DO YOU REMEMBER?
REFRESHING YOUR RECOLLECTION
OF PAST JUDICIAL DECISIONS

Ralph B. Strickland, Jr.
Agency Legal Specialist
North Carolina Justice Academy

Volume 5 Number 3

August 1997

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

THE ORIGINAL STOP AND FRISK CASE

In 1960 the Supreme Court of the United States began deciding a series of cases that revolutionized criminal law in this country. The Chief Justice of that court was Earl Warren and the court was known as the Warren Court. Many decisions corrected injustices in the criminal justice system where the defendant’s rights were an issue and often made a law enforcement officer’s job procedurally more difficult. But the Warren Court ruled in a number of cases in favor of an officer where basic physical survival was at stake. I believe it fair to state that the Warren Court’s rulings never made your job more dangerous (though they have made it more difficult - Miranda, Mincey, etc). One very fine example of a case expanding your rights to protect yourself is Terry.

In Terry, a police officer observed Terry and two of his pals “case a store” for a “stickup.” The officer watched the men, all standing on a street corner, take turns walking down the street to a store, peer in and return to the corner. This occurred a number of times over a 10 minute period. The officer was in plain clothes, had 39 years of experience, and based on his training and that experience, believed that they were about to rob the store. He thought that they might have a gun. He approached them, identified himself and asked their names. When they “mumbled something,” the officer grabbed Terry, and spun him around so they both were facing the other two, with Terry between the officer and the others. The officer patted down the outside of Terry’s clothes and felt a gun in his breast pocket. He took off Terry’s coat and took the gun from the pocket. During a patdown of the other two he discovered a gun in one man’s pocket, as well. The officer took that gun and arrested the two men for carrying a concealed weapon.

The United States Supreme Court held that Terry had been seized within the meaning of the Fourth Amendment, but that only unreasonable seizures were forbidden. The question was whether this seizure, on-the-street and under these circumstances, was unreasonable. First, the Court noted an argument, frequently made by states, prosecutors and the police, that

...in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a“frisk” and a “search.” Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person.

This is, ultimately, the argument that persuaded the Court to rule as it did that a law enforcement officer may stop and detain a person based on reasonable suspicion, and frisk that person for a weapon if the officer has reasonable suspicion that the person is armed and dangerous.

Now, why did the Court rule for the state? Well, please note this following quote, which I find very telling:

Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation.

In other words, the Court recognized that you face situations, in simply doing your job and protecting people and property, that are tense, uncertain and rapidly evolving. You cannot always wait until you have probable cause to arrest; there must be a way for you to protect yourself based on reasonable suspicion that a person may be involved in a crime, and may be dangerous to you. You should be able to adjust your behavior to quick changers of circumstance. You need a practical, common-sense method, based upon a clearly established right, to protect yourself and others in such a situation. And Terry meets that need.

In the Terry case, Chief Justice Earl Warren delivered the opinion of the Court, and made the following point. I personally find it to be as important a statement of the right of officer survival as you are likely to find in any case, federal or state.

Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.

Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives

In view of these facts, we cannot blind ourselves to the need for law enforcement officers 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 unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

There you are.

So, what are those “necessary measures” that you may take? The Court also answered that foryou as well. Once again, I quote the Court (emphasis mine):

WE MERELY HOLD TODAY THAT WHERE A POLICE OFFICER OBSERVES UNUSUAL CONDUCT WHICH LEADS HIM REASONABLY TO CONCLUDE IN LIGHT OF HIS EXPERIENCE THAT CRIMINAL ACTIVITY MAY BE AFOOT AND THAT THE PERSONS WITH WHOM HE IS DEALING MAY BE ARMED AND PRESENTLY DANGEROUS, WHERE IN THE COURSE OF INVESTIGATING THIS BEHAVIOR HE IDENTIFIES HIMSELF AS A POLICEMAN AND MAKES REASONABLE INQUIRES, AND WHERE NOTHING IN THE INITIAL STAGES OF THE ENCOUNTER SERVES TO DISPEL HIS REASONABLE FEAR FOR HIS OWN OR OTHERS’ SAFETY, HE IS ENTITLED FOR THE PROTECTION OF HIMSELF AND OTHERS IN THE AREA TO CONDUCT A CAREFULLY LIMITED SEARCH OF THE OUTER CLOTHING OF SUCH PERSONS IN AN ATTEMPT TO DISCOVER WEAPONS WHICH MIGHT BE USED TO ASSAULT HIM.

There you are, again.

Well, let’s see if we can put this in a series of steps that are easy to remember during a street encounter.

1. When you have reasonable suspicion that a person has committed, is committing or is about to commit a crime, you may seize and detain that person for a reasonable period of time. A detention may be made on reasonable suspicion alone; you only need probable cause if you are going to make an arrest.

2. During the detention, if you develop reasonable suspicion that the person with whom you are dealing is armed and dangerous, you may frisk (patdown the outer shell of his clothing) that person to determine if he has a weapon. A frisk may be made on reasonable suspicion alone; you only need probable cause if you are going to make an arrest.

3. If you find a concealed weapon, you may seize it. You may charge the person with carrying a concealed weapon if such charge is applicable (remember that with a permit some folks may carry a concealed handgun in certain locations within the state).

As usual, I have presented much important material in this commentary. I hope it will be helpful to you in your work. Thanks for your time and attention.