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!
There’s very little that strikes me as more absurd than offering or accepting a guilty plea for time served. It represents so much about what’s wrong with the criminal justice system. And that’s a lot.