Justice Brennan's supporting role

St. John's Law Review, Summer 1998 by Fisher, Raymond C

First of all, this conference is quite timely, even though it is 30 years after Terry.In my more recent incarnation, before I became a member of the Justice Department, I was serving as President of the Los Angeles Police Commission, which has jurisdiction over the Los Angeles Police Department. I was being briefed as a Commissioner by the head of the anti-terrorist division, which, as its name implies, engages in domestic surveillance of alleged terrorist groups. It has been a very controversial division in Los Angeles. It had been accused of spying against political figures and the like, and its ability to engage in undercover operations and the like had been litigated and constrained by a consent decree. The consent decree had expired and we, as Commissioners, were being asked to liberalize the conditions under which the LAPD could send in undercover officers or engage in wire taps or the like. Not having done any criminal law since I left the Court, I was wondering, what are the restraints in criminal procedure these days on engaging in this kind of activity? I was told by the City Attorney, "Oh, don't worry. You can do this under reasonable suspicion. That's Terry v. Ohio."2 That was a bit of a flashback. As Earl said, I didn't remember "reasonable suspicion" as the standard that came out of that case, but I had not looked at it recently.3 My actual reaction, though, was surprise: "Is Terry v. Ohio still the law?!"

Interestingly enough, there's another side of the equation that's still being litigated quite aggressively in Los Angeles and relates to the issues we're talking about today. There is a controversial special investigative unit in Los Angeles, which consists of a highly trained group of officers who are charged with the surveillance and arrest of allegedly heavily armed bank robbers and criminals. There's a civil rights lawsuit pending in federal court where there is a serious issue of whether the squad is violating the civil rights of the bad guys by waiting for the crime to happen before the squad intervenes. Often, the crime happens and as the bad guys leave the scene, usually a bank or a business establishment, the squad then engages in fairly aggressive arrest techniques. The argument that is being made by the plaintiffs is that the police officers should be able to intervene much earlier in the process. That is, they ought to be able to, either under a doctrine of probable cause or even reasonable suspicion, intervene and stop these events before they happen. The police officers are arguing that if they do so, they will not get convictions, and the cases will be tossed for lack of probable cause. So, it is a very live and heavily debated issue. I find it somewhat ironic that 30 years after I had a modest role in the Terry v. Ohio discussion of probable cause and reasonable suspicion, when I was only one-and-a-half years out of law school with absolutely no knowledge of what really went on in the streets, I was confronting these same issues 30 years later with a lot of real-world experience to inform my judgments. And that leads me to talk a little bit about process.

What you've heard today, and certainly what I've heard today, from the lawyers who actually tried the facts of the case and saw the participants, is a much fuller discussion of what happened in Terry v. Ohio, in the actual event and in the litigation of the case. By the time a case gets to the Supreme Court and falls into the hands of the Justices and the law clerks, it gets very abstracted; not away from the facts entirely, because as you'll see from the opinion, there's a very careful recitation of the facts.4 But at least in the cases I had the opportunity to work on, you wind up dealing with a record that is a cold record. You're reading the transcript and you do not get the nuances. You never see the people, the real people involved, and you only get a sense of what the facts were generally about. And as a law clerk, it often bothered me that we were trying to deal with making law based on what was a very abstract record.

Now that is the nature of the appellate process, understandably, but when one practices and goes out and tries cases, one realizes how much the facts matter and as Judge Juviler was saying, how much juries can be influenced by what the nuances are and by what goes on in the real world. So there is that disconnect.5 As Earl was saying, the Justices in Terry v. Ohio were attempting to deal with major, major principles of law, namely, the evolution of search and seizure and the exclusionary rule, based on a record that was presented to them through argument, through the transcripts, and the like, but which was fairly abstracted.6 And the Justices were, as they did throughout the Term in a number of different kinds of cases, trying to articulate principles based on what they believed the real world was all about. That is a very human process and can frequently be flawed. Not necessarily in a bad way, but certainly as to certain aspects of decisions which those of us who later have to go out and practice under, these standards may cause us to wonder, what the heck were they thinking about? Where are they getting their information?