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by Peter Moskos

October 31, 2013

Terry v. Ohio. Happy 50th Anniverary, Detective McFadden!

Fifty years ago today on the streets of downtown Cleveland, Detective Martin McFadden, plain-clothed and without a walkie-talkie (two-way radios didn't become standard for another decade) stopped and arrested John Terry and two other guys after observing them casing a storefront for United Airlines.

This arrest lead to the landmark 1968 Supreme Court Case of Terry v. Ohio (the two poor other guys unremembered). In an 8-1 vote, the Supreme Court made perhaps the most pro-police decision of the 20th century.

I love the the original police report filed by Detective McFadden. Sure, the report is filled with typos and corrections (and "colored" was just the polite term back then), but it's a great police report. Who would have imagined that not only would we remember it fifty years later, but that it would be taught in college courses?

Detective McFadden wrote perhaps the best arrest report/statement of probable cause I've ever read. He doesn't just say he was suspicious of these two guys. He explains, in great and explicit detail -- ie: he articulates the totality of the circumstances -- just what made him suspicious. He builds a scene of three men about to rob a business. McFadden paints a picture.

Why, after reading this report, how could one not be suspicious of the actions of these three gentleman?

Then, and without backup or a radio, Detective McFadden pushes these guys against a wall, pats them down, and finds two illegal guns. Finally, the good officer gets somebody in the store to call police.

Talk about "real police"!

But here's the problem: Detective McFadden did not have "probable cause" to think these guys were armed. And how can you search somebody without probable cause? The Fourth Amendment is pretty clear about this matter. But it certain makes sense, as a police officer stopping these guys, to fear that they might be armed and to check and make sure they're not, or disarm them if they are. But the case went to court, asking if the gun seizure was constitutional and legal even without probable cause or a warrant?

The Court said yes.

In doing so, the Supreme Court invented the concept of "reasonable suspicion" in which an officer may pat down the outer clothing of a suspect for weapons in order to ensure the officer's safety. It's hard -- actually impossible -- to imagine policing without Terry v. Ohio.

The Court concluded, in affirming a lower court's decision:
Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory 'stop' and an arrest, and between a 'frisk' of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer's investigatory duties, for without it 'the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.'
And yet it's important to remember the words of the lone dissenting judge, Justice Douglas, in this eight-to-one affirmation:
The opinion of the Court disclaims the existence of 'probable cause.' If loitering were in issue and that was the offense charged, there would be 'probable cause' shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had 'probable cause' for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of 'probable cause.' We hold today that the police have greater authority to make a 'seizure' and conduct a 'search' than a judge has to authorize such action. We have said precisely the opposite over and over again.
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment....

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib [his style], if they can 'seize' and 'search' him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.
Happy 50th Anniversary!


Anonymous said...

"Talk about 'real police'!"

Yeah, in spite of my often critical view of American policing, I retain a soft spot for some of these old school guys. The fact that my father was kind of an old school cop (though he started working in the early 70s)probably has something to do with that.

Detective McFadden tosses three guys w/out back up or a portable! Shit, these days there would be 5 or 6 officers on scene. They'd be screaming (possibly contradictory) orders in high-pitched voices fueled by adrenaline (and fear of black men). Then they'd be pointing little red taser dots at the dudes. Can't get to close, because officer safety trumps everything! Then, for a grand finale, they'd chase down some guy on the sidewalk for daring to film the incident and arrest him for D.C..

I don't mean to glamorize the old days. I don't think there ever has been a "golden age" of policing. It's been tweaked from the start. But, to my great disappointment, the age of the college-educated cop has not brought about a more enlightened form of policing. Though I suppose there may be fewer typos in the reports these days.

Dave in IL

Dana King said...

I'm as strong an advocate of civil liberties as anyone I know, and I am appalled at the "ivory tower" attitude taken in Douglas's opinion. His approach is a mirror image of the NRA's current attitude toward guns: let a person have all the guns he wants. If he kills someone, we'll lock him up. (Too bad about the dead guy.)

Douglas's attitude seems to be it would be better for the Constitution if the suspects had shot the cop, thus doing something for which he'd allow them to be searched.

Common sense has to enter into it somewhere.

Adam said...

"[H]ow can you search somebody without probable cause? The Fourth Amendment is pretty clear about this matter."

Actually, if you read the Amendment carefully, you'll see that it doesn't require that searches be supported by probable cause at all; it only requires that they be "reasonable." In some ways, Terry interpreted the Fourth Amendment more accurately than just about any other prior Supreme Court opinion. Just one more reason to celebrate it!

PCM said...

Granted if searches are "reasonable" you don't need probable cause (see NSA). But somebody putting their hands on you is not considered reasonable, so you need probably cause.

Most searches fall under that standard.

DB said...

Sometimes I appreciate "anonymous" remarks because I don't have to spend so much time "educating" them because I can't email em. The first post makes some real uninformed comments that make me say just one word, "Newhall". Unfortunately and in line with pretty much everything else in the world - things happen due to a previous instance and the need for change. If you get punched in the face yesterday while standing on spot X, do you go back today and stand on spot X again - or maybe not? Well, that how policing has evolved to where it is today. Policing is less dangerous and actually (contrary to popular belief) - less officers are KIA than previously. Why, because the change in tactics, the increased level of controls (w/ detentions). Now, I agree, things do sometimes go awry and certainly arresting those for video taping is "no bueno", but lets be realistic. People do tend to hurt the police and the police have a right to protect themselves. So, to sum up - all encompassing statements like "anonymous" above leave a bit of the truth out of the concept.