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50 Years of Stop-And-Frisk a Retrospective of Terry V. Ohio

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50 Years of Stop-And-Frisk a Retrospective of Terry V. Ohio BY PATRICIA GEORGE & ALEXANDER BENEZRA 50 Years of Stop-and-Frisk A Retrospective of Terry v. Ohio PATRICIA GEORGE is the Assistant Bureau Chief for Community Prosecution at the City of Phoenix Prosecutor’s Office. She has been with the office for 17 years. As part of her duties, she currently oversees the Prosecutor’s Office management for the Phoenix Veterans Court, Phoenix Behavioral Health Court, and Misdemeanor Repeat Offender Program, and she is the Prosecutor’s Office liaison for homeless issues in the City of Phoenix. ALEXANDER BENEZRA has been practicing in the field of criminal defense since 2010, currently at the City of Phoenix Public Defender’s Office. He also serves as the treasurer of the State Bar Criminal Justice Section, a member of the Arizona Supreme Court’s Post Conviction Actions Task Force, and is the President of the Arizona Thurgood Marshall Inn of Court. 14 ARIZONA ATTORNEY DECEMBER 2018 www.azbar.org/AZAttorney The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Police report on John Terry et al., Oct. 31, 1963. In the early afternoon of he had been with Chilton, and make a slow business for a robbery. McFadden stopped October 31, 1963, on a quiet sidewalk in pass in front of a business, United Air, and all three men and searched them for weap- Cleveland, Ohio, John Woodall Terry and then return to the side of Chilton, who ons for his own safety. He found both Ter- Richard D. Chilton drew the attention of would then proceed to make the same ry and Chilton to be in possession of ille- Detective Martin McFadden. The interac- slow pass. After completing about three gally concealed weapons. During the court tion that followed led to a case that created passes each, they went back to the corner proceedings, the facts as presented indicat- ramifications for law enforcement, prose- and met a third man, Carl Katz. ed that the detective patted down each in- cutors, defense attorneys and communities Based on the detective’s 30 years of dividual and did not reach into the cloth- over the next 50 years. experience as a robbery detective, he de- ing of either man until he felt the shape of On that Halloween day, McFadden ob- termined that the men were acting suspi- the weapons and determined there to be served Terry walk from the corner, where ciously and believed they were casing the weapons concealed on each man. www.azbar.org/AZAttorney DECEMBER 2018 ARIZONA ATTORNEY 15 50 Years of Stop-and-Frisk That interaction led, five years later, to frisk and searches and seizures. The prob- frisk them for several decades leading up Terry v. Ohio.1 Out of this 1968 case, the able cause standard stood for all varieties. to the 1960s.2 As many of these did not re- “Terry stop” or “Terry frisk” created the The issues that the Supreme Court ex- sult in arrests or the collection of evidence, ability for officers to initiate a stop that amined in Terry did not occur in a vacuum. the constitutionality of these encounters did not rise to the level of probable cause As society changed throughout the did not receive an examination. Ultimate- required under the Fourth Amendment— 1960s and unrest began to take hold, sev- ly, state legislatures began to focus on the yet was still both a stop and a seizure. Prior eral events led to the stop-and-frisk issue practice; some codified the stop-and-frisk to Chief Justice Earl Warren’s decision, no coming to the Supreme Court. Officers as legal. New York was one of those states. distinction existed between the stop and had been stopping people to question and It enacted a law to authorize the police use of stop-and-frisk maneuvers. As more states realized the value of this strategy as a tool to combat crime, the American Law Institute drafted a Model Code of Prior to Chief Justice Earl Warren’s Pre-Arraignment Procedure in 1966, and President Lyndon Johnson’s Commission decision, no distinction existed between on Law Enforcement and Administration of Justice encouraged states to enact pro- the stop and frisk and searches and visions granting law enforcement the au- thority to employ stop-and-frisk.3 seizures. The probable cause standard As this issue came to the forefront, sev- eral cases began to appear. Before the Su- stood for all varieties. preme Court’s Terry decision, the Court ruled on a stop-and-frisk case arising from New York, Sibron v. New York.4 Ultimate- ly, the Court heard Sibron along with a 16 ARIZONA ATTORNEY DECEMBER 2018 www.azbar.org/AZAttorney companion case, Peters v. New York,5 and upheld the state’s law in a decision pub- lished the same day as Terry. While Sibron and Peters interpreted state law, Terry be- The most important result from subsequent came the Supreme Court’s basis for inter- pretation of the Fourth Amendment as it cases is that officers cannot simply applies to stop-and-frisk. Today, people are familiar with a Terry perform Terry frisks as a matter of routine. frisk and the ramifications that this land- mark search and seizure case and its proge- ny can have from either the prosecution or defense perspective. To be clear, a frisk is a search and can lead to a seizure of evidence that may be used against an accused. To committing, had committed, or was pre- officer and public safety, not necessarily better understand Terry’s nuances, though, paring to commit a crime and that there is that there is a “particularized reasonable it is important to take a look at the current a reasonable belief that the person may be suspicion that the person being searched state of Terry in Arizona and the adoption armed and dangerous. is committing or has committed a crime.”9 of the “plain feel” doctrine.6 Under State v. Garcia Garcia,7 officers While several cases examine exceptions to Terry and its associated cases in Arizona must show that there is an articulable rea- probable cause and Fourth Amendment establish that a police officer does not vio- son for the officer to fear for his or her safe- requirements, the most important result late the Fourth Amendment’s prohibition ty and further, under State v. Primous,8 that from these cases is that officers cannot sim- on unreasonable search and seizure if the this articulable reason was determined to be ply perform Terry frisks as a matter of rou- officer stops a person and frisks him or her “based on the totality of the circumstances” tine; they must follow the requirements set without probable cause—as long as there thereby justifying the seizure as lawful. The out in the Terry line of cases. was reasonable suspicion that the person is main shift after Terry is that the focus is on As an interesting comparison, many www.azbar.org/AZAttorney DECEMBER 2018 ARIZONA ATTORNEY 17 50 Years of Stop-and-Frisk state legislatures have adopted statutes to armed and dangerous, while Gant held New York City since the 1950s—seriously clarify when officers may stop a person pri- that the search of defendant’s vehicle was challenging the theory that stop-and-frisk or to establishing probable cause. The most unreasonable while he was handcuffed in a was reducing crime.13 common extension is known as “stop and police car after he voluntarily left the vehi- In comparison to New York, Arizona identify” statutes, which 24 states have ad- cle and the search was not directly linked to gives people the right to respond to police opted. A person must, at minimum, identi- the arrest. Although numerous states have questioning with much less substance. Un- fy him or herself, although states expand on adopted different versions of the stop-and- like Arizona, which only requires a person that concept in different ways. frisk, there also has recently been elevated to identify him or herself, New York also Arizona is one such state. A.R.S. § 13- controversy about the practice. Recent de- requires an explanation of the person’s con- 2412 requires a person to state his or her cisions also raise the question of where the duct. In short, Arizona gives law enforce- truthful name to an officer if stopped with pendulum currently stands in relation to ment little more authority to ask additional reasonable suspicion that the person has the policing strategy. questions once a person is detained based committed or is about to commit a crime, The American Civil Liberties Union on the reasonable suspicion standard. and the officer advises the person that fail- studied stop-and-frisk data from New York When prosecutors evaluate their cases, ing to provide his or her truthful name is City—where the practice has been used Terry is just one of the many areas of law unlawful. The statute specifies that a per- heavily as crime has reduced steadily over that have to be considered. The impact son may not be compelled to answer any the last two decades. It found that more overall is that officers must focus on artic- additional questions. Violating this law is a than half of those detained and searched ulating the facts effectively in their reports Class 2 misdemeanor.
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