§ 17.02 Terry v. Ohio: The Opinion

• Jurisdiction: United States

§ 17.02 Terry v. Ohio: The Opinion¹⁵

[A] Majority Opinion

O,¹⁶ a 39-year police veteran, became "thoroughly suspicious" when he observed two men walking back and forth repeatedly in front of a store, peering in. O testified that he suspected that the men were "casing a job," i.e., planning to commit an armed robbery. O also observed the two men talk to a third individual.¹⁷

O approached the three suspects, identified himself as a police officer, asked for their names, and when he received only a mumbled reply from one, he grabbed T, spun him around, and patted down ("frisked") the outside of his clothing. O felt a pistol in the breast pocket of T's overcoat, pulled it out, and arrested him for carrying a concealed weapon. At a hearing to determine the admissibility of the weapon, O testified that he frisked the suspects only to see whether they were armed, and that he put his hands in T's clothing only after he felt the weapon. At the time of the pat-downs, O lacked probable cause to arrest the suspects or to search them.¹⁸

The Supreme Court, per Chief Justice Earl Warren, upheld O's action. In doing so, however, it rejected the government's claim that the "stop-and-frisk" procedure fell outside the purview of the Fourth Amendment. This argument, the Court stated, "seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen." The Chief Justice rejected this "rigid all-or-nothing" analysis. In considerable part, perhaps, the Court sought to bring the stop-and-frisk process within the scope of the Fourth Amendment because of "[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain."

For the first time, the Court stated that a person can be "seized" — and, thus, the Fourth Amendment is implicated — short of being arrested. The Chief Justice stated that a "seizure" occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." In slightly different language, Terry also states that "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."¹⁹ The Court stated that T was seized, although less intrusively than if he had been arrested, at least as soon as O initiated physical contact with T in order to search him.

Likewise, the Supreme Court held that the pat-down that O conducted was a "serious intrusion" on T's privacy and, therefore, a "search," albeit "something less than a 'full'" one. Chief Justice Warren stated that "it 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.'"²⁰

Although the stop-and-frisk conducted by O involved Fourth Amendment activity, the Court concluded that the Warrant Clause does not apply to this type of police practice. The Chief Justice stated that the Court would "not retreat" from the ordinary rule that the police must, whenever practicable, secure a search warrant, but, he said, "we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of a police officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure."

Because the Warrant Clause was deemed inapplicable to this "entire rubric of police conduct," the Court held that the "probable cause" standard, which is textually tied to the warrant requirement in the Fourth Amendment, also does not apply.²¹Instead, the Court stated, the "central inquiry" is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." And, in determining whether the police activity was reasonable, the Court stated in critical and oft-quoted language that "our inquiry is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."²²

In terms of this dual inquiry, how does the Court go about determining whether a particular search or seizure is "reasonable"? Quoting Camara v. Municipal Court,²³the Chief Justice observed that "there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" The Court also warned in now oft-quoted language that "in justifying the...