On the afternoon of Oct. 31, 1963, Cleveland Det. Martin McFadden, in plainclothes and on the lookout downtown for pickpockets, notices two black men across Huron Road — John W. Terry and Richard Chilton — taking turns stepping across the storefronts of a jewelry store and an airline ticket office.
The men appear to be measuring distances with outstretched arms, each repeating the procedure three or four times. When they leave, McFadden follows the men around the corner to Euclid Avenue where they join Carl Katz, who is white.
McFadden catches up to the trio in front of a men’s clothing store.
What happens next will change policing in America forever.
Few things are more unnerving for the average citizen, especially an African-American or Latino, than being stopped on the street or pulled over in a car by a law enforcement officer.
But what many Americans don’t know is that there is established law for procedures that protect their Fourth Amendment right to be left alone while also protecting the safety of police officers and the public.
It’s a legal balancing act that goes back to that afternoon in Cleveland more than 50 years ago when McFadden decided he had reasons to stop and frisk Terry, Chilton, and Katz. His action triggered a lawsuit — Terry v. Ohio — ultimately settled by the U.S. Supreme Court in 1967. The Terry case is still at the heart of the nation’s debate over when and to what extent police can detain, frisk, and search citizens suspected of a crime or the likelihood of committing one.
The downtown Cleveland location of John W. Terry and Richard Chilton on Oct. 31, 1963 when Det. Martin McFadden noticed the two men stepping off distances in front of a jewelry store and an airline ticket office.
McFadden arrested Terry and Chilton after finding guns in their suitcoats. They were charged with carrying concealed weapons. But did McFadden target the men because they were black? Or did he have sufficient evidence that they were going to commit a crime, as required under the Fourth Amendment of the U.S. Constitution?
The Supreme Court ruled in favor of McFadden and all police, but with certain limits. Critics say the ruling opened the door to racial profiling and harassment of minority communities. But those problems were even worse before Terry v. Ohio because the harassment “was invisible,” says Joshua Dressler, a professor emeritus at Ohio State University’s Moritz College of Law. “Before that (ruling), there were no constitutional limitations on when police could stop individuals or when they could frisk them for weapons.”
Terry v. Ohio requires police to have more than just a “hunch” that a crime is afoot in order to stop a citizen. They must be able to point to specific facts that support a “reasonable suspicion” of criminal activity. To go on to the next step — “frisking,” or patting down a person’s clothing for a weapon — police must also have a “reasonable suspicion” that the citizen is armed, again based on specific facts. Race is not one of them.
Legal experts say the current law on stop and frisk will continue to evolve to answer its critics as new lawsuits work their way up through the local and state court systems to the U.S. Supreme Court, where decisions become the law of the land.
In the meantime, experts say, the best and safest response for any citizen, whether they believe they have been stopped unfairly or not, is to cooperate with police as much as possible. “Even though you have the right to ask for the reason (you’re being stopped or frisked), the police ultimately have the gun and the power,” Dressler says.
In communities where minorities feel they have been unfairly targeted because of their race, class action suits representing all of those harmed can be brought against police. Individual cases of racial profiling, however, seldom make it to court because the damages awarded wouldn’t justify the legal costs, says Ric L. Simmons, a professor at OSU’s Moritz College of Law. “For a brief (police) detention, a lawsuit would probably get you a couple of hundred dollars at most.”
Keep in mind, too, that the police have a right to stop a citizen for any infraction of the law that they observe, no matter how minor, Simmons says. That can be anything from jaywalking or littering to a broken tail light on your car or speeding.
The determining factor for judges in any stop and frisk is how closely the police adhere to the guidelines first laid down by the Supreme Court in Terry v. Ohio. The list of supporting facts for a stop and frisk varies from case to case. But common examples include information provided by an informant, the location of the suspect in a high-crime area or known site of criminal activity, a matching description to someone who has been involved in a crime, or the suspect’s attempt to flee or evade the police.
Fifty years ago, McFadden argued that he had suspected Terry and Chilton were casing the stores on Huron Road for a stick-up. But Louis B. Stokes, a black defense attorney who later served 15 terms as a U.S. Congressman from Cleveland, argued that the men’s behavior was not “probable cause” under the Fourth Amendment for a search. Although the term is hard to quantify, “probable cause” means that there is close to a 50-50 or greater chance that a person was involved in criminal activity.
Stokes reasoned further that, since McFadden had illegally frisked the men, the guns he found must be excluded as court evidence and the charges dropped. The so-called “exclusionary rule” went back to an earlier landmark case in Cleveland decided by the U.S. Supreme Court in 1961 — Mapp v. Ohio.
In that case, Cleveland police arrived at the apartment of Dollree Mapp with a fake search warrant after receiving an anonymous tip that they would find illegal betting slips and equipment belonging to her boyfriend. A police search found the betting paraphernalia, plus a pistol and a small number of pornographic books and pictures that Mapp says were left behind by a previous tenant.
Mapp was cleared on the misdemeanor charge of possessing betting slips. But when she refused to testify against Cleveland rackets kingpin Shon Birns, she was charged with possession of pornographic material and convicted in a 1958 trial. The U.S. Supreme Court reversed the conviction because the material had been illegally collected without a search warrant. The “exclusionary rule” was born.
The Fourth Amendment’s protection against unreasonable government search and seizure is part of the Bill of Rights approved in 1791. Our Founding Fathers wanted to spare Americans the kind of blanket searches conducted by British soldiers looking for weapons during the American Revolution.
In Terry v. Ohio, Stokes argued that McFadden would not have stopped Terry and Chilton if they hadn’t been black and, therefore, the guns obtained during the illegal search could not be used as evidence against them. Stokes lost his case in both the trial court and on appeal but took it finally to the U.S. Supreme Court.
In a surprise ruling from perhaps the most liberal Supreme Court in U.S. history — headed by Chief Justice Earl Warren — eight of the nine justices sided with police and set a less restrictive standard to justify a stop and frisk — a “reasonable suspicion” that a crime is afoot. However, to search suspects or their property for evidence other than a weapon still requires the higher standard of “probable cause.”
The court’s ruling was influenced by the times. In the 1960s, with crime, guns, and civil unrest in America on the rise, the justices were fearful for both public safety and police. In 1956, 108 police officers had died in the line of duty. By 1967, the number had nearly doubled to 194.
Among the supporting facts that police can cite for “reasonable suspicion” is a person’s presence in a high-crime neighborhood. Critics of Terry v. Ohio say that has led to the harassment of minorities and minority communities, which have higher rates of both poverty and crime.
In 2008, a group of minority citizens in New York City filed a class action suit, Floyd v. City of New York, against the city and its police department for a stop-and-frisk program that they argued often targeted blacks and Hispanics without reasonable suspicion. In 2011 alone, New York police stopped 685,000 citizens, the vast majority of them minorities.
A New York federal judge in 2013 agreed with the plaintiffs, finding that the police department had resorted to a “policy of indirect racial profiling” that routinely stopped “blacks and Hispanics who would not have been stopped if they were white.”
Studies show that, even though minorities are stopped and frisked at a higher rate than whites, they have about the same likelihood of concealing a weapon, or about 2 percent of those frisked, says Ryan King, associate director of the Criminal Justice Research Center at OSU.
The State of New Jersey now requires all police departments to document an officer’s reasons for conducting a stop, the outcome of the stop, and the race of the suspect. Ohio does not, but at least one police agency, Cleveland’s, keeps such records voluntarily.
Simmons says all agencies should do so to “ensure that police are following the law when they carry out these searches.”
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