Supreme Court of the United States
John W. Terry v. State of Ohio
Decided June 10, 1968 – 392 U.S. 1
Mr. Chief Justice WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.
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.”
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.
By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of “casing a job, a stick-up,” and that he considered it his duty as a police officer to investigate further. He added that he feared “they may have a gun.” Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker’s store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action, Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men “mumbled something” in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz’ outer garments. Officer McFadden seized Chilton’s gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.
The question is whether in all the circumstances of this on-the-street encounter, [Terry’s] right to personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity—issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk”—as it is sometimes euphemistically termed—suspicious persons.
On the one hand, it is frequently argued 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.”
On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search. It is contended with some force that there is not—and cannot be—a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest.
In this context we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.
Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.
It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime—“arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And 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.” 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 it is not to be undertaken lightly.
The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from the central inquiry under the Fourth Amendment—the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. “Search” and “seizure” are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”
In this case there can be no question, then, that Officer McFadden “seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did. And in determining whether the seizure and search were “unreasonable” 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.
Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.
The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.
We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
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 that 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. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. 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 inquiries, 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. [Emphasis added to highlight the lengthy holding] Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
Mr. Justice DOUGLAS, dissenting.
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.
[P]olice officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.”
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.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.
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Notes, Comments, and Questions
The Court decided in Illinois v. Caballes that when a motorist is lawfully held for a traffic stop, police use of drug-sniffing dogs to investigate a vehicle is not a “search.” In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Court considered whether police may lengthen a traffic stop for the purpose of conducting such a dog sniff.
A police officer pulled over Dennys Rodriguez for driving on the shoulder of a Nebraska state highway, which is unlawful. During the stop, the officer asked Rodriguez why he had driven on the shoulder and, after receiving an answer, “gathered Rodriguez’s license, registration, and proof of insurance.” He then ran “a records check on Rodriguez” before returning to question Rodriguez and his passenger. Next, the officer returned to his car again, ran a records check on the passenger, and “began writing a warning ticket for Rodriguez for driving on the shoulder of the road.” Rodriguez made no objection to any of this conduct.
After writing the warning ticket and presenting it to Rodriguez (along with other documents the officer had collected during the stop), the officer asked Rodriguez for permission to walk a drug dog around Rodriguez’s vehicle. Rodriguez declined, and the officer ordered Rodriguez to stay put, which he did. The officer brought the dog, and when the dog “alerted to the presence of drugs,” the officer searched the car and found “a large bag of methamphetamine.” Rodriguez was eventually convicted of “possession with intent to distribute 50 grams or more of methamphetamine.”
Rodriguez argued that the officer impermissibly extended the traffic stop—after it was essentially finished—so that he could conduct the dog sniff. Rodriguez argued further that the extension constituted an unlawful seizure. The Court agreed.
In an opinion by Justice Ginsburg, the Court wrote:
“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called “Terry stop” … than to a formal arrest.’ Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.”
The Court wrote that while activities related to traffic enforcement—such as checking a driver’s license and registration—are permissible parts of a traffic stop, “[a] dog sniff, by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’ Candidly, the Government acknowledged at oral argument that a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”
The Court rejected the prosecution’s argument that so long as the total length of the stop remains reasonable, an officer may extend it to conduct a dog sniff.
“The Government argues that an officer may ‘incremental[ly]’ prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. The Government’s argument, in effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation. The reasonableness of a seizure, however, depends on what the police in fact do. In this regard, the Government acknowledges that ‘an officer always has to be reasonably diligent.’ How could diligence be gauged other than by noting what the officer actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’ [A] traffic stop ‘prolonged beyond’ that point is ‘unlawful.’ The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’”
In his dissent, Justice Alito first argued that the Court should have avoided the constitutional question decided in the case because “the police officer did have reasonable suspicion [of illegal drug activity], and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.”55 Then, he argued that the Court’s holding was baseless and impractical, suggesting that officers will delay completing the permitted activities of a traffic stop if they wish to conduct dog sniffs.
“The Court refuses to address the real Fourth Amendment question: whether the stop was unreasonably prolonged. Instead, the Court latches onto the fact that Officer Struble delivered the warning prior to the dog sniff and proclaims that the authority to detain based on a traffic stop ends when a citation or warning is handed over to the driver. The Court thus holds that the Fourth Amendment was violated, not because of the length of the stop, but simply because of the sequence in which Officer Struble chose to perform his tasks.”
“The rule that the Court adopts will do little good going forward. It is unlikely to have any appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement.”
The next case concerns whether during a Terry stop, police may demand that a suspect identify himself, under threat of prosecution if the suspect does not comply.
Notes, Comments, and Questions
Perceptions of Stop-and-Frisk
In Terry v. Ohio, the majority wrote, “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.” The Court held that the “reasonable suspicion” standard struck a sensible compromise between individual liberty and law enforcement realities.
In dissent, Justice Douglas warned, “To give the police greater power than a magistrate is to take a long step down the totalitarian path.” He argued that “if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
In the subsequent half century, the debate over stop-and-frisk tactics has remained heated. Opponents of the practice have argued that it visits humiliation on suspects for limited benefit and that police apply the tactic in a racially biased manner. For example, a federal court in New York found that the NYPD unconstitutionally focused disproportionately on black and Hispanic suspects when stopping and frisking New Yorkers. See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013). The Court of Appeals for the Second Circuit initially stayed the ruling of the district court pending appeal, but the city dropped the appeal after the election of a mayor who campaigned on a promise to comply with the district court. See J. David Goodman, “De Blasio Drops Challenge to Law on Police Profiling,” N.Y. Times (March 5, 2014).
The case in favor of stop-and-frisk was articulated by Heidi Grossman, New York City’s lead attorney in the Floyd trial. She said, “Our defense is that we go to where the crime is. And once we go to where the crime is, we have our police officers keep their eyes open, make observations; and only when they make observations, do they go and make reasonable suspicion stops.” She added that when police conduct stop-and-frisk in areas with high minority populations, “the majority of victims are black and Hispanics in the area. They are begging for help, and they want to be able to walk to and from work in a safe way. And so it is incumbent upon us to have our officers go out there and do their job, and keep the city safe.” See “The Argument for Stop-and-Frisk,” NPR (May 22, 2013).
For the perspective of some New Yorkers who have been repeatedly stopped and frisked and find the experience intensely unpleasant, see Julie Dressner & Edwin Martinez, Op-Doc: Season 1, “The Scars of Stop-and-Frisk,” N.Y. Times (June 12, 2012); Ross Tuttle & Erin Schneider, “Stopped-and-Frisked: ‘For Being a F**king Mutt,’” The Nation (Oct. 8, 2012) (secret recording by teen of himself being stopped, along with interview of anonymous police officer about department practices).
What are the best (most convincing) arguments in favor of allowing police to stop and frisk suspects without probable cause?
In our next chapter, we will study how the Court has defined “reasonable suspicion.” A more demanding definition—vaguely close to probable cause—would narrow the set of situations in which police may “stop and frisk” suspects. A less strict definition—something beyond a mere hunch but not much further—would give greater discretion to police.