the police station, but only Chilton and Terry were charged, both with carrying concealed weapons.19