In landmark case Terry v. Ohio (1968), Martin McFadden, a highly experienced Cleveland police detective dressed in plain clothes, flagged two individuals, Terry and Chilton, as suspicious after noticing that they were “pac[ing] 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.” The Supreme Court even stated that the failure to deem these actions as suspicious would have been “poor police work.” As such, the determination that the three men were suspicious was not contested in any way. Rather, it was the constitutionality of Officer McFadden’s subsequent stop, interrogation, and “frisk” of Terry and Chilton, which produced a concealed pistol and revolver from their pockets respectively (both men were charged for carrying concealed weapons) that was under question. In an 8-1 decision, the Supreme Court established that if an officer has reasonable suspicion that someone is about to commit a crime, then the officer can stop that person. And if the officer has reasonable suspicion that this individual “may be armed and presently dangerous,” then they can frisk them for weapons to ensure the safety of that officer. As such, stop-and-frisk practices became constitutionally justified, which this article will argue should not be the case.
In the year prior, 1967, the Supreme Court had made an apparently contradictory ruling that the Fourth Amendment protects individuals from warrantless searches, not places. Katz v. United States concerned a Charles Katz who used a public telephone booth in Los Angeles to run an illegal gambling operation across state lines to Miami and Boston. Once the FBI caught wind of his activities, they wiretapped the phone booth without a warrant, the evidence from which Katz was charged in the District Court for the Southern District of California with “an eight-count indictment… in violation of a federal statute,” 18 U.S.C. § 1084 on the transmission of wagering information. However, the evidence used against him was gathered without a valid warrant, raising the question of whether or not the Fourth Amendment protects against the warrantless wiretapping of a public phone booth. On December 18, 1967, the Supreme Court found that yes, Katz and information regarding his conversations in the telephone booth were protected by the Fourth Amendment, meaning the FBI’s warrantless wiretapping operation was blatantly unconstitutional. Justice Stewart wrote in his opinion that the Fourth Amendment “protects people, not places”—even if that place is “constructed partly of glass, so that [Katz] was as visible after he entered it as he would have been if he had remained outside,” a fact that the Government emphasized in their justification of wiretapping without a warrant. As such, whatever one “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” In his concurrence, Justice Harlan further expands on the ruling, clearly establishing a two-pronged test for the expectation of privacy: “First that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”
Applying this test for the expectation of privacy to Terry v. Ohio, it appears that weapons found in Terry and Chilton’s would be protected under the Fourth Amendment. After all, the fact that the weapons were concealed necessitates that the person has “exhibited an actual (subjective) expectation of privacy” while “society is prepared to recognize as ‘reasonable’” that the contents of our pockets are private. Recognizing this contradiction, in his opinion of the Court, Chief Justice Warren writes that, referencing Katz v. United States, “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… But we deal here with an entire rubric of police conduct.” More specifically, the only reason why the frisk is justified is to protect the safety of the officer just in case the individual being stopped is armed. With the benefit of hindsight, this justification is profoundly weak in the face of hard data. Overall, stop-and-frisks resulted in the discovery of a firearm on a person at a rate of less than 1%. In DC, the rate at which frisks produced any weapon, not just guns, was only 0.8%. Similarly, in 2011, the New York Police Department made 524,873 more stops than in 2003 but was only able to find 176 more guns.Given just how ineffective stop-and-frisks are at actually protecting the safety of officers, the Terry ruling is, practically speaking, difficult to justify, if not completely unjustifiable. And from a legal perspective, this ruling is more than just “unjustifiable.” The Terry decision explicitly degrades and impedes the fundamental right to be protected from unreasonable searches and seizures granted by the Fourth Amendment. The untenability of Terry is even more clearly expressed when considering the preceding Katz ruling and the aforementioned two-pronged test for the expectation of privacy as established by Justice Harlan. If the Supreme Court can curb and create exceptions to fundamental, foundational constitutional rights, as in Terry v. Ohio, when and where does it end? How much is too much? In the words of Justice Douglas in his dissent in Terry, the ruling is “a long step down the totalitarian path,” and if such restrictions of constitutional rights remain permissible, “we enter a new regime.” However, there has been resistance against the Terry ruling at the local level. For instance, in Floyd v. City of New York (2013), a federal judge ruled that stop-and-frisk practices as employed by the NYPD were in violation of the Fourth Amendment and the Equal Protection Clause of the 14th Amendment, leading to a drastic fall in the frequency of stop-and-frisks in the New York City. Hopefully, such resistance against constitutionally and practically unjustifiable practices will continue, with states and localities seeking to offer increased protections above and beyond what the bare minimum, as outlined by the Constitution and the Supreme Court, provides to all people of the United States.