Terry v. Ohio: “Stop and Frisk” Under Probable Cause (06/10/1968)


Terry v. Ohio

Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

Argued: 12/12/1967

Decision Date: 06/10/1968

Decision Record: 8-1; no

Justices Plurality: Earl Warren, Hugo Black, John Harlan, William Brennan, Potter Stewart, Byron White, Abe Fortas, Thurgood Marshall

Justices Dissenting: William Douglas

Effect of the Decision

This case upholds that a “Stop and Frisk” performed by the police under the probable cause standard does not violate the Fourth Amendment.

In Favor

In representation of Terry, attorney Louis Stokes argued, “This case originally arose in the Common Pleas Court of Cuyahoga County, based upon the indictment for carrying a concealed weapon, in violation of Ohio Revised Code, Section 2923.01.

The defendant in this case filed a motion to suppress the evidence, and at the trial there was a hearing on the motion.

After hearing the motion, the motion was overruled and the case proceeded to trial.

This was a bench trial, jury having been waived.

After hearing the evidence, the motion originally filed was overruled again.

The defendant was convicted of carrying a concealed weapon.

The trial court ruled an opinion in this case, and we then appealed to the Court of Appeals for Cuyahoga County.

This court sustained and affirmed the conviction of the lower court.

This court also wrote an opinion.

Subsequently, application was made to the Ohio State Supreme Court for review, and that court dismissed the application for review stating: no debatable constitutional question.

This court granted certiorari.

The facts in this case are these and I think they are signally important, if we are to try to arrive at the proper verdict, with reference to this case.

This incident occurred at 2:30 in the afternoon, in broad daylight in the downtown section of Cleveland, Ohio.

The police officer in this case, one Martin McFadden, noticed two Negro males standing at the corner of Fourteenth Street, in the City of Cleveland, where Euclid Avenue and Huron Road intersect.

These two streets, if the court please, form a triangle at the apex of East Fourteenth Street — the police officer was approximately 100 feet away from where these two men were.”


Then in opposition, representing the state of Ohio, attorney Reuben M. Payne claims, “There it is indicated that after the officer had testified that he observed the conduct of these men, and that he had concluded that they were casing an establishment for a robbery, we find this quote appearing from the record, Question: Detective McFadden, can you tell us why you turned John Terry around facing the other two men, with you behind him?

Answer: Due to my observation, the observation on Huron Road of these two men, I felt as though they were going to pull a stick-up and they may have a gun.

That is supported and substantiated in the record of this particular case.

A question has been asked here, what is the difference between reasonable suspicion, and probable cause?

In one instance, in the arguments of the case before this court, the Court of Appeals in the Peters case, has said, it is that cause which is somewhat below probable cause on the scale of absolute knowledge of criminal activity.”


The majority opinion slip was written by Justice Earl Warren. He wrote, “We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

Then in dissent, Justice William Douglas wrote, “In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their ‘seizure’ without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that ‘probable cause’ was indeed present. The term ‘probable cause’ rings a bell of certainty that is not sounded by phrases such as ‘reasonable suspicion.’ Moreover, the meaning of ‘probable cause’ is deeply embedded in our constitutional history. As we stated in Henry v. United States:

The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required.”

My Opinion:

In this case, I agree with the majority opinion. The Fourth Amendment clearly states for us to use the “probable cause” standard, which is what we are using out on the streets in the status quo. If the police have enough reason to constitute suspicion, then he or she has the right to stop the person and search them for weapons under the probable cause standard. Terry’s rights were not violated for his search was justified and the police had enough reason to believe that he and his friends possibly carried weapons on him.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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