TERRY REVISITED - CRITICAL UPDATE ON RECENT STOP-AND-FRISK DEVELOPMENTS

• NCJ Number: 60067
• Journal: Criminal Law Review Dated: (1979) Pages: 147-173
• Author(s): M B VANSICKLEN
• Date Published: 1979
• Length: 27 pages
• Corporate Author: Clark Boardman Company, Ltd
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REPRINTED FROM WISCONSIN IN LAW REVIEW, N 877 (1977)

Annotation

TRENDS IN LOWER COURT DECISIONS ON STOP-AND-FRISK ISSUES SINCE THE U.S. SUPREME COURT DECISION IN TERRY V. OHIO ARE EXAMINED.

Abstract

IN TERRY V. OHIO (392 U.S. 1, 1968), THE SUPREME COURT RULED THAT IN CERTAIN SITUATIONS, POLICE OFFICERS WHO POSSESS NEITHER WARRANTS NOR PROBABLE CAUSE TO ARREST OR SEARCH MAY NEVERTHELESS 'STOP-AND-FRISK' PERSONS. RECOGNIZING THAT THE ACTION OF STOPPING AND FRISKING A PERSON IS SUBJECT TO THE FOURTH AMENDMENT'S REQUIREMENT THAT SEARCHES AND SEIZURES BE 'REASONABLE', THE TERRY MAJORITY BALANCED THE POLICE OFFICER'S PRACTICAL NEED TO INITIATE AND SAFETY CONDUCT BRIEF, ON-THE-SPOT INVESTIGATIONS AGAINST THE DETAINED INDIVIDUAL'S RIGHT TO FREEDOM FROM UNWARRANTED POLICE INTRUSION. THE COURT DETERMINED THAT THE VALIDITY OF EITHER A STOP OR A FRISK IS GOVERNED BY A BIFURCATED 'REASONABLE SUSPICION' TEST DIRECTED AT DETERMINING WHETHER THE FACTS OF CONFRONTING THE OFFICER JUSTIFIED THE INITIAL INTRUSION, AND WHETHER THE OFFICER'S ACTIONS WERE REASONABLY RELATED IN SCOPE TO THE CIRCUMSTANCES PROMPTING THE INTERFERENCE. IN STATING THE BIFURCATED STOP-AND-FRISK TEST, THE COURT FAILED TO DEFINE PRECISELY THE 'REASONABLE SUSPICION' NECESSARY TO WARRANT THE INTRUSION. THIS FAILURE HAS PRODUCED A MAELSTROM OF CONFLICTING INTERPRETATIONS AS LOWER COURTS HAVE ATTEMPTED TO 'FLESH-OUT' TERRY'S SKELETAL 'REASONABLENESS' FRAMEWORK. ONE POST-TERRY JUDICIAL DECISION, SIBRON V. NEW YORK (392 U.S. 40, 1968), RULED THAT EVIDENCE OBTAINED IN A STOP-AND-FRISK NARCOTICS CASE WAS INADMISSIBLE, BECAUSE THE POLICE OFFICER HAD NO CLEAR, PERSUASIVE EVIDENCE THAT THE SUBJECT HAD COMMITTED A CRIME OR WAS ARMED AND DANGEROUS. OTHER CASE LAW SHOWS, HOWEVER, A TENDENCY ON THE PART OF COURTS TO SOFTEN THE PROHIBITORY LIMITS OF THE REASONABLE SUSPICION TEST BY CONTINUALLY CARVING OUT EXCEPTIONS FOR NEW TYPES OF 'REASONABLE' INTRUSIONS. LOWER COURT DECISIONS SHOULD REFLECT THE SUPREME COURT'S CLEAR INDICATION IN TERRY THAT POLICE POWER TO STOP-AND-FRISK SHOULD BE USED CIRCUMSPECTLY. FOOTNOTES ARE PROVIDED. (RCB)