Friday, April 19, 2019


Excerpted from: Russell L. Jones, Terry V. Ohio: its Failure, Immoral Progeny, and Racial Profiling, 54 Idaho Law Review 511 (2018) (286 Footnotes) (Full Document)


RussellJonesAt the time that the Court was considering Terry v. Ohio, racial and social tensions in America were unsettled. Brown v. Board of Education had declared the insidious Jim Crow laws unconstitutional, but civil rights and social equality for African Americans were advancing slowly. Crime rates were increasing in the cities and police officers were using draconian heavy-handed tactics to enforce the law, especially in minority communities. In 1965, President Lyndon Johnson issued an executive order that appointed a commission to study the crime problem. In its study, the Commission found that field interrogations--a tactic consisting of stopping, questioning, and if warranted, searching an individual who presents himself in a suspicious situation--were often used. Although these practices were commonplace for most police officers, courts had not sanctioned them, but they also had not condemned the conduct. The Commission's report pointed out the questionable police tactics and their effect on society. It found that police frequently abused their authority to conduct field interrogations and "in many communities, field interrogations [were] a major source of friction between the police and minority groups." It further pointed out that police investigations were often undertaken with little or no basis for suspecting criminal activity, and "field interrogations are often conducted with little or no basis for suspicion."

Police agencies that supported the procedure asserted that field interrogations, also known as stop-and-frisk, were not arrests and that they did not violate the Fourth Amendment right against unreasonable searches and seizures. Proponents of stop-and-frisk argued that protecting society from potential crime is an essential component of police work. They contended that when an officer acts within constitutional limits he has the duty to investigate whenever such circumstances indicate to him that there are reasonable grounds requiring him to do so. The proponents also asserted, "[a] founded suspicion is all that is necessary, some basis from which the courts can determine that detention was not arbitrary or harassing." It was their belief that the cursory frisk of the outer clothing is only a minor inconvenience and petty intrusion upon the rights guaranteed by the Fourth Amendment.

The position taken by the proponents of stop-and-frisk had its flaws. First, their analysis established no standard to determine reasonableness for the stop. What facts or combination of facts are necessary to suggest that the officers had a reasonable, well-founded suspicion that criminal activity is afoot? How do we weigh the facts in the totality of the circumstances? Next, and probably the most important question was: did the assertion that stop-and-frisk was something less than an arrest exclude it from constitutional scrutiny? Further, although it was accepted that an officer could stop an individual to ask basic questions about his identity and actions, there was little or vague guidance about where the informal investigatory stop ended and an arrest began.

Amidst the findings of the President's Commission and the social setting, the Terry Court had the difficult task of balancing the police-purported need for a workable tool short of probable cause to use in temporary investigatory detentions and protecting the people's constitutional right against the use of abusive police power. The solution had to be a delicate compromise that would not prevent proactive policing, but also would not permit unreasonable searches and seizures. The compromise had to restore minority communities' confidence in policing and the judicial system. Before the Court's decision was announced, the possibility of police abuse of a new standard that was not based on probable cause troubled some Justices on the Court. In a letter to Chief Justice Warren, Justice Brennan wrote that he believed the forthcoming opinion would give police officers licenses to conduct aggressive surveillance techniques in Black communities, subjecting the Court to the ire of African-American citizens. Yet, the Terry decision implies that the Court concluded the current state of law enforcement could not go unaddressed. The Court chose to adopt a rule requiring reasonable suspicion for temporary investigatory searches and seizures. This standard was less than the traditional probable cause requirement for police searches and seizures.

Considering the track record of the Warren Court regarding constitutional protections, it is not improper to assume its intent was to reach a decision that was fair and just. One scholar has called the Court's decision in Terry "a practically perfect doctrine." However, two major issues that ultimately defined the legacy of the decision were given desultory attention by the Court: (1) what is a Terry seizure and (2) what amount of evidentiary weight should be given to the inferences of the officer in the reasonable suspicion determination.

This paper will consider what I believe is the most egregious mistake the Court made: its failure to define the "Terry stop." The paper will address how this failure has endorsed interpretations of Terry that have subsequently legitimized racial profiling.

Part I will succinctly provide the landscape of a temporary investigatory detention before Terry.

Part II will take a close look at the Terry decision.

Part III considers a companion case, Sibron v. New York, and how the Court disregarded the Terry decision adding further confusion to stop-and-frisk.

Part IV discusses cases that are overreaching and that demonstrate an abuse of power by police officers when conducting investigatory stops.

Part V describes how the "high-crime area" as used in Illinois v. Wardlow has become a cornerstone of racial profiling.

Part VI examines "stop-and-frisk" in New York and the Floyd v. The City of New York opinion. Finally, I briefly conclude with a suggestion for the Court.

. . .

The Terry Court's attempt to reach a compromise between temporary police detentions and public outrage at overaggressive police actions was meant to bring civility to a fragile situation. However, the decision failed to address possible outcomes that would inflict greater abuses of the Fourth Amendment on racial minorities. By failing to properly define a constitutionally valid stop, the Court left the door open to what has become an open season for frivolous stops of young African-American men and other ethnic minorities. Changes in police policies based on measures similar to those fashioned by Judge Scheindlin in Floyd v. City of New York are only the first step in ending rampant racially motivated stops of minority citizens. Until the Court exercises "judicial integrity" in stop-and-frisk cases, and revisit policies established in its Fourth Amendment cases that have become progenitors of racial profiling, Terry will be the Warren Court's greatest failure that was meant for go

Jesse N. Stone, Jr. Endowed Professor, Southern University Law Center.