Introduction: Terry v. Ohio at 50: The Past, Present, & Future of Stop and Frisk
8 Pages Posted: 2 Apr 2019
Date Written: April 30, 2018
The 2018 Idaho Law Review symposium examined a case decided in 1968, exactly fifty years ago. As the symposium articles and presentations demonstrated,Terry v. Ohio’s impact still resonates, both in Idaho and across the country. Terry held that a police officer may stop an individual for a brief investigatory detention if that officer reasonably suspects criminal activity. Next, that same officer may, pursuant to Terry, frisk the individual for weapons if the officer reasonably believes the individual is armed and presently dangerous to the officer or to others. Though Terry held that a stop is a seizure and a frisk is a search, it nevertheless reasoned that both required something less than probable cause.That holding made stops, and the frisks that often follow the stops, easy to justify. Terry’s progeny has expanded the circumstances in which probable cause is not required. For example, the Supreme Court has relied on Terry to justify border stops based on no more than reasonable suspicion and used Terry to hold that “presence in a high-crime area . . . combined with ‘headlong flight’ from the police” gives rise to a reasonable suspicion inference. Terry has been criticized as a case that “facilitates racial profiling,” because “to the extent that reasonable suspicion is an easy evidentiary standard to meet, police officers can base their decision to stop and frisk suspects on stereotypes about criminality and dangerousness and offer race-neutral justification after the fact.”
In addition to its impact on criminal procedure cases, Terry pushed the police practice known as stop-and-frisk into popular culture, and stop-and-frisk is, to most, a familiar concept. There are images that come to mind when the phrase is invoked. Perhaps you hear “stop-and-frisk” and conjure an image of young men, often young men of color, lined up against a wall with their arms up. Perhaps that image makes you uncomfortable, and perhaps the image makes you wonder, as I do, why so many young men of color were stopped.
That suspicion has proven reasonable. Data presented in cases tried in the Southern District of New York (SDNY) showed that not only were NYPD stops and frisks ineffective in discovering criminality or illegal weapons, they disproportionately targeted Latino and Black men. Still, despite the revolutionary SDNY settlements reached between the City of New York and individuals who were repeatedly stopped and frisked by the NYPD, stop-and-frisk remains constitutional. Terry has not been overruled. As a result, stop-and-frisk remains a topic that presidential candidates debate and academics revisit.
The Symposium took the Terry discussion in exciting new directions, for example, introducing new approaches to understanding Terry’s frisk standard in light of expanded Second Amendment rights, and applying the lessons of the #MeToo movement and consent to the violation that a stop and frisk may create.
Keywords: criminal procedure, constitutional law, Chemerinsky, stop-and-frisk, frisk, Fourth Amendment, Warren, #MeToo
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