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The Terry Stop: What Is A Temporary or Investigative Detention?

Posted by Richard Wagner | Jul 28, 2023

lawyer for drunk driving case

Cops May Stop and Frisk in Certain Situations

Mr. Terry was convicted of carrying a concealed weapon and sentenced to prison.

His defense attorney filed a motion to suppress the evidence police found on Mr. Terry and his co-defendant.

In California, the authority for a pretrial motion to suppress is found in Penal Code Section 1538.5, which “provides a comprehensive and exclusive procedure for the final determination of search and seizure issues prior to trial.” People v Brooks (1980), 26 C3d 471, 475.

At the hearing on the motion to suppress, a Cleveland police officer testified that he saw two men on October 31, 1963. One of the men was Mr. Terry. The officer was unable to say why he noticed the men. But he testified that he had been a cop for 39 years, a detective for 35, and assigned to patrol for 30 years.

Over the course of his career, the officer, further testified, that he had developed routine habits of observation where he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case, when I looked over, they didn't look right to me at the time.”

The cop further claimed that he suspected them of “casing a job, a stick-up,” and that “he considered it his duty as a police officer to investigate further.” He feared “they may have a gun.” He approached the men, asked their names, and they “mumbled something.”

The cop grabbed Mr. Terry and patted down the outside of his clothes and felt a pistol – reached inside but couldn't remove it. The cop testified that he removed Mr. Terry's coat and then removed a .38 caliber revolver.

The prosecutor attempted to justify the warrantless search as incidental to a lawful arrest. However, the trial judge said it “would be stretching the facts beyond reasonable comprehension to claim that the officer had had probable cause to arrest the men before he patted them down for weapons.”

Nevertheless, the judge denied the defense motion because the officer's experience gave him “reasonable cause to believe… that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.”

The case went all the way up to the United States Supreme Court, where it was decided that admitting the revolvers into evidence did not violate the Fourth Amendment.

What Is The 4th Amendment?

The Fourth Amendment says: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

The US Supreme Court noted, “the Fourth Amendment protects people, not places, and wherever an individual may harbor a reasonable expectation of privacy, he is entitled to be free from unreasonable governmental intrusion.” Katz v. United States, 389 U.S. 347, 351 (1967). “What the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960).

The US Supreme Court began its analysis by saying, “Unquestionably, [Mr. Terry] was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland.”

“The question is whether, in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.”

“In this case, there can be no question… that Officer McFadden seized [Mr. Terry] and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with [Mr. Terry's] personal security as he did.”

“The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

“The facts are to be judged against an objective standard”

The Court concluded, “it would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.”

The Court further concluded “that the revolver seized from Mr. Terry was properly admitted in evidence against him. At the time he seized [Mr. Terry] and searched him for weapons, Officer McFadden had reasonable grounds to believe that [Mr. Terry] was armed and dangerous, and it was necessary for the protection of himself and others.”

This was decided on June 10, 1968. The citation is Terry v. Ohio, 392 U.S. 1.

The justices on the Supreme Court were Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, and Marshall.

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To put this case into context, other significant events around this time include:

On June 20, 1967, Muhammad Ali was convicted of refusing induction into the U.S. armed forces and sentenced to five years in prison. 

On April 4, 1968, while in Memphis, to support striking sanitation workers, Dr. Martin Luther King, Jr., told listeners: “I've seen the Promised Land. I may not get there with you. But I want you to know tonight that we, as a people, will get to the Promised Land.” The following evening, Martin Luther King was assassinated on the balcony outside his room at a Memphis motel.

On June 5, 1968, on the night of the California primary, Robert F. Kennedy was leaving the Ambassador Hotel in Los Angeles after addressing a large crowd of supporters when he was shot and killed.

August 1968, Chicago, Democratic National Convention Protests – which led to the Nixon Administration's decision to indict the anti-war leaders in 1970. William Kunstler and Michael Tigar were two of the defense lawyers representing members of the Chicago Eight. (The Chicago Eight became the Chicago Seven after the case against Bobby Seale was declared a mistrial).

On October 16, 1968, U.S. athletes Tommie Smith and John Carlos bowed their heads and raised their black-gloved fists in a salute to the Black Power movement during the playing of “The Star-Spangled Banner” after winning the gold and bronze medals, respectively, in the Summer Olympics in Mexico City, 

On November 5, 1968, Richard Nixon was elected president.

The US Supreme Court in in Alabama v White (1990) 496 US 325, 330 called the standard for a Terry stop "reasonable suspicion" in contrast to probable cause. The Court said reasonable suspicion can be established with less information and less reliable information than that required to show probable cause.

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...

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