A Closer Look at the Case that Normalized Stop-and-Frisk

The American epidemic known as stop-and-frisk was birthed from the case Terry v. Ohio, which when examined carefully was problematic.

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When Mr. Garrett Miller, a police officer employed by the Baltimore Police Department, last April stopped and detained Mr. Freddie Gray on less than the Fourth Amendment standard of probable cause, he did so because of powers affirmed to his profession by a 1968 U.S. Supreme Court ruling in the case Terry v. Ohio, which, despite its shortcomings, has remained virtually free of critique or challenge.  The ruling asserts officers must have reasonable suspicion, not an inarticulate hunch, that a crime is afoot to detain a citizen, though, as the arrest of Mr. Gray and others like him—young, black and poor—have shown, that standards is ignored in favor of racial bias and lawlessness.

The irony of Terry v. Ohio is two-fold: the ruling itself appears to be based on a case wherein the officer acted on a hunch fueled by racial bias; and the current standard for a stop is, according to Mr. Lewis R. Katz’s review of the ruling in the Mississippi Law Journal, “grounded upon the very type of inarticulate hunch that the Court said was an insufficient basis for a Terry stop.”

But more than just the standards, the facts which established Terry v. Ohio are questionable, too. Two black men, Mr. John Terry and Mr. Richard Chilton, in 1963 caught the attention of plain clothes police officer Mr. Martin McFadden, though neither their behavior nor dress was unusual and constituted reasonable suspicion or probable cause. The officer, who at time had more than three decades of experience, said Mr. Terry and Mr. Chilton “didn’t look right to him,”  but had never been forced, on the record at least, to elaborate. After Officer McFadden began eyeing the duo, he claims to have witnessed one man leave the other in order to walk up the street, look inside a store window, and return, wherein the second man would exhibit the same behavior.

As noted by Mr. Katz in his review, their “behavior is the critical conduct which gives rise to the stop in this case. If they did it once or twice each, their behavior was pretty unremarkable. So, how many times they looked in the store window is crucial.”

When Officer McFadden—who eventually took action after Mr. Terry and Mr. Chilton were joined by a white man and they all turned the corner towards a men’s clothing store—filed his police report on the day of the incident, he wrote that the men walked by the store window at least “three times each.” At the suppression hearing, Officer McFadden changed his story, testifying that the men walked back and forth at least four or five times apiece.

Moreover, at trial, Mr. Katz writes, when asked how many trips he observed, Officer McFadden replied, “about four trips, three to four trips, maybe four to five trips, maybe a little more, it might be a little less. I don’t know, I didn’t count the trips.”

Once the Supreme Court ruling was handed down, the number of trips had ballooned to twenty-four.

“The body of law which stems from Terry is dependent upon this single fact,” Mr. Katz wrote.

The inaccuracies leading up to Terry v. Ohio were problematic and the ruling gave birth to the epidemic known in America as stop-and-frisk, which disproportionately impacts black men like the late Mr. Gray of Baltimore. Terry stops, or pedestrian stops guided by Terry v. Ohio, are now being touted by Philadelphia officials as the model to follow amidst reforms to stop-and-frisk, but the root of the tree is as rotten as the fruit its been producing.

In other words, no matter what phraseology you assign to the constitutional process of stopping a citizen and then frisking them, the reasonable suspicion that frames the encounter, like the reasonable suspicion that framed Terry v. Ohio, isn’t any more reasonable than chasing and stopping Mr. Gray simply because he ran when he saw police.

The ruling in Terry v. Ohio gave police more powers and citizens less freedom. To mitigate this dynamic, Mr. Katz has a great suggestion: it is time to reintroduce the Fourth Amendment on to the streets of America and into the relationships that law enforcement officers have with people on the streets and in other venues.

   

Thanks for reading. Until next time, I’m Flood the Drummer® & I’m Drumming for JUSTICE!™