The Spirit of 1968: Toward Abolishing Terry Doctrine

Abstract

The spirit of 1968 was a willingness to call for radical, concrete change. This essay challenges Left scholars not to accept the current Supreme Court's interpretations of the Fourth Amendment as only requiring reasonableness and of probable cause as merely a way of clearly showing reasonableness. The essay notes that in early 1968 the Court considered requiring probable cause for stops and frisks, only to settle upon the less stringent reasonable suspicion standard. The first part of the essay criticizes the Terry decision for contradicting earlier authority that a mere reasonableness standard may not be applied to criminal investigations. The second part of the essay contends that the majority of the public accepts the diminishment of probable cause based on an implicit bargain that excessive law enforcement power will be utilized primarily against socially marginalized groups. That bargain drives current acceptance of heightened surveillance. Adopting the spirit of 1968 requires voiding that bargain by seeking the reversal of Terry doctrine.

Keywords: Criminal procedure, stop, frisk, Camara, civil liberties, blacks, african-americans, law enforcement