THE APPLICATIONOF TERRY V. OHIO BY THE LOWER COURTS
RICHARD
L. PALMER
,· O~,IrP'/
"X/ '
The Application of Terry v. Ohio by the, Lower Courts
In 196B the Supreme
Court of the United' state,s
1
~ttempted
to
deal with some of the problems involved in the common police practice
of stopping and frisking c{t~zens l in the absence of adequate grounds
for an arrest.
In , Terry 'v . Ohio, ,392 U.S. 1 (196B). and' two compan-
ion cases. Sibroh v. New York. and Peters v. New York. 392 U.S. 40
\
(196B)
I
'.
the court said that any
I'3top, a'n d frisk was, governed 'by the
,
fourth 'amendment. bu~indicated 'that such police practices might
be upheld if the action was ' reasonable under all of the circumstances.
'Terry ,;.. Ohio
A police officer pac arne' suspicious :of ,two men standing on a
\
.
,
,
sidewalk in the , downtown area of Cleveland;
'
One of the men would
walk in front of a certain store. look into the store. 'walk on.
turn around. look into the
man.
stor~again.
and then talk to the other
The other man would then perform the same motions.
same acts were repeated several time~ by both men.
occasionally conferred with the two men. '
Tltese
A third man
The officer felt that
"
the suspects were casing the ,store ' in ,preparation 'for a robbery.
He confronted the three men. identified himself. and asked for their
names.
The men mumbled in response to the officer's inquiry.
The
policeman patted down the outer clothing 6f each of the three men.
'.
IThis paper will fot:us upon some recent state and federal
court decisions which have made a questionable (in this ' writer's
opinion) application of, the reasoning in Terry.
2
The officer felt a pistol on Terry, and reached
i~side
Terry's
,
coat and removed it.
The officer also removed a pistol from
. ;Jth
one of .Terry's companions.
of carrying a concealed
, ,:
Terry was charged.and convicted"
wea~on.
Sib'r on . v" New York
A New York 'police officer observed'Sibron
ta~king
with
"
several known ,narcotics addicts dur:tng ' an eight hour Wriod.
,
i
Sibronentered a restaurant , and ,the officer saw him talking,
with three known addicts • . The officer' told Sibron to come
outside.
Once outside, the , officer" told s:iibron, "'You know what
I am after."
A~
sibron, supra at45.
Sibron reached into his
pocket, the officer shoved hi~ hand into' tbe pocket at .the, same
time and pulled ' out seve~al gla.ssi~·e envelopes of heroine.
Sibron
was convicted of the unlawful possession of herGlin.
Peters v·. New York
a~
An off...-duty police/ officer 'h ear(l
door.
noise at his a partme:;tOl1'\
He looked through the peephole and observed two men that
,
he had never seen in th~ apartment bu'i lding before tiptoeing down
.
the hall toward the 'stairwAy.
"
. .
)
,
Believin~ that the men were about
,
to attempt a burglary, he called the police, put on his civilian
clothes, got his pistol, .a nd .entered the hallway.
When the officer
slammed the door behind him the two 'men started down the stairs.
The officer caught Peters and ' patted him· down.
He 'felt an object
3
which he thought might be a knife and removed it.
plastic envelope containing burglar's tools.
It was an opaque
Peters was convicted
of possession of burglary tools witn intent to employ them in
"
commission of a crime.
Supreme
Court's Opinion In Terry
,
Mr. Chief Justice Warren. \<f'iting for the majority in
"
,
'
Terry. , rejects any argument that the Fourth Amendment' does 'not
apply when dealing with a' stop and frisk situation.
at 19.
Terry. supra.
He feels that each ~ase must b~ ' debided by the reasonable-
ness of the invasion upon the citizen's r 'ights.
.
Id.
,
In deciding
if a seizure is reasonaBle. he propose's a ,two prong 'inquiry:
,
And in determining whether the ~eizure and search , were
"unreasonable" our inqu'i ry is a dual one--whether the
officer's action was justi.fied at its ince'p tion. and
whether it was reasonabl~ related in scope to the circumstances which justi,fied ,the interference in the
first place. Id. , t 19-20. ,
Reasonableness is to be determi,ned by a balancing test. Id.
,
at 21. . The right of society to protect itself against crime.
,/' JIll/Me
f~ v~:::r~S.1!U~Si.-Jt;;,lbJJe~'..I.i...n",vu;aIJSol.l..·QioU.In~Quf,-t!o;h~(!-.;....;!:r""i~g~h!.!.t~s_·.!:o~f.....t::;h!.:e;.".:!i:.!.n~d!;l.;!:.·v~i~d:;:u~a~l~.:..-._.~n Terry- - -1~tf1
VI'
'
the court f~ tail t t1:Ja right:~-i!leG46~-...aho,ulJ!.1'.!: favored under
'
.
the particular facts of the case.
'
~
However.
the court
.
'1 -go':
i~~
----
that there are limits to a stop and' 'frisk which must be . recognized.
The officer must have facts which .allowa reasonable inference
that there is a possibility of criminal activity in order to '
~
4
to justify the invasion.
Id.
(H
attempts to set out an objective
standard:
••• would the facts available to the officer at the moment
of the seizure or the , search "warrant ' a man of reasonable
caut\:ion in the belief'" that the action taken was appropriate? Id. at 22.
In Terry the defendant was contending that a : policeman is
"
not entitled, to make any kind of a search of ' a suspect. until he
"
I
has probable cause to make an aprest.
,
gument.
Warren reject~d this ar-
He stated,~~: ,
..
••• there , must be a nar:rowly drawnaut'/lority 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 ~n armed and dange~ou~ individual, regardless of whether he , has probable cause to arrest the individual for a crime. The officer , need not be absol~telY' certain
, that the individual is armed; ' the issue is whether a reasonably prudent man in the c 'i rcumstances would be warranted in
the belief that his ,safety or that of others was in danger.
Id . at 27.
Chief Justice Warren examined the facts of this , case and con-
/
....
cluded that the officer's actions were in conformity with the
~e
standards that are set out above.
felt that limitations upon
•
a protective seizure and search,for
,
in ,' each case.
But he did
"
~apons
would' have to develop
'
state~thct:;:
••• such a search, 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 assualt of the police officer'.
Id. at 29.
5.
Warren felt that the efficer had fellewed the abeve requirements.
' ne~
He patted dewn the euter clething, and did
hands under the suspects' coats until he felt guns.
place his
A general
.'
\
I
expleratery search was , net conducted.
,
Warren cencluded the majerity epinien with the statement. t-mt'f:T"
"
"
We me,r ely held teday that where a , pel ice efficer ebserves
unusual cenduct which
leads
him reasenably to., cenclude in
,
I
l i ght of his experience that 'criminal activity may be afeet
, and ..th~t the persens ~!:th., .who.m" , he_ :i,s dealing may be armed
a l1~_.J2re ~~~i}ilY,~:(:fange'rou s, where , in t h e' 'c our'iie"" oCihve s ngating this behavierhe ,identifies himself as a policeman and
makes reasenable inquiries, and where nothing in the initial
stages ef the encount.er ser\>oes to.. di spel his reasonable
fear fer his own er other's safety, he is entitled fer the
pretectien ef himself and ethers in the area to. cenduct a
carefully limieed search ' ef the euter clething ef such
persons in an attempt ,to. discever weapons which. might be used
to. assault him. , Such a search is a reason'a ble search under
the Feurth Amendment, and any weapons seized may preperly be
intreduced in evidence against the per sen from whem they
were taken. ' Id. at 30-~1.
Justice Harlan
but peinted eut that the right to.
concur~ed,
/
/ ~.
' . .
,
frisk in this case aro'se ' \•• "enly
fr~m
the necessity ef the situatien
and net from any bre,!-der right to. di,sarm, to. frisk fer his ewn
pretectien." ID. at
32 ~
Thus,
' ..
to. step fer interrogation was
1;he , q~estien
ave~ded
ef the pelice autherity
by the ceurt.
,
Landynski, The
,
Supreme Ceurt's Search Fer FeurthAmendment Standards: The Preblem ef
step-And-Frisk, 45 Cenn B.J. 146, 165 (1971).
Opinien in . Sibren v. New Yerk
The presecutien cenfessed errer in the Sibren case due to. the
6
questionable validity of the frisk.
hear it anyway.
The Supreme Court decided to
The prosecution admitted 'that
ther~
cause to arrest Sibron before the heroin was seized.
'fas no probable
The Chief
Justice did not believe that the fact that the officer had seen
"
Sibron talking to several' known addicts gave the Officer' any
reason to believ~ that Sibron was armed.
Warren referred back to
",,~Il.ft" 'J;!
,
d~termine j.-f-
, the standards of the Terry case fO
a stop and frisk
might be justified.
In the case of the self-protective search for weapons. he
must be able to poin:!: to par,ticular ,facts firom which he
reasonably ,inf,e rr,e d ' that the individual was armed and
dangerous. , sibron., supra. at' 64 . '
,
,
.
,
Warren could not find any facts in the record to indicate that sibron
was armed. , Talking to known
~•.
"
~arcotics
addicts does not give a reason-
able basis to believe that a ' person is armed.
Even if there were specific facts justifying a search. the
• extent of the search wo,uld ,'cause the heroin to be inadmissitble.
"
,
Terry only approved a pat, down of the outer clothing ,to determine if
.
.
the suspect was armed.
The officer ' :Ln,"this , case placed his hand in
,
Sibron's pocket and ' removea , the heroin.' The offider was looking for
,
cot:j.cs ,~ .
not weapons.
---
h ~endment.
'
Such a search is
Id. a-te 65-66.
unreas,.?~able ,
- . ' I{)t/;"J' ,1/
, ,' 0
..
, .,
und,e r the
1\j-; 1...((t-lJ/ j C)c/YlCtV)./U.--roc:e
A.~(/)') ?
'
Opinion in Peters v. New York
felt that the search was "properly incident to
ArC •
-cJ-(
- :- -
~
7.
a lawful arr etl t. ." I d . tit: 66.
rrest in his opinion.
The facts added up to probable cause to
Strange noises at his · door"t\fo strangers
tiptoeing in the hallway, and flight
-
~
a~he
approach of the officer
.'
amounted tQ plFQbable 9.loaS6I. -- .Thus
' the
stop and frisk question is
.
.
not actually dealt .with ill the majority opinion.
.
"
state and Federal' Cases In The Stop And Frisk Area
.\
','
In United states v. Dowling" 271 A:2d 406 (Crt . . of App., D. C.
.,
•
•
,
1970) ,the Court of Appeals held< that it was error for the .·trial
court to have suppressed evidence which had been seized in a stop
.and frisk
situati~n.
,
In
thi~
'
I
case 'two officers had been informed
. by an liInidentified citizen that a man : wearing a long . black overcoat
,
was walking down a nearby alley with a ' gun ' in his . pocket. , The
officers asked the citizen to 'remain . on the street while they investigated.
The officers ' observed the defendant walking down the ,
alley wearing a long black overcoat. The officers identified themselves
,
and asked the defendant to remove his hand from his '·right front
pant's pocket.
.
The defendant did not remove his hand until one of
the officers pointed his gun at the · defendant.
W1ien the defendant
removed his hand, the officers saw' a 'large bulge in the pocket.
i
One
of the officers felt the pocket and stated, "I think I've got the
gun." Id. at 407 •. The officer plac~d his ' hand inside the pocket
and removed a 3 . x 5 in. pad and numbers slips.
He placed his hand
inside the pocket a second time and removed $233.00 in currency.
a pencil and a piece of carbon pape,r ,. : The defendant was ·arrested
8
and convicted of possession of numbers slips.
The unidentified
citizen disappeared.
"
,
The defendant did not.complain of the ' officers right to stop .
.'
and frisk in this situation, '~ut he .contended that the search exceeded
the permissible, scope under the circums-tances of this case.
The
defendant's iirgument was that when the' officer felt of, the pocket
"
,
he should have been able to determine that it was not a gun.
Even
"
if the officer did think it was a gun, he knew it was not a gun
after he placed his hand ,in, the poc;ket . and , felt nothing but paper and
a
pencil~
Therefore he should not have removed the contents of the
pocket.
The court . of Appeals did not agree ·with the defendant's argument.
( Tt~Vstated ~t~
,
We think it reasonable also, when the one officer
claimed to have found ..the gun, for . him to reach his
hand into appelle~'s pocket and remove the contents.
The first items removed 'were tBe pad· and what the
officer recognized as numbers sJips, then the ' $233.00
in currency, after which there ¥asan immediate arrest
and a subsequent more extens.ive'search. Id. at 408.
The defendant
appear~to
,
.
;
have a sound argument.
If the officer
,
actually thought that there was a gun in the defendant's pocket, it
would seem that he could , have satisfied himself that there was not
a gun in the pocket without removing all of the contents.'
The
court's reasoning seems to have been that the contents in the top
of the pocket had to .b e removed in order to ascertain what was in
9
in the bottom of the pocket.
However, I see no reason why the
officer could not have shoved his hand past the pad ·and the .numbers
,
slips in order to feel what was in the bottom of the pocket.
,
ado , (S.Ct.Haw.
In state v. Goudy, 479 P2d
1971), the supreme
Court ,of Hawaii upheld a conviction for the crime of possession of
,
"
.firearms by a person convicted , of a ,crime of violence on the basis
..
of Terry.
In this case
la " poli~e ! off}cer
had received an anonymous
~
"
.
telephohe call that trere was going to be an illegal exchange of
guns, watches, and rings w!thin the hour ~L!t.,Q.er,tain location.
The unknown informant said that the parti'es ' would be driving a
black Barracuda car,
a~d
that the passenger, in the car would get
the articles.
Two officers proceeded to the address given, but there was no
house at that address.
They remained in the general area.
an hour later the two offic~rs saw a bl~'ck
.
men in it.
About
Barracuda with two
The officers followed the car and observed it stop
in frontof a house located a few
they had received.
bloCk~,
from the address which
·The tw~ , offi~~rs pa:r:ked nearby: and saw the
defendant get out of the passenger ' side of the Barracuda and walk
up a lane.
He returned in a few minutes with a case which appeared
to contain a rifle.
The case was
dant entered the nouse.
in the car, and the defen-
He returned to the car in a few minutes
-
with a ' brown paper . sack.
p~aced
'
The car was driven a short distance down
1.0
the street before it was stopped by the two officers.
Neither of
.
the officers knew the defendant.
One of the officers
had heard
,
~
the driver of the car had a criminal reputation. '
Both\ of the officers
ap~roached
the Barracuda with drawn pistols.
The driver got out with his hand raised.
The defendant 'r emained
in the car until" one of the officers opened the car door.
Both
,
of the officers testified that a,s' they approached the 'car they saw
,
,
the end of a rifle protruding from a case in the back' of the Barracuda.
The officer who opened the defendant's door saw the handle of a
,
'
I
pistol sticking out of a sa'c:k on the floGr.,
Both 'the driver and the
passenger were placed under ,arrest at this time for being offensively
armed.
The Supreme Court of Hawaii saip that Terry was applicable
even though :this was a stop 'case and not a stop and frisk case.
The anonymous telephone cal,l ' was, substal)tially verified and ,f acts
I'
.
'
...
which might have indicated criminal activity were observed.
The
court felt that the situation justified
a stop in order to question
,
('the defendants about possible cr.:i.minal ,c onduct.
"
,
The court stated
that "the mere approach with drawn, pistols upon persons stopped
for questioning is not an arrest." Id. at , 803.
,
Justice Abe dissented in what appe'a rs to this writer to be
the better reasoned opinion .
He felt that the facts ' showed that
the officers stopped the car to ' arrest , and not to
inv~stigat; e.
The
11
testimony of both officers showed that they had radioed for other
officers to assist them.
car was stopped.
pistols.
Three other officers arrived : just as the
Both officers approached the car with drawn
Justice Abe quotes from footnote In .
~r
"~nA
10 ~f
Terry:
Only when tpe officer, by means of'physical force
or show of authority, has in some
, . way restrained
the liberty of a citizen may . we c9nc'lude that a
"seizure has ·occurred." rd. ,: at 807.
"
It would appear to bEl hard to argue that two officers with drawn
pistols was not a show of force.
The fact that the driver got out
,
of the car with hi's hands raised above his head would seem to
indicate that he felt that his liberty was -restrained •
•
Justice Abe does not. believe that Terry even · applies to this
fact situation.
He stated that:
Thus , I believe Terry does not set up guidelines to determine the reasonableness of a temporary detention because as
specifically stated the United states supreme Court did.
not intend to cover that point ~ndthe decision was strictly
on the issue of protective search as noted above.
Therefore,
in my opinion. this court errs in using the guidelines set
up in Terry to justify protective, search to justify temporary detention for ' investigatory purposes ' here. Goudy.
supra, at 809. '
"
.
Abe also feels that Terry is only applicable to "criminal activity
of a violent
nature~,
and that the facts of this case only showed
illegal dealing in guns or jewelry. ~ : Id.
He feels that t~ere must
be a ;'high degree -of potential violence" before detention as in
-
Terry will be allowed.
12
Justice Abe compares the facts of Sibrori v. New York, 392 U.S.
40 (1968), to this case and finds that they are closer than Terry.
,
,
There was no real evidence in this case that the defendant was
armed and dangerous.
This c,ase, as Sibron, ' involved possible traffic
\
in contraband goods.
The facts do not support an inference that
.
the police stopped the car to prevent 'a violent crime.
Abe feels
'
that the evidence in this case should have been
suppres~ed
as it
was in Sfbron.
In people v. Woods, 86 Cal. Rptr. ,264 (Ct. of App., Cal. 1970),
a flashlight search of a Eluspect's pocket
was
uphe),d on the basis
,
:
of Terry.
Officers in Los ,Angeles County ~ad received a radio
report of some shots be'ing fired.
The ,officers responded
to the
,
•
call and were to'l d by pel!sons in the area that they had heard what
they believed to be shots being , fired near a cer,t ain intersection.
About twenty minutes later the officers saw the defendant walking
toward the ' intersection:!,
jacket pocket.
The defendant
... bad his left hand in. his
,
One of the officers placed his hand' over the
defendant's hand and as~ed him what he had in his pocket.
"
defendant would not ~nswer 'and became nervous.
,
The
The officer then
reached his hand inside the pocket and pulled the defendant's empty
hand out of the pocket.
rhe Court of Appeals then stated:
At this point Convey, without spreading the pocket or
pulling it open, shined 'his flashlight into the pocket
and discovered therein a .clear plastic bag containing
, a green, leafy substance that looked like marijua~a. Id.at 266.
13
The trial court granted a motion to set aside an information charging the defendant with possession of marijuana on the
grou~d
that
the police obtained the mar.ijuana by an unconstitutional seizure
.'
and seareh.
In reversing · the trial court the Court
of Appeal 'cited People
,
v. Henze, 61 Cal. Rptr. · 545,
,
'.
setting out guidelines fbr
probable cause to
a~rest.
(Ct. of
, App., Cal. 1967), as a case
t~mpprary
,
detention when ' there is not
...
Under the Henze test the officer may
make a stop for investigati~n purposes when three requirements
are met:
(1) some unusual. activity is occur,ring, has occurred or
seems about to' occur, (2) something reasonab~y
connects the person under suspicion with the activity, and (3) something reasonably suggests that the
unusual activity is related to crime.
Id. at 267.
The court felt that these requirements were met by . the fact that
the defendant, a stran:;Jer ,to ' the offic¢rs, was walking in the area
approximately twenty
pocket.
min~tes
While it is ' not the
after the report with his hand in his
purpos~ ~f
this paper tQ examine the
Henze test, it does seem that the facts might be
••U.fy the three ,eqUi,'::"nt..
~
.
It might be noted to the credit of the court .
little weak to
•
.
/.'y-~"'~'"
that~
not cite Terry as a direct justifi~ation for the stop.
did
. Terry was
cited for the fact that the officer:
••• must be able to point to articu1ab1e specifi~ facts, . .
. together with rational inference!;! from those facts, which,
14
when viewed objectively and in the -total circumstances
of the situation, make the intrusion a reasonable one. Id.
However, about the only specific fact that the off:j.cE\rs had was
that the defendant was walking in the area with -his hand in his
pocket. \Certainly these . fac:ts ~fljffar weaker than in Terry. It
certainly seems questionable whether the officers had a ' reasonable
belief that he Was about to cOlnmit a crime.
,
The court justifies , the se~rch with the statemen~t~
,
,
•
Officer Convey was on a public street where he was entitled
to be. He illuminated the interior of the defendant's pocket
with his flashlight without in any way otherwise improving
his view. We do not regard this ~on~uct on ~he officer's
part as being equivalent to his reaching into the pocket
and forcibly withdrawing therefrom the clear plastic bag
of marijuana. This he , could not have constitutionally done.
Id. at 26B.
'
I fail to see the distihction that the court makes between shining
the light in the defendant's pocket and placing a hand in the pocket.
The result is the same with either procedure, yet one is constitutional
and the other is not. / ThE!
intrusi~
.
upon ' the individual's -rights
appears to be almost equal in both instances.
About the only dif-
· ference might be that with the light' there - is , no actual contact with
the defendant's body.
~e
court cites three cases, People v. Superior Court (Mata),
B4 Cal . Rptr. Bl, (Ct. of App., Cal. 1970), people v. Boone, B2 Cal.
Rptr. 39B, (Ct. of App., Cal. 1969J, and People v. Hobbs -, 79 Cal.
Rptr. 2Bl, (Ct • .of App., Cal-. 1969), which dealt with the plain view
doctrine in justifying the officer's shining the light into the
.)
defendant's pocket. _ The court seems 'tc;> ~e saying , that: after removing
15
the man's hand from the pocket and shining the light in the pocket,
that the marijuana was in plain view.
In
my opinion the insides of
.
.
a man's pocket which must be illuminated with a flashl-ight in order
to be seen are not in plain.,. view.
\
In
state v. Dennis, 273 A2nd 61.5 , ' (Super. Ct., . N.J. 1971), the .
. Superior Court Qf New Jersey upheld a conviction for the possession
"
of heroin on ithe basis of Terry wheve the. testimony
hi~
the officer had placed
hand
~nsiae
re~ealed
that
of the suspect's
,. pocket with-
out first making a pa:t of 'the pocket to see if a weapon might be
inside.
The defendant's girlfriend had been arrested by the police as
,
a material witness in a
The oflicers were patroling a high
~urder.
,
"
'
crime area when ' the defehdant ~alked toward the patrol car saying,
"What did you do with my girlfriend?" Id. at 616.
described as "boisterous". Id.
His voice was
One of the officers testified that
as the defendant neareqi the car:,
He put his hand in his pocket, and I had jumped out of
the car and took . his hand out of his pocket. Fearing
that he might have a weapon, I took his hand out 'and
searched himand I got the 22 . decks of heroin'.
Id. at 616.
,.
Further testimony revealed that the events occurred in the following
order:
(1)
the officer removed the defendant's hand from the pocket,
(2) the officer placed his own hand . in the pocket and removed the
heroin, and (3) the officer patted-down the defendant.
, The Superior Court of New Jersey felt that the officer was
16
justified in placing his hand in the pocket without conducting a
frisk due to his fear for his personal safety.
The court said
•
t hat the situation required instant action without time to ponder
the circumstances.
The court said:
,
The search involved a reflex reaction to the threa,t ' of
danger--an ~ttempt to disarm an assassin. Reaching inside
the pocket in the expectation of seizing a gun was part
and parc;el of that reaction.
I'd. ' at, 619.
"
I
If the officer had a reas'o nable' belief that the ,d efendant was
armed and presented a'n iJ1ll)lediate danger to himself, then the stop
would be justified under thE;! reason,ing 'of T;erry.
However, the
specific facts which Were pointed to ' by, . the officers do not appear
to be too strong.
,
The
..
d~fendant
.
,
walked" toward the patrol
car, asked
.
the question about his gl.rlfri~nd, 'and placed his hand in his
pocket.
If the manner that the,s e actions were carried out was
truly threatening, then the officer had the 'right to take preventive
,measures.
The extent of the search appears to be questionable.
In Terry
,
the Supreme Court only gave its approva'l , under the fa'c ts in that
,,
case, to a pat-down 'of the'outer garments.
,
In this case the officer
placed his hand inside the defendant's pocket after he removed the
defendant's hand.
it was empty.
The officer had removed the defendant's hand and
I believe that the officer should have, been limited to
patting the pocket to determine if , it contained a hard object which
felt like a weapon.
Also, the argument that was made in United states
v. Dowling, 271 A2d 406 (Crt. of App., D. C. 1970), would apply to
this case.
Once the officer had placed his hand in tbe pocket and
felt that the object was not a weapon, he had no right to remove
"
,
I
the contents of the pocket. ' Glassine envelopes do not feel like a
gun.
In state v. Thomas, 469 p.2d 2 1 9 , (s~ Ct. Ran. 1970), two highway
patrolmen spotted a car ~aving ,l back and forth across the center
.
strip and speeding at 87 i n ,a 70 mile per hour zone.
g~ve
' was stopped the driver
his
consen~
After the car
to , a sear<;:h for an open
,
bottle.
During this ' search the officers discovered an empty holster
.
in the glove compartment.
The officers : told the driver
and his
,
'
companion to put their hands on the car" and one officer then started
to search them for a concealed ,weapon.
While p,a tting the legs of
the driver a hard round object was found in his sock .
The officer
removed the object whiSh was ,a , ~olled-up manila envelope.
,
...
'
envelope was opened and found to
con~ain marijuana~
The
The trial court
convicted him of poss'e ssion of ma,rijtlana.
,:
.
The Supreme Court of~ansas cited Terry as a~lowing a pat-down
,
,
for weapons when the officer reasonably believes he is investigating
a person who is armed and is dangerous to , the officer.
The court
felt that the finding of the revolver holster gave the of£icers
reasonable grounds to believe, ,that the s,uspects were armed and
dangerous.
18
The stop for speeding would be a valid exercise of: the
officers' duty.
However, whether there was a reasonable basis for
-,-
the f ri sk,\ and the extent or the frisk ~estionable. The only
....._:::::::::xfact which the officers could 'point to as a basis for their belief
tha t the defenda~,t was armed and dangerous was the: empty holster.
,
.
other testimony was given to support their inference.
· ~e
No
testimony
"
, I
'
.. )(1
showed that the defendant and hi~ companion were co-op,e rativ "!>they
"
7
.
.,)
gave their consent to a search for an open bottle. There was no
'
LJ't./\
testimony that the defendant or his : companion ~hostile to the
,
-
officers.
' --.-::;>
.
'--._ --
On the basis of · the specific facts pointed out by the
-
,
officers, I don't believe that, there was ' su,fficient ev:idence to
support the in.fe'r ence that one , of the meri was armed and dangerous
to the officers.
The scope of the search also appears to have been unreasonable.
Does a rolled-up manila / ElnvE!lope,, act1Sally ;feel like a weapon?
Assuming that it did feel like a weapon, why was it opened?
Once
the envelope was removed from the, !defendant
it WOUld be obvious that
' .
,
it was not a weapon wi!~ou~ o~b~g, it.
In Carver ' v. Kropp, 306
F. Supp. 1329 (E.D. Mich. S.D. 1969), a united States District Court
said that the search of a ' sealed envelope that was discovered during
a search incident ~o a valid arrest was unreasonable. , The suspect
in Carver was arrested for attempted rape.
searched five small envelopes were found.
When the suspect was
The officer opened one
19
of them and found heroin.
The united States District Court cited
Agnello v. united States, 269 U.S. 20 (1925), for the t>roposition
that' a warrantless search incident to a lawful arrest is valid.
However, the scope of such a ' search is not unlimited.
The scope of such a search extends to weapons, instrUments
which might ,assist the accused pers0nin escaping, the
fruits of the crime" the implements of the crime and evidence
' connectecf :).'lith the crime. Carver, ' supra, at 1330 •.•
The court said that the ot'ficei
~[id
not believe that
~he
envelope
"
contained ' a weapon. the fruits or evidence of the crime of rape.
and that he did not have reasonable "cause to, believ.e that the en"
velope contained narcotics.,
Thus there was no valid basis upon
which the warrantless s~arch o~ the env~{op~ could be , ~pheld.
On
motion for reheating the 'court .said "that if there was probable cause
-:s="-
for the officer to believe that ·narcotics were in the
envelope~ ·~
he should have obtained a search warrant before he opened them.
.
The
envelopes were in the of,ticer ,' spossession
and the suspect was in
,
custody.
They could not have been destroyed or used in an escape
,
'
by ,t he suspect.
I feel that the ' reasoning in Carver -should be applicable to
the Thomas case.
The officer could not believe that the envelope
contained
a weapon \and there are no fruits of the crime of speeding.
.
.
,
The Supreme Court of Oregon expressed similar reasoning in
State v. Elkins. 422 P. 2d 250,.
(S. Ct. Ore. 1966). ' The defendant
in Elkins was arrested for intoxication.
In' B search for weapons
20
incident to the arrest, the officer found a Dottle containing some
pills.
The defendant was convicted of possession of methadone.
On
appeal to the Supreme Court of Oregon it was found that the ~fficer
only had a suspicion that toe pills Were contraband.
The court said
!
that the officer must have reasonable grounds _. for thinking the article
- -~
is contraband before he may seize.
"
Both Carver and ' Elkins were cases , ·in , which contraband was held
,
"
inadmissable even though it was $eized in a valid search
incident
,
to an arrest.
It would seem that the argument would be even stronger
,
when applied to a stop and
.
~risk ca~e
where , the only purpose is pur- ,
ported to be the protection of the officer.•
In People v. Hubba:rq, 88 Cal. Rpt~. ; 41L
(Ct. o:t; ~App., Cal 1970),
two Los Angeles 'police otficers saw" a car run a red light.
immediately pulled into a service station and
s~opped.
The car
As the patrol
car stopped behind the defendant "s car, the defendant and two
passengers got out of t~e
defendant's, car.
,
towards the officers.
three men.
The defendant walked
The officers then patted doWn each of the
Officer Lurz
~A.if~
thOUgh f .~e
fel,t
capsu~es
in the defendant's
, pocket when he patte'd him down, and he told Office!" Weber.
Weber
" saw a plastic bag sticking out of the defendant's pocket. and he
asked the defendant if he had any pills in his pocket.
said, "They're reds.
The defendant
They belong to ' my Mother." Id. at 413.
The
defendant was asked to take the pills out of his pocket, and he
handed them to the officers.
The defendant was convicted of possession
21
of dangerous drugs.
It is not within the scope of this paper ,t o deal with
the question
,
of a search incident to a stop for a traffic violation.
since the court cited Terry ',as autl;lority for the frisk.
,
"
<V\~ ('~
However.
I would
,
like to compare the reasoning of Terry to the facts of this case.
,
"
.
In Terry the Unit!i!d states supreme Court indicated ' that the officer
,
'
must be able to' point to specific facts , from which a :.;:e'a sonable man
,
!
,
could infer that he was dealing w,ith an armed and
dan~erous
man.
The
only facts in testimony in ' this case are the facts that the defendant
ran a red light and that ,he and his ,two 'companions got out of their
car .
Only the defendant walked toward , the officers.
two just stood there.
The other
• Court of ' Appeal stated: ,
The
Under the circumstances th'e occupants' sudden debouchment
from the vehicle was interpreted as a threat to the safety
of the officers.
Id.at ' SI4.
It could be argued that the action of the, defendant and his companions
,.
was not unusual , conduct:
,
,
'
"
Motorists o~ten step from their car when
they have been stopped , for a traffic
-
~iolation.
The defendant was
"
the only one of the three occupan~~ , ' Clf ,the car who walked toward
the officers.
"
This action could be , interpreted as an attempt on
his part to co-operate with the police.
He could . have been walking
toward the officers in order to discuss any possible traffic violation
, which they , felt he ,had committed. '
When one of the officers was asked why he patted-d?wn the
defendant he answered:
22
"Pat down everyone, sir, that I talk to, for safety
reasons, safety of myself and my partner." Id. at ,813.
,
.
The Court of Appeal admitted that action of this .type is un,
'
reasonable , but upheld the ,frisk on the bas'is of the other officer's
\
' \
testimony that he felt ,threatened when the three men stepped out of
the car.
In Terry ,the officer could poillt to ,specific
consistent with possible ~riminal
, activity.
fact~
which were
In this \case
the
.
officers could only pOint .'to the fact ;that the defendant and his
,
t~o
passengers alighted
f~om
'
the caf.
,Is this
suf,ficient to ' make
:
,
a reasonable man believe that the defendant was armed and dangerous?
I do not
believ;~~Oes(
;1
In People V. Courtney, 90. Cal. Rptr. 370
..
(Ct~
of App., Cal. 1970)
a Stanford University police:' officer observed a man who was wearing
unusual clothes walking across campus.
When the man saw the
officer he turned his l).ead 'awiiy,frolll the officer.
The officer did
not know the man . so he stopped him to "ascertain if he had business
)
,
and identification." Id,. at 371. "The' suspect produced , a draft card
.,
and stated that he ~as on his way toa particular ~ouse in the
,
neighborhood.
The officer knew that the resident of that house
had a police record.
He ,told the suspect that he was going to
check his identification through the police radio.
The suspect then
blurted out that his driver I s, license had been revoked for hit and
run, that he had been arrested for carrying a pistol, and that he hadbeen arrested for dope. , The officer' said ,that he rot iced a bulge
23
under the suspect's coat at this time, and that he felt he might
be in danger.
The officer asked the suspect 'about ,the
bul~e,
but
was told that "it was none of the officer's business because he
"
was not under
arrest."
I
Id. at 372.
The officer attempted to feel
of the bulge, but
'the suspect pulled , back.
\
,
The o,fficer said it
"
felt firm, but
, what it was.
, he could not determine
"
The suspect
pulled the article from under. his
, coat once, but quickly put it
back in his pocket. , The pfficer ' could tell that it was a bag,
but he was unable to determine the contents.
The suspect refused
to divulge the contents of the bag ?n the grounds that he was not
under arrest.
The officer told · the suspec,t that he was taking him
,
,
'
to the station due to the
crowd
wh.ich
was
developing
•.
Another
\
officer arrived and was told by the "suspect that he would not
disclose the contents of the object since he was not under arrest.
At this time the
suspe~t
was again
tol~
that he would be taken
to the stanford Police Department because of the crowd.
suspect then gave the officers the ,b.agand said:
..
Six lids of marijuana."
.'
I~~ '
"
The
"Here it is.
~
,I ' .
He was arrested for possession of
marijuana.
The prosecution never contended that there was probable cause
for an arrest before the marijuana ~ was handed to the officers.
The
,
'Court of Appeal said that:
The question before us then , is whether the police conduct up
,to that point was within their "legitimate investigative sphere'?"
, Id.
24
Terry was cited by the court after the above statement.
The Court of Appeal said that the fact that the, suspect
was
,
dressed unusually, that he was a stranger in the · neighborhood, and '
that he turned his head when he saw the officer allowed the officer
to make a stop for ,investigation purposes.
The court said that
the suspect's voluntary statement that he had been arrested for
,
'
.
carrying a pistol plus the bulge/Under'his
jacket entitled . the
.,
,
officer to make a search for we~pons under the author'ity of' Terry.
The court also felt that it'was proper to start to take the suspect
,
'
I
to the university police station for inve'stigation purposes even though
there was no probable cause to arresti The court said that the possibly
f.
•
•
•
hostile crowd made it reasona~le under'the ' Fourth ,Amendment to take
<
the suspect to the station.
Terry was cited by the Court of Appeal alone with several
California cases as authority for the
Terry the stop was not
~t;
f}C
.
I feel that under
The facts which were given as
the cause of the stop , boil down to: (l)unus:ual dress', (2) stranger,
) .J;oPl
~ ,
/jus~ified,
s~op.
high
crime area, and . (4) turQed,his head.
,
These facts do not
,
.
approach raising a suspicion ofpossihle criminal activity as did
the facts in Terry.
Before the stop, the officer had absolutely
no. idea that the suspect was armed <!Ir dangerous,
The officer was
actually acting orl a hunch. '
Was it reasonable to take the suspect to the university P?lice
station to continue the investigat-iol;l?: ... AS~S':'--f---=,--t....h,...e_stop was proper,
' co.u ldit be contended that taki~~~e sus
~he
station would
II ~ ,... "" j, -.n.. /?~i:r,-,..,-"
25
not constitute an arrest?
Terry talks about a brief detention with
,
.
the least possible intrusion upon the rights of the citizen.'
Takin~
a suspect to the police sta~ion for investigation is more than a
brief detention.
individual.
It isa major intrusion upon the sanctity of the
I feel that Justice Douglas" s opinion : in his dissent
"
in Terry is appropriate to this case :
,
He stated:
Yet if the indiv idual is nO ,:longer to be sovereign, if
the police can pick him up whenever they do not like
the cut of his jib, i ,f they can .. seize" and search him
in their discretion, we enter a new regime. The decision
to enter it should be m,a de only. after a full debate ,by
the people of , this county.
Ter~y, supra, at 39.
Conclusion
. Terry dealt with a fact
situation in which it was easy for
,
the police officer to make a
~etermination
that criminal activity
,
might be developing.
/,J '- o",J<,,;,0'11'
Terry alsa dealt with a possible violate
crime.
In my opinion the court did not set out standards fOF
"
,
,
,
dealing with investigative stops except under the narrow fact
'
situation of Terry.
Chief' Justice WaJ;ren stated:
We t hus decide nothing today, concerning the constitutional propriety of an' investigativ e "seizure" upon
less than probable cause for purposes of "detention"
and/or interrogation. Terry, supra note at 19.
Thus, the lower courts have been left to themselves to a great
degree to determine the reasonableness of the stop under , the circumstances of each case.
As evidenced by the cases which have
previously been discussed, some of the courts have made a liberal
interpretation of the court I s reason'ing In .Terry.
;In my', opinion
'-I '
.
26
Terry is sometimes being cited as authority for exploratory searches.
Investigative stops should be strictly limited to' those, situations
in which ' the officer has facts which ,would make a reasonable man
believe th~t the suspect is a~med ~nd dangerous.
Even if the stop
~.I'
and frisk i-s lawfuL only weapons shoul?
\ I'
J?~._C!-_<;!~ttl!!d
as 'evidence.
..
~--.::.:~ ~~~;:.,-~=~.~~~7~:O:~_ '--:::::;:;:'=='h,~~." " '~"
",.,"
Such rules wO~ld remove most of the tnc'entivEi -·for--the ., .p~iI~~·~~ :·con-
"
TA.d l
·
" '''.
duct exploratory searches "for cor:(traband. I believe , such rules would
,
,If "
result in a proper application
the balancing
test. Society and
,
ol
.
officer would be protected
'
,
the police
from possible violence" and
,
the rights of the citizen to be free ,from unreasonable intrusions
upon the sanctity of hi'S ,person would be ;pr(!)tected.