Terry v. Ohio, 392 U.S. 1 (1968)

Terry v. Ohio was a landmark Supreme Court case in which the Court ruled there was no violation of Fourth Amendment privacy rights in allowing police officers to stop and “pat down” persons on the street when the officers have reason to believe they may be dealing with “armed and dangerous” persons. The officer “need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”
John Terry and Richard Chilton were standing on a street corner in Cleveland, Ohio, in October 1963, when an off-duty police detective observed them. Although he could not say precisely why, he thought the two men looked suspicious. Therefore, he hid by a store some 300 to 400 feet away and watched them. Terry and Chilton appeared agitated. Terry walked down the street, looked in a store window, and then returned to where Chilton was standing. Then Chilton went to look in the same window and returned to where Terry was standing. This routine was repeated multiple times. At one point they were met by a third man, who spoke with them for a while and left. The separate trips to the store window resumed.
Eventually, Terry and Chilton left their position on the street corner and walked in the same direction the third man had gone. The detective followed. The officer testified later that he believed the men had been “casing a job, a stickup” and thought they might have guns. Terry and Chilton eventually met the third man again, and the detective decided to confront the three men.
The detective approached the men, identified himself as an officer, and asked their names. The three men mumbled a response. When he failed to get a clear response, the detective grabbed Terry and turned him around so he was facing his friends and was between his friends and the detective. At that point, the officer pat-ted down Terry and felt a handgun, but could not get the gun free.
The detective then ordered the three men to enter the store they were in front of and to face the wall with their hands in the air. He removed Terry’s coat, took out the handgun, and then patted down the men, searching for weapons. Chilton had a revolver in his pocket. The third man had no weapons. The officer never put his hands inside the men’s pockets or coats except to remove the handguns. Terry and Chilton were arrested and charged with carrying concealed weapons.
Terry and Chilton asked the trial court to suppress the evidence (the weapons) seized during the police search. The motion was denied, and they were convicted. The Ohio appellate courts confirmed the convictions and the trial court’s refusal to suppress the evidence. The case was argued in the Supreme Court on December 12, 1967.
In an 8-to-1 decision, Justice Douglas dissenting, the Court addressed several piv-otal legal issues that have led to a substantial body of law allowing stops and searches in a variety of contexts. Ironically, the Court affirmed the stop and search of Terry and Chilton after reaffirming that they both could rely on the protections of the Fourth Amendment as they “walked down the street in Cleveland.” The men had a “reasonable expectation of privacy” since the amendment protects people and not places. The question for the Court became whether the stop and search of the two men was reasonable under the circumstances because “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.”
To reach its decision, the Court had to determine whether the brief stop of the two men constituted a “seizure” that would call for Fourth Amendment protections. The answer was easy. The Court noted, “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”
The next question was whether the “pat down” was a search. The Court was nearly contemptuous of the state of Ohio’s argument that the search was a mere “petty indignity” that citizens should be required to endure: “[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”
The next question became the reasonableness of the officer’s actions under the circumstances. The Court adamantly restated its holdings that, whenever possible, officers must obtain warrants before conducting searches. In those instances, the requirement for probable cause set forth in the Fourth Amendment must be met. However, the Court found this situation was different: “We deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” Thus, the Court held, the actions did not require “probable cause”; rather, they must be considered in light of what is reasonable and what is not.
The Court required a balancing test to be applied. The officer’s “need to search” had to be balanced “against the invasion which the search (or seizure) entails.” Thus, to justify an officer’s search or seizure, the Court ruled the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” More simply, the Court suggested one test for reasonableness would be whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” In establishing this threshold, the Court rejected the notion that an officer’s own subjective justification for a search or seizure should be sufficient: “Good faith on the part of the arresting officer is not enough. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”
For Terry and Chilton, the Court found the government has a legitimate interest in preventing, detecting, and investigating crime and in “the appropriate circum-stances and the appropriate manner” in which an investigating officer may stop a pedestrian for questioning, even when there is no probable cause for an arrest. The men’s actions were sufficiently suspicious to warrant the detective’s stop.
The question then became whether there was any justification for the search. At that point, the governmental interest was in protecting the officer’s safety. The Court noted the history of violence against police officers and stated:
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreason-able to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon to neutralize the threat of physical harm.
After setting out these parameters, the Court ruled there needed to be a “narrowly drawn authority” for an officer to search for weapons in order to protect that officer’s safety, or other officers’ safety, when the officer believes the suspect may be armed. “The officer need not be absolutely certain the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be war-ranted in the belief that his safety or that of others was in danger.”
The Court then determined the detective’s suspicions were reasonable. The scope of the search was appropriate. Thus, the weapons seized could be admitted as evidence against the men without violating their Fourth Amendment protections.
Subsequent cases focused on what could be seized during the Terry stop-and-frisk situation. Early on, the Court developed rules to allow the removal of any item of the size and shape of a weapon, but not allow the seizure of items, such as plastic bags containing pills, that clearly were not weapons. The courts then expanded rulings to allow admission of items officers had probable cause to believe were contraband.
Also at issue after Terry was the question of when a person had been “seized” as a result of an officer’s conduct. This was a critical point, because the protections of the Fourth Amendment do not come into play until there is a “seizure.” The standard has evolved to the point where the courts now ask if “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The “free to leave” standard was then subsequently reduced further to “free not to answer questions” when the Court allowed officers to stop a bus and question all the passengers on the bus without a warrant.
In the term following Terry, the Supreme Court decided Chimel v. California, 395 U.S. 752 (1969), and ruled that when an arrest is made, it is reasonable for the arresting officer to search “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” The Court reasoned, “A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.”
In New York v. Belton, 453 U.S. 454 (1981), the Terry concept was extended again. The Court explained that the concept of “within a person’s immediate con-trol” had not been successfully defined. Thus, to provide a “workable rule,” it held that “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon.’” Applying the rules governing search incident to arrest, the Court also ruled that police could examine the contents of any open or closed container found within the passenger compartment, “for if the passenger compartment is within the reach of the arrestee, so will containers in it be within his reach.”
The concept of a Terry protective search was extended in 1983 from on-the-street confrontations between police and suspects, or searches of occupied automobiles, to searches of unoccupied stopped cars. In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court ruled that a warrantless protective search of a car’s unoccupied interior was acceptable. In that case, although the driver was outside the car, an officer had searched the interior of the car after seeing a hunting knife on the floor. During the search, marijuana was found, and the driver was charged with possession. The Court ruled:
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartiment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
The concept was further extended to the home in Maryland v. Buie, 494 U.S. 325 (1990). There, the Court approved a police “protective sweep” of a residence and held,We conclude that the Fourth Amendment would permit the protective sweep undertaken here if the searching officer “possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]‘ the officer in believing,” Michigan v. Long (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)), that the area swept harbored an indi-vidual posing a danger to the officer or others.
Today the courts seem reluctant to limit the warrantless search of persons or places provided police have articulable reasons to suspect that they, or others, might be in danger if the search does not occur. There have been limitations, how-ever. A police search of a suspect’s backpack was ruled improper because police had seized the backpack and the suspect could not gain access to it. The courts also have ruled that finding facts sufficient to justify a stop after making the stop is not sufficient to justify making the stop in the first place. An anonymous tip based on a suspicion that a person possibly possesses drugs is insufficient basis for a reason-able suspicion on the part of a police officer. Also, signs of nervousness beyond the norm cannot be the foundation for an officer’s reasonable suspicion. Finally, prior criminal history alone is not a sufficient justification for a warrantless stop.

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