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Governor Whitman frisking Sherron Rolax (1996)

Governor Whitman frisking Sherron Rolax (1996) (Photo credit: Wikipedia)

The following excerpts are taken from Terry v Ohio, 392 U.S. 1 (1968). Although the stop and frisk tactic had been employed by police for some time, this was the first case opposing the practice that made it to the Supreme Court. A first read of the opinion reveals a perfectly reasonable decision – a police officer with years of experience witnesses two men case an establishment. Based off of his years of experience, the officer stops the two gentlemen and stops and frisks them for weapons. However, consider the following facts that don’t appear in the opinion:

  • The two men who were frisked were black. The one who wasn’t was white.
  • The detective had almost no street experience.

And then, there’s the actual text of the opinion:

Consider the following apt description:
‘(T)he officer must feel with sensitive fingers every portion of the prisoner’s body. A through search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ (footnote 13)
The President’s Commission on Law Enforcement and Administration of Justice found that ‘(i)n many communities, field interrogations are a major source of friction between the police and minority groups.’ President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 183 (1967). It was reported that the friction caused by ‘(m)isuse of field interrogations’ increases ‘as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident.’ Id., at 184. While the frequency with which ‘frisking’ forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, see Tiffany, McIntyre & Rotenberg, supra, n. 9, at 47—48, it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true in situations where the ‘stop and frisk’ of youths or minority group members is ‘motivated by the officers’ perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.’ (footnote 11)
We have noted that the abusive practices which play a major, though by no means exclusive, role in creating this friction are not susceptible of control by means of the exclusionary rule, and cannot properly dictate our decision with respect to the powers of the police in genuine investigative and preventive situations. However, the degree of community resentment aroused by particular practices is clearly revelant to an assessment of the quality of the intrusion upon reasonable expectations of personal security caused by those practices. (footnote 14)
The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate. (page 15)
On the off-chance you don’t speak legalese, here’s what the court said:
  • It’s 1968
  • Frisking someone is very intrusive – just look at the description. (Have a friend stand in “the position” if you want to get a feel for it.)
  • We are aware that minorities are being harassed.
  • We are aware that these practices cause ill will between the police and minority communities.
  • We are aware that these people do not feel safe when the police do this.
  • HOWEVER, we are not going to suppress any evidence found through this method AND
  • We are not going to stop the police from engaging in the practice although we have the opportunity to do so right here and now because we think that creating such a rule will not stop the police from harassing minorities.

Only Justice Douglas dissented, saying:

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

44 years later, we’re still having the same argument.

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