Terry's Original Sin

Abstract

In Mapp v. Ohio, the U.S. Supreme Court extended the due process protections of the exclusionary rule to include all “constitutionally unreasonable searches” that were done without a basis of probable cause. After several years of rising crime, the Court in Terry v. Ohio in effect “uncoupled…the two clauses of the Fourth Amendment” that regulated temporary detentions and searches by police. Under Terry, police are required to articulate specific and individualized indicia of suspicion, and those indicia must be salient enough to justify police action. The standards then and now do not tell a police officer doing modern police work either what indicia of, or how much, suspicion is enough to satisfy constitutional standards. This paper asks whether Terry’s move away from probable cause was original sin – whether the dilution and expansion of standards for an investigative stop – and the reduced costs for violating those standards – compromised or advanced the very law enforcement interests that animated the Terry opinion. Data on crimes, stops and arrests from 2004-14 from the Floyd litigation in New York are analyzed to address these questions. The rationale for suspicion in each police-citizen encounter is parsed into probable cause versus other, more subjective, bases of suspicion. The results show significant reductions in crime in neighborhoods as the number of probable cause stops increase, and the opposite holds true. Perhaps law enforcement interests are better served by a recalibration of Terry standards to move them closer to Mapp’s more exacting probable cause standard, a standard that better lends itself to institutional, judicial and political regulation. Secondary benefits for legitimacy and procedural justice may well follow. Penance for Terry’s original sin is within reach.

Keywords: original sin, criminal law, crime, police, probable cause