Jonathan Currie

Williams
HST 388-101
25 November 2014
Perfecting the Terry Stop
When Detective Martin McFadden stopped John Terry and Richard Chilton in October of
1963, he was starting a legal precedent that would continue for the next 50 years. Chief Justice
Earl Warren's decision in the case of Terry v. Ohio(1968) established the concept of reasonable
suspicion, changing the interpretation of the Fourth Amendment and how it relates to the right
for law enforcement officers to search individuals without a warrant. In the 8-1 decision, the
Court decided that evidence that an officer obtained through a warrantless search of an individual
under circumstances of suspected illegal activity was permissiblei. These "stop and frisk"
searches, or Terry stops as they came to be known in the wake of the Supreme Court's decision
soon expanded beyond the scope of the situation covered in the case. Scholars who have studied
the evolution of reasonable suspicion have had to adapt to the different venues and circumstances
as they present themselves in the public forum. Stops on street corners for weapons turned into
lengthy debates over the right for the police to carry out similar searches on vehicles. This soon
led to concerns over the expansion of discretionary detainment and the application with minute
details governing the manner in which a person was to be temporarily detained.. Constitutional
historians and legal scholars have looked back on the issue of the Terry stop with mixed feelings.
The initial issue of reasonable suspicion came under fire by scholars as an artificial circumstance
not blatantly spelled out in the Constitution. In addition, the increasing number of Terry stops
applying to vehicles raises its own set of questions about detainment of a driver and the ability

for an officer to search a vehicle freely during a routine traffic stop. As the principle behind the
search has moved further and further away from the original issue, scholars have tended to be
more and more skeptical of law enforcement's deviations from the explicit text of the Fourth
Amendment.
With the dawning of the "digital age," so much has been written about the concept of the
expectation of privacy and the ways in which the Fourth Amendment applies today. Most of the
recent issues in search and seizure scholarship deal with net neutrality, online information
gathering, and the issue of warrants. Several historians have written histories to refresh the field
of search and seizure in the past 10 years. Legal historian Thomas Davies, wrote a piece for the
Mississippi Law Journal in which he documents the long history of search and seizure in the
United States. His article "Correcting Search and Seizure History," dedicates a significant portion
to both the Terry case and the aftermath, citing an expansion of the Fourth Amendment's literal
meaning.ii The expansion of the Fourth Amendment after Terry has taken almost half a century
after the 1968 and still continues to incur revision.
The first scholarship on the Terry ruling actually moved past the initial concern of searching a
person for weapons and instead focused on the admissibility of evidence obtained through cars
stopped and searched under reasonable suspicion. Carl R. Schenker Jr., note and research editor
of the Stanford Law Review, wrote an article in the June 1973 edition of the Stanford Law
Review about the current criteria for stopping a vehicle to conduct a search. "Nonarrest
Automobile Stops: Unconstitutional Seizures of the Person" is a strong caution toward law
enforcement officers about conducting proper stops and arrests. Because probable cause is the
standard for arrest, and reasonable suspicion is the standard for a search, arrests cannot be made
on reasonable suspicion alone.iii Schenker's article represents the concern at the time over the

definition of detainment and arrest and how these two were related. As suggested by the title of
the article, Schenker was not too keen on the implications of not just the Terry ruling that coined
the term "reasonable suspicion," but also the earlier case of Henry v. United States(1958) in
which police seized evidence with an arrest based on reasonable suspicion rather than probable
cause.iv Other scholars have questioned ability for a search to take place at these traffic stops in
the first place. Wayne LeFave, an expert in Fourth Amendment scholarship, has attributed the
extended ability for law enforcement to conduct searches to the number of routine traffic stops
that take place on America's roads. Without the ability to then search a vehicle, officers would
have less of a reason to make a stop for something like defective taillight. This, LeFave
contends, has overstepped the bounds of the intended purpose of the Terry Stop.v
Subsequent authors followed Schenker as court cases piled up to perfect the standard for
searches under reasonable suspicion. The issue of the length of detainment under reasonable
suspicion was raised after the case of United States v. Sharpe(1985). David J. Kulowiec wrote
about both United States v. Sharpe and United States v. Place(1983), summarizing the justices'
decision in both cases. Kulowiec goes on to advocate for the test that the Supreme Court placed
for determining proper detainment length as situational rather than concrete(say, twenty
minutes).vi In tandem with the issue of detainment length, other scholars raised the issue of
whether these stops were long enough to be considered more permanent detainment where
Miranda protections apply. Katherine Swift's "Drawing a Line Between Terry and Miranda: The
Degree and Duration of Restraint" in the University of Chicago Law Review, proposes a direct
link between the amount of restraint that can be used and the duration of the stop itself. Simply
put, a greater degree of restraint would more quickly merit Miranda protection.vii

Since Terry. v. Ohio, the vast majority of the cases involving temporary detainment under
reasonable suspicion have involved a search for drugs rather than the intended purpose of
discovering weapons. This trend has received more and more attention as cases involving
evidence gained from these searches pile up. More than just the routine traffic stop is in play
where drugs are concerned. The discretionary ability for an officer to profile suspected drug
dealers and users has neglected the initial purpose for detainment under the Terry decision.
Steven K. Bernstein, an attorney specializing in Fourth Amendment cases, published an article in
the Journal of Criminal Law and Criminology following the decision in United States. v.
Sokolow(1989), a case involving the detainment of a suspected drug courier. Bernstein agreed
that the parameters of the case constituted enough to induce reasonable suspicion, but cautioned
against the implication of the decision's condoning of drug-courier profiles.viii Opposition is
almost nonexistent on this issue, which is shocking considering the fact that the DEA has been
using the drug courier profiling system since the 1970s.
The Court has worked for more than four decades now on the idea of reasonable suspicion,
getting the details down to individual protections, detention time, and venues for search. The
most recent challenge however, is in who Terry stops are being used against. Racial
consciousness and the increasing focus on institutionalized racism in the 1990s and even in the
2000s has drawn attention to the unequal nature of traffic stops for minorities. The phenomenon
of "driving while black" has created waves within the legal community. David A. Harris' article
"'Driving while Black' and All Other Traffic Offenses" raises concerns about the way in which
police officers can exercise discretion in the treatment of stopped motorists. Just short of saying
that the police are responsible, Harris' article is intended to alarm minorities who may not be
aware of the level of discretion law enforcement officers are allowed to use.ix Others disagree

with the charge that racism drives these searches and seizures. Strangely enough, in a study done
by statisticians for the Journal of the American Statistical Association, authors Gelman, Fagan,
and Kiss found that although rates of minority stops are high, they are not enough to conclude
that significant profiling exists.x The issue of race as ever, is one that will continue to polarize the
field, as proponents and opponents alike must consider the implications of those findings.
The Terry stop has evolved significantly in the last 45 years, starting with an expansion of venue
to include automobiles and continuing even in the present with questions of racial bias in the
"victims" of traffic stops. Scholars do not always agree on the reasonableness of the expansion of
the law, but one thing experts can agree on is that law enforcement officers are becoming freer to
use their discretion in brief detainments based on reasonable suspicion.

Bernstein, Steven K., "Fourth Amendment: Using the Drug Courier Profile to Fight the War on
Drugs," The Journal of Criminal Law and Criminology 80, no. 4(Winter 1990): 9961017.
Davies, Thomas Y., "Correcting Search and Seizure History: Now-Forgotten Common-Law
Warrantless Arrest Standards and the Original Understanding of 'Due Process of Law,'"
Mississippi Law Journal 77, no. 1(2007): 1-224.
Gelman, Andrew, Jeffrey Fagan, and Alex Kiss, "An Analysis of the New York Police
Department's 'Stop-and-Frisk' Policy in the Context of Claims of Racial Bias," Journal of
American Statistical Association 102, no. 479(Sep. 2007): 813-823).
Harris, David A., "'Driving while Black' and All Other Traffic Offenses: The Supreme Court and
Pretextual Traffic Stops," The Journal of Criminal Law and Criminology 87, no. 2(Winter
1997): 544-582.
Kulowiec, David J., "Fourth Amendment. Determining the Reasonable Length of a "Terry"
Stop," The Journal of Criminal Law and Criminology 76, no. 4(Winter 1985): 10031026.
LaFave, Wayne R., "The 'Routine Traffic Stop' from Start to Finish: Too Much 'Routine,' Not
Enough Fourth Amendment," Michigan Law Review 102, no. 8(August 2004): 18431905.
McInnis, Thomas N., The Evolution of the Fourth Amendment, Lanham, MD: Lexington Books,
2009.
Schenker, Carl R. Jr., "Nonarrest Automobile Stops: Unconstitutional Seizures of the Person"
Stanford Law Review 25, no. 6(June 1973): 865-884.

Stephens, Otis H. and Richard A. Glenn, Unreasonable Searches and Seizures: Rights and
Liberties under the Law(America's Freedoms),
Swift, Katherine M., "Drawing a Line between Terry and Miranda: The Degree and Duration of
Restraint," The University of Chicago Law Review 73, no. 3(Summer 2006): 1075-1105.

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

ii Thomas Y. Davies, "Correcting Search and Seizure History", Mississippi Law Journal 77, no.
1(2007): 1-224.
iii Carl R. Schenker Jr., "Nonarrest Automobile Stops: Unconstitutional Seizures of the Person"
Stanford Law Review 25, no. 6(June 1973): 865-884.
iv Henry v. United States, 361 U.S. 98 (1959)
v Wayne R. LaFave, "The 'Routine Traffic Stop' from Start to Finish: Too Much 'Routine,' Not Enough
Fourth Amendment," Michigan Law Review 102, no. 8(August 2004): 1843-1905.
vi David J. Kulowiec, "Fourth Amendment. Determining the Reasonable Length of a "Terry" Stop,"
The Journal of Criminal Law and Criminology 76, no. 4(Winter 1985): 1003-1026.
vii Katherine M. Swift, "Drawing a Line between Terry and Miranda: The Degree and Duration of
Restraint," The University of Chicago Law Review 73, no. 3(Summer 2006): 1075-1105.
viiiSteven K. Bernstein, "Fourth Amendment: Using the Drug Courier Profile to Fight the War on
Drugs," The Journal of Criminal Law and Criminology 80, no. 4(Winter 1990): 996-1017.
ix David A. Harris, "'Driving while Black' and All Other Traffic Offenses: The Supreme Court and
Pretextual Traffic Stops," The Journal of Criminal Law and Criminology 87, no. 2(Winter 1997): 544582.
x Andrew Gelman, Jeffrey Fagan, and Alex Kiss, "An Analysis of the New York Police Department's
'Stop-and-Frisk' Policy in the Context of Claims of Racial Bias," Journal of American Statistical
Association 102, no. 479(Sep. 2007): 813-823).