D E C I S I O N
WARREN,
C.J.:
I. THE
FACTS
Cleveland,
Ohio detective McFadden was on a downtown beat that he had been patrolling for
many years when he observed two strangers (Terry and another man, Chilton) at a
street corner. He saw them proceed alternately back and forth along an
identical route, pausing to stare in the same store window, which they did for
a total of about 24 times. Each completion of the route was followed by a
conference between the two on a corner, at one of which they were joined by a
third man (Katz) who thereafter left swiftly.
Suspecting the
two men of ‘casing a job, a stick-up’, the officer followed them and saw them
rejoin the third man a couple of blocks away in front of a store. The officer
approached the three, identified himself as a policeman, and asked their names.
The men mumbled something, whereupon McFadden spun Terry around, patted down
his outside clothing, and felt in his overcoat pocket – but was unable to
remove – a pistol. He removed Terry’s overcoat, took out a revolver, and
ordered the three to face the wall with their hands raised. He patted down the
outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside
overcoat pocket. He did not put his hands under the outer garments of Katz
(since he discovered nothing in his pat-down which might have been a weapon),
or under Terry’s or Chilton’s outer garments until he felt the guns.
Terry and
Chilton were charged with carrying concealed weapons. The defense moved to
suppress the weapons, which was denied by the trial court. Terry eventually
went to the U.S. Supreme Court to question the admissibility of the gun and his resulting conviction.
II. THE
ISSUE
Was the gun
seized from Terry admissible in evidence against him and thus his conviction of
carrying concealed weapon was proper?
III. THE
RULING
[The U.S. Supreme Court voted 8-1 to AFFIRM Terry’s conviction of carrying a concealed weapon.]
YES, the gun seized from
Terry was admissible in evidence against him; thus, his conviction of carrying
concealed weapon was proper.
First, in
assessing the reasonableness of stop-and-frisk as a valid form of warrantless
search, the U.S. Supreme Court held:
The crux of this
case, however, is not the propriety of Officer McFadden’s taking steps to
investigate [Terry’s] suspicious behavior, but rather, whether there was
justification for McFadden’s invasion of Terry's personal security by searching
him for weapons in the course of that investigation. We are now concerned with
more than the governmental interest in investigating crime; in addition, there is the more immediate
interest of the police officer in taking steps to assure himself that the
person with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him. Certainly it would be
unreasonable to require that police officers take unnecessary risks in the
performance of their duties. xxx
xxx [W]e
cannot blind ourselves to the need for law enforcement officers to protect
themselves and other prospective victims of violence in situations where they
may lack probable cause for an arrest. When an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others, it would appear to
be clearly unreasonable to deny the officer the power to take necessary
measures to determine whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm.
xxx xxx xxx
xxx. A search for weapons in the
absence of probable cause to arrest, however, must, like any other search, be
strictly circumscribed by the exigencies which justify its initiation. Thus it
must be limited to that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby, and may realistically be
characterized as something less than a full search, even though it remains a
serious intrusion.
Next, on the
distinction between protective search for weapons under stop-and-frisk on one
hand, and arrest (and the search incidental thereof) on the other hand, it was
declared:
An arrest is a wholly different kind of intrusion upon individual
freedom from a limited search for weapons, and the interests each is designed
to serve are likewise quite different. An arrest is the initial stage of a criminal
prosecution. It is intended to vindicate society's interest in having its laws
obeyed, and it is inevitably accompanied by future interference with the
individual’s freedom of movement, whether or not trial or conviction ultimately
follows. The protective search for weapons, on the other hand, constitutes a
brief, though far from inconsiderable, intrusion upon the sanctity of the
person. It does not follow that because an officer may lawfully
arrest a person only when he is apprised of facts sufficient to warrant a
belief that the person has committed or is committing a crime, the officer is
equally unjustified, absent that kind of evidence, in making any intrusions
short of an arrest.
Moreover, a perfectly reasonable apprehension of danger may arise long before
the officer is possessed of adequate information to justify taking a person
into custody for the purpose of prosecuting him for a crime. Petitioner’s
reliance on cases which have worked out standards of reasonableness with regard
to seizures constituting arrests and searches incident thereto is thus
misplaced. It assumes that the interests sought to be vindicated and the
invasions of personal security may be equated in the two cases, and thereby
ignores a vital aspect of the analysis of the reasonableness of particular
types of conduct under the [right against unreasonable search and seizure].
Our
evaluation of the proper balance that has to be struck in this type of case
leads us to conclude that there must be a narrowly drawn
authority to permit a reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is dealing with an armed
and dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that his safety or
that of others was in danger.
xxx xxx xxx
xxx
[The protective search for weapons under stop-and-frisk], unlike a search
without a warrant incident to a lawful arrest, is not justified by any need to
prevent the disappearance or destruction of evidence of crime. The sole
justification of the search in the present situation is the protection of the
police officer and others nearby, and it must therefore be confined in scope to
an intrusion reasonably designed to discover guns, knives, clubs, or other
hidden instruments for the assault of the police officer.” (Emphasis supplied)
Revolver seized from Terry admissible
in evidence
The U.S.
Supreme Court concluded that the revolver seized from Terry was properly
admitted in evidence against him, thus:
“xxx. At the time he seized [Terry] 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 [contest of the constitutional right against
unreasonable search and seizure], and any weapons seized may properly be
introduced in evidence against the person from whom they were taken.” (Emphasis
supplied)
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