Terry v. Ohio was decided during a tumultuous time in American History. The year 1968 was filled with anger and heartache. The Civil Rights Movement was gaining momentum.  Young people were protesting the draft and the Vietnam War.  The case was decided on June 10, 1968.  On April 4, 1968, Dr. Martin Luther King was assassinated.  Two months later, on June 5, 1968, Robert Kennedy was shot while campaigning for president.  He died the following day.  Tensions were high, and police were unpopular with protestors and minorities.  Racial profiling was rampant.  Police were accused of targeting blacks, Hispanics, and “hippies.”

Terry represents part of an ongoing dilemma faced by the courts.  Where do we draw the line between protecting civil rights and giving law enforcement sufficient room to do its job?

Facts of the Case.

It was October 31, 1963.  Cleveland police officer, Martin McFadden, was patrolling the streets of downtown Cleveland in plain clothes when he spotted two black men acting suspiciously.  He observed the two men taking turns walking back and forth along the same stretch of the street.  The one walking would pause and stare into a store window, then walk back to the corner, and confer with the other man.  Then, the second man would walk the same route, pause and stare into the same store window, return to the corner, and confer with the first man.  At one point, a third man joined them on the corner.  They talked, and the third man left.  The other two went back to walking and staring in the window.  McFadden watched the two repeat their walk and stare routine a total of 24 times.  He would later learn the two walkers were John Terry and Richard Chilton.

After a final conference, the two men left, and McFadden followed them.  When they rejoined the third man in front of Zucker’s Store, McFadden approached.  He asked for their names.  When he got a mumbled response from John Terry, McFadden spun him around and patted down the outside of Terry’s clothing.  He felt a gun.  McFadden ordered the three men to accompany him into the store.  There, he pulled off Terry’s overcoat and removed the gun.  McFadden ordered the three to face the wall with their hands up.  He proceeded to pat down Chilton and found a second gun.  He did not find any weapons on the third guy, Carl Katz.

McFadden took all three men to the police station.  Both Chilton and Terry were arrested and charged with carrying concealed weapons.[1]

Trial Court and Lower Court Rulings

At trial, McFadden testified he had 39 years of experience as a police officer.  He believed there was reasonable suspicion the defendants were planning a robbery and were armed for the job.  Terry and Chilton, through their attorneys, filed a motion to suppress the guns as being the product of an unlawful search.  The prosecution argued the weapons were seized during a lawful search incident to an arrest.  The trial judge rejected the notion that the weapons were seized as part of a lawful arrest.  Without finding the weapons, McFadden would have had no grounds for arrest.  However, the judge denied the motion to suppress based on McFadden’s testimony that he had reasonable suspicion and on his reasonable fear that the men were armed.  The trial judge ruled McFadden had a right to pat down the outer clothing of the suspects purely for his own protection.

Terry and Chilton waived a jury trial and pleaded not guilty.  The judge found them both guilty and sentenced them to prison from 1-3 years. The state appellate court affirmed the convictions, and the Ohio Supreme Court refused the case on the grounds there were no “substantial constitutional issues.”  Both men appealed to the U.S. Supreme Court, and the Court granted certiorari, taking the case.

Issue Before the Court

There was one real issue before the U.S. Supreme Court.  Is a “pat down” search for weapons when there is no probable cause for arrest an unreasonable search under the Fourth Amendment of the U.S. Constitution?

Ruling of the Court

In an 8 to one opinion, the Court Ruled:

We conclude that the revolver seized from Terry was properly admitted in evidence against him.  At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe the petitioner was armed and dangerous and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.  Terry at 30.

The conviction was affirmed.

Analysis of the Court’s Reasoning

In his opinion, Justice Warren emphasizes that the Court is not retreating from its earlier Fourth Amendment decisions.  All searches should be based on a search warrant when possible.  The Court also takes issue with the statement that an external pat down is a minor inconvenience, saying: “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 is not to be undertaken lightly.” Id at 17.

The Court reasoned that police must have the right to protect themselves if they are to do their jobs.  A balance must be struck between police safety and citizen rights.  The majority agreed with the reasoning of the trial judge.  This was not a search conducted incident to an arrest.  Here, there was no probable cause to arrest Terry and Chilton.  However, McFadden did have a reasonable suspicion the men were armed and about to commit a robbery.  A “stop and frisk” is unarguably a search.  The test for determining whether it is a reasonable search is this:  The need to search must be balanced against the intrusion into citizen rights.  “And, in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Id at 21.  Justice Warren opined that this balance works only when there is an impartial judge who later weighs the facts to evaluate the validity of the search under the Fourth Amendment.  The judge will then decide based on the specific facts of the case if the evidence seized is admissible in court.

Justice Douglas was the lone dissenting vote[2].  He agreed with the majority that “stop and frisk” is a search, but he disagreed that frisking Terry and Chilton was permissible under the Fourth Amendment.  Douglas took the position that no search is permissible unless the officer has probable cause to believe a crime has been committed, is in the process of being committed, or that a crime was imminent. 

Conclusion

Since the decision, courts have tried to balance the need of the police to feel safe in a given situation with the rights of the man on the street.  It has never been easy for judges to walk that line between human rights and law enforcement security.  People today are still arguing over how far police should be allowed to go in stopping people on the street.  Many critics contend that the “stop and frisk” doctrine is used far too often for racial profiling. Where is that line between stopping crime and protecting civil rights?

Resources 

https://supreme.justia.com/cases/federal/us/392/1/

https://www.law.cornell.edu/supremecourt/text/392/1 

[1] Ohio Revised Code § 2923.01 provided that “no person shall carry a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person.”

[2] Justice Douglas was a strong advocate for no search and seizure without probable cause and a warrant.

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