What did the Supreme Court say about “stop and frisk” searches in Terry v. Ohio?

0:04Terry v. Ohio was a 1968 Supreme Court case which dealt with, what are the government's powers, if any, to stop people and to frisk them for weapons short of an arrest. The government needs probable cause to actually arrest someone, but what if the officer comes across suspicious activity and does not yet have probable cause to make an arrest? Can they in effect intervene when they see suspicious things, but don't have a basis for arrest?

0:34This area of law has developed over a couple of decades, and the gist of it is that an officer can intervene based on reasonable suspicion of a crime occurring, and so reasonable suspicion is a lower standard than probable cause. If the officer sees things, not just based on a hunch, a hunch isn't enough, but enough to make a reasonable officer think I should check out what's going on to investigate this potential crime.

0:59In the Terry case itself, it was an officer who was watching people going in front of a store, back and forth, back and forth, a couple of people who are acting very suspiciously walking in front of the store again and again and again, about 12 times. The officer eventually confronts them thinking, I think these people are going to be robbing the store. It turns out one of them had a gun, and then the officer is able to frisk the people and get the gun. This is hugely controversial as an area of law because it allows the government to make stops, and it allows the government to search people for weapons without probable cause. This raises the concerns of pre-textual policing, of racial discrimination of policing. Who is the government stopping? Are they stopping people because they're really suspicious things,

1:44or is the government using a proxy, for example, of race in order to say, well, I'm going to say that person looks suspicious, for example, because they're Black? That's the concern we have with racially discriminatory policing is at its height in the area of stop and frisk. What counts as suspicious activity might be really contingent on how you think of the police.

2:06There was a case called Illinois v. Wardlow where Wardlow sees a set of police cars going through his neighborhood, and it was an area that Supreme Court characterizes as a high-crime neighborhood, an area of open-air drug activity. Wardlow runs when he sees the police in his neighborhood and the police then chase after Wardlow. The question is whether they had reasonable suspicion to stop him. In a controversial decision, the Supreme Court says that that was reasonable suspicion, because flight from the police or running from the police in a high-crime neighborhood is suspicious. It suggests the person didn't want to be caught engaged in some criminal offense and was running on that basis. Then the dissent points out, well, wait a minute, there are a lot of communities where it's perfectly rational to run from the police, running from the police, might be you're worried about them catching you in a crime.

2:59It might be you're worried of being falsely accused of a crime or harassed by the police for something you didn't do. This question of what is suspicious is tricky because probable cause of a specific crime is not required. Reasonable suspicion being a lower standard can be not just about a specific crime, but more generally suspicious activity. That's what we really worry about the police using their discretion to say, well, I think a person is acting suspiciously when maybe they're really not acting suspiciously, and that might lead to a police interaction which could lead to excessive force, or it could lead to discovery of a crime that a person might actually be committing at that point. That's where a lot of the controversies currently under Fourth Amendment law lie.