Terry v Ohio, the Warren Court and the fourth amendment: A law clerk's perspective

St. John's Law Review, Summer 1998 by Dudley, Earl C Jr

I feel very much like one who, to use a current term, has been "outed" from a closet in which I have resided for thirty years. When John Barrett first invited me last fall to participate in this conference, he told me that he had learned from my coclerk Ty Brown that I was the law clerk who worked for Chief Justice Warren on Terry v. Ohio1 and its companion cases.2 I responded that I had no difficulty acknowledging in a private conversation with a fellow academic that I had been the Chiefs law clerk on Terry, but that I had never spoken in public-or even in any detail in private-about my work for the Chief Justice on any case. This was because of the stress he placed on confidentiality. I still recall vividly our first meeting with Chief Justice Warren in the fall of 1967. He told us that he considered us his lawyers and that our work for him was covered by the attorneyclient privilege. He acknowledged that we would discuss the work of the Court with clerks from other chambers, but said that he expected what was said and done in his chambers to remain there.

John said that he would honor my views but that he hoped I would in any event attend the conference. We did not speak again until February, and this time John said there was something I should know. He had recently been doing research at the Library of Congress and had been given access to the Warren papers. He had read-and indeed made copies of-many of the preliminary drafts and memoranda I had prepared for the Chief in Terry, Sibron, and Peters. So much for the attorney-client privilege!

John was kind enough to send me copies of the memos that he had copied from the Terry file, and so I had the eerie experience of rereading words I had written thirty years ago on a topic that has continued to interest me, one which in recent years I have come to teach in law school regularly.

Despite my trip down memory lane, what I want to say about Terry, its companions and its progeny derives, not so much from those once-confidential drafts and memos, but largely from the opinions as published and the historical setting in which the Court first ventured into the world of "stop and frisk."

First the historical setting. Two powerful political and legal vectors intersected in the Terry cases in 1968.

In 1960, the Civil Rights movement, which had largely received support and encouragement from the Supreme Court, but had relatively little to show for it, took its case from the courthouses to the streets. While bus boycotts, and rallies and demonstrations in support of lunch-counter sit-ins and of voting rights for black citizens effectively dramatized the continuing scourge of racism, they also created a backlash even among those sympathetic to the underlying cause. At the same time, despite legislative victories such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965, frustration at the slow rate of progress boiled over into riots in urban ghettoes from Newark to Detroit to Los Angeles. It was the decade of the long, hot summers. When opponents of the Vietnam War also to took to the streets beginning in about 1967, political tension and violence escalated even further. Only two months before Terry was handed down, there was a major outbreak of rioting in many cities, including Washington, D.C., in the wake of the assassination of Dr. Martin Luther King, Jr.

At the same time, the Supreme Court had come under heavy fire for its decisions enforcing the constitutional claims of those accused of crimes. In 1964 the Court's criminal procedure decisions were for the first time a major target of the Republican presidential campaign, and similar attacks were to be expected in the upcoming 1968 election.

In this context the police made a politically powerful, and common-sensical argument that they needed greater authority to deal with street encounters that always had the potential to escalate into violence. Several states passed statutes authorizing "stop and frisk" tactics, and the courts of other states recognized such authority under common law and state constitutional rubrics.

Individually, the Justices of the Supreme Court may have felt differing degrees of sympathy with the arguments of the police, but collectively they were unwilling to be-or to be perceived as-the agents who tied the hands of the police in dealing with intensely dangerous and recurring situations on city streets.

On the other hand, many of the Justices were skeptical about the scope of the authority claimed by the police. The President's Commission on Law Enforcement and the Administration of Justice, chaired by Attorney General Katzenbach, had just issued its massive report, which was critical of many police practices, including some aspects of so-called "aggressive patrol" tactics in urban ghettoes.3

Moreover, there was some reluctance to recognize authority on the part of the police to detain a person for investigative purposes on less than the traditional standard of probable cause. Such detention could quickly expand for all purposes into an arrest. Nor was there universal trust in the neutrality of the authorities. While the red-baiting fever of the 1950s had eased somewhat, J. Edgar Hoover was still the Director of the FBI, the House Committee on Un-American Activities and its counterpart, the Senate Permanent Subcommittee on Investigations, were still very powerful, global communism was still seen as the major threat to democratic institutions, and political tensions ran high on a number of fronts, but especially over the war in Vietnam. Nor had First Amendment doctrine yet attained its current robust state. In this context, the power to "detain" for "investigation" on mere "suspicion" seemed, at least, susceptible of major abuse.