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Fourth Amendment: Understanding Rights against Unreasonable Search and Seizure

Updated on February 12, 2015
lawdoctorlee profile image

Ms.Treadwell is a licensed attorney and the author of "How Do Hurricane Katrina's Winds Blow: Racism in 21st Century New Orleans."

Detective Martin J. McFadden was 62 years old at the time of the Terry stop.
Detective Martin J. McFadden was 62 years old at the time of the Terry stop.

Disclaimer: This article is for general informational purposes only and is not to be used or interpreted as legal advice. If you have a legal issue, seek out the services of a licensed attorney.

Personally, think it is imperative for everyone to understand what their rights are under the law, which is not limited to the statutes and plain language of the Constitution but also those laws made by the judiciary in their interpretation of the law, which is known as case law.

The Facts in Terry v. Ohio

An experienced police detective, Martin J. McFadden, observed two men on a street corner in Cleveland around 2:30 p.m. The detective believed the men were “casing” the store for a robbery attempt. The men had been walking up and down in front of the building, looking in the window and returning to the corner to talk.

A few minutes later, a third man joined them; then he left. The detective approached them and identified himself. He then asked the men for identification. The men mumbled responses, so the detective frisked them and found handguns. They were arrested for carrying concealed weapons and were, consequently, were convicted.

The Supreme Court of the United States granted certiorari, meaning the Court was willing to hear the case (Hickey, 2001, p. 148).

The Issue in Terry v. Ohio

The issue in this case was whether it is always unreasonable for police to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest. The Supreme Court of the United States held the stop and frisk practice did not require probable cause but reasonable suspicion of criminal activity is taking place. The frisk must be “confined in scope to discover weapons for the assault of the police (Hickey, 2001, p. 149). The justification of this decision lies in the necessity to protect police officers and the public.

The Court refused to develop a bright-line rule to determine when the encounter becomes an arrest. There are differences in stops and arrests. A stop is a temporary detention; an arrest is a “more intrusive and lengthy interference with a suspect’s liberty” (Hickey, 2001, p. 149). A stop is based on reasonable suspicion; an arrest is based on probable cause. The search incident to an arrest is to produce evidence of criminal activity. A frisk of outer clothing is solely for finding weapons.

The original holding in Terry v. Ohio has been expanded to permit investigations into crimes. While in the Terry case reasonable suspicion could be established through the personal observations of police officers, it was expanded upon in Adams v. Williams where suspicion could be established by using an informant’s tip. Similarly, in Alabama v. White, anonymous informant tips “may be supplemented with corroborative police investigation” (Hickey, 2001. P. 155). In U.S. v. Sokolow, the Court held drug courier profiles, which identify people who may be transporting illegal drugs was constitutional. These profiles are used at transportation centers like airports, train stations, or bus terminals. The profile is part of the information police use to determine reasonable suspicion and include: paying for tickets with large amounts of cash, traveling under a false name, traveling from a source city, staying at a destination for a short period of time, and nervous appearance (Hickey, 2001, p. 156).

What the Holding in Terry v. Ohio Means

The United States Supreme Court decision in Terry v. Ohio, is significant with regard to Fourth Amendment rights. There are several important issues within the case:

1. For Fourth Amendment purposes, the court determined a “stop” was a seizure and a “frisk” was a search;

2. For the first time police were allowed to conduct searches and seizures without probable cause. “Stop and Frisk” could be conducted based on reasonable suspicion, a less demanding standard of proof;

3. It is an effective accommodation between the competing interests of citizens’ privacy and protection of the police and the public. In order to balance those interests, the court used a test that balances suspects’ privacy interests with society’s need to conduct the challenged search.

If officers fail to investigate suspicious activity, their safety and the safety of the public could be jeopardized. In Terry v. Ohio, the Supreme Court of the United States held “stop and frisk” procedures were constitutional (not in violations of a citizen’s Fourth Amendment rights).

A “stop” is a temporary detention of someone for questioning by the police. This detention is a seizure under the Fourth Amendment. A “frisk” is a pat-ddown of the detained person’s outer clothing to determine if there are weapons present. In this case, the Court allowed police to stop, question, and frisk someone without probable cause if there was reasonable suspicion to believe they were involved in criminal activity (Hickey, 2001, p. 148).

A historical marker stands in Star Plaza and 1302 Euclid Avenue, Cleveland, OH, as testimony to the detective that changed the legal standard for police officers to stop and frisk suspicious persons prior to committing a crime.
A historical marker stands in Star Plaza and 1302 Euclid Avenue, Cleveland, OH, as testimony to the detective that changed the legal standard for police officers to stop and frisk suspicious persons prior to committing a crime. | Source

The Ruling Terry v. Ohio

The ruling in Terry v. Ohio was designed to maintain the protective interests of police officers and the public, which outweigh the personal privacy interests of the individual. The stop and frisk is limited in scope and individuals can expect a significantly lesser expectation of privacy than in their own home, where the expectation is greatest.

Still, 56 years later, there is a lot of controversy surrounding the case; it has created exceptions to the warrant requirement in a search. It has also evolved into a plain-touch doctrine, as in Minnesota v. Dickerson. Police, if lawfully present in the place where the search is conducted without a warrant, may conduct a pat-down/frisk; and, if the item they feel is immediately recognized as contraband, it may be seized (Hickey, 2001, p. 157). While Terry was originally a search for weapons, it opened the door for Dickerson to evolve into a sort of frisk for evidence that is not a threat to police officers.

Dissenting Opinion in Terry v. Ohio

The Terry case left an opening for abuses like racial profiling to occur. There is no outlined description for what constitutes “reasonable suspicion” nor a guideline to distinguish when an encounter becomes an arrest. The officer’s attention was attracted by two men he had never seen before standing on the corner; and he was unable to say what first drew his eye to them. According to the officer, “they didn’t look right at me at the time.”

According to Justice Douglass’ dissenting opinion in Terry:

"I agree that petitioner was “seized” within the meaning of the Fourth Amendment. I also agree that frisking the petitioner an dhis companions for guns was a “search.” But it is a mystery how that “search” and that “seizure” can be constitutional by Fourth Amendment standards unless there was “probable cause” to believe that:

1. A crime had been committed, or

2. A crime was in the process of being committed ,or

3. A crime was about to be committed…If loitering were an issue…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.

We hold today that 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.”

Douglass also recommended the possibility of an additional constitutional amendment by the people to alter the Fourth Amendment rather than have this decided by the Supreme Court. But, of course, that has not occurred.

Stop and Frisk in the 21st Century

Recently, the New York City Police Department found itself under fire for its controversial stop and frisk policy, known as "Clean Halls." Officers made trespass stops outside private residential buildings (with landlord permission). In 2011, Jaenean Ligon sent her 17-year old son to purchase ketchup. Two plainclothes officers stopped and frisked the teen outside the family's building. But Ligon's son was not the only person stopped by police officers. In fact, NYPD made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics, as was Ligon's son.

In 2013, Manhattan federal court judge, Shira Scheindlin, in the case of Floyd, et al v. City of New York, ordered police to stop making trespass stops. An important part of the reasoning was to "judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool." In all, 19 cases were included in the case at hand. Judge Scheindlin found the NYPD's program unconstitutional.

"Reverend Al Sharpton and marchers participated in silent march in opposition to the NYPD's stop and frisk tactics."
"Reverend Al Sharpton and marchers participated in silent march in opposition to the NYPD's stop and frisk tactics." | Source

In my opinion, decisions like Terry and Dickerson simply show the support of the judiciary branch to the legislative “War on Crime” and the “War on Drugs” campaigns and reduce rights of privacy to individuals.

The Fourth Amendment of the Constitution of the United States provides:

“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…” (not "reasonable suspicion").

I find there is a bit of contradiction with the Terry decision, particularly, in light of their prior decision the same year in Katz v. United States. Although Katz was a wiretapping case, the Court held “the Fourth Amendment protects people, not places.”

I agree with Justice Douglass that the decision can lead us closer to a totalitarian regime, where police, whenever they become reasonably suspicious of people on the street can stop, detain, and frisk them as they go about their business. Officers should not have the authority to do so unless there is "probable cause." To that aim, I see Terry v. Ohio as judicial activism given that "probable cause" is clearly necessitated by the Fourth Amendment. The people have a right to be secure in their persons as so defined.

WORKS CITED

Adams v. Williams, 497 U.S.143 (1972).

Alabama v. White, 496 U.S. 325 (1990).

Hickey, Thomas J. (2001). Criminal Procedure.

Katz v. United States, 389 U.S. 347 (1967).

Minnesota v. Dickerson, 508 U.S. 366 (1993).

Terry v. Ohio, 392 U.S. 1 (1968).

U.S. v. Sokolow, 490 U.S.1 (1989).

Wills, Kerry, et al. "NYPD's controversial 'Stop and Frisk' policy ruled unconstitutional." New York Daily News. January 8, 2013. http://www.nydailynews.com/new-york/nypd-controversial-stop-frisk-policy-ruled-unconstitutional-article-1.1235578. Access date: 12/13/14.

By Liza Lugo, J.D.

© 2012, Revised 2014. All Rights Reserved.

Ms. Lugo retains exclusive copyright and publishing rights to all of her articles and photos by her located on Hub Pages. Portions of articles or entire content of any of these articles may not be used without the author's express written consent. Persons plagiarizing or using content without authorization may be subject to legal action. The articles by Ms. Lugo regarding legal issues are purely academic in nature and do not constitute legal advice. For advice on legal matters, consult a licensed attorney in your jurisdiction.

Permission requests may be submitted to liza@lizalugojd.com.

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    • LillyGrillzit profile image

      Lori J Latimer 4 years ago from The River Valley, Arkansas

      Excellent! This is a well written Hub. I appriciate your take on such an important ruling. Thank you for breaking it down so even a layman (woman) can understand.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 4 years ago from New York, NY

      LillyGrillzit, thank you for taking the time to read this hub and for your comments. Glad you found it easy to understand - that is the intent - for regular folks to understand how the law affects them.

    • bradmasterOCcal profile image

      bradmasterOCcal 2 years ago from Orange County California

      lawdoctorlee

      I agree with you and Justice Douglas.

      The Terry case didn't have the optimum fact situation to match the SC decision. Certainly, the NYC police action violated the 4th because of its failure to filter the reasons for their stops. 4.4 million stops is fishing without a license.

      This is another reason why the Supreme Court cannot effectively create decisions with a simple majority of the justices. Each dissenting justice is equally qualified as the majority. A higher standard than a simple majority would make SC decisions more valid.

      The problem in the Terry case comes into play where the officer decides to search all three men. There was no real reason why he decided tho frisk them. It would be different, if there was some reason to suspect their carrying weapons, but none was given here. The Sullivan Act from I believe 1911 still prevails in NYC. As you followed with more recent cases involving minorities, the Terry case would fail in Ferguson Mo.

      The Terry case seems to more of a straw for the court to build on what they want to change the 4th to new standards. Reducing the standard, can nullify the amendment. There was also no time for the men to be advised of their 5th amendment rights, as this was substantially an arrest, not just a simple frisk.

      The type of store was not mentioned, but it was 2:30pm. Was the store the type that would be robbed in broad daylight, and the officer would have known that because this was apparently his beat.

      When the third man appeared, this would give the impression that the two men were merely waiting for this man to arrive. The officer didn't have any idea what the third man was there for, and he should have waited to see what the other two men would do when the third man left. This could have developed his suspicion into probable cause.

      The SC should have declined this case, as their decision weakened the effect of the 4th amendment with the poor fact situation of this case.

      My opinion is that an amendment shouldn't be so easily weakened. If the officer thought that these two men were going to commit a crime, most likely a felony, then why didn't he call for backup before confronting them.

      I hope that you at least got some double digit views on this well written and interesting hub.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Once again, bradmasterOCcal, thank you for taking time out of your day to read my work and for your insightful comments. Clearly, you have a good handle on legal topics, which makes me wonder what your background is like. Please share, if you will.

      I appreciate your encouragement as well. Actually, this hub is nearing some 500 views to date, although commentary is limited (like we chatted about before). My most widely-read hubs are "Racism and Its Effect on Society (nearing 28,000 views) and "How to Cite the First Amendment," which is nearing 38,000 views.

      The Terry case was one of the first cases I had to brief (academically) and like you I don't agree with their decision. Terry opened the door for continued attack on the Fourth Amendment; and, in my opinion, that right has been greatly eroded with cases that followed Terry.

    • bradmasterOCcal profile image

      bradmasterOCcal 2 years ago from Orange County California

      lawdoctorlee

      Thanks for your reply, and I also have a JD from WSU in Southern California but I never practiced law. Instead, I went into my BS degree in Engineering as a career. I am more fascinated with computers than with practicing law.

      I have done legal research and filed some of my own civil cases. My interest in Con Law comes from my interest in politics and government.

      I am impressed with the number of views that your hubs have received, and yet I don't understand the drastic difference in comments. I guess the hub content is a useful reference, a textbook.

      When I was briefing cases for school, I never thought about questioning the decisions, nor how a simple majority of the justices was not a definitive answer to the issue involved in the case.

      Thanks

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Aha, bradmasterOCcal! I knew you sounded like you had a legal education! Lots of things I don't understand about HP:

      1. views do not equal comments (not even close)

      2. our personal hubber score, which I have seen change throughout the day

      3. hub scores, which also change throughout the day

      Still, I enjoy writing here. Let's just say I love to write. And for me, if I can make the law simple enough for average people to understand, I think it does some good. It's really not that hard.

      Every time I brief a case, I question the decision...even if I agree with it. I often wonder how the changing of one factor can be the end of the legal battle.

      Wishing you much continued success.

    • bradmasterOCcal profile image

      bradmasterOCcal 2 years ago from Orange County California

      lawdoctorlee

      Thanks for the wishes, and the comment on hp. I find the hp scoring irrelevant, and I attribute views without substantial comments as reader apathy. I could be wrong.

      Here is a fun question.

      While an amendment cannot be held unconstitutional per se, the implementation of the amendment can be held unconstitutional. We jave seen it happen in many cases, such as the death penalty. The method of carrying out the death penalty as opposed to the death penalty itself.

      However, the Supreme Court has opposed every constitutional argument that Income Tax is applied unconstitutionally.

      These SC decisions upholding the Income Tax are also mirrored in concept with the court's expansion of the Interstate Commerce Clause.

      There are many constitutional safeguards broken by the ever changing US Tax Laws.

      The 5th Amendment right to remain silent is invalidated by the mandatory tax laws to put all your income regardless of the source, legal or illegal on the tax return. This is mandated and violating this income tax requirement subjects you to criminal punishment.

      The creation of US Tax Courts bypasses much of the constitution.

      This tax system is Draconian in application, and it totally invades personal privacy for the sake of revenue. Revenue that could avoid any constitutional infringements, such as a National Sales Tax.

      Using marginal tax brackets, and different filing status has to infringement on equal protection.

      The criminal sanctions backing the income tax makes this comparable to a debtors prison. Bankruptcy doesn't absolve the tax debt.

      There are many other constitutional infringements caused by the application of the income tax laws, but the SC doesn't seem to make that finding.

      So, how do you explain that quirk in the law to the average person, or even congress, much less the SC?

      You can also try to explain the failure of the presumption of innocent until proven guilty in a court of lw. Once a person is accused they are no longer innocent even without a formal arrest.

      Have fun

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