The Cop Column
July 2008
Sgt. Rick Hord
Okaloosa County Sheriff’s Office
The Birth of the “Terry Stop”
The 40th anniversary of an
incredibly important day for Law Enforcement in America has passed without
fanfare.
It was on June 10, 1968 The United States Supreme
Court recognized “Stop and Frisk” as constitutionally reasonable under certain
circumstances.
“Stop and Frisk” had been used by cops for many years before a
Cleveland, Ohio plainclothes officer named Martin J. McFadden, working foot
patrol, stopped three suspicious persons and found concealed guns on two of
them.
McFadden had seen two men alternately take turns walking down a street,
peer into a store, walk farther down the street, turn around and return to their
starting point. The men would confer with each other, and sometimes, with a
third man, before repeating the ritual. Officer McFadden concluded the men were
about to rob the store, identified himself, and found two revolvers when he
conducted a “Stop and Frisk” on the afternoon of October 31, 1963.
The would-be robbers, John Terry and Richard Chilton, appealed their
convictions.
By the time the case reached the US Supreme Court, Terry had
served his sentence, and Chilton had died. The legal question, however,
remained: When Officer McFadden detained and searched the two men, was he
violating the Fourth Amendment?
By 1968, the Law Enforcement community was awaiting Supreme Court
decisions with trepidation.
Many feared the court was stripping them of the tools
they needed.
Two
years earlier, the famous Miranda decision tossed out a rape conviction because
the police believed the suspect when he said he knew his rights before he
confessed to the crime. From then on, cops would also have to teach a
mini-civics lesson before initiating interrogations.
In 1963, the Court told the states they’d have to get
their taxpayers to hire lawyers for every criminal defendant who could not
afford one.
In 1961, the Supreme Court imposed the “Exclusionary
Rule” on every court in the land, meaning no matter how guilty the criminal, he
goes free if the police hadn’t followed the rules when they found the evidence.
Justice William O. Douglas strongly believed this case
was another example of an officer going too far.
“There have been powerful hydraulic pressures,” wrote
Justice Douglas, “…to water down constitutional guarantees and give the police
the upper hand… Yet if the individual is no longer to be sovereign, if the
police can… ‘search’ and ‘seize’ him in their discretion, we enter a new
regime.”
The other Justices conceded Officer McFadden did not
have probable cause for an arrest when he stopped Chilton and Terry, but ruled
the temporary detentions reasonable, and therefore constitutional, given the
circumstances. Thus was born the concept of “Reasonable Suspicion,” a legal
standard for police to temporarily detain individuals to determine if Probable
Cause for an arrest is present.
Ironically, temporary detention is now known as a
“Terry Stop,” after a convicted criminal who lost his appeal, and not as a
“McFadden Stop” in honor of an officer whose excellent work secured that tool
for all police officers in the United States.
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