I think, in the end result, the Supreme court speaks quite clearly and distinctly as to why it is perfectly reasonable for the ordinary citizen to believe that actions such as you seem to condone are far beyond the respect for both the citizen and the constitution that law enforcement pledges to respect when we grant them their badge.
You know, I said I wasn't going to post again on the subject...but since you insist...
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While engaged in patrol, a Cleveland detective observed the petitioner and another person on a street corner. The detective then observed both men walking back and forth in front of a store window, a total of 24 times. Each time this was done, the two men would pause for a conversation. On one occasion, they were joined by a third man, who swiftly left the area.
The detective feared that the men were planning to commit a robbery (“stick-up”) of the store they had been walking in front of. He followed the two suspects, who rejoined the third man whom they had conversed with earlier. At that time, the detective approached the three individuals, and identified himself as a police officer. He asked the men for their names and received a mumbled response.
At this point, the detective spun the petitioner around, and patted his clothing, finding a revolver in an outer pocket that he was not able to remove. The detective then ordered all three men inside a store (not the same one that had been “cased”). He then removed the petitioner’s (Terry’s) overcoat, and removed the revolver. After ordering all three to face a wall with their hands up, the detective then patted down the clothing of the other two subjects. He removed another revolver from one subject’s pocket, but did not put his hands under the clothing of the final subject, because he had felt nothing that resembled a weapon. Petitioner Terry and subject Chilton (the second subject that was found to have a revolver) were subsequently charged with carrying concealed weapons.
ISSUES:
Is it unreasonable for a police officer to subject a person to a limited search for weapons when no probable cause for arrest exists? No.
COURT DECISION:
Affirmed the convictions of Terry and Chilton.
RATIONALE FOR THE DECISION: By Chief Justice Warren:
“Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary. Following the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would 'stand and watch people or walk and watch people at many intervals of the day.' He added: 'Now, in this case when I looked over they didn't look right to me at the time.'..
…“On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it 'would be stretching the facts beyond reasonable comprehension' to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants' motion on the ground that Officer McFadden, on the basis of his experience, 'had reasonable cause to believe that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.' Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory 'stop' and an arrest, and between a 'frisk' of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer's investigatory duties, for without it 'the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.'” (emphasis added)
DISSENTING OPINION: By Justice Douglas:
“I agree that petitioner was 'seized' within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a 'search.' But it is a mystery how that 'search' and that 'seizure' can be constitutional by Fourth Amendment standards, unless there was 'probable cause' to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed…”
…”The opinion of the Court disclaims the existence of 'probable cause.' If loitering were in issue and that was the offense charged, there would be 'probable cause' shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had 'probable cause' for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of 'probable cause.' We hold today that the police have greater authority to make a 'seizure' and conduct a 'search' than a judge has to authorize such action. We have said precisely the opposite over and over again…”
…”It is important, we think, that this requirement (of probable cause) be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.”…
…”To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.”
REFERENCES:
1. Supreme Court of the United States (1968).
Terry v. Ohio, 392 US 1, S. Ct. 1968. Exerpted from: University of Minnesota, found at:
http://www.soc.umn.edu/~samaha/cases/terry v ohio.html
2. Supreme Court of the United States (1968).
Terry v. Ohio, 392 US 1, S. Ct. 1968,
Certiorari to the Supreme Court of the State of Ohio, No. 67.
Excerpted from
http://www.fordhamprep.com/socstud/Cases/terry.htm
3. Libby (first name unknown).
Terry v. Ohio, 392 U.S. 1 (Stop and Frisk). Excerpted from:
http://www.4lawschool.com/terry.htm
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In short, USSC upheld the conviction of the two individuals in this case, providing the case law upon which investigative detention is established as a proper procedure used by law enforcement officers.
Dex, you suggest that I read Terry v. Ohio. I did--a number of times.
I read it enough to allow me to graduate a Law Enforcement academy; enough for me to earn a degree in Criminal Justice, and enough to satisfy the requirements of the Court in effecting lawful arrest of a number of criminals in the last nine years.
I think that I have a basic concept of "stop and frisk". Dex, if I may ask, are you an attorney? Perhaps another LEO? May I inquire concerning your level of personal and professional experience enforcing the law, and operating within the boundaries set by law or your applicable jurisdiction, your State, and the Constitution of the United States?
But I can tell you that law students in general, and especially ones with philosophy degrees, generally read cases slightly more critically than LE academy or Criminal Justice undergrads do. [No offense intended to LE academy or Criminal Justice undergrads, of course.]