Terry's impossibility

St. John's Law Review, Summer 1998 by Stuntz, William J

Ron Allen and Ross Rosenberg have written a terrific article.1 It is fascinating, thought-provoking, and all the other things we say about good scholarship. More than that, it is right. There is indeed a difference, and a huge one, between what Hayek called "grown" and "made" systems-between systems that evolve from the bottom up and systems ordered from the top down.2 Law enforcement and the law that regulates it do indeed function best when seen, as they should be, as "grown" rather than "made." And a great deal of legal theory does indeed treat policing and Fourth Amendment law as "made" systems, as if they were sets of pieces in a jigsaw puzzle box, and all one need do to get the perfect picture is arrange all the pieces just so. Allen and Rosenberg make these points effectively and engagingly, and I have little to add to their article.

What I wish to do instead is to recast Allen and Rosenberg's argument, apply it to Terry doctrine (Allen and Rosenberg talk a good deal about Fourth Amendment doctrine in general, but say little about the law and practice of street stops, which is the chief focus of this symposium), and, I hope, extract a few lessons in the process. The central idea of the recasting and application goes as follows. As Allen and Rosenberg note, most legal theory suffers from a tendency to underestimate the magnitude and importance of error costs. That tendency is a particular problem when it comes to legal regulation of street-level policing, because that kind of legal regulation is especially prone to error. Even if one does not buy the terms of Allen and Rosenberg's argumentand I do buy them-there is no getting around the central difficulty of Terry and the law it has spawned. Most of what we would like that law to accomplish is impossible; the necessary legal judgments cannot be made with even a decent degree of accuracy. When regulating street policing, we are living in a land of bad choices.

I. BACKGROUND

It is best to begin by defining the subject a little more precisely. Terry v. Ohio3 states a rule: A police officer may conduct a brief search of a suspect's outer clothing if the officer has reasonable grounds for suspecting that the suspect has a weapon.4 Terry does not define "reasonable suspicion," but it is clearly something less than probable cause.

That rule has spawned a large and important body of law, with three other rules and two doctrinal open spaces playing key roles. The rules are these: (1) Police have "seized" someone if a reasonable person in the suspect's position would not feel free to leave.5 .(2) Police can briefly seize and detain suspects based on reasonable suspicion of past or future crime.6 (3) The Terry standard applies to stops of vehicles as well as pedestriansmeaning both that vehicles can be stopped based on reasonable suspicion of crime7 (or, of course, based on traffic offenses)8 and that the police can conduct a cursory search of the vehicle based on reasonable suspicion of the presence of a weapon.9

The two key open spaces involve the meaning of the first of those three rules-the definition of "seizure"-and the content of the reasonable suspicion standard, which appears in the other two. The truth is that ordinary people never feel free to terminate a conversation with a police officer; if the "seizure" standard means what it says, every street encounter between a police officer and a citizen is subject to Terry's reasonable suspicion standard. That obviously is not the case.10 But what the standard does mean is far from clear; the likelihood is that it means different things in different places, according to different judges' intuitions about the proper level of police coercion in street encounters. Similarly, reasonable suspicion has never received a solid definition. (Perhaps it can't.) Courts have a fair amount of room to maneuver; the standard seems to vary depending on the judges' sense of how intrusive or coercive the relevant police behavior is, and how serious or threatening the suspected crime is. As this brief description suggests, Terry doctrine seems to represent a serious attempt to regulate street-level policing, to forbid bad police encounters while permitting good ones. Those unfamiliar with Fourth Amendment history might suppose that the law has always done this, but in fact Terry and the huge caselaw it has spawned are a new thing, a clear departure from the Fourth Amendment's past. Before the late 1960s, policing on the street was basically unregulated. Effective remedies for police misconduct didn't exist until the middle of this century, when large numbers of states began to adopt an across-the-board exclusionary rule, a norm that became universal with Mapp v. Ohio11 in 1961. Even then, loitering and vagrancy laws were sufficiently broad to give the police authority to stop or arrest almost anyone, or at least anyone they were plausibly interested in stopping or arresting.12 Probable cause was no obstacle, because it was so easily established. Not until the latter half of the 1960s, when those loitering and vagrancy laws started to fall to vagueness challenges,l3 did ordinary police-citizen encounters on the street become a serious Fourth Amendment issue.14 Terry represents the first time the legal system really faced the question of how to rein in street policing, how to use legal tools to make the police behave reasonably on the ground. Assessing how well the system has answered that question is a complicated task. A good place to begin is by understanding the difficulty of the job the system undertook when, thirty years ago, Earl Warren explained why Officer McFadden's frisk of Terry's jacket was reasonable.