In 1968, the U.S. Supreme Court announced a new standard for police conduct in the landmark case of Terry v. Ohio. Chief Justice Warren, writing for the majority, held that police did not need ôprobable causeö to stop and frisk a citizen on the street. Instead, the Court imposed a lesser standard, called ôreasonable suspicion.ö The Supreme Court has revisited this issue many times in the intervening three decades. This paper will examine those cases, and the extent to which the justices followed Terry in writing subsequent ôstop and friskö opinions.
The Terry decision created an exception to the law of arrest, which is rooted in the Fourth Amendment to the U.S. Constitution. The Fourth Amendment requires probable cause for a lawful arrest. If a court determines that the police lacked probable cause, the remedy is to invalidate the arrest and exclude any evidence seized therefrom (the Exclusionary Rule).
Terry sought that remedy after a detective (McFadden) stopped him on the street and conducted a pat-down search, which revealed a weapon. Terry appealed his conviction for carrying a concealed weapon, arguing that the gun should have been excluded from evidence because McFadden lacked probable cause. The trial court disagreed, distinguishing ôbetween 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.ö
The Supreme Court upheld that ruling and created a new standard for ôstop and frisk.ö Warren began by outlining the debate. On one hand, the police deal with ôrapidly unfolding and often dangerous situations,ö so they need flexibility. Police responses graduate according to the information they have; consequently, their suspicions can only rise to probable cause if they are allowed to stop people and ask questions. Officers then must be permitted to conduct a pat-down search. If they cannot frisk, they will make fa...