Case Name: TERRY V. OHIO, 392 U.S. 1
TERRY V. OHIO.
CERTIORARI TO THE SUPREME COURT OF OHIO.
NO. 67. ARGUED DECEMBER 12, 1967.-- DECIDED JUNE 10,
1968.
A CLEVELAND DETECTIVE (MCFADDEN), ON A DOWNTOWN BEAT WHICH HE HAD
BEEN PATROLLING FOR MANY YEARS, OBSERVED TWO STRANGERS (PETITIONER AND
ANOTHER MAN, CHILTON) ON A STREET CORNER. HE SAW THEM PROCEED
ALTERNATELY BACK AND FORTH ALONG AN IDENTICAL ROUTE, PAUSING TO STARE
IN THE SAME STORE WINDOW, WHICH THEY DID FOR A TOTAL OF ABOUT 24
TIMES. EACH COMPLETION OF THE ROUTE WAS FOLLOWED BY A CONFERENCE
BETWEEN THE TWO ON A CORERN, AT ONE OF WHICH THEY WERE JOINED BY A
THIRD MAN (KATZ) WHO LEFT SWIFTLY. SUSPECTING THE TWO MEN OF "CASING A
JOB, A STICK-UP," THE OFFICER FOLLOWED THEM AND SAW THEM REJOIN THE
THIRD MAN A COUPLE OF BLOCKS AWAY IN FRONT OF A STORE. THE OFFICER
APPROACHED THE THREE, IDENTIFIED HIMSELF AS A POLICEMAN, AND ASKED
THEIR NAMES. THE MEN "MUMBLED SOMETHING," WHEREUPON MCFADDED SPUN
PETITIONER AROUND, PATTED DOWN HIS OUTSIDE CLOTHING, AND FOUND IN HIS
OVERCOAT POCKET, BUT HAS UNABLE TO REMOVE, A PISTOL. THE OFFICER
ORDERED THE THREE INTO THE STORE. HE REMOVED PETITIONER'S OVERCOAT,
TOOK OUT A REVOLVER, AND ORDERED THE THREE TO FACE THE WALL WITH THEIR
HANDS RAISED. HE PATTED DOWN THE OUTER CLOTHING OF CHILTON AND KATZ
AND SEIZED A REVOLVER FROM CHILTON'S OUTSIDE OVERCOAT POCKET. HE DID
NOT PUT HIS HANDS UNDER THE OUTER GARMENTS OF KATZ (SINCE HE DISCOVERED
NOTHING IN HIS PAT-DOWN WHICH MIGHT HAVE BEEN A WEAPON), OR UNDER
PETITIONER'S OR CHILTON'S OUTER GARMENTS UNTIL HE FELT THE GUNS. THE
THREE WERE TAKEN TO THE POLICE STATION. PETITIONER AND CHILTON WERE
CHARGED WITH CARRYING CONCEALED WEAPONS. THE DEFENSE MOVED TO SUPPRESS
THE WEAPONS. THOUGH THE TRIAL COURT REJECTED THE PROSECUTION THEORY
THAT THE GUNS HAD BEEN SEIZED DURING A SEARCH INCIDENT TO A LAWFUL
ARREST, THE COURT DENIED THE MOTION TO SUPPRESS AND ADMITTED THE
WEAPONS INTO EVIDENCE ON THE GROUND THAT THE OFFICER HAD CAUSE TO
BELIEVE THAT PETITIONER AND CHILTON WERE ACTING SUSPICIOUSLY, THAT
THEIR INTERROGATION WAS WARRANTED, AND THAT THE OFFICER FOR HIS OWN
PROTECTION HAD THE RIGHT TO PAT DOWN THEIR OUTER CLOTHING HAVING
REASONABLE CAUSE TO BELIEVE THAT THEY MIGHT BE ARMED. THE COURT
DISTINGUISHED BETWEEN AN INVESTIGATORY "STOP" AND AN ARREST, AND
BETWEEN A "FRISK" OF THE OUTER CLOTHING FOR WEAPONS AND A FULLBLOWN
SEARCH FOR EVIDENCE OF CRIME. PETITIONER AND CHILTON WERE FOUND
GUILTY, AN INTERMEDIATE APPELLATE COURT AFFIRMED, AND THE STATE SUPREME
COURT DISMISSED THE APPEAL ON THE GROUND THAT "NO SUBSTANTIAL
CONSTITUTIONAL QUESTION" WAS INVOLVED. HELD:
1. THE FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT,
"PROTECTS PEOPLE, NOT PLACES," AND THEREFORE APPLIES AS MUCH TO THE
CITIZEN ON THE STREETS AS WELL AS AT HOME OR ELSEWHERE. PP. 8-9.
2. THE ISSUE IN THIS CASE IS NOT THE ABSTRACT PROPRIETY OF THE
POLICE CONDUCT BUT THE ADMISSIBILITY AGAINST PETITIONER OF THE EVIDENCE
UNCOVERED BY THE SEARCH AND SEIZURE. P. 12.
3. THE EXCLUSIONARY RULE CANNOT PROPERLY BE INVOKED TO EXCLUDE THE
PRODUCTS OF LEGITIMATE AND RESTRAINED POLICE INVESTIGATIVE TECHNIQUES;
AND THIS COURT'S APPROVAL OF SUCH TECHNIQUES SHOULD NOT DISCOURAGE
REMEDIES OTHER THAN THE EXCLUSIONARY RULE TO CURTAIL POLICE ABUSES FOR
WHICH THAT IS NOT AN EFFECTIVE SANCTION. PP. 13-15.
4. THE FOURTH AMENDMENT APPLIES TO "STOP AND FRISK" PROCEDURES SUCH
AS THOSE FOLLOWED HERE. PP. 16-20.
(A) WHENEVER A POLICE OFFICER ACCOSTS AN INDIVIDUAL AND RESTRAINS
HIS FREEDOM TO WALK AWAY, HE HAS "SEIZED" THAT PERSON WITHIN THE
MEANING OF THE FOURTH AMENDMENT. P. 16.
(B) A CAREFUL EXPLORATION OF THE OUTER SURFACES OF A PERSON'S
CLOTHING IN AN ATTEMPT TO FIND WEAPONS IS A "SEARCH" UNDER THAT
AMENDMENT. P. 16.
5. WHERE A REASONABLY PRUDENT OFFICER IS WARRANTED IN THE
CIRCUMSTANCES OF A GIVEN CASE IN BELIEVING THAT HIS SAFETY OR THAT OF
OTHERS IS ENDANGERED, HE MAY MAKE A REASONABLY SEARCH FOR WEAPONS OF
THE PERSON BELIEVED BY HIM TO BE ARMED AND DANGEROUS REGARDLESS OF
WHETHER HE HAS PROBABLE CAUSE TO ARREST THAT INDIVIDUAL FOR CRIME OR
THE ABSOLUTE CERTAINTY THAT THE INDIVIDUAL IS ARMED. PP. 20-27.
(A) THOUGH THE POLICE MUST WHENEVER PRACTICABLE SECURE A WARRANT TO
MAKE A SEARCH AND SEIZURE, THAT PROCEDURE CANNOT BE FOLLOWED WHERE
SWIFT ACTION BASED UPON ON-THE-SPOT OBSERVATIONS OF THE OFFICER ON THE
BEAT IS REQUIRED. P. 20.
(B) THE REASONABLENESS OF ANY PARTICULAR SEARCH AND SEIZURE MUST BE
ASSESSED IN LIGHT OF THE PARTICULAR CIRCUMSTNACES AGAINST THE STANDARD
OF WHETHER A MAN OF REASONABLE CAUTION IS WARRANTED IN BELIEVING THAT
THE ACTION TAKEN WAS APPROPRIATE. PP. 21-22.
(C) THE OFFICER HERE WAS PERFORMING A LEGITIMATE FUNCTION OF
INVESTIGATING SUSPICIOUS CONDUCT WHEN HE DECIDED TO APPROACH PETITIONER
AND HIS COMPANIONS. P. 22.
(D) AN OFFICER JUSTIFIED IN BELIEVING THAT AN INDIVIDUAL WHOSE
SUSPICIOUS BEHAVIOR HE IS INVESTIGATING AT CLOSE RANGE IS ARMED MAY, TO
NEUTRALIZE THE THREAT OF PHYSICAL HARM, TAKE NECESSARY MEASURS TO
DETERMINE WHETHER THAT PERSON IS CARRYING A WEAPON. P. 24.
(E) A SEARCH FOR WEAPONS IN THE ABSENCE OF PROBABLE CAUSE TO ARREST
MUST BE STRICTLY CIRCUMSCRIBED BY THE EXIGENCIES OF THE SITUATION. PP.
25-26.
(F) AN OFFICER MAY MAKE AN INTRUSION SHORT OF ARREST WHERE HE HAS
REASONABLE APPREHENSION OF DANGER BEFORE BEING POSSESSED OF INFORMATION
JUSTIFYING ARREST. PP. 26-27.
6. THE OFFICER'S PROTECTIVE SEIZURE OF PETITIONER AND HIS
COMPANIONS AND THE LIMITED SEARCH WHICH HE MADE WERE REASONABLE, BOTH
AT THEIR INCEPTION AND AS CONDUCTED. PP. 27-30.
(A) THE ACTIONS OF PETITIONER AND HIS COMPANIONS WERE CONSISTENT
WITH THE OFFICER'S HYPOTHESIS THAT THEY WERE CONTEMPLATING A DAYLIGHT
ROBBERY AND WERE ARMED. P. 28.
(B) THE OFFICER'S SEARCH WAS CONFINED TO WHAT WAS MINIMALLY
NECESSARY TO DETERMINE WHETHER THE MEN WERE ARMED, AND THE INTRUSION,
WHICH WAS MADE FOR THE SOLE PURPOSE OF PROTECTING HIMSLEF AND OTHERS
NEARBY, WAS CONFINED TO ASCERTAINING THE PRESENCE OF WEAPONS. PP. 29
30.
7. THE REVOLVER SEIZED FROM PETITIONER WAS PROPERLY ADMITTED INTO
EVIDENCE AGAINST HIM, SINCE THE SEARCH WHICH LED TO ITS SEIZURE WAS
REASONABLE UNDER THE FOURTH AMENDMENT. PP. 30-31.
AFFIRMED.
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. /1/ 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,
/2/ 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 ORDER
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 FOUNG 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.
ON THE MOTION TO SUPPRESS THE GUNS THE PROSECUTION TOOK THE POSITION
THAT THEY HAD BEEN SEIZED FOLLOWING A SEARCH INCIDENT TO A LAWFUL
ARREST. THE TRIAL COURT REJECTED THIS THEORY, STATING THAT IT "WOULD
BE STRETCHING THE FACTS BEYOND REASONABLE COMPREHENSION" TO FIND THAT
OFFICER MCFADDEN HAD HAD PROBABLE CAUSE TO ARREST THE MEN BEFORE HE
PATTED THEM DOWN FOR WEAPONS. HOWEVER, THE COURT DENIED THE
DEFENDANTS' MOTION ON THE GROUND THAT OFFICER MCFADDEN, ON THE BASIS OF
HIS EXPERIENCE, "HAD REASONABLE CAUSE TO BELIEVE . . . THAT THE
DEFENDANTS WERE CONDUCTING THEMSELVES SUSPICIOUSLY, AND SOME
INTERROGATION SHOULD BE MADE OF THEIR ACTION." PURELY FOR HIS OWN
PROTECTION, THE COURT HELD, THE OFFICER HAD THE RIGHT TO PAT DOWN THE
OUTER CLOTHING OF THESE MEN, WHO HE HAD REASONABLE CAUSE TO BELIEVE
MIGHT BE ARMED. THE COURT DISTINGUISHED BETWEEN 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. THE FRISK, IT
HELD, WAS ESSENTIAL TO THE PROPER PERFORMANCE OF THE OFFICER'S
INVESTIGATORY DUTIES, FOR WITHOUT IT "THE ANSWER TO THE POLICE OFFICER
MAY BE A BULLET, AND A LOADED PISTOL DISCOVERED DURING THE FRISK IS
ADMISSIBLE."
AFTER THE COURT DENIED THEIR MOTION TO SUPPRESS, CHILTON AND TERRY
WAIVED JURY TRIAL AND PLEADED NOT GUILTY. THE COURT ADJUDGED THEM
GUILTY, AND THE COURT OF APPEALS FOR THE EIGHTH JUDICIAL DISTRICT,
CUYAHOGA COUNTY, AFFIRMED. STATE V. TERRY, 5 OHIO APP.2D 122, 214
N.E.2D 114 (1966). THE SUPREME COURT OF OHIO DISMISSED THEIR APPEAL ON
THE GROUND THAT NO "SUBSTANTIAL CONSTITUTIONAL QUESTION" WAS INVOLVED.
WE GRANTED CERTIORARI, 387 U.S. 929 (1967), TO DETERMINE WHETHER THE
ADMISSION OF THE REVOLVERS IN EVIDENCE VIOLATED PETITIONER'S RIGHTS
UNDER THE FOURTH AMENDMENT, MADE APPLICABLE TO THE STATES BY THE
FOURTEENTH. MAPP V. OHIO, 367 U.S. 643 (1961). WE AFFIRM THE
CONVICTION.
I
THE FOURTH AMENDMENT PROVIDES THAT "THE RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS , AND EFFECTS, AGAINST
UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED. . . . "
THIS INESTIMABLE RIGHT OF PERSONAL SECURITY BELONGS AS MUCH TO THE
CITIZEN ON THE STREETS OF OUR CITIES AS TO THE HOMEOWNER CLOSETED IN
HIS STUDY TO DISPOSE OF HIS SECRET AFFAIRS. FOR, AS THIS COURT HAS
ALWAYS RECOGNIZED,
"NO RIGHT IS HELD MORE SACRED, OR IS MORE CAREFULLY GUARDED,
BY
THE COMMON LAW, THAN THE RIGHT OF EVERY INDIVIDUAL TO THE
POSSESSION AND CONTROL OF HIS OWN PERSON, FREE FROM ALL RESTRAINT
OR INTERFERENCE OF OTHERS, UNLESS BY CLEAR AND UNQUESTIONABLE
AUTHORITY OF LAW." UNION PAC. R. CO. V. BOTSFORD, 141 U.S. 250,
251 (1891).
WE HAVE RECENTLY HELD THAT "THE FOURTH AMENDMENT PROTECTS PEOPLE, NOT
PLACES," KATZ V. UNITED STATES, 289 U.S. 347, 351 (1967), AND WHEREVER
AN INDIVIDUAL MAY HARBOR A REASONABLE "EXPECTATION OF PRIVACY," ID., AT
361 (MR. JUSTICE HARLAN, CONCURRING), HE IS ENTITLED TO BE FREE FROM
UNREASONABLE GOVERNMENTAL INTRUSION. OF COURSE, THE SPECIFIC CONTENT
AND INCIDENTS OF THIS RIGHT MUST BE SHAPED BY THE CONTEXT IN WHICH IT
IS ASSERTED. FOR "WHAT THE CONSTITUTION FORBIDS IS NOT ALL SEARCHES
AND SEIZURES, BUT UNREASONABLE SEARCHES AND SEIZURES." ELKINS V.
UNITED STATES, 364 U.S. 206, 222 (1960). UNQUESTIONABLY PETITIONER WAS
ENTITLED TO THE PROTECTION OF THE FOURTH AMENDMENT AS HE WALKED DOWN
THE STREET IN CLEVELAND. BECK V. OHIO, 379 U.S. 89 (1964); RIOS V.
UNITED STATES, 364 U.S. 253 (1960); HENRY V. UNITED STATES, 361 U.S. 98
(1959); UNITED STATES V. DI RE, 332 U.S. 581 (1948); CARROLL V. UNITED
STATES, 267 U.S. 132 (1925). THE QUESTION IS WHETHER IN ALL THE
CIRCUMSTANCES OF THIS ON-THE-STREET ENCOUNTER, HIS 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." /3/ THUS, IT IS ARGUED, THE POLICE SHOULD BE
ALLOWED TO "STOP" A PERSON AND DETAIN HIM BRIEFLY FOR QUESTIONING UPON
SUSPICION THAT HE MAY BE CONNECTED WITH CRIMINAL ACTIVITY. UPON
SUSPICION THAT THE PERSON MAY BE ARMED, THE POLICE SHOULD HAVE THE
POWER TO "FRISK" HIM FOR WEAPONS. IF THE "STOP" AND THE "FRISK" GIVE
RISE TO PROBABLE CAUSE TO BELIEVE THAT THE SUSPECT HAS COMMITTED A
CRIME, THEN THE POLICE SHOULD BE EMPOWERED TO MAKE A FORMAL "ARREST,"
AND A FULL INCIDENT "SEARCH" OF THE PERSON. THIS SCHEME IS JUSTIFIED
IN PART UPON THE NOTION THAT A "STOP" AND A "FRISK" AMOUNT TO A MERE
"MINOR INCONVENIENCE AND PETTY INDIGNITY," /4/ WHICH CAN PROPERLY BE
IMPOSED UPON THE CITIZEN IN THE INTEREST OF EFFECTIVE LAW ENFORCEMENT
ON THE BASIS OF A POLICE OFFICER'S SUSPICION. /5/
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
AS IT HAS DEVELOPED TO DATE IN THE TRADITIONAL JURISPRUDENCE OF THE
FOURTH AMENDMENT. /6/ 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. THE HEART OF THE FOURTH AMENDMENT, THE ARGUMENT RUNS, IS A
SEVERE REQUIREMENT OF SPECIFIC JUSTIFICATION FOR ANY INTRUSION UPON
PROTECTED PERSONAL SECURITY, COUPLED WITH A HIGHLY DEVELOPED SYSTEM OF
JUDICIAL CONTROLS TO ENFORCE UPON THE AGENTS OF THE STATE THE COMMANDS
OF THE CONSTITUTION. ACQUIESCENCE BY THE COURTS IN THE COMPULSION
INHERENT IN THE FIELD INTERROGATION PRACTICES AT ISSUE HERE, IT IS
URGED, WOULD CONSTITUTE AN ABDICATION OF JUDICIAL CONTROL OVER, AND
INDEED AN ENCOURAGEMENT OF, SUBSTANTIAL INTERFERENCE WITH LIBERTY AND
PERSONAL SECURITY BY POLICE OFFICERS WHOSE JUDGMENT IS NECESSARILY
COLORED BY THEIR PRIMARY INVOLVEMENT IN "THE OFTEN COMPETITIVE
ENTERPRISE OF FERRETING OUT CRIME." JOHNSON V. UNITED STATES, 333 U.S.
10, 14 (1948). THIS, IT IS ARGUED, CAN ONLY SERVE TO EXACERBATE POLICE
COMMUNITY TENSIONS IN THE CROWDED CENTERS OF OUR NATION'S CITIES. /7/
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. THE STATE HAS CHARACTERIZED THE ISSUE HERE AS "THE RIGHT OF A
POLICE OFFICER . . . TO MAKE AN ON-THE-STREET STOP, INTERROGATE AND PAT
DOWN FOR WEAPONS (KNOWN IN STREET VERNACULAR AS 'STOP AND FRISK')."
/8/ BUT THIS IS ONLY PARTLY ACCURATE. FOR THE ISSUE IS NOT THE
ABSTRACT PROPRIETY OF THE POLICE CONDUCT, BUT THE ADMISSIBILITY AGAINST
PETITIONER OF THE EVIDENCE UNCOVERED BY THE SEARCH AND SEIZURE. EVER
SINCE ITS INCEPTION, THE RULE EXCLUDING EVIDENCE SEIZED IN VIOLATION OF
THE FOURTH AMENDMENT HAS BEEN RECOGNIZED AS A PRINCIPAL MODE OF
DISCOURAGING LAWLESS POLICE CONDUCT. SEE WEEKS V. UNITED STATES, 232
U.S. 383, 391-393 (1914). THUS ITS MAJOR THRUST IS A DETERRENT ONE,
SEE LINKLETTER V. WALKER, 381 U.S. 618, 629-635 (1965), AND EXPERIENCE
HAS TAUGHT THAT IT IS THE ONLY EFFECTIVE DETERRENT TO POLICE MISCONDUCT
IN THE CRIMINAL CONTEXT, AND THAT WITHOUT IT THE CONSTITUTIONAL
GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES WOULD BE A MERE
"FORM OF WORDS." MAPP V. OHIO, 367 U.S. 643, 655 (1961). THE RULE
ALSO SERVES ANOTHER VITAL FUNCTION-- "THE IMPERATIVE OF JUDICIAL
INTEGRITY." ELKINS V. UNITED STATES, 364 U.S. 206, 222 (1960). COURTS
WHICH SIT UNDER OUR CONSTITUTION CANNOT AND WILL NOT BE MADE PARTY TO
LAWLESS INVASIONS OF THE CONSTITUTIONAL RIGHTS OF CITIZENS BY
PERMITTING UNHINDERED GOVERNMENTAL USE OF THE FRUITS OF SUCH
INVASIONS. THUS IN OUR SYSTEM EVIDENTIARY RULINGS PROVIDE THE CONTEXT
IN WHICH THE JUDICIAL PROCESS OF INCLUSION AND EXCLUSION APPROVES SOME
CONDUCT AS COMPORTING WITH CONSTITUTIONAL GUARANTEES AND DISAPPROVES
OTHER ACTIONS BY STATE AGENTS. A RULING ADMITTING EVIDENCE IN A
CRIMINAL TRIAL, WE RECOGNIZE, HAS THE NECESSARY EFFECT OF LEGITIMIZING
THE CONDUCT WHICH PRODUCED THE EVIDENCE, WHILE AN APPLICATION OF THE
EXCLUSIONARY RULE WITHHOLDS THE CONSTITUTIONAL IMPRIMATUR.
THE EXCLUSIONARY RULE HAS ITS LIMITATIONS, HOWEVER, AS A TOOL OF
JUDICIAL CONTROL. IT CANNOT PROPERLY BE INVOKED TO EXCLUDE THE
PRODUCTS OF LEGITIMATE POLICE INVESTIGATIVE TECHNIQUES ON THE GROUND
THAT MUCH CONDUCT WHICH IS CLOSELY SIMILAR INVOLVES UNWARRANTED
INTRUSIONS UPON CONSTITUTIONAL PROTECTIONS. MOREOVER, IN SOME CONTEXTS
THE RULE IS INEFFECTIVE AS A DETERRENT. STREET ENCOUNTERS BETWEEN
CITIZENS AND POLICE OFFICERS ARE INCREDIBLY RICH IN DIVERSITY. THEY
RANGE FROM WHOLLY FRIENDLY EXCHANGES OF PLEASANTRIES OR MUTUALLY USEFUL
INFORMATION TO HOSTILE CONFRONTATIONS OF ARMED MEN INVOLVING ARRESTS,
OR INJURIES, OR LOSS OF LIFE. MOREOVER, HOSTILE CONFRONTATIONS ARE NOT
ALL OF A PIECE. SOME OF THEM BEGIN IN A FRIENDLY ENOUGH MANNER, ONLY
TO TAKE A DIFFERENT TURN UPON THE INJECTION OF SOME UNEXPECTED ELEMENT
INTO THE CONVERSATION. ENCOUNTERS ARE INITIATED BY THE POLICE FOR A
WIDE VARIETY OF PURPOSES, SOME OF WHICH ARE WHOLLY UNRELATED TO A
DESIRE TO PROSECUTE FOR CRIME. /9/ DOUBTLESS SOME POLICE "FIELD
INTERROGATION" CONDUCT VIOLATES THE FOURTH AMENDMENT. BUT A STERN
REFUSAL BY THIS COURT TO CONDONE SUCH ACTIVITY DOES NOT NECESSARILY
RENDER IT RESPONSIVE TO THE EXCLUSIONARY RULE. REGARDLESS OF HOW
EFFECTIVE THE RULE MAY BE WHERE OBTAINING CONVICTIONS IS AN IMPORTANT
OBJECTIVE OF THE POLICE, /10/ IT IS POWERLESS TO DETER INVASIONS OF
CONSTITUTIONALLY GUARANTEED RIGHTS WHERE THE POLICE EITHER HAVE NO
INTEREST IN PROSECUTING OR ARE WILLING TO FORGO SUCCESSFUL PROSECUTION
IN THE INTEREST OF SERVING SOME OTHER GOAL.
PROPER ADJUDICATION OF CASES IN WHICH THE EXCLUSIONARY RULE IS
INVOKED DEMANDS A CONSTANT AWARENESS OF THESE LIMITATIONS. THE
WHOLESALE HARASSMENT BY CERTAIN ELEMENTS OF THE POLICE COMMUNITY, OF
WHICH MINORITY GROUPS, PARTICULARLY NEGROES, FREQUENTLY COMPLAIN, /11/
WILL NOT BE STOPPED BY THE EXCLUSION OF ANY EVIDENCE FROM ANY CRIMINAL
TRIAL. YET A RIGID AND UNTHINKING APPLICATION OF THE EXCLUSIONARY
RULE, IN FUTILE PROTEST AGAINST PRACTICES WHICH IT CAN NEVER BE USED
EFFECTIVELY TO CONTROL, MAY EXACT A HIGH TOOL IN HUMAN INJURY AND
FRUSTRATION OF EFFORTS TO PREVENT CRIME. 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
OVERBEARING OR HARASSING, OR WHICH TRENCHES UPON PERSONAL SECURITY
WITHOUT THE OBJECTIVE EVIDENTIARY JUSTIFICATION WHICH THE CONSTITUTION
REQUIRES. WHEN SUCH CONDUCT IS IDENTIFIED, IT MUST BE CONDEMED BY THE
JUDICIARY AND ITS FRUITS MUST BE EXCLUDED FROM EVIDENCE IN CRIMINAL
TRIALS. AND, OR COURSE, OUR APPROVAL OF LEGITIMATE AND RESTRAINED
INVESTIGATIVE CONDUCT UNDERTAKEN ON THE BASIS OF AMPLE FACTUAL
JUSTIFICATION SHOULD IN NO WAY DISCOURAGE THE EMPLOYMENT OF OTHER
REMEDIES THAN THE EXCLUSIONARY RULE TO CURTAIN ABUSES FOR WHICH THAT
SANCTION MAY PROVE INAPPROPRIATE.
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. GIVEN THE NARROWNESS OF THIS QUESTION, WE HAVE NO
OCCASION TO CANVASS IN DETAIL THE CONSTITUTIONAL LIMITATIONS UPON THE
SCOPE OF A POLICEMAN'S POWER WHEN HE CONFRONTS A CITIZEN WITHOUT
PROBABLE CAUSE TO ARREST HIM.
II
OUR FIRST TASK IS TO ESTABLISH AT WHAT POINT IN THIS ENCOUNTER THE
FOURTH AMENDMENT BECOMES RELEVANT. THAT IS, WE MUST DECIDE WHETHER AND
WHEN OFFICER MCFADDEN "SEIZED" TERRY AND WHETHER AND WHEN HE CONDUCTED
A "SEARCH." THERE IS SOME SUGGESTION IN THE USE OF SUCH TERMS AS
"STOP" AND "FRISK" THAT SUCH POLICE CONDUCT IS OUTSIDE THE PURVIEW OF
THE FOURTH AMENDMENT BECAUSE NEITHER ACTION RISES TO THE LEVEL OF A
"SEARCH" OR "SEIZURE" WITHIN THE MEANING OF THE CONSTITUTION. /12/ WE
EMPHATICALLY REJECT THIS NOTION. 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 HAD "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 "SEARCH9' MOREOVER, IT IS SIMPLE
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." /13/ 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. /14/
THE DANGER IN THE LOGIC WHICH PROCEEDS UPON DISTINCTIONS BETWEEN A
"STOP" AND AN "ARREST," OR "SEIZURE" OF THE PERSON, AND BETEEEN A
"FRISK" AND A "SEARCH" IS TWOFOLD. IT SEEKS TO ISOLATE FROM
CONSTITUTIONAL SCRUTINY THE INITIAL STAGES OF THE CONTACT BETWEEN THE
POLICEMAN AND THE CITIZEN. AND BY SUGGESTING A RIGID ALL-OR-NOTHING
MODEL OF JUSTIFICATION AND REGULATION UNDER THE AMDNEMENT, IT OBSCURES
THE UTILITY OF LIMITATIONS UPON THE SCOPE, AS WELL AS THE INITIATION,
OF POLICE ACTION AS A MEANS OF CONSTITUTIONAL REGULATION. /15/ THIS
COURT HAS HELD IN THE PAST THAT A SEARCH WHICH IS REASONABLE AT TIS
INCEPTION MAY VIOLATE THE FOURTH AMENDMENT BY VIRTUE OF ITS INTOLERABLE
INTENSITY AND SCOPE. KREMEN V. UNITED STATES, 353 U.S. 346 (1957); GO
BART IMPORTING CO. V. UNITED STATES, 282 U.S. 344, 356-358 (1931); SEE
UNITED STATES V. DI RE, 332 U.S. 581, 586-587 (1948). THE SCOPE OF THE
SEARCH MUST BE "STRICTLY TIED TO AND JUSTIFIED BY" THE CIRCUMSTANCES
WHICH RENDERED ITS INITIATION PERMISSIBLE. WARDEN V. HAYDEN, 387 U.S.
294, 310 (1967) (MR. JUSTICE FORTAS, CONCURRING); SEE, E.G., PRESTON V.
UNITED STATES, 376 U.S. 364, 367-368 (1964); AGNELLO V. UNITED STATES,
269 U.S. 20, 30-31 (1925).
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 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. /16/ 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.
III.
IF THIS CASE INVOLVED POLICE CONDUCT SUBJECT TO THE WARRANT CLAUSE
OF THE FOURTH AMENDMENT, WE WOULD HAVE TO ASCERTAIN WHETHER "PROBABLE
CAUSE" EXISTED TO JUSTIFY THE SEARCH AND SEIZURE WHICH TOOK PLACE.
HOWEVER, THAT IS NOT THE CASE. WE DO NOT RETREAT FROM OUR HOLDINGS
THAT THE POLICE MUST, WHENEVER PRACTICABLE, OBTAIN ADVANCE JUDICIAL
APPROVAL OF SEARCHES AND SEIZURES THROUGH THE WARRANT PROCEDURE, SEE,
E.G., KATZ V. UNTIED STATES, 289 U.S. 347 (1967); BECK V. OHIO, 379
U.S. 89, 96 (1964); CHAPMAN V. UNITED STATES, 265 U.S. 610 (1961), OR
THAT IN MOST INSTANCES FAILURE TO COMPLY WITH THE WARRANT REQUIREMENT
CAN ONLY BE EXCUSED BY EXIGENT CIRCUMSTANCES, SEE, E.G., WARDEN V.
HAYDEN, 387 U.S. 294 (1967) (HOT PURSUIT); CF. PRESTON V. UNITED
STATES, 376 U.S. 364, 367-368 (1964). BUT WE DEAL HERE WITH AN ENTIRE
RUBRIC OF POLICE CONDUCT-- NECESSARILY SWIFT ACTION PREDICATED UPON THE
ON-THE-SPOT OBSERVATIONS OF THE OFFICER ON THE BEAT-- WHICH
HISTORICALLY HAS NOT BEEN, AND AS A PRACTICAL MATTER COULD NOT BE,
SUBJECTED TO THE WARRANT PROCEDURE. INSTEAD, THE CONDUCT INVOLVED IN
THIS CASE MUST BE TESTED BY THE FOURTH AMENDMENT'S GENERAL PROSCRIPTION
AGAINST UNREASONABLE SEARCHES AND SEIZURES. /17/
NONETHELESS, THE NOTIONS WHICH UNDERLIE BOTH THE WARRANT PROCEDURE
AND THE REQUIREMENT OF PROBABLE CAUSE REMAIN FULLY RELEVANT IN THIS
CONTEST. IN ORDER TO ASSESS THE REASONABLENESS OF OFFICER MCFADDEN'S
CONDUCT AS A GENERAL PROPOSITION, IT IS NECESSARY "FIRST TO FOCUS UPON
THE GOVERNMENTAL INTEREST WHICH ALLEGEDLY JUSTIFIES OFFICIAL INTRUSION
UPON THE CONSTITUTIONALLY PROTECTED INTERESTS OF THE PRIVATE CITIZEN,"
FOR THERE IS "NO READY TEST FOR DETERMINING REASONABLENESS OTHER THAN
BY BALANCING THE NEED TO SEARCH (OR SEIZE) AGAINST THE INVASION WHICH
THE SEARCH (OR SEIZURE) ENTAILS." CAMARA V. MUNICIPAL COURT, 387 U.S.
523, 534-535, 536-537 (1967). 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. /18/ THE SCHEME OF
THE FOURTH AMENDMENT BECOMES MEANINGFUL ONLY WHEN IT IS ASSURED THAT AT
SOME POINT THE CONDUCT OF THOSE CHARGED WITH ENFORCING THE LAWS CAN BE
SUBJECTED TO THE MORE DETACHED, NEUTRAL SCRUTINY OF A JUDGE WHO MUST
EVALUATE THE REASONABLENESS OF A PARTICULAR SEARCH OF SEIZURE IN LIGHT
OF THE PARTICULAR CIRCUMSTANCES. /19/ AND IN MAKING THAT ASSESSMENT
IT IS IMPERATIVE THAT THE FACTS BE JUDGED AGAINST AN OBJECTIVE
STANDARD: WOULD THE FACTS AVAILABLE TO THE OFFICER AT THE MOMENT OF
THE SEIZURE OR THE SEARCH "WARRANT A MAN OF REASONABLE CAUTION IN THE
BELIEF" THAT THE ACTION TAKEN WAS APPROPRIATE? CF. CARROLL V. UNITED
STATES, 267 U.S. 132 (1925); BECK V. OHIO, 379 U.S. 89, 96-97 (1964).
/20/ ANYTHING LESS WOULD INVITE INTRUSIONS UPON CONSTITUTIONALLY
GUARANTEED RIGHTS BASED ON NOTHING MORE SUBSTANTIAL THAN INARTICULATE
HUNCHES, A RESULT THIS COURT HAS CONSISTENTLY REFUSED TO SANCTION.
SEE, E.G., BECK V. OHIO, SUPRA; RIOS V. UNITED STATES, 364 U.S. 253
(1960); HENRY V. UNITED STATES, 361 U.S. 98 (1959). AND SIMPLE "'GOOD
FAITH ON THE PART OF THE ARRESTING OFFICER IS NOT ENOUGH.' . . . IF
SUBJECTIVE GOOD FAITH ALONE WERE THE TEST, THE PROTECTIONS OF THE
FOURTH AMENDMENT WOULD EVAPORATE, AND THE PEOPLE WOULD BE 'SECURE IN
THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,' ONLY IN THE DISCRETION OF
THE POLICE." BECK V. OHIO, SUPRA, AT 97.
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 IS THIS INTEREST WHICH UNDERLIES THE ROCOGNITION THAT A POLICE
OFFICER MAY IN APPROPRIATE CIRCUMSTANCES AND IN AN APPROPRIATE MANNER
APPROACH A PERSON FOR PURPOSES OF INVESTIGATING POSSIBLY CRIMINAL
BEHAVIOR EVEN THOUGH THERE IS NO PROBABLE CAUSE TO MAKE AN ARREST. 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,
WACH OF THEM PERHAPS INNOCENT IN ITSELF, BUT WHICH TAKEN TOGETHER
WARRANTED FURTHER INVESTIGATION. THERE IS NOTHING UNUSUAL IN TWO MEN
STANDING TOGETHER ON A STREET CORNER, PERHAPS WAITING FOR SOMEONE. NOR
IS THERE ANYTHING SUSPICIOUS ABOUT PEOPLE IN SUCH CIRCUMSTANCES
STROLLING UP AND DOWN THE STREET, SINGLY OR IN PAIRS. STORE WINDOBS,
MOREOVER, ARE MADE TO BE LOOKED IN. BUT THE STORY IS QUITE DIFFERENT
WHERE, AS HERE, TWO MEN HOVER ABOUT A STREET CORNER FOR AN EXTENDED
PERIOD OF TIME, AT THE END OF WHICH IT BECOMES APPARENT THAT THEY ARE
NOT WAITING FOR ANYONE OR ANYTHING; WHERE THESE MEN PACE ALTERNATELY
ALONG AN IDENTICAL ROUTE, PAUSING TO STARE IN THE SAME STORE WINDOW
ROUGHLY 24 TIMES; WHERE EACH COMPLETION OF THIS ROUTE IS FOLLOWED
IMMEDIATELY BY A CONFERENCE BETWEEN THE TWO MEN ON THE CORNER; WHERE
THEY ARE JOINED IN ONE OF THESE CONFERENCES BY A THIRD MAN WHO LEAVES
SWIFTLY; AND WHERE THE TWO MEN FINALLY FOLLOW THE THIRD AND REJOIN HIM
A COUPLE OF BLOCKS AWAY. IT WOULD HAVE BEEN POOR POLICE WORK INDEED
FOR AN OFFICER OF 30 YEARS' EXPERIENCE IN THE DETECTION OF THIEVERY
FROM STORES IN THIS SAME NEIGHBORHOOD TO HAVE FAILED TO INVESTIGATE
THIS BEHAVIOR FURTHER.
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. AMERICAN
CRIMINALS HAVE A LONG TRADITION OF ARMED FIOLENCE, AND EVERY YEAR IN
THIS COUNTRY MANY LAW ENFORCEMENT OFFICERS ARE KILLED IN THE LINE OF
DUTY, AND THOUSANDS ARE WOUNDED. VIRTUALLY ALL OF THESE DEATHS AND A
SUBSTANTIAL PORTION OF THE INJURIES ARE INFLICTED WITH GUNS AND
KNIVES. /21/
IN VIEW OF THESE FACTS, WE CANNOT BLIND OURSELVES TO THE NEED FOR
LAW ENFORCEMENT OFFICERS TO PROTECT THEMSELVES AND OTHER PROSPECTIVE
VICTIMS OF VIOLENCE IN SITUATIONS WHERE THEY MAY LACK PROBABLE CAUSE
FOR AN ARREST. 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.
WE MUST STILL CONSIDER, HOWEVER, THE NATURE AND QUALITY OF THE
INTRUSTION 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, INTRUSTION UPON CHERISHED PERSONAL SECURITY, AND IT MUST
SURELY BE AN ANNOYING, FRIGHTENING, AND PERHAPS HUMILIATING
EXPERIENCE. PETITIONER CONTENDS THAT SUCH AN INTRUSION IS PERMISSIBLE
ONLY INCIDENT TO A LAWFUL ARREST, EITHER FOR A CRIME INVOLVING THE
POSSESSION OF WEAPONS OR FOR A CRIME THE COMMISSION OF WHICH LED THE
OFFICER TO INVESTIGATE IN THE FIRST PLACE. HOWEVER, THIS ARGUMENT MUST
BE CLOSELY EXAMINED.
PETITIONER DOES NOT ARGUE THAT A POLICE OFFICER SHOULD REFRAIN FROM
MAKING ANY INVESTIGATION OF SUSPICIOUS CIRCUMSTANCES UNTIL SUCH TIME AS
HE HAS PROBABLE CAUSE TO MAKE AN ARREST; NOR DOES HE DENY THAT POLICE
OFFICERS IN PROPERLY DISCHARGING THEIR INVESTIGATIVE FUNCTION MAY FIND
THEMSELVES CONFRONTING PERSONS WHO MIGHT WELL BE ARMED AND DANGEROUS.
MOREOVER, HE DOES NOT SAY THAT AN OFFICER IS ALWAYS UNJUSTIFIED IN
SEARCHING A SUSPECT TO DISCOVER WEAPONS. RATHER, HE SAYS IT IS
UNREASONABLE FOR THE POLICEMAN TO TAKE THAT STEP UNTIL SUCH TIME AS THE
SITUATION EVOLVES TO A POINT WHERE THERE IS PROBABLE CAUSE TO MAKE AN
ARREST. WHEN THAT POINT HAS BEEN REACHED, PETITIONER WOULD CONCEDE THE
OFFICER'S RIGHT TO CONDUCT A SEARCH OF THE SUSPECT FOR WEAPONS, FRUITS
OR INSTRUMENTALITIES OF THE CRIME, OR "MERE" EVIDENCE, INCIDENT TO THE
ARREST.
THERE ARE TWO WEAKNESSES IN THIS LINE OF REASONING, HOWEVER. FIRST,
IT FAILS TO TAKE ACCOUNT OF TRADITIONAL LIMITATIONS UPON THE SCOPE OF
SEARCHES, AND THUS RECOGNIZES NO DISTINCTION IN PURPOSE, CHARACTER, AND
EXTENT BETWEEN A SEARCH INCIDENT TO AN ARREST AND A LIMITED SEARCH FOR
WEAPONS. THE FORMER, ALTHOUGH JUSTIFIED IN PART BY THE ACKNOWLEDGE
NECESSITY TO PROTECT THE ARRESTING OFFICER FROM ASSUALT WITH A
CONCEALED WEAPON. PRESTON V. UNITED STATES, 276 U.S. 364, 367 (1964),
IS ALSO JUSTIFIED ON OTHER GROUNDS, IBID., AND CAN THEREFORE INVOLVE A
RELATIVELY EXTENSIVE EXPLORATION OF THE PERSON. A SEARCH FOR WEAPONS
IN THE ABSENCE OF PROBABLE CAUSE TO ARREST, HOWEVER, MUST, LIKE ANY
OTHER SEARCH, BE STRICTLY CIRCUMSCRIBED BY THE EXIGENCIES WHICH JUSTIFY
ITS INITIATION. WARDEN V. HAYDEN, 387 U.S. 294, 310 (1967) (MR.
JUSTICE FORTAS, CONCURRING). THUS IT MUST BE LIMITED TO THAT WHICH IS
NECESSARY FOR THE DISCOVERY OF WEAPONS WHICH MIGHT BE USED TO HARM THE
OFFICER OR OTHERS NEARBY, AND MAY REALISTICALLY BE CHARACTERIZED AS
SOMETHING LESS THAN A "FULL" SEARCH, EVEN THOUGH IT REMAINS A SERIOUS
INTRUSION.
A SECOND, AND RELATED, OBJECTION TO PETITIONER'S ARGUMENT IS THAT IT
ASSUMES THAT THE LAW OF ARREST HAS ALREADY WORKED OUT THE BALANCE
BETWEEN THE PARTICULAR INTERESTS INVOLVED HERE-- THE NEUTRALIZATION OF
DANGER TO THE POLICEMAN IN THE INVESTIGATIVE CIRCUMSTANCE AND THE
SANCTITY OF THE INDIVIDUAL. BUT THIS IS NOT SO. AN ARREST IS A WHOLLY
DIFFERENT KIND OF INTRUSION UPON INDIVIDUAL FREEDOM FROM A LIMITED
SEARCH FOR WEAPONS, AND THE INTERESTS EACH IS DESIGNED TO SERVE ARE
LIKEWISE QUITE DIFFERENT. AN ARREST IS THE INITIAL STAGE OF A CRIMINAL
PROSECUTION. IT IS INTENDED TO VINDICATE SOCIETY'S INTEREST IN HAVING
ITS LAWS OBEYED, AND IT IS INEVITABLY ACCOMPANIED BY FUTURE
INTERFERENCE WITH THE INDIVIDUAL'S FREEDOM OF MOVEMENT, WHETHER OR NOT
TRIAL OR CONVICTION ULTIMATELY FOLLOWS. /22/ THE PROTECTIVE SEARCH
FOR WEAPONS, ON THE OTHER HAND, CONSTITUTES A BRIEF, THOUGH FAR FROM
INCONSIDERABLE, INTRUSION UPON THE SANCTITY OF THE PERSON. IT DOES NOT
FOLLOW THAT BECAUSE AN OFFICER MAY LAWFULLY ARREST A PERSON ONLY WHEN
HE IS APPRISED OF FACTS SUFFICIENT TO WARRANT A BELIEF THAT THE PERSON
HAS COMMITTED OR IS COMMITTING A CRIME, THE OFFICER IS EUQALLY
UNJUSTIFIED, ABSENT THAT KIND OF EVIDENCE, IN MAKING ANY INTRUSIONS
SHORT OF AN ARREST. MOREOVER, A PERFECTLY REASONABLE APPREHENSION OF
DANGER MAY ARISE LONG BEFORE THE OFFICER IS POSSESSED OF ADEQUATE
INFORMATION TO JUSTIFY TAKING A PERSON INTO CUSTODY FOR THE PURPOSE OF
PROSECUTING HIM FOR A CRIME. PETITIONER'S RELIANCE ON CASES WHICH HAVE
WORKED OUT STANDARDS OF REASONABLENESS WITH REGARD TO "SEIZURES"
CONSTITUTING ARRESTS AND SEARCHES INCIDENT THERETO IS THUS MISPLACED.
IT ASSUMES THAT THE INTERESTS SOUGHT TO BE VINDICATED AND THE INVASIONS
OF PERSONAL SECURITY MAY BE EQUATED IN THE TWO CASES, AND THEREBY
IGNORES A VITAL ASPECT OF THE ANALYSIS OF THE REASONABLENESS OF
PARTICULAR TYPES OF CONDUCT UNDER THE FOURTH AMENDMENT. SEE CAMARA V.
MUNICIPAL COURT, SUPRA.
OUR EVALUATION OF THE PROBPER 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. CF. PBECK V. OHIO, 379 U.S. 89, 91 (1964); BRINEGAR V.
UNITED STATES, 338 U.S. 160, 174-176 (1949); STACEY V. EMERY, 97 U.S.
642, 645 (1878). /23/ 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. CG. BRINEGAR V. UNITED STATES SUPRA.
IV.
WE MUST NOW EXAMINE THE CONDUCT OF OFFICER MCFADDEN IN THIS CASE TO
DETERMINE WHETHER HIS SEARCH AND SEIZURE OF PETITIONER WERE REASONABLE,
BOTH AT THEIR INCEPTION AND AS CONDUCTED. HE HAD OBSERVED TERRY,
TOGETHER WITH CHILTON AND ANOTHER MAN, ACTING IN A MANNER HE TOOK TO BE
PREFACE TO A "STICK-UP." WE THINK ON THE FACTS AND CIRCUMSTANCES
OFFICER MCFADDEN DETAILED BEFORE THE TRIAL JUDGE A REASONABLY PRUDENT
MAN WOULD HAVE BEEN WARRANTED IN BELIEVING PETITIONER WAS ARMED AND
THUS PRESENTED A THREAT TO THE OFFICER'S SAFETY WHILE HE WAS
INVESTIGATING HIS SUSPICIOUS BEHAVIOR. THE ACTIONS OF TERRY AND
CHILTON WERE CONSISTENT WITH MCFADDEN'S HYPOTHESIS THAT THESE MEN WERE
CONTEMPLATING A DAYLIGHT ROBBERY-- WHICH, IT IS REASONABLE TO ASSUME,
WOULD BE LIKELY TO INVOLVE THE USE OF WEAPONS-- AND NOTHING IN THEIR
CONDUCT FROM THE TIME HE FIRST NOTICED THEM UNTIL THE TIME HE
CONFRONTED THEM AND IDENTIFIED HIMSELF AS A POLICE OFFICER GAVE HIM
SUFFICIENT REASON TO NEGATE THAT HYPOTHESIS. ALTHOUGH THE TRIO HAD
DEPARTED THE ORIGINAL SCHENE, THERE WAS NOTHING TO INDICATE ABANDONMENT
OF AN INTENT TO COMMIT A ROBBERY AT SOME POINT. THUS, WHEN OFFICER
MCFADDEN APPROACHED THE THREE MEN GATHERED BEFORE THE DISPLAY WINDOW AT
ZUCKER'S STORE HE HAD OBSERVED ENOUGH TO MAKE IT QUITE REASONABLE TO
FEAR THAT THEY WERE ARMED; AND NOTHING IN THEIR RESPONSE TO HIS HAILING
THEM, IDENTIFYING HIMSLEF AS A POLICE OFFICER, AND ASKING THEIR NAMES
SERVED TO DISPEL THAT REASONABLE BELIEF. WE CANNOT SAY HIS DECISION AT
THAT POINT TO SEIZE TERRY AND PAT HIS CLOTHING FOR WEAPONS WAS THE
PRODUCT OF A VOLATILE OR INVENTIVE IMAGINATION, OR WAS UNDERTAKEN
SIMPLY AS AN ACT OF HARASSMENT; THE RECORD EVIDENCES THE TEMPERED ACT
OF A POLICEMAN WHO IN THE COURSE OF AN INVESTIGATION HAD TO MAKE A
QUICK DECISION AS TO HOW TO PROTECT HIMSELF AND OTHERS FROM POSSIBLE
DANGER, AND TOOK LIMITED STEPS TO DO SO.
THE MANNER IN WHICH THE SEIZURE AND SEARCH WERE CONDUCTED IS, OF
COURSE, AS VITAL A PART OF THE INQUIRY AS WHETHER THEY WERE WARRANTED
AT ALL. THE FOURTH AMENDMENT PROCEEDS AS MUCH BY LIMITATIONS UPON THE
SCOPE OF GOVERNMENTAL ACTION AS BY IMPOSING PRECONDITIONS UPON ITS
INITIATION. COMPARE KATZ V. UNITED STATES, 289 U.S. 347, 354-356
(1967). THE ENTIRE DETERRENT PURPOSE OF THE RULE EXCLUDING EVIDENCE
SEIZED IN VIOLATION OF THE FOURTH AMENDMENT RESTS ON THE ASSUMPTION
THAT "LIMITATIONS UPON THE FRUIT TO BE GATHERED TEND TO LIMIT THE QUEST
ITSELF." UNITED STATES V. POLLER, 43 F.2D 911, 914 (C.A.2D CIR. 1930);
SEE, E.G., LINKLETTER V. WALKER, 381 U.S. 618, 629-635 (1965); MAPP V.
OHIO, 367 U.S. 643 (1961); ELKINS V. UNITED STATES, 364 U.S. 206, 216
221 (1960). THUS, EVIDENCE MAY NOT BE INTRODUCED IF IT WAS DISCOVERED
BY MEANS OF A SEIZURE AND SEARCH WHICH WERE NOT REASONABLY RELATED IN
SCOPE TO THE JUSTIFICATION FOR THEIR INITIATION. WARDEN V. HAYDEN, 387
U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, CONCURRING).
WE NEED NOT DEVELOP AT LENGTH IN THIS CASE, HOWEVER, THE LIMITATIONS
WHICH THE FOURTH AMENDMENT PLACES UPON A PROTECTIVE SEIZURE AND SEARCH
FOR WEAPONS. THESE LIMITATIONS WILL HAVE TO BE DEVELOPED IN THE
CONCRETE FACTUAL CIRCUMSTANCES OF INDIVIDUAL CASES. SEE SIBRON V. NEW
YORK, POST, P. 40, DECIDED TODAY. SUFFICE IT TO NOTE THAT SUCH A
SEARCH, UNLIKE A SEARCH WITHOUT A WARRANT INCIDENT TO A LAWFUL ARREST,
IS NOT JUSTIFIED BY ANY NEED TO PREVENT THE DISAPPEARANCE OR
DESTRUCTION OF EVIDENCE OF CRIME. SEE PRESTON V. UNITED STATES, 376
U.S. 364, 367 (1964). THE SOLE JUSTIFICATION OF THE SEARCH IN THE
PRESENT SITUATION IS THE PROTECTION OF THE POLICE OFFICER AND OTHERS
NEARBY, AND IT MUST THEREFORE BE CONFINED IN SCOPE TO AN INTRUSION
REASONABLY DESIGNED TO DISCOVER GUNS, KNIVES, CLUBS, OR OTHER HIDDEN
INSTRUMENTS FOR THE ASSAULT OF THE POLICE OFFICER.
THE SCOPE OF THE SEARCH IN THIS CASE PRESENTS NO SERIOUS PROBLEM IN
LIGHT OF THESE STANDARDS. OFFICER MCFADDEN PATTED DOWN THE OUTER
CLOTHING OF PETITIONER AND HIS TWO COMPANIONS. HE DID NOT PLACE HIS
HANDS IN THEIR POCKETS OR UNDER THE OUTER SURFACE OF THEIR GARMENTS
UNTIL HE HAD FELT WEAPONS, AND THEN HE MERELY REACHED FOR AND REMOVED
THE GUNS. HE NEVER DID INVADE KATZ' PERSON BEYOND THE OUTER SURFACES
OF HIS CLOTHES, SINCE HE DISCOVERED NOTHING IN HIS PAT-DOWN WHICH MIGHT
HAVE BEEN A WEAPON. OFFICER MCFADDEN CONFINED HIS SEARCH STRICTLY TO
WHAT WAS MINIMALLY NECESSARY TO LEARN WHETHER THE MEN WERE ARMED AND TO
DISARM THEM ONCE HE DISCOVERED THE WEAPONS. HE DID NOT CONDUCT A
GENERAL EXPLORATORY SEARCH FOR WHATEVER EVIDENCE OF CRIMINAL ACTIVITY
HE MIGHT FIND.
V.
WE CONCLUDE THAT THE REVOLVER SEZIED 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. 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.
AFFIRMED.
/1/ OHIO REV. CODE SEC. 2923.01 (1953) PROVIDES IN PART THAT "(NO
PERSON SHALL CARRY A PISTOL, BOWIE KNIFE, DIRK, OR OTHER DANGEROUS
WEAPON CONCEALED ON OR ABOUT HIS PERSON." AN EXCEPTION IS MADE FOR
PROPERLY AUTHORIZED LAW ENFORCEMENT OFFICERS.
/2/ TERRY AND CHILTON WERE ARRESTED, INDICTED, TRIED, AND CONVICTED
TOGETHER. THEY WERE REPRESENTED BY THE SAME ATTORNEY, AND THEY MADE A
JOINT MOTION TO SUPPRESS THE GUNS. AFTER THE MOTION WAS DENIED,
EVIDENCE WAS TAKEN IN THE CASE AGAINST CHILTON. THIS EVIDENCE
CONSISTED OF THE TESTIMONY OF THE ARRESTING OFFICER AND OF CHILTON. IT
WAS THEN STIPULATED THAT THIS TESTIMONY WOULD BE APPLIED TO THE CASE
AGAINST TERRY, AND NO FURTHER EVIDENCE WAS INTRODUCED IN THAT CASE.
THE TRIAL JUDGE CONSIDERED THE TWO CASES TOGETHER, RENDERED THE
DECISIONS AT THE SAME TIME AND SENTENCED THE TWO MEN AT THE SAME TIME.
THEY PROSECUTED THEIR STATE COURT APPEALS TOGETHER THROUGH THE SAME
ATTORNEY, AND THEY PETITIONER THIS COURT FOR CERTIORARI TOGETHER.
FOLLOWING THE GRANT OF THE WRIT UPON THIS JOINT PETITION, CHILTON
DIED. THUS, ONLY TERRY'S CONVICTION IS HERE FOR REVIEW.
/3/ BOTH THE TRIAL COURT AND THE OHIO COURT OF APPEALS IN THIS CASE
RELIED UPON SUCH A DISTINCTION. STATE V. TERRY, 5 OHIO APP.2D 122, 125
130, 214 N.E.2D 114, 117-120 (1966). SEE ALSO, E.G., PEOPLE V. RIVERA,
14 N.Y.2D 441, 201 N.E.2D 32, 252 N.Y.S.2D 458 (1964) CERT. DENIED, 379
U.S. 978 (1965); ASPEN, ARREST AND ARREST ALTERNATIVES: RECENT TRENDS,
1966 U.ILL.L.F. 241, 249-254; WARNER, THE UNIFORM ARREST ACT, 28
VA.L.REV. 315 (1942); NOTE, STOP AND FRISK IN CALIFORNIA, 18 HASTINGS
L.J. 623, 629-632 (1967).
/4/ PEOPLE V. RIVERA, SUPRA, N. 3, AT 447, 201 N.E.2D, AT 36, 252
N.Y.S.2D, AT 464.
/5/ THERE THEORY IS WELL LAID OUT IN THE RIVERA OPINION:
"(THE EVIDENCE NEEDED TO MAKE THE INQUIRY IS NOT OF THE SAME DEGREE
OF CONCLUSIVENESS AS THAT REQUIRED FOR AN ARREST. THE STOPPING OF THE
INDIVIDUAL TO INQUIRE IS NOT AN ARREST AND THE GROUND UPON WHICH THE
POLICE MAY MAKE THE INQUIRY MAY BE LESS INCRIMINATING THAN THE GROUND
FOR AN ARREST FOR A CRIME KNOWN TO HAVE BEEN COMMITTED. . . .
. . . .
"AND AS THE RIGHT TO STOP AND INQUIRE IS TO BE JUSTIFIED FOR A CAUSE
LESS CONCLUSIVE THAN THAT WHICH WOULD SUSTAIN AN ARREST, SO THE RIGHT
TO FRISK MAY BE JUSTIFIED AS AN INCIDENT TO INQUIRY UPON GROUNDS OF
ELEMENTAL SAFETY AND PRECAUTION WHICH MIGHT NOT INITIALLY SUSTAIN A
SEARCH. ULTIMATELY THE VALIDITY OF THE FRISK NARROWS DOWN TO WHETHER
THERE IS OR IS NOT A RIGHT BY THE POLICE TO TOUCH THE PERSON
QUESTIONED. THE SENSE OF EXTERIOR TOUCH HERE INVOLVED IS NOT VERY FAR
DIFFERENT FROM THE SENSE OF SIGHT OR HEARING-- SENSES UPON WHICH POLICE
CUSTOMARILY ACT." PEOPLE V. RIVERA, 14 N.Y.2D 441, 445, 447, 201
N.E.2D 32, 34, 35, 252 N.Y.S.2D 458, 461, 463 (1964), CERT. DENIED, 379
U.S. 978 (1965).
/6/ SEE, E.G., FOOTE, THE FOURTH AMENDMENT: OBSTACLE OR NECESSITY
IN THE LAW OF ARREST?, 51 J.CRIM.L.C.& P.S. 402 (1960).
/7/ SEE N. 11, INFRA.
/8/ BRIEF FOR RESPONDENT 2.
/9/ SEE L. TIFFANY, D. MCINTYRE & D. ROTENBERG, DETECTION OF CRIME:
STOPPING AND QUESTIONING, SEARCH AND SEIZURE, ENCOURAGEMENT AND
ENTRAPMENT 18-56 (1967). THIS SORT OF POLICE CONDUCT MAY, FOR EXAMPLE,
BE DESIGNED SIMPLY TO HELP AN INTOXICATED PERSON FIND HIS WAY HOME,
WITH NO INTENTION OF ARRESTING HIM UNLESS HE BECOMES OBSTEREROUS. OR
THE POLICE MAY BE SEEKING TO MEDIATE A DOMESTIC QUARREL WHICH THREATENS
TO ERUPT INTO VIOLENCE. THEY MAY ACCOST A WOMAN IN AN AREA KNOWN FOR
PROSTITUTION AS PART OF A HARASSMENT CAMPAIGN DESIGNED TO DRIVE
PROSTITUTES AWAY WITHOUT THE CONSIDERABLE DIFFICULTY INVOLVED IN
PROSECUTING THEM. OR THEY MAY BE CONDUCTING A DRAGNET SEARCH OF ALL
TEENAGERS IN A PARTICULAR SECTION OF THE CITY FOR WEAPONS BECAUSE THEY
HAVE HEARD RUMORS OF AN IMPENDING GANG FIGHT.
/10/ SEE TIFFANY, MCINTYRE & ROTENBERG, SUPRA, N. 9, AT 100-101;
COMMENT, 47 NW.U.L.REV. 493, 497-499 (1952).
/11/ THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE FOUND THAT "(IN MANY COMMUNITIES, FILED
INTERROGATIONS ARE A MAJOR SOURCE OF FRICTION BETWEEN THE POLICE AND
MINORITY GROUPS." PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE 183 (1967).
IT WAS REPORTED THAT THE FRICTION CAUSED BY "(MISUSE OF FIELD
INTERROGATIONS" INCREASES "AS MORE POLICE DEPARTMENTS ADOPT 'AGGRESSIVE
PATROL' IN WHICH OFFICERS ARE ENCOURAGED ROUTINELY TO STOP AND QUESTION
PERSONS ON THE STREET WHO ARE UNKNOWN TO THEM, WHO ARE SUSPICIOUS, OR
WHOSE PURPOSE FOR BEING ABROAD IS NOT READILY EVIDENT." ID., AT 184.
WHILE THE FREQUENCY WITH WHICH "FRISKING" FORMS A PART OF FIELD
INTERROGATION PRACTICE VARIES TREMENDOUSLY WITH THE LOCALE, THE
OBJECTIVE OF THE INTERROGATION, AND THE PARTICULAR OFFICER, SEE
TIFFANY, MCINTYRE & ROTENBERG, SUPRA, N. 9, AT 47-48, IT CANNOT HELP
BUT BE A SEVERELY EXACERBATING FACTOR IN POLICE-COMMUNITY TENSIONS.
THIS IS PARTICULARLY TRUE IN SITUATIONS WHERE THE "STOP AND FRISK" OF
YOUTHS OR MINORITY GROUP MEMBERS IS "MOTIVATED BY THE OFFICERS'
PERCEIVED NEED TO MAINTAIN THE POWER IMAGE OF THE BEAT OFFICER, AN AIM
SOMETIMES ACCOMPLISHED BY HUMILIATING ANYONE WHO ATTEMPTS TO UNDERMINE
POLICE CONTROL OF THE STREETS." IBID.
/12/ IN THIS CASE, FOR EXAMPLE, THE OHIO COURT OF APPEALS STATED
THAT "WE MUST BE CAREFUL TO DISTINGUISH THAT THE 'FRISK' AUTHORIZED
HEREIN INCLUDES ONLY A 'FRISK' FOR A DANGEROUS WEAPON. IT BY NO MEANS
AUTHORIZES A SEARCH FOR CONTRABAND, EVIDENTIARY MATERIAL, OR ANYTHING
ELSE IN THE ABSENCE OF REASONABLE GROUNDS TO ARREST. SUCH A SEARCH IS
CONTROLLED BY THE REQUIREMENTS OF THE FOURTH AMENDMENT, AND PROBABLE
CAUSE IS ESSENTIAL." STATE V. TERRY, 5 OHIO APP.2D 122, 130, 214
N.E.2D 114, 120 (1966). SEE ALSO, E.G., ELLIS V. UNITED STATES, 105
U.S.APP.D.C. 86, 88, 264 F.2D 372, 374 (1959); COMMENT, 65 COL.L.REV.
848, 860, AND N. 81 (1965).
/13/ CONSIDER THE FOLLOWING APT DESCRIPTION:
"(THE OFFICER MUST FEEL WITH SENSITIVE FINGERS EVERY PORTION OF THE
PRISONER'S BODY. A THOROUGH SEARCH MUST BE MADE OF THE PRISONER'S ARMS
AND ARMPITS, WAISTLINE AND BACK, THE GROIN AND AREA ABOUT THE
TESTICLES, AND ENTIRE SURFACT OF THE LEGS DOWN TO THE FEET." PRIAR &
MARTIN, SEARCHING AND DISARMING CRIMINALS, 45 J.CRIM.L.C.& P.S. 481
(1954).
/14/ SEE N. 11, SUPRA, AND ACCOMPANYING TEXT.
WE HAVE NOTED THAT THE ABUSIVE PRACTICES WHICH PLAY A MAJOR, THOUGH
BY NO MEANS EXCLUSIVE, ROLE IN CREATING THIS FRICTION ARE NOT
SUSCEPTIBLE OF CONTROL BY MEANS OF THE EXCLUSIONARY RULE, AND CANNOT
PROPERLY DICTATE OUR DECISION WITH RESPECT TO THE POWERS OF THE POLICE
IN GENUINE INVESTIGATIVE AND PREVENTIVE SITUATIONS. HOWEVER, THE
DEGREE OF COMMUNITY RESENTMENT AROUSED BY PARTICULAR PRACTICES IS
CLEARLY RELEVANT TO AN ASSESSMENT OF THE QUALITY OF THE INTRUSION UPON
REASONABLE EXPECTATIONS OF PERSONAL SECURITY CAUSED BY THOSE
PRACTICES.
/15/ THESE DANGERS ARE ILLUSTRATED IN PART BY THE COURSE OF
ADJUDICATION IN THE COURT OF APPEALS OF NEW YORK. ALTHOUGH ITS FIRST
DECISION IN THIS AREA, PEOPLE V. RIVERA, 14 N.Y.2D 441, 201 N.E.2D 32,
252 N.Y.S.2D 458 (1964), CERT. DENIED, 379 U.S. 978 (1965), RESTED
SQUARELY ON THE NOTION THAT A "FRISK" WAS NOT A "SEARCH," SEE NN. 3-5,
SUPRA, IT WAS COMPELLED TO RECOGNIZE IN PEOPLE V. TAGGART, 20 N.Y.2D
335, 342, 229 N.E.2D 581, 586, 283 N.Y.S.2D 1, 8 (1967), THAT WHAT IS
HAD ACTUALLY AUTHORIZED IN RIVERA AND SUBSEQUENT DECISIONS, SEE, E.G.,
PEOLE V. PUBACH, 15 N.Y.2D 65, 204 N.E.2D 176, 255 N.Y.S.2D 833 (1964),
CERT. DENIED, 380 U.S. 936 (1965), WAS A "SEARCH" UPON LESS THAN
PROBABLE CAUSE. HOWEVER, IN ACKNOWLEDGING THAT NO VALID DISTINCTION
COULD BE MAINTAINED ON THE BASIS OF ITS CASES, THE COURT OF APPEALS
CONTINUED TO DISTINGUISH BETWEEN THE TWO IN THEORY. IT STILL DEFINED
"SEARCH" AS IT HAD IN RIVERA-- AS AN ESSENTIALLY UNLIMITED EXAMINATION
OF THE PERSON FOR ANY AND ALL SEIZABLE ITEMS-- AND MERELY NOTED THAT
THE CASES HAD UPHELD POLICE INTRUSIONS WHICH WENT FAR BEYOND THE
ORIGINAL LIMITED CONCEPTION OF A "FRISK." THUS, PRINCIPALLY BECAUSE IT
IT FAILED TO CONSIDER LIMITATIONS UPON THE SCOPE OF SEARCHES IN
INDIVIDUAL CASES AS A POTENTIAL MODE OF REGULATION, THE COURT OF
APPEALS IN THREE SHORT YEARS ARRIVED AT THE POSITION THAT THE
CONSTITUTION MUST, IN THE NAME OF NECESSITY, BE HELD TO PERMIT
UNRESTRAINED RUMMAGING ABOUT A PERSON AND HIS EFFECTS UPON MERE
SUSPICION. IT DID APPARENTLY LIMIT ITS HOLDING TO "CASES INVOLVING
SERIOUS PERSONAL INJURY OR GRAVE IRREPARABLE PROPERTY DAMAGE," THUS
EXCLUDING THOSE INVOLVING "THE ENFORCEMENT OF SUMPTUARY LAWS, SUCH AS
GAMBLING, AND LAWS OF LIMITED PUBLIC CONSEQUENCE, SUCH AS NARCOTICS
VIOLATIONS, PROSTITUTION, LARCENIES OF THE ORDINARY KIND, AND THE
LIKE." PEOPLE V. TAGGART, SUPRA, AT 340, 214 N.E.2D, AT 584, 283
N.Y.S.2D, AT 6.
IN OUR VIEW THE SOUNDER COURSE IS TO RECOGNIZE THAT THE FOURTH
AMENDMENT GOVERNS ALL INTRUSIONS BY AGENTS OF THE PUBLIC UPON PERSONAL
SECURITY, AND TO MAKE THE SCOPE OF THE PARTICULAR INTRUSION, IN LIGHT
OF ALL THE EXIGENCIES OF THE CASE, A CENTRAL ELEMENT IN THE ANALYSIS OF
REASONABLENESS. CF. BRINEGAR V. UNITED STATES, 338 U.S. 160, 183
(1949) (MR. JUSTICE JACKSON, DISSENTING). COMPARE CAMARA V. MUNICPAL
COURT, 387 U.S. 523, 537 (1967). THIS SEEMS PREFERABLE TO AN APPROACH
WHICH ATTRIBUTES TOO MUCH SIGNIFICANCE TO AN OVERLY TECHNICAL
DEFINITION OF "SEARCH," AND WHICH TURNS IN PART UPON A JUDGE-MADE
HIERARCHY OF LEGISLATIVE ENACTMENTS IN THE CRIMINAL SPHERE. FOCUSING
THE INQUIRY SQUARELY ON THE DANGERS AND DEMANDS OF THE PARTICULAR
SITUATION ALSO SEEMS MORE LIKELY TO PRODUCE RULES WHICH ARE
INTELLIGIBLE TO THE POLICE AND THE PUBLIC ALIKE THAN REQUIRING THE
OFFICER IN THE HEAT OF AN UNFOLDING ENCOUNTER ON THE STREET TO MAKE A
JUDGMENT AS TO WHICH LAWS ARE "OF LIMITED PUBLIC CONSEQUENCE."
/16/ WE THUS DECIDE NOTHING TODAY CONCERNING THE CONSTITUTIONAL
PROPRIETY OF AN INVESTIGATIVE "SEIZURE" UPON LESS THAN PROBABLE CAUSE
FOR PURPOSES OF "DETENTION" AND/OR INTERROGATION. OBVIOUSLY, NOT ALL
PERSONAL INTERCOURSE BETWEEN POLICEMEN AND CITIZENS INVOLVES "SEIZURES"
OF PERSONS. ONLY WHEN THE OFFICER, BY MEANS OF PHYSICAL FORCE OR SHOW
OF AUTHORITY, HAS IN SOME WAY RESTRAINED THE LIBERTY OF A CITIZEN MAY
WE CONCLUDE THAT A "SEIZURE" HAS OCCURRED. WE CANNOT TELL WITH ANY
CERTAINTY UPON THIS RECORD WHETHER ANY SUCH "SEIZURE" TOOK PLACE HERE
PRIOR TO OFFICER MCFADDEN'S INITIATION OF PHYSICAL CONTACT FOR PURPOSES
OF SEARCHING TERRY FOR WEAPONS, AND WE THUS MAY ASSUME THAT UP TO THAT
POINT NO INTRUSION UPON CONSTITUTIONALLY PROTECTED RIGHTS HAD
OCCURRED.
/17/ SEE GENERALLY LEAGRE, THE FOURTH AMENDMENT AND THE LAW OF
ARREST, 54 J.CRIM.L.C.& P.S. 393, 396-403 (1963).
/18/ THIS DEMAND FOR SPECIFICITY IN THE INFORMATION UPON WHICH
POLICE ACTION IS PREDICATED IS THE CENTRAL TEACHING OF THIS COURT'S
FOURTH AMENDMENT JURISPRUDENCE. SEE BACK V. OHIO, 379 U.S. 89, 96-97
(1964); KER V. CALIFORNIA, 374 U.S. 23, 34-37 (1963); WONG SUN V.
UNITED STATES, 271 U.S. 471, 479-484 (1963); RIOS V. UNITED STATES, 364
U.S. 253, 261-262 (1960); HENRY V. UNITED STATES, 361 U.S. 98, 100-102
(1959); DRAPER V. UNITED STATES, 358 U.S. 307, 312-314 (1959); BRINEGAR
V. UNITED STATES, 338 U.S. 160, 175-178 (1949); JOHNSON V. UNITED
STATES, 333 U.S. 10, 15-17 (1948); UNITED STATES V. DI RE, 332 U.S.
581, 593-595 (1948); HUSTY V. UNITED STATES, 282 U.S. 694, 700-701
(1931); DUMBRA V. UNITED STATES, 268 U.S. 435, 441 (1925); CARROLL V.
UNITED STATES, 267 U.S. 132, 159-162 (1925); STACEY V. EMERY, 97 U.S.
642, 645 (1878).
/19/ SEE, E.G., KATZ V. UNITED STATES, 389 U.S. 347, 354 357
(1967); BERGER V. NEW YORK, 388 U.S. 41, 54-60 (1967); JOHNSON V.
UNTIED STATES, 333 U.S. 10, 13-15 (1948); CF. WONG SUN V. UNITED
STATES, 371 U.S. 471, 479-480 (1963). SEE ALSO AGUILAR V. TEXAS, 378
U.S. 108, 110-115 (1964).
/20/ SEE ALSO CASES CITED IN N. 18, SUPRA.
/21/ FIFTY-SEVEN LAW ENFORCEMENT OFFICERS WERE KILLED IN THE LINE
OF DUTY IN THIS COUNTRY IN 1966, BRINGING THE TOTAL TO 335 FOR THE
SEVEN-YEAR PERIOD BEGINNING WITH 1960. ALSO IN 1966, THERE WERE 23,851
ASSAULTS ON POLICE OFFICERS, 9,113 OF WHICH RESULTED IN INJURIES TO THE
POLICEMEN. FIFTY-FIVE OF THE 57 OFFICERS KILLED IN 1966 DIED FROM
GUNSHOT WOUNDS, 41 OF THEM INFLICTED BY HANDGUNS EASILY SECRETED ABOUT
THE PERSON. THE REMAINING TWO MURDERS WERE PERPETRATED BY KNIVES. SEE
FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED
STATES-- 1966, AT 45-48, 152 AND TABLE 51.
THE EASY AVAILABILITY OF FIREARMS TO POTENTIAL CRIMINALS IN THIS
COUNTRY IS WELL KNOWN AND HAS PROVOKED MUCH DEBATE. SEE, E.G.,
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 239-243 (1967).
WHATEVER THE MERITS OF GUN-CONTROL PROPOSALS, THIS FACT IS RELEVANT TO
AN ASSESSMENT OF THE NEED FOR SOME FORM OF SELF-PROTECTION SEARCH
POWER.
/22/ SEE GENERALLY W. LAFAVE, ARREST-- THE DECISION TO TAKE A
SUSPECT INTO CUSTODY 1-13 (1965).
/23/ SEE ALSO CASES CITED IN N. 18, SUPRA.
MR. JUSTICE BLACK CONCURS IN THE JUDGMENT AND THE OPINION EXCEPT
WHERE THE OPINION QUOTES FROM AND RELIES UPON THIS COURT'S OPINION IN
KATZ V. UNITED STATES AND THE CONCURRING OPINION IN WARDEN V. HAYDEN.
MR. JUSTICE HARLAN, CONCURRING.
WHILE I UNRESERVEDLY AGREE WITH THE COURT'S ULTIMATE HOLDING IN THIS
CASE, I AM CONSTRAINED TO FILL IN A FEW GAPS, AS I SEE THEM, IN ITS
OPINION. I DO THIS BECAUSE WHAT IS SAID BY THIS COURT TODAY WILL SERVE
AS INITIAL GUIDELINES FOR LAW ENFORCEMENT AUTHORITIES AND COURTS
THROUGHOUT THE LAND AS THIS IMPORTANT NEW FIELD OF LAW DEVELOPS.
A POLICE OFFICER'S RIGHT TO MAKE AN ON-THE-STREET "STOP" AND AN
ACCOMPANYING "FRISK" FOR WEAPONS IS OF COURSE BOUNDED BY THE
PROTECTIONS AFFORDED BY THE FOURTH AND FOURTEENTH AMENDMENTS. THE
COURT HOLDS, AND I AGREE, THAT WHILE THE RIGHT DOES NOT DEPEND UPON
POSSESSION BY THE OFFICER OF A VALID WARRANT, NOR UPON THE EXISTENCE OF
PROBABLE CAUSE, SUCH ACTIVITIES MUST BE REASONABLE UNDER THE
CIRCUMSTANCES AS THE OFFICER CREDIBLY RELATES THEM IN COURT. SINCE THE
QUESTION IN THIS AND MOST CASES IS WHETHER EVIDENCE PRODUCED BY A FRISK
IS ADMISSIBLE, THE PROBLEM IS TO DETERMINE WHAT MAKES A FRISK
REASONABLE.
IF THE STATE OF OHIO WERE TO PROVIDE THAT POLICE OFFICERS COULD, ON
ARTICULABLE SUSPICION LESS THAN PROBABLE CAUSE, FORCIBLY FRISK AND
DISARM PERSONS THOUGHT TO BE CARRYING CONCEALED WEAPONS, I WOULD HAVE
LITTLE DOUBT THAT ACTION TAKEN PURSUANT TO SUCH AUTHORITY COULD BE
CONSTITUTIONALLY REASONABLE. CONCEALED WEAPONS CREATE AN IMMEDIATE AND
SEVERE DANGER TO THE PUBLIC, AND THOUGH THAT DANGER MIGHT NOT WARRANT
ROUTINE GENERAL WEAPONS CHECKS, IT COULD WELL WARRANT ACTION ON LESS
THAN A "PROBABILITY." I MENTION THIS LINE OF ANALYSIS BECAUSE I THINK
IT VITAL TO POINT OUT THAT IT CANNOT BE APPLIED IN THIS CASE. ON THE
RECORD BEFORE US OHIO HAS NOT CLOTHED ITS POLICEMEN WITH ROUTINE
AUTHORITY TO FRISK AND DISARM ON SUSPICION; IN THE ABSENCE OF STATE
AUTHORITY, POLICEMEN HAVE NO MORE RIGHT TO "PAT DOWN" THE OUTER
CLOTHING OF PASSERS-BY, OR OF PERSONS TO WHOM THEY ADDRESS CASUAL
QUESTIONS, THAN DOES ANY OTHER CITIZEN. CONSEQUENTLY, THE OHIO COURTS
DID NOT REST THE CONSTITUTIONALITY OF THIS FRISK UPON ANY GENERAL
AUTHORITY IN OFFICER MCFADDEN TO TAKE REASONABLE STEPS TO PROTECT THE
CITIZENRY, INCLUDING HIMSELF, FROM DANGEROUS WEAPONS.
THE STATE COURTS HELD, INSTEAD, THAT WHEN AN OFFICER IS LAWFULLY
CONFRONTING A POSSIBLY HOSTILE PERSON IN THE LINE OF DUTY HE HAS A
RIGHT, SPRINGING ONLY FROM THE NECESSITY OF THE SITUATION AND NOT FROM
ANY BROADER RIGHT TO DISARM, TO FRISK FOR HIS OWN PROTECTION. THIS
HOLDING, WITH WHICH I AGREE AND WITH WHICH I THINK THE COURT AGREES,
OFFERS THE ONLY SATISFACTORY BASIS I CAN THINK OF FOR AFFIRMING THIS
CONVICTION. THE HOLDING HAS, HOWEVER, TWO LOGICAL COROLLARIES THAT I
DO NOT THINK THE COURT HAS FULLY EXPRESSED.
IN THE FIRST PLACE, IF THE FRISK IS JUSTIFIED IN ORDER TO PROTECT
THE OFFICER DURING AN ENCOUNTER WITH A CITIZEN, THE OFFICER MUST FIRST
HAVE CONSTITUTIONAL GROUNDS TO INSIST ON AN ENCOUNTER, TO MAKE A
FORCIBLE STOP. ANY PERSON, INCLUDING A POLICEMAN, IS AT LIBERTY TO
AVOID A PERSON HE CONSIDERS DANGEROUS. IF AND WHEN A POLICEMAN HAS A
RIGHT INSTEAD TO DISARM SUCH A PERSON FOR HIS OWN PROTECTION, HE MUST
FIRST HAVE A RIGHT NOT TO AVOID HIM BUT TO BE IN HIS PRESENCE. THAT
RIGHT MUST BE MORE THAN THE LIBERTY (AGAIN, POSSESSED BY EVERY CITIZEN)
TO ADDRESS QUESTIONS TO OTHER PERSONS, FOR ORDINARILY THE PERSON
ADDRESSED HAS AN EQUAL RIGHT TO IGNORE HIS INTERROGATOR AND WALK AWAY;
HE CERTAINLY NEED NOT SUBMIT TO A FRISK FOR THE QUESTIONER'S
PROTECTION. I WOULD MAKE IT PERFECTLY CLEAR THAT THE RIGHT TO FRISK IN
THIS CASE DEPENDS UPON THE REASONABLENESS OF A FORCIBLE STOP TO
INVESTIGATE SUSPECTED CRIME.
WHERE SUCH A STOP IS REASONABLE, HOWEVER, THE RIGHT TO FRISK MUST BE
IMMEDIATE AND AUTOMATIC IF THE REASON FOR THE STOP IS, AS HERE, AN
ARTICULABLE SUSPICION OF A CRIME OF VIOLENCE. JUST AS A FULL SEARCH
INCIDENT TO A LAWFUL ARREST REQUIRES NO ADDITIONAL JUSTIFICATION, A
LIMITED FRISK INCIDENT TO A LAWFUL STOP MUST OFTEN BE RAPID AND
ROUTINE. THERE IS NO REASON WHY AN OFFICER, RIGHTFULLY BUT FORCIBLY
CONFRONTING A PERSON SUSPECTED OF A SERIOUS CRIME, SHOULD HAVE TO ASK
ONE QUESTION AND TAKE THE RIST THAT THE ANSWER MIGHT BE A BULLET.
THE FACTS OF THIS CASE ARE ILLUSTRATIVE OF A PROPER STOP AND AN
INCIDENT FRISK. OFFICER MCFADDEN HAD NO PROBABLE CAUSE TO ARREST TERRY
FOR ANYTHING, BUT HE HAD OBSERVED CIRCUMSTANCES THAT WOULD REASONABLY
LEAD AN EXPERIENCED, PRUDENT POLICEMAN TO SUSPECT THAT TERRY WAS ABOUT
TO ENGAGE IN BURGLARY OR ROBBERY. HIS JUSTIFIABLE SUSPICION AFFORDED A
PROPER CONSTITUTIONAL BASIS FOR ACCOSTING TERRY, RESTRAINING HIS
LIBERTY OF MOVEMENT BRIEFLY, AND ADDRESSING QUESTIONS TO HIM, AND
OFFICER MCFADDEN DID SO. WHEN HE DID, HE HAD NO REASON WHATEVER TO
SUPPOSE THAT TERRY MIGHT BE ARMED, APART FROM THE FACT THAT HE
SUSPECTED HIM OF PLANNING A VIOLENT CRIME. MCFADDEN ASKED TERRY HIS
NAME, TO WHICH TERRY "MUMBLED SOMETHING." WHEREUPON MCFADDEN, WITHOUT
ASKING TERRY TO SPEAK LOUDER AND WITHOUT GIVING HIM ANY CHANCE TO
EXPLAIN HIS PRESENCE OR HIS ACTIONS, FORCIBLY FRISKED HIM.
I WOULD AFFIRM THIS CONVICTION FOR WHAT I BELIEVE TO BE THE SAME
REASONS THE COURT RELIES ON. I WOULD, HOWEVER, MAKE EXPLICIT WHAT I
THINK IS IMPLICIT IN AFFIRMANCE ON THE PRESENT FACTS. OFFICER
MCFADDEN'S RIGHT TO INTERRUPT TERRY'S FREEDOM OF MOVEMENT AND INVADE
HIS PRIVACY AROSE ONLY BECAUSE CIRCUMSTANCES WARRANTED FORCING AN
ENCOUNTER WITH TERRY IN AN EFFORT TO PREVENT OR INVESTIGATE A CRIME.
ONCE THAT FORCED ENCOUNTER WAS JUSTIFIED, HOWEVER, THE OFFICER'S RIGHT
TO TAKE SUITABLE MEASURES FOR HIS OWN SAFETY FOLLOWED AUTOMATICALLY.
UPON THE FOREGOING PREMISES, I JOIN THE OPINION OF THE COURT.
MR. JUSTICE WHITE, CONCURRING.
I JOIN THE OPINION OF THE COURT, RESERVING JUDGMENT, HOWEVER, ON
SOME OF THE COURT'S GENERAL REMARKS ABOUT THE SCOPE AND PURPOSE OF THE
EXCLUSIONARY RULE WHICH THE COURT HAS FASHIONED IN THE PROCESS OF
ENFORCING THE FOURTH AMENDMENT.
ALSO, ALTHOUGH THE COURT PUTS THE MATTER ASIDE IN THE CONTEXT OF
THIS CASE, I THINK AN ADDITIONAL WORD IS IN ORDER CONCERNING THE MATTER
OF INTERROGATION DURING AN INVESTIGATIVE STOP. THERE IS NOTHING IN THE
CONSTITUTION WHICH PREVENTS A POLICEMAN FROM ADDRESSING QUESTIONS TO
ANYONE ON THE STREETS. ABSENT SPECIAL CIRCUMSTNACES, THE PERSON
APPROACHED MAY NOT BE DETAINED OR FRISKED BUT MAY REFUSE TO COOPERATE
AND GO ON HIS WAY. HOWEVER, GIVEN THE PROPER CIRCUMSTANCES, SUCH AS
THOSE IN THIS CASE, IT SEEMS TO ME THE PERSON MAY BE BRIEFLY DETAINED
AGAINST HIS WILL WHILE PERTINENT QUESTIONS ARE DIRECTED TO HIM. OF
COURSE, THE PERSON STOPPED IS NOT OBLIGED TO ANSWER, ANSWERS MAY NOT BE
COMPELLED, AND REFUSAL TO ANSWER FURNISHES NO BASIS FOR AN ARREST,
ALTHOUGH IT MAY ALERT THE OFFICER TO THE NEED FOR CONTINUED
OBSERVATION. IN MY VIEW, IT IS TEMPORARY DETENTION, WARRANTED BY THE
CIRCUMSTANCES, WHICH CHIEFLY JUSTIFIES THE PROTECTIVE FRISK FOR
WEAPONS. PERHAPS THE FRISK ITSELF, WHERE PROPER, WILL HAVE BENEFICIAL
RESULTS WHETHER QUESTIONS ARE ASKED OR NOT. IF WEAPONS ARE FOUND, AN
ARREST WILL FOLLOW. IF NONE ARE FOUND, THE FRISK MAY NEVERTHELESS
SERVE PREVENTIVE ENDS BECAUSE OF ITS UNMISTAKABLE MESSAGE THAT
SUSPICION HAS BEEN AROUSED. BUT IF THE INVESTIGATIVE STOP IS
SUSTAINABLE AT ALL, CONSTITUTIONAL RIGHTS ARE NOT NECESSARILY VIOLATED
IF PERTINENT QUESTIONS ARE ASKED AND THE PERSON IS RESTRAINED BRIEFLY
IN THE PROCESS.
MR. JUSTICE DOUGLAS, DISSENTING.
I AGREE THAT PETITIONER WAS "SEIZED" WITHIN THE MEANING OF THE
FOURTH AMENDMENT. I ALSO AGREE THAT FRISKING PETITIONER AND HIS
COMPANIONS FOR GUNS WAS A "SEARCH.' BUT IT IS A MYSTERY HOW THAT
"SEARCH" AND THAT "SEIZURE" CAN BE CONSTITUTIONAL BY FOURTH AMENDMENT
STANDARDS, UNLESS THERE WAS "PROBABLE CAUSE" /1/ TO BELIEVE THAT (1)
A CRIME HAD BEEN COMMITTED OR (2) A CRIME WAS IN THE PROCESS OF BEING
COMMITTED OR (3) A CRIME WAS ABOUT TO BE COMMITTED.
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: /2/ 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. /3/ IN OTHER WORDS, POLICE 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." MOREOVER, THE MEANING OF "PROBABLE CAUSE" IS DEEPLY
IMBEDDED IN OUR CONSTITUTIONAL HISTORY. AS WE STATED IN HENRY V.
UNITED STATES, 361 U.S. 98, 100-102:
"THE REQUIREMENT OF PROBABLE CAUSE HAS ROOTS THAT ARE DEEP IN
OUR HISTORY. THE GENERAL WARRANT, IN WHICH THE NAME OF THE
PERSON TO BE ARRESTED WAS LEFT BLANK, AND THE WRITS OF
ASSISTANCE, AGAINST WHICH JAMES OTIS INVEIGHED, BOTH PERPETUATED
THE OPPRESSIVE PRACTICE OF ALLOWING THE POLICE TO ARREST AND
SEARCH ON SUSPICION. POLICE CONTROL TOOK THE PLACE OF JUDICIAL
CONTROL, SINCE NO SHOWING OF 'PROBABLE CAUSE' BEFORE A MAGISTRATE
WAS REQUIRED.
. . . .
"THAT PHILOSOPHY (REBELLING AGAINST THESE PRACTICES) LATER WAS
REFLECTED IN THE FOURTH AMENDMENT. AND AS THE EARLY AMERICAN
DECISIONS BOTH BEFORE AND IMMEDIATELY AFTER ITS ADOPTION SHOW,
COMMON RUMOR OR REPORT, SUSPICION, OR EVEN 'STRONG REASON TO
SUSPECT' WAS NOT ADEQUATE TO SUPPORT A WARRANT FOR ARREST. AND
THAT PRINCIPLE HAS SURVIVED TO THIS DAY. . . .
" . . . IT IS IMPORTANT, WE THINK THAT THIS REQUIREMENT (OF
PROBABLE CAUSE) BE STRICTLY ENFORCED, FOR THE STANDARD SET BY THE
CONSTITUTION PROTECTS BOTH THE OFFICER AND THE CITIZEN. IF THE
OFFICER ACTS WITH PROBABLE CAUSE, HE IS PROTECTED EVEN THOUGH IT
TURNS OUT THAT THE CITIZEN IS INNOCENT. . . . AND WHILE A SEARCH
WITHOUT A WARRANT IS, WITHIN LIMITS, PERMISSIBLE IF INCIDENT TO A
LAWFUL ARREST, IF AN ARREST WITHOUT A WARRANT IS TO SUPPORT AN
INCIDENTAL SEARCH, IT MUST BE MADE WITH PROBABLE CAUSE. . . .
THIS IMMUNITY OF OFFICERS CANNOT FAIRLY BE ENLARGED WITHOUT
JEOPARDIZING THE PRIVACY OR SECURITY OF THE CITIZEN."
THE INFRINGEMENT ON PERSONAL LIBERTY OF ANY "SEIZURE" OF A PERSON
CAN ONLY BE "REASONABLE" UNDER THE FOURTH AMENDMENT IF WE REQUIRE THE
POLICE TO POSSESS "PROBABLE CAUSE" BEFORE THEY SEIZE HIM. ONLY THAT
LINE DRAWS A MEANINGFUL DISTINCTION BETWEEN AN OFFICER'S MERE INKLING
AND THE PRESENCE OF FACTS WITHIN THE OFFICER'S PERSONAL KNOWLEDGE WHICH
WOULD CONVINCE A REASONABLE MAN THAT THE PERSON SEIZED HAS COMMITTED,
IS COMMITTING, OR IS ABOUT TO COMMIT A PARTICULAR CRIME. "IN DEALING
WITH PROBABLE CAUSE, . . . AS THE VERY NAME IMPLIES, WE DEAL WITH
PROBABILITIES. THESE ARE NOT TECHNICAL. THEY ARE THE FACTUAL AND
PRACTICAL CONSIDERATIONS OF EVERYDAY LIFE ON WHICH REASONABLE AND
PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT." BRINEGAR V. UNITED STATES,
338 U.S. 160, 175.
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. UNTIL THE FOURTH AMENDMENT, WHICH IS CLOSELY ALLIED WITH
THE FIFTH, /4/ IS REWRITTEN, THE PERSON AND THE EFFECTS OF THE
INDIVIDUAL ARE BEYOND THE REACH OF ALL GOVERNMENT AGENCIES UNTIL THERE
ARE REASONABLE GROUNDS TO BELIEVE (PROBABLE CAUSE) THAT A CRIMINAL
VENTURE HAS BEEN LAUNCHED OR IS ABOUT TO BE LAUNCHED.
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.
/1/ THE MEANING OF "PROBABLE CAUSE" HAS BEEN DEVELOPED IN CASES
WHERE AN OFFICER HAS REASONABLE GROUNDS TO BELIEVE THAT A CRIME HAS
BEEN OR IS BEING COMMITTED. SEE, E.G., THE THOMPSON, 3 WALL. 155;
STACEY V. EMERY, 97 U.S. 642; DIRECTOR GENERAL V. KASTENBAUM, 263 U.S.
25; CARROLL V. UNITED STATES, 267 U.S. 132; UNITED STATES V. DI RE, 332
U.S. 581; BRINEGAR V. UNITED STATES, 338 U.S. 160; DRAPER V. UNITED
STATES, 358 U.S. 307; HENRY V. UNITED STATES, 361 U.S. 98. IN SUCH
CASES, OF COURSE, THE OFFICER MAY MAKE AN "ARREST" HHICH RESULTS IN
CHARGING THE INDIVIDUAL WITH COMMISSION OF A CRIME. BUT WHILE
ARRESTING PERSONS WHO HAVE ALREADY COMMITTED CRIMES IS AN IMPORTANT
TASK OF LAW ENFORCEMENT, AN EQUALLY IF NOT MORE IMPORTANT FUNCTION IS
CRIME PREVENTION AND DETERRENCE OF WOULD-BE CRIMINALS. "(THERE IS NO
WAR BETWEEN THE CONSTITUTION AND COMMON SENSE," MAPP V. OHIO, 367 U.S.
643, 657. POLICE OFFICERS NEED NOT WAIT UNTIL THEY SEE A PERSON
ACTUALLY COMMIT A CRIME BEFORE THEY ARE ABLE TO "SEIZE" THAT PERSON.
RESPECT FOR OUR CONSTITUTIONAL SYSTEM AND PERSONAL LIBERTY DEMANDS IN
RETURN, HOWEVER, THAT SUCH A "SEIZURE" BE MADE ONLY UPON "PROBABLE
CAUSE."
/2/ OHIO REV. CODE SEC. 2923.01.
/3/ THIS COURT HAS ALWAYS USED THE LANGUAGE OF "PROBABLE CAUSE" IN
DETERMINING THE CONSTITUTIONALITY OF AN ARREST WITHOUT A WARRANT. SEE,
E.G., CARROLL V. UNITED STATES, 267 U.S. 132, 156, 161-162; JOHNSON V.
UNITED STATES, 333 U.S. 10, 13-15; MCDONALD V. UNITED STATES, 335 U.S.
451, 455-456; HENRY V. UNITED STATES, 361 U.S. 98; WONG SUN V. UNITED
STATES, 371 U.S. 471, 479-484. TO GIVE POWER TO THE POLICE TO SEIZE A
PERSON ON SOME GROUNDS DIFFERENT FROM OR LESS THAN "PROBABLE CAUSE"
WOULD BE HANDING THEM MORE AUTHORITY THAN COULD BE EXERCISED BY A
MAGISTRATE IN ISSUING A WARRANT TO SEIZE A PERSON. AS WE STATED IN
WONG SUN V. UNITED STATES, 371 U.S. 471, WITH RESPECT TO REQUIREMENTS
FOR ARRESTS WITHOUT WARRANTS: "WHETHER OR NOT THE REQUIREMENTS OF
RELIABILITY AND PARTICULARITY OF THE INFORMATION ON WHICH AN OFFICER
MAY ACT ARE MORE STRINGENT WHERE AN ARREST WARRANT IS ABSENT, THEY
SURELY CANNOT BE LESS STRINGENT THAN WHERE AN ARREST WARRANT IS
OBTAINED." ID., AT 479. AND WE SAID IN BRINEGAR V. UNITED STATES, 338
U.S. 160, 176:
"THESE LONG-PREVAILING STANDARDS (FOR PROBABLE CAUSE) SEEK TO
SAFEGUARD CITIZENS FROM RASH AND UNREASONABLE INTERFERENCES WITH
PRIVACY AND FROM UNFOUNDED CHARGES OF CRIME. THEY ALSO SEEK TO GIVE
FAIR LEEWAY FOR ENFORCING THE LAW IN THE COMMUNITY'S PROTECTION.
BECAUSE MANY SITUATIONS WHICH CONFRONT OFFICERS IN THE COURSE OF
EXECUTING THEIR DUTIES ARE MORE OR LESS AMBIGUOUS, ROOM MUST BE ALLOWED
FOR SOME MISTAKES ON THEIR PART. BUT THE MISTAKES MUST BE THOSE OF
REASONABLE MEN, ACTING ON FACTS LEADING SENSIBLY TO THEIR CONCLUSIONS
OF PROBABILITY. THE RULE OF PROBABLE CAUSE IS A PRACTICAL,
NONTECHNICAL CONCEPTION AFFORDING THE BEST COMPROMISE THAT HAS BEEN
FOUND FOR ACCOMMODATING THESE OFTEN OPPOSING INTERESTS. REQUIRING MORE
WOULD UNDULY HAMPER LAW ENFORCEMENT. TO ALLOW LESS WOULD BE TO LEAVE
LAW-ABIDING CITIZENS AT THE MERCY OF THE OFFICERS' WHIM OR CAPRICE."
AND SEE JOHNSON V. UNITED STATES, 333 U.S. 10, 14-15; WRIGHTSON V.
UNITED STATES, 95 U.S.APP.D.C. 390, 393-394, 222 F.2D 556, 559-560
(1955).
/4/ SEE BOYD V. UNITED STATES, 116 U.S. 616, 633:
"FOR THE 'UNREASONABLE SEARCHES AND SEIZURES' CONDEMED IN THE FOURTH
AMENDMENT ARE ALMOST ALWAYS MADE FOR THE PURPOSE OF COMPELLING A MAN TO
GIVE EVIDENCE AGAINST HIMSELF, WHICH IN CRIMINAL CASES IS CONDEMNED IN
THE FIFTH AMENDMENT; AND COMPELLING A MAN 'IN A CRIMINAL CASE TO BE A
WITNESS AGAINST HIMSELF,' WHICH IS CONDEMNED IN THE FIFTH AMENDMENT,
THROWS LIGHT ON THE QUESTION AS TO WHAT IS AN 'UNREASONABLE SEARCH AND
SEIZURE' WITHIN THE MEANING OF THE FOURTH AMENDMENT."
LOUIS STOKES ARGUED THE CAUSE FOR PETITIONER. WITH HIM ON THE BRIEF
WAS JACK G. DAY.
REUBEN M. PAYNE ARGUED THE CAUSE FOR RESPONDENT. WITH HIM ON THE
BRIEF WAS JOHN T. CORRIGAN.
BRIEFS OF AMICI CURIAE, URGING REVERSAL, WERE FILED BY JACK
GREENBERG, JAMES M. NABRIT III, MICHAEL MILTSNER, MELVYN ZARR, AND
ANTHONY G. AMSTERDAM FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., AND BY BERNARD A. BERKMAN, MELVIN L. WULF, AND ALAN H. LEVINE FOR
THE AMERICAN CIVIL LIBERTIES UNION ET AL.
BRIEFS OF AMICI CURIAE, URGING AFFIRMANCE, WERE FILED BY SOLICITOR
GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL VINSON, RALPH S. SPRITZER,
BEATRICE ROSENBERG, AND MERVYN HAMBURG FOR THE UNITED STATES; BY LOUIS
J. LEFKOWITZ, PRO SE, SAMUEL A. HIRSHOWITZ, FIRST ASSISTANT ATTORNEY
GENERAL, AND MARIA L. MARCUS AND BRENDA SOLOFF, ASSISTANT ATTORNEYS
GENERAL, FOR THE ATTORNEY GENERAL OF NEW YORKL BY CHARLES MOYLAN, JR.,
EVELLE J. YOUNGER, AND HARRY WOOD FOR THE NATIONAL DISTRICT ATTORNEYS'
ASSN., AND BY JAMES R. THOMPSON FOR AMERICANS FOR EFFECTIVE LAW
ENFORCEMENT.
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