June 10, 2011
To those not familiar with criminal procedure, a Terry stop is a brief police detention of a person based on “reasonable suspicion” of his or her involvement in criminal activity (but without probable cause to make an arrest).
It was born out of the U.S. Supreme Court decision Terry v. Ohio, in which a police officer stopped and patted down three men whom he suspected of “casing a job, a stick-up” after observing them for awhile.
After the officer patted down the men, he discovered two of them carrying guns (Terry and Chilton), and both were arrested and subsequently convicted of carrying concealed weapons.
Terry and Chilton appealed their convictions, arguing that the stop and frisk was a search and seizure under the Fourth Amendment, and an unreasonable one since it was done without probable cause.
“Probable cause” means that the officer must possess sufficiently trustworthy facts to believe that a crime has been committed.
The Supreme Court eventually heard the case, and upheld the convictions (although Chilton died prior to the case’s arrival at the Supreme Court).
The Court ruled that while the officer’s stop was indeed a search and seizure under the Fourth Amendment, it was not unreasonable.
While there wasn’t any probable cause for the stop, the Court found that none was required (the first time the Court held that a search and seizure didn’t require probable cause).
Instead, the Court articulated a new standard: “reasonable suspicion.”
While both standards require actual articulable facts, “reasonable suspicion” has a much lower factual benchmark, allowing officers to make Terry stops with (comparatively) very little evidence.
As a counterweight to this, Terry stops are very limited.
The officer may only briefly detain the individual, and may only conduct an external frisk if there’s also a reasonable suspicion that the individual may be armed and dangerous.
However, while the officer is only allowed to initiate a frisk for weapons, the Court’s ruling in Minnesota v. Dickerson allows a frisking officer to confiscate other contraband (namely, illegal drugs) if he or she immediately knows upon feeling it through the searched person’s clothes to be contraband.
The Terry ruling opened the door for traffic stops, which are methods used by police officers to “pull over” cars on the road using virtually anything out of the ordinary for justification (having a break light out, exceeding the speed limit by any amount, slightly crossing into another lane, etc).
The “stop and frisk” rule also applies in traffic stop situations: officers may search within the passenger’s “wingspan,” or within arm’s reach, for weapons if the officer has a reasonable suspicion the driver may be armed and dangerous.
If any other contraband is found in the course of the search, it may be confiscated by the officer.
Because of these new powers granted to police, the Terry decision changed the face of Fourth Amendment “search and seizure” jurisprudence.
And subsequent Supreme Court decisions have rarely failed to expand these powers.
So with all of these expanded police powers, how does one avoid a Terry stop?
Simple: just try to not look suspicious.