At times the law is tested and questioned, at times it is seen to have grey areas and in other cases the outcome appears to be cut and dried. The case of Terry versus Ohio has garnered a great deal of attention over the years as having had questionable ‘stop and frisk’ procedures. The definition of ‘stop and frisk’ is outlined by the US legal system as being when the police ‘temporarily detain’, while patting down their outer clothing to search for concealed weapons. The officer is allowed to do this if he has reason to believe, and under the circumstances, that the person is armed and dangerous to the public (USLegal Inc., 1996-2008). A ‘frisk’ on other hand is supposed to be seen as a different act altogether but occur together with a ‘stop’ when a person refuses to co-operate with relevant questioning. For a ‘frisk’ to take place it has to be for no other reason other than searching for suspected contraband or dangerous weapons (USLegal Inc., 1996-2008). In the course of this paper we discuss the decisions made with regard to the case. In particular we look at the reasoning behind the courts decision to admit evidence against Terry, as well as the courts justification of the arresting officer’s actions. Evidently there had been cause to believe that Terry and his cronies had been unlawfully stopped and frisked.
Detective McFadden had observed Terry and Chilton on a street corner as they paced the same route several times, stopping on each lap of the road to confer. They were fixated on a single shop window. This little trip occurred a total of 24 times. McFadden followed them around a block where he saw them join up with a third suspect. McFadden approached the men and identified himself as an officer of the law, asking them their names. They apparently did not answer McFadden properly, only mumbling something under their breath. McFadden patted down Terry and retrieved a pistol from his coat pocket. MdFadden ordered the men into the shop and thereupon also retrieved a revolver from Chilton’s coat as well. Not having felt anything suspicious on the third suspect, Katz. The men were taken thereafter to the police station. The suspects Chilton and Terry were charged with carrying concealed weapons but motioned to suppress the admittance of the guns to court. It was denied (Terry vs. Ohio, 1968).
The issue of ‘probable cause’ arose, to which the court stated that responsible and level-headed officers do retain the right to search a suspect if he believes that he or the public are in danger. The court also stated that it is preferable for an officer to hold a warrant for search or seizure but that in cases where swift action is necessary, that statute cannot stick (Terry vs. Ohio, 1968). Granted, it is unreasonable to expect an officer to apply for a warrant to search a man on the street whom in all probability may have committed the crime already before the warrant is secured. They further argued that the officer was performing his duty as a law enforcement agent by investigating suspicious behaviour (Terry vs. Ohio, 1968). They also make use of the logical argument that indeed there is no other possible way to determine with the suspect is in fact a danger unless they are searched (Terry vs. Ohio, 1968). The court also rightfully pointed out that the officer had undertaken the minimum amount of investigation necessary to determine whether they were carrying weapons or not. Only the outer garments were patted down and that was enough to implicate the suspects in possible dangerous activity (Terry vs. Ohio, 1968). In a further explanation by McFadden of his actions, he said that he had observed the suspects prior to stopping them. In theoretical terms there is no other true way to determine whether an activity is suspicious or not. McFadden explained that he had attempted to gather information from them, but that they were un cooperative and unresponsive to his request for information (Terry vs. Ohio, 1968). In the definition at the commencement of the paper we are told that a search is legal if the suspect does not respond to questioning, making McFadden’s search both necessary and warranted. The court also differentiated between a ‘frisk’ and a search, stating that McFadden had only frisked the outer clothing and not undertaken a full-blown search of the suspect’s inner clothing. At the time of the ‘stop’, McFadden had not had reasonable cause to arrest the suspects until the weapons had been found (Terry vs. Ohio, 1968). The defendant representative trial court argued that McFadden had not had probable cause to stop and frisk the suspects when the motion for suppression was entered. The argument of the defendant against the prosecution rallied along the lines that the case was not one of ‘stop and frisk’, but ‘search and detainment’, using the Fourth Amendment to argue that Chilton and Terry had been unlawfully seized. They pleaded that Terry’s constitutional right to walk down the street without apprehension had been violated (Terry vs. Ohio, 1968).
Ralph B Strickland of the North Carolina Justice Academy explains that the court recognised the general assertion of state criminal justice officers that they are merely doing their job. They recognise the diversity of street encounters and that some are more friendly and cooperative than others; that some are engaging in suspicious activity and others not (Strickland, 1997). The defense attempted to plead the Fourth Amendment that their constitutional rights had been violated but the court asserted that in this case, they were found to be in possession of weapons that were concealed. The court dismissed the appeal from the defense under the argument that the officer also had rights as a public servant. He also had the right to employ common sense and experience drawn intuition to determine if a suspect was a danger to himself of the public. Also, justice officers are employed on the understanding that they are trained to deal with variable circumstances (Strickland, 1997). Strickland also explains that it would be unreasonable of the state to expect the officer to undertake dangerous and life-threatening activities in order to ascertain whether a suspect was dangerous or not (Strickland, 1997). Logically it can be deduced that had McFadden not apprehended the suspects, a crime would have been committed with possible grievous bodily harm or loss of life. Strickland says that every years, several law enforcement officers are killed in the line of duty and thousands are wounded in direct correlation to both guns and knives (Strickland, 1997). This makes it necessary first of all to be sure that the suspect is NOT armed. The law allows the officer to stop and frisk a potential suspect using his or her experience as a law enforcement officer where there is reason to believe they may be in possession of a weapon. If a concealed weapon is found during the frisk, then the officer may seize the weapon and detain the suspect on the charge of carrying a concealed weapon (Srickland, 1997). The defense had argued that the stop and frisk had actually been a search and seizure but in light of legal definition that had not been the case. The court as quoted by Strickland stated the following in response to Fourth Amendment violation claims in the Terry case:
“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 persons with whom he is dealing may be armed and presently dangerous …he identifies himself as a policeman and makes reasonable enquiries…” (US Supreme Court in Strickland 1997).
The above quote shortened for the purpose of the paper makes a valid and clear requirement that the officer identify himself as such to the suspects before questioning. McFadden did identify himself and on questioning the suspects found it necessary to frisk them. A search by definition both inner and outer clothing, pockets and other concealed area’s, is clearly different from a frisk which McFadden employed. The case itself raised the question of when a stop and frisk begins and where it ends, challenging the philosophy of the routine. The initial stages of the encounter need to follow specific regimens of communicating with a suspect (Terry vs. Ohio, 1968). The defense states the requirement of the law to have a rigid definition of what processes have to be undertaken, but as the court and the paper argues, this is not always possible. Under the definition of the United States Legal system McFadden had not done anything unconstitutional
A number of ethical problems occur in this case, as well as a number or logical conclusions. For instance, the court justifies the need for officers to employ a certain degree of intuition based on experience. If this were not used and there was a set number of precautions or markers visible to incur the need to stop and frisk, then other problems arise. Obviously an officer cannot stop and frisk every second person who looks at a shop window for too long, but he also cannot be expected to wait for the crime to be in progress either. The middle ground is difficult to determine. In this case, nothing unconstitutional was found in McFadden’s behaviour and as the paper describes, he did not unlawfully detain the suspects. The facts are simply that in the end the suspects were found to be in possession of concealed weapons. This is not only dangerous practice in criminal activity but is dangerous in the event that the person is robbed or mugged and the weapon is stolen to be used in other crimes. In fact, Chilton and Terry’s behaviour in McFadden’s description would appear to be suspicious to anyone who observed it, not just to McFadden. McFadden had not merely marched up to the men and seized them, he had observed them carefully first. He had also known the amount of times they had performed the same routine. McFadden had not walked up to the men and arrested them, he had identified himself and asked them to identify themselves. Under the law, if the suspect does not cooperate under questioning, the officer has the right to ‘pat’ them down. McFadden patted them down. Furthermore and under the circumstances, McFadden said he only searched there outer garments and had no need to do a full search in any case because the weapons were in the coat pockets. The law also states that if the suspect is in possession of a concealed weapon, they may be detained on charges surrounding it. McFadden arrested the men after the weapons were found. It is these facts the Supreme Court used to define whether McFadden had behaved unconstitutionally or done a full search and seizure. The conclusion is the McFadden behaved within his rights as a law enforcement officer; a full search was not performed and he seized the weapons and detained the men on the grounds that they were in possession of a concealed weapon.
Sources:
Strickland, Ralph B. (1997). Do You Remember? Refreshing Your Recollection of Past Judicial Decisions. North Carolina Justice Academy Vol. 5, No. 3. http://www.jus.state.nc.us/NCJA/aug97.htm
US Supreme Court. (1968). Terry v. Ohio, 392 U.S. 1 (1968). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=392&invol=1
US Legal, Inc. (1996-2008). Stop and Frisk Law and Legal Definition. USLegal.com http://definitions.uslegal.com/s/stop-and-frisk/
