Hang on to your Hats! Terry into the twenty-first century

St. John's Law Review, Summer 1998 by Muller, Eric L

The title of our section of this Symposium is "Terry and the Future of Constitutional Criminal Procedure: Into the 21st Century," so I'd like to spend my time on an important point of agreement between Professors Amar and Slobogin that indicates a promising path for Fourth Amendment doctrine. This is a path that could carry the Fourth Amendment's requirement of "reasonable" police conduct into areas of police-citizen interaction that are currently outside the scope of the Fourth Amendment entirely. It is a path worth traveling, or at least exploring, because there is a potential for a great deal of mischief in this currently uncharted terrain. By talking briefly about one small piece of this terrain-the so-called "community caretaker" doctrine-I hope to persuade you that the central idea of Terry v. Ohio1 and its progeny will remain relevant in the next century.

At a conference devoted entirely to Terry v. Ohio, it is, of course, dangerous to refer to "the central idea of Terry" as though that were self-defining. I take the central idea of Terry to be its refreshing flexibility: Its willingness to break from the rigidity of the probable cause requirement, and to recognize that police officers interact with citizens in many more ways than a strict Warrant Clause approach would envision. It is important to remember that police officers were stopping and frisking suspects on the streets for years before 1968.2 The Terry decision did not create the stop-and-frisk; police officers did. Terry's innovation was its honesty, its willingness to acknowledge that things were happening on the streets that did not easily fit a Warrant Clause model, but that still deserved some form of scrutiny by judges. The flexibility offered by Terry was, of course, quite limited: It replaced a single level of police suspicion, probable cause, with two levels, probable cause and reasonable suspicion. Furthermore, Terry opened the eyes of the judges only to the stop-and-frisk-a single and fairly intrusive sort of investigative technique that did not look quite like a full-blown arrest or a formal search. However, Terry introduced the idea that the Fourth Amendment might have relevance across at least a somewhat broader segment of a continuum of policecitizen encounters, and for this I believe it deserves praise.

Professors Amar and Slobogin believe this too. What links their work most powerfully, and most usefully, is their endorsement of the sliding scale in Fourth Amendment analysis. Professor Slobogin advocates that "the level of certainty necessary to authorize a police action . be governed solely by the level of its intrusiveness."3 This proposal, referred to-as "the proportionality principle," is an unabashed call for a sliding scale approach to the Fourth Amendment.4 The less intrusive the investigative tactic, the less certain of wrongdoing the police need be in order to use it. His approach dramatically de-emphasizes the eternally perplexing inquiry into whether a particular police tactic constitutes a classically defined "search" or "seizure," and instead focuses attention on how intrusive, and how justified, the tactic was. His approach also carries the Fourth Amendment below full-blown Warrant-Clause searches, past Terry-style stop-andfrisks, to even the most minimally intrusive police tactics.

I read Professor Amar to favor a sliding scale as well, although one that examines a richer set of factors than does the Slobogin proportionality principle. For Professor Amar, the sliding scale is right there in the text of the Fourth Amendment: The reasonableness requirement. Searches and seizures by warrant need to be supported by probable cause, but all searches and seizures must be reasonable. And reasonableness is, of necessity, a sliding scale: As Professor Amar states, "serious crimes and serious needs can justify more serious searches and seizures."5 Admittedly, the Amar sliding scale differs in major ways from the Slobogin sliding scale. Professor Slobogin's inquiry into proportionality involves a straightforward focus on intrusiveness. On the other hand, Professor Amar's inquiry into reasonableness involves an examination of a much wider array of factors, including not just the degree of intrusion but also the impact of the police tactic on other constitutional norms.6 Despite their differences, the two proposals we have heard about today share a common desire to expand the scope of the Fourth Amendment to a much broader segment of the spectrum of police-citizen interaction than the current two-tiered approach can capture. Their proposals make good on Terry's promise of Fourth Amendment flexibility.

Because this is an important promise, these are important proposals. Terry itself called judicial attention to the stop-andfrisk, and thereby brought some semblance of order to what had been an entirely unregulated police practice. A great deal of investigatory mischief remains undetected thirty years after Terry because it remains entirely outside the scope of the Fourth Amendment. One fertile area for such mischief is the so-called "community caretaking" function of the police. I would like to describe the community caretaker doctrine to you in the hopes that you will come to see it as a type of police-citizen interaction calling for some form of judicial supervision, just as the stop-andfrisk had done thirty years ago.