Terry v. Ohio: Two Legal Scholars Unpack the Fourth Amendment

UW Law Dean Tamara Lawson and William S. Boyd School of Law at UNLV Professor Frank Rudy Cooper discuss the historic Supreme Court Case Terry v. Ohio that opened the door for police officers’ use of “stop and frisk” tactics.

In 1963, Terry and two other men were observed to be walking back and forth peering into a store window by a plain clothes policeman who suspected they may be planning a crime. The officer stopped and frisked the men, finding weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.

Was this search and seizure a violation of the Fourth Amendment?

In 1968, the US Supreme Court decided, in the case Terry v. Ohio, that police using a “stop and frisk” procedure are within constitutional bounds as officers of the law. 

UW School of Law Dean Tamara Lawson hosted an online discussion with William S. Boyd School of Law at UNLV Professor Frank Rudy Cooper in which the two legal scholars — and AALS Clyde Ferguson Award winners (’23 and ’24 respectively) — compared notes on Terry v. Ohio. Their collegiality, expertise in criminal law and familiarity with the long-reaching effects of the court’s decision in this case make for a highly engaging thought piece that is as warm as it is erudite.

Read the Transcript

Frank Rudy Cooper: Hi, how are you doing, Dean Lawson? Good to see you again.

Dean Lawson: Excellent. Excellent. Well, I wanted to take this opportunity to congratulate you again on your Clyde Ferguson Award. It’s an honor and well deserved. As you know, we recognize your public service, your teaching and your outstanding scholarship.

FRC: Oh, well, thank you. You know, you are the immediate predecessor or winner of the Clyde Ferguson Award. So, you know that it's a great honor. You know, with, I guess, hundreds or thousands of people in the minority section of the AALS, I was just sort of like, you know, they have so many people to pick from. It really makes you think, like, alright, I must have done something, right. Right?

DL: Yes. And the impact that you've made in in your area of expertise, and bringing the Fourth Amendment alive, I think for so many students and scholars.

FRC: Oh, well, thank you. Yeah. And, you know, we go way back in terms of doing these conferences together, right? We've had conferences where we've presented papers together. And I've always learned so much from your work. I appreciate it. And I've taught the book that you worked on on criminal procedure. So, it's good to talk today about criminal procedure.

DL: Yes. And your work has inspired me in many of my classroom presentations and the panels we've done together where we've, I think, collectively pushed the envelope on where the boundaries are of our constitutional protections, and maybe even gaps in protections.

I don't know if I'd fully thought about before right now, even in our Terry v. Ohio case, there was a prosecutor behind that case who thought it was appropriate to charge the case notwithstanding the search, or at the time, maybe a search that was not traditionally permissible,

FRC: Right. Yeah. Well, you know, the famous facts that we talked about all the time with the students are that this white police officer, officer McFadden was patrolling downtown Cleveland. And I should say, I've clerked in Cleveland and so I've seen downtown Cleveland, it's, you know, sort of that downtown — at least when I was there in the 90s — was fairly vibrant. Now we're going way back to the late 1960s. So, I don't know exactly what it was like, but he sees these two young Black men sort of walking back and forth in front of a jewelry store, and, and thinks that they must be casing the store. Right?

So, when you tell those facts to students, I find they're like, oh, wait, they walked back and forth 12 different times? Of course, they were casing the store. Of course, they were going to commit a robbery. And so, the case has a certain logic to it where you think like, alright, they might indeed have been up to something.

DL: It's funny when you tell those case facts, I would say to the students, when I used to teach in Miami, and those of you who know me know that I have, kind of, an itch for fashion, right? So, I would work late, and I would be coming home grabbing maybe some takeout and all the store windows, you know, all the stores are closed, and I'm looking in the windows, looking at the dresses, and I'm thinking about Terry. I'm like, do I look, you know, as if maybe I'm casing the joint? Or am I just a fashionista who got off work too late to, you know, it just depends on the context and how your presence is perceived.

FRC: Yeah, I mean, and that's the big problem with the reasonable suspicion tests that they create in Terry is that reasonable suspicion, they say is what a person of reasonable prudence believe that a crime was afoot, or was about to be afoot, and that these people were involved. We talked about the specific and articulable, you know, suspicions or specific and articulable facts as the test. I know what a specific fact is, what an articulable fact is, well, does that just mean if I can say it, then it counts? You know that that was one of the things that was interesting to me in that case when I teach is just, sort of, what does that even mean?

DL: More than a hunch, right?

FRC: Yeah. Right. More than a hunch. That's right. They do say that it means more than a hunch. And so the police officer coming upon you would have to have more than a hunch that, you know, you're not just a fashionista. Which of course you are. I appreciate your fashion sense. But yeah, so this more than a hunch idea, but then what? It's more than a hunch, and it's less than probable cause, right? Where probable cause used to really mean something, this is before the Gates test, and probable cause hasn't been watered down yet.

DL: But professor, if you're not a legal scholar, or a criminal law legal scholar, I mean, what are we really talking about what? You know, what's the backdrop of the Terry v. Ohio case? Isn't it the Fourth Amendment that has in its core text, the standard of probable cause? How do we get away from that?

FRC: Yeah, so I guess that's right. So, the Fourth Amendment says there shall be no unreasonable searches and seizures. And then it says that no warrant shall issue, preauthorizing a search or seizure, but upon probable cause. And from 1880s to 1968, when the Terry v. Ohio case came down, people seem to assume that probable cause was the standard if the police were going to do some kind of search or seizure. So, you've got the Fourth Amendment, like you say, and it's saying that you should have probable cause. Then the court starts creating all these exceptions to the rule. even that you have to have a warrant. Right? So, they say, maybe you don't have to have a warrant. And then Terry is almost saying maybe you don't have to have probable cause. So, I don't know.  I hope that helps give us some background.

DL: But only in certain circumstances where the government feels they need to intervene earlier than probable cause to protect the public. Isn't Terry just a public safety “protect the public” type of case?

FRC: Yeah, I mean, that's how they depict it. Right? So, basically, they're thinking about preventative measures. And the case says, the police say that they need some tools to be able to intervene earlier in a case like the case they had with Terry and Chilton walking back and forth in front of a store. The argument would be, well, why should the police officer have to wait until they draw guns and are in the middle of, you know, potential gun battle, to say, “Hey, stop that”? And that's how it's often depicted that this is just preventative for public safety, that when McFadden grabbed Terry and Chilton, and the third man Katz, and patted them down and felt the weapons on Terry and Chilton, that that was just for public safety to see. Are they armed? If they're armed, then there's a good chance that maybe they are trying to commit a robbery, and maybe we should investigate? And it was illegal for them to have the guns. So, right there, you've got a crime if you're allowed to pat them down.

DL: But is this a story about Terry, or is this a story about McFadden? Because, you know, that whole line of discussion about the training and experience of an officer, I mean, that's what I would think about when I was peering in those shop windows, that a reasonable officer would not think that this is criminal. They would know that this is just, you know, a girl who needed to still go shopping.

FRC: Yeah. And Anthony Thompson, the scholar out of NYU, I think he's retired now, talked about the fact that the court really came up with this narrative of police officer experience that the police officer has some kind of training that allows them to tell the difference between a hunch, which they're not allowed to act on, and reasonable suspicion, which they are allowed to act on. And of course, reasonable suspicion is less than probable cause, so we've now created something. There could be nothing, a hunch, and you're not allowed to do anything if you're the police officer, but there could be reasonable suspicion and then you're allowed, as you say, only a limited stop, right? Like a temporary stop. You can't just throw them in handcuffs, stuff them in the back of the police car. That will probably be an arrest, right? There are some circumstances where that can be done. But, generally speaking, they can't do what looks like an arrest, but they can stop them.

DL: Well, I think about this McFadden — if we're going to call it the McFadden exception or the opposite of training exception — in our role as professors, right? We have training experience in front of the classroom. We know when students are looking us straight in the eye or when they're looking down when we're looking for, you know, a volunteer. Who probably did the homework?

FRC: Right.

DL: Because I felt like that's what the Supreme Court is saying that we're going to take as real and as practical, what officers observed on the streets and their training and experience of what is, you know, consistent with criminal behavior?

FRC: Yeah.

DL: And what is consistent with innocent behavior? I mean, is that a fair assessment for the court to make?

FRC: Well, I think, first of all, I love that analogy, right? Because it is like when we're in the classroom, we do sometimes think we know who's read and who hasn't. I try and think, though, that, you know, I don't know for sure what's going on with that student, right? Maybe they're just really shy. We know that, you know, some of the A students will be the students who hardly ever taught, right? So maybe, you know, the student may be looking down because they read the case five times they understand it completely, but they don't like to speak in front of 60 of their closest friends. Right? So, to me, that's more like a hunch. And yet the court, as you say, is saying that that experience that a teacher has or that a police officer has allows them to really have a good sense of when somebody is up to no good.

DL: You raise another point through that analogy. We're talking about a high stakes environment, whether you know, you're in the classroom, you're being called upon or you're encountering a police officer, we're using ordinary cues, but it's really not ordinary. This is a high stakes environment.

FRC: Yeah, yeah, it really is. Because what it means is that a police officer is going to get to grope somebody. Right? The court says in Terry v. Ohio that the officer is, well it paraphrases, saying that officers aren't a — how do they put it? Maybe you remember exactly, but basically to feel of the area about the testicles. And that's obviously getting up close and personal with somebody. And it is high stakes, right? We don't want police officers doing that on a hunch. We maybe don't even want them doing it on reasonable suspicion, because it's very intrusive to be patted down and groped like that, to see if you have a weapon on you.

DL: Is there any implicit bias at play? I mean, I like your comeback around we don't know really what's happening with the student, right? We're using certain, you know, standards.

FRC: Yeah, I mean, we, probably ourselves, hold stereotypes in the classroom, right? There used to be a joke about, you know, kids in the back wearing baseball caps oh they're probably, you know, just not interested in the back benches, they're probably not interested in participation. And sometimes we make those assumptions that that's why they're in the back of the classroom, that they're being casual by wearing a baseball cap, and that that indicates that they're casual about their studies. So, on the street, if I'm a police officer, and I look at somebody and I don't like the way they dress, or I have stereotypes about what a criminal looks like, I don't know if we want to credit that as experience, as opposed to really just being a hunch.

DL: Is it gendered? I know, you're an expert in that as well. Are there gender issues that we should be thinking about?

FRC: I think there are gendered issues there. I've talked about in an article called “Who's the man?” about the fact that police officers they're often, you know, by and large, male and female, a more macho group of people, right, to put it sort of colloquially, right? They're ready to establish their authority. And certainly, police officers do have to establish their authority sometimes, but they may be tempted to just sort of engage in macho posing, to show sort of they’re, you know, they're wearing a uniform, you got to do what they say, as opposed to really discerning that there's a problem here. And the probable cause standard would make them have real evidence that there's a problem here.

The reasonable suspicion standard probably gives them more discretion to just sort of push around the local kids. And often it's going to be local boys, right? You know, police focus on teenagers a lot. So, they're pushing around the local boys, they're often men themselves, and even if they're not, you know, masculine as a sort of biological identity they're in a field that's macho. And so that's some of what I've talked about. About how there could be some gender dynamics there, that the kids don't want to feel like, if they're getting pushed around, if they're just becoming men, and they're feeling, you know, they're that they're now supposed to get a certain respect. And the police also don't want to feel that they're being disrespected. And so it allows for a sort of masculinity contest, where each side feels like it's being disrespected and that they've got to sort of bow up in order to show who's the man. That was the idea of that article.

DL: Yes. And, but that could lead you to be detained and frisked?

FRC: Yeah, because the Terry v. Ohio standard is so low, right? Reasonable suspicion, usually it's just a couple of things. I think you and I have talked before about the fact that the Wardlow case said that when a police caravan went through a poor high crime neighborhood, that if somebody ran away from the caravan — looked at the caravan and ran away — that that was enough to be reasonable suspicion. But seems to me that's pretty questionable, right? That just because you didn't want to be around the police, you can be stopped and groped.

DL: So, let me just review for a second professor that I understand the constitutional consequences that we're discussing. Fourth Amendment gives us protection against unreasonable searches and seizures, where a probable cause is required and a warrant. We know that the cases have given exceptions for no warrant.

FRC: Right.

DL: And Terry creates an exception for no probable cause.

FRC: Yeah.

DL: And then the Terry case goes on to be used in other circumstances to even water it down that you're fleeing or running in a neighborhood that's a high crime neighborhood, so now we can assume that that running is somehow incriminating, because the police are in the neighborhood.

FRC: Yeah, that's a great way of describing how it develops. And I think it raises again the issue of bias that you discussed because if a police officer has implicit, or even explicit racial biases, they may be likely to say they see reasonable suspicion with particularly young Black men, when they might not feel that way if they were dealing with young white men, you know, of middle-aged white woman, etcetera.

DL: Was this a risk the Supreme Court really knew about when they ruled on the Terry case?

FRC: Well, they were on notice of it, that's for sure. In the case, they got a brief from the NAACP, the famous Black civil rights organization, saying that if the police got this power, it would really lead to widespread harassment of African Americans. And the Court acknowledged that that was a possibility. And then it said, but we can't really do anything about that. They say that on the other side the police say they need tools to help public safety and to prevent crimes before they happen. So, they sort of balanced it out and compromised it, I would say. I mean, what do you think about that sort of compromise aspect of it?

DL: Yeah, it was the great compromise is the way I present to students, where the court really gave way to the pressures — some legitimate, I think, of the government needing to intervene early, to prevent crime, to keep the community safe — but at the great cost, maybe, opportunity costs and constitutional protection costs of individuals who would have government intrusion in situations where there was no probable cause and no warrant. So that risk that, you know, was telegraphed and mapped out and articulated by amici and others in the argument in 1968. Was that real? Have we realized any consequences from the Terry decision?

FRC: Well, I think unfortunately, we have. There's the Floyd decision out of the Eastern District of New York, which found that the New York Police Department was using specifically this power, the power to do a Terry stop and frisk, to harass young Black and Brown, Black and Latino men. And the judge in that case, Judge Scheindlin found as a matter of evidence, finding of facts, that the police had a policy of focusing on young Black and brown men, and that — I can't remember the exact numbers, but it was at least 400,000 of the stops of the, you know, several million stops over a 10-year period. At least 400,000 of them, I believe, were unconstitutional. Right? And that's because there's this bleeding between having this power, which is so easy to use, and then abusing that power, and she found The NYPD was abusing that power and specifically against young Black and brown males.

DL: Well, the follow up, I would have to ask you, is like how safe is this case making us? I remember the cases you're talking about, and they were very inaccurate in identifying, even using this potentially unconstitutional method. But they were not identifying armed and dangerous individuals.

FRC: Yes. So, I think at the, my recollection is that something like 8% of the people that they stopped had either evidence of crime for which they are arrested. Alright, so that's one thing, and that's important. But that would still mean you had to stop 12.5 people to get this arrest. And maybe that wouldn't be worth it. But actually, that 8% also included people who had citations that they were given, so just a ticket, right, that they were given. So, not a gun, not that they had committed some significant crime, but just they were given a ticket for littering, or something like that. And so, I believe that Judge Scheindlin found that only in the relevant pool of stops, something like 1.5% of them was yielding a weapon.

DL: So, professor, let me just understand. So, the Terry court was really considering burglary and robbery and the prevention of violent crime. But you're saying in New York, it was being used for almost identifying no crime, or petty crime or citationable type of crimes?

FRC: Absolutely. Because of James Q. Wilson, and others, their scholarship, criminology scholarship, they were using Broken Windows Theory. And Broken Windows Theory said that you should seek out people committing petty offenses and use those as an excuse to try and find people who might be committing heavier offenses. The theory was that if you harass particular groups of people who are likely to commit crime, i.e., young Black and brown males is how the police saw it, that you will bring down crime. And that was not proven to be the case, that the stop and frisk policy actually brought down crime. Crime, unfortunately, is not so susceptible to harassing people out of committing crime.

DL: So, is it that Terry the case, Terry v. Ohio, is a precursor, or I guess, an exacerbating factor on police brutality?

FRC: Yeah, it definitely could be, right, because, as Devon Carbado out of UCLA has said, and some others have said, the more contacts you have with people, the more police excessive use of force you're going to have. Even if police excessive use of force is rare. If you concentrate all your energy in black and brown communities, there's going to be more excessive use of force in those communities.

DL: That comment makes me think of a case out of Massachusetts that went empirically into this question, because like the Wardlow case we talked about earlier, you can use the Terry logic to say, you know, unprovoked flight from a police officer is evidence of crime or incriminating behavior. But the Massachusetts court came to a slightly different conclusion based on empirical evidence of, I think, the Boston Police Department.

FRC: Yeah, so, I'm from Cambridge, Massachusetts originally. I'm — actually, I grew up with Matt Damon and Ben Affleck. And so, they were on the Super Bowl recently extolling their Boston roots, but they're not from Boston. They're from Cambridge, just like me. However, Cambridge is over the river from Boston. And there had been a lot of evidence that the Boston Police were racial profiling and focusing especially on people in the Black community. And so, because of that, and because of disproportionate excessive force against members of the Black community, the Commonwealth v. Warren Court correctly said that when a Black man runs from the police, that is not good enough evidence that there's reasonable suspicion that they committed a crime. Maybe there's something else that suggests reasonable suspicion, but that alone should not be enough.

DL: What a rich discussion for February, I mean, it circles around some of the things we discuss every February and in our history and our contributions.

FRC: Yeah, Black History Month, right? It's great when we get the Black History Month every year, and we can focus on the contributions, as you say, that African Americans have made to this country. But also, I think it helps everyone to pay attention to lingering, implicit and explicit bias against African Americans. And this strikes me is not just an example, right, police focusing on African Americans. But also, we can look at the roots, right? The roots may be in a legal case, like Terry v. Ohio. So, going back 50 years, you know, we see the roots of contemporary bias.

DL: I like that you're making that connection to the roots, because I almost see it as invisible bias. Because if this is the law of the land, how can anyone be blamed for being biased? They're just applying the constitutional law as it stands?

FRC: Yeah, I tend to think of it as even if the law is correct, that should police officers ought to be able to stop somebody on a reasonable suspicion, police officers can still get it wrong that they have reasonable suspicion, because they are biased. So, when they stop somebody because they are biased, they're not actually following the law of the land, they're abusing the discretion afforded them by the law of the land, because the law of the land makes it hard to tell when the person should be stopped.

DL: I liked that professor, you're saying even though police officers have this in their toolbox, that they should not always use this tool? It's not going to serve them in all consequences as well as they might hope.

FRC: Yeah, just in the ways that we said, right, that there's a very low hit rate as Song Richardson, your co-author has talked about, right? So, if we've got a low hit rate from stops and frisks, and then it turns out that they're very much subject to and are being used for racial bias, maybe we should use that tool much less. If not, if ever.

DL: Well, I think that's a lesson for this conversation to think about how to, you know, judiciously use and more, you know, narrowly tailored use these tools that the Supreme Court has afforded?

FRC: Yeah, I mean, I would say let's make them history, reasonable suspicions and stops and frisk. But I know that, that you might not go that far.

DL: Well, let me just tease that out for a second. So, you would even propose, even though this tool is there, police departments could take it off the table. Prosecutors’ offices could kind of disfavor it and say they're not going to pursue cases that involve reasonable suspicion encounters but require probable cause for any case that they're going to bring.

FRC: Yeah, yeah. And that does sound like a big ask.

DL: Well because these cases are so facts specific.

FRC: Yeah.

DL: A broad rule like that would be hard. But it's, it's great to unpack the Fourth Amendment and get your expertise around the impact of this.

FRC: Yeah, thank you. I've enjoyed the conversation. I always learn when I talk to you.

DL: The same. And I'm hoping to have you here at the University of Washington to speak to the students more often.

FRC: I'd love to come out there.

DL: Thank you.