In 1968, the Supreme Court gutted the Fourth Amendment, certain that it would all work out in the end. It didn't

Originally published at:


Gutting the First Amendment in 1919 didn’t work out particularly well either, but the vast majority of Americans today think it did.


“reasonable suspicion.” is not, never will be “probable cause”.


Douglas wrote: “To give the police greater power than a magistrate is to take a long step down the totalitarian path.”

Good thing those dark times are behind us, no?


Terry didn’t “usher in” an era of Robocop Redcoats. Justice Douglas wrote in dissent, after all. The law’s very sadly been the same the whole time.

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The original Terry stop was on my path to school and I stop to marvel at the plaque occasionally. The whole case is presented as a grand moment in American jurisprudence. Somehow no one draws the link between the department being on the wrong side of Mapp v Ohio, this abomination, and a department that kills for fun.


I’d quibble with Rall’s reading of Holmes as a Radical Right Winger. (And yes-- I can quite plausibly read Schenck v United States as an attack on free speech).

From a 1920 ACLU pamphlet The Supreme Court vs. Civil Liberties

Regrettably, it is possible to look at certain opinions written by Holmes and find a theme that fits that of fascism. But it is also possible to look at other opinions and find a theme that’s more or less the opposite. The easy way out is to suggest that Holmes regretted his opinion in Schenck.

The right wing would love to cast aside Holmes, because so much of what he wrote strikes against their privileges, and afaik, they haven’t the gall to publicly defend Buck v Bell.


The Founders would weep if they saw the liberties they secured with their lives, their fortune, and their honor so easily thrown away by those of today who value security (“law and order”) more than freedom. They would weep. As so I.


I’m no law-talker, but pretty sure that the presence of dissenting opinions in unrelated to whether the case breaks with precedent or conforms to it.


Luckily we have “the new professionalism”(birthed in a rare moment of interpreting the Constitution as a living document in light of contemporary conditions, albeit ones that didn’t exist) but the patron saint of alleged-originalism); so we are set.

Holmes did not do well with that one; it makes me wonder what happened for him to adapt quickly enough to be on the dissent in Abrams v. United States.

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I was eight years old when this happened. I remember when I was a kid and the Dirty Harry movies came out. Suddenly, it seemed you were guilty until proven innocent and police brutality and subverting the Constitution in the name of ‘streamlining’ police procedures was all the rage. The worst thing is that the public was all for this. It is what made Dirty Harry and assholes like Walking Tall public favorites. Never mind the Constitution and Bill of Rights was being trashed before our very eyes. It set the stage for the crazy right wing to creep into our lives and for Ronny Raygun to appear upon our political scene. It has been all downhill since then.


We need to get another case to take all the way to the Ultra-Supreme Court.

We’ve got one of those, right?

Isn’t it funny how Nixon and Trump both ran on “law and order” and their administrations are just rife with obvious corruption and in the case of the latter, probably honest-to-god treason?


But why? Is mumbling a crime? Is being homeless a crime? Perhaps having missing teeth or being black is the crime.
Just because someone calls the police does not mean the police are obligated to investigate. This is another case of cops being called for legal activity and deciding to stop someone.


According to Terry v. Ohio a stop is not an arrest and a frisk is not a search. If you had probable cause, then you could arrest them.

Therefore, a stop and frisk is necessary and a reasonable suspicion is an adequate level of “proof.” To do otherwise, the police are not preventing the commission of crimes.

I appreciate your thought provoking view. Many police over reach their authority, with the suspects often being black. These officers are stopping and frisking based upon an “unreasonable suspicion” masquerading as reasonable suspicion.

In the process, they are stopping for an extended period, which is not necessary. They in many cases are actually searching, not frisking.

A stop and frisk is an excellent investigative tool, but in cases where they skirt the intended purpose, they will find restrictions placed upon them, as it should be.

If police departments do not restrict these limits, then it is up to trial courts and ultimately appellate courts to restrict these limits.

Yes, it does sound absurd for police to take a lead, but remember in 1966, when the police system was “falling apart” with the Miranda decision, that 50% of the state’s already had these requirements.

I’ve been teaching Terry v. Ohio for over 35 years and have been receptive to your views. Thank you.



They were also notably reluctant to part with their fortunes. Which is why the revolutionary army nearly starved to death.


Terry v. Ohio did not make being black a crime. Being black was already an offense to segregationist communities.

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Hi Prof. Pennel (assuming this is you?),

Welcome to BoingBoing!

That’s not how I read Terry v. Ohio (note I am not a US lawyer so may well getting all of this horribly wrong :slight_smile: )

Quote from Chief Justice Warren's opinion, page 16 onwards, click on arrow to reveal:

Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry, and whether and when he conducted a “search.” There is some suggestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the stationhouse and prosecution for crime – “arrests” in traditional terminology. It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

The danger in the logic which proceeds upon distinctions between a “stop” and an “arrest,” or “seizure” of the person, and between a “frisk” and a “search,” is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And, by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation.

My understanding is that all the judges in Terry agreed there was a seizure and a search. The plaintiff’s own lawyers conceded that nothing unconstitutional or unlawful happened until Officer McFadden physically laid hands on Mr Terry.

They all agree that was a ‘seizure’. They all agree that the ‘frisk’ is actually a ‘search’ in legal terms.

The majority ‘just’ held that for that kind of brief seizure and limited search for weapons, a police officer only needed reasonable suspicion. It’s still a ‘seizure’, it’s still a ‘search’, it just requires a lesser standard of belief/suspicion on the part of the police officer to justify due to the brief and limited nature of the stop and the concern for officer safety.

Have I misunderstood that?

Assuming I haven’t - as you say, police officers have routinely taken that inch and run a mile (looking through some of the later case law - so have later courts).

I’m not sure though that Terry even comes into the equation with something like Councillor Conwell’s experience. Did they even make a Terry stop?

I haven’t seen anywhere the campus police’s justification for and description of what happened. It may have been a Terry stop, it may not.

As I understand it the police could properly argue that they did nothing that required any kind of suspicion at all. They simply approached a fellow citizen and asked him to identify himself.

My understanding is that both of those are not exercises of any special power granted to police officers or in any way constitutionally limited. Any citizen can seek to speak to another and ask them questions.

At that stage Mr Conwell was in law perfectly entitled to decline to stop and speak with the officers or to identify himself, Terry or no.

The fact that not complying with their requests is likely to be seen as suspicious and the constant messages we all get from our environment that we should defer to the police make actually doing that difficult and risky.

Getting consent of course solves all the issues about whether they have ‘reasonable suspicion’ or ‘probable cause’ which is why they do it that way rather than using police powers wherever possible.

Why the campus police officers chose Councillor Conwell to question is the real issue here not Terry v. Ohio although it of course makes a great starting point to raise the issues given the anniversary comes up soon.

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And it continues to be so according to many LEOs.