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Rene McDonald Hutchins

excerpted from: Rene McDonald Hutchins, Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stop, 16 New York University Journal of Legislation and Public Policy 883 - 917 (2013) (917 Footnotes) (Full Article)



Fourth Amendment rights are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so Rene McDonald Hutchinseffective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.

Terry stops and frisks are now so pervasive that few seriously doubt the ability of the police to stop anyone on any street for virtually any reason. The line between such stops and their attendant protective frisks has become so infinitesimal the two are often presumed to be a single unit. The factors that courts have found to justify "reasonable suspicion" are legion. Remaining in one place for an extended period, standing in the wrong place, walking quickly away, running away, nervousness, and exceptional calmness have all been suggested as potential justifications for an investigatory exchange with the police that the target is not free to ignore.

Prior to 1968, the Supreme Court consistently held that the Fourth Amendment demanded a substantial showing of probable cause before police could meaningfully interfere with liberty or privacy interests. In the social turmoil of the 1960s, however, the Court retreated from that bright line and found instead that interference might be permitted on a lesser showing. The Terry stop and frisk and its intermediate justification, known as "reasonable suspicion," were *885 born. At the time, critics of the Terry doctrine warned that the Court was taking its first step toward the slow erosion of Fourth Amendment rights. Police, Justice Douglas warned in dissent, would now be free to harass virtually without limit the less favored, the less fortunate, and the less protected.

Unfortunately, since Terry, the predictions of the dissent have come to pass. The authority to stop and frisk citizens on nothing more than reasonable suspicion has produced too many examples of police abuses that do not advance legitimate law enforcement goals and that disproportionately impact poor people of color. At its inception, Terry applied "reasonableness balancing" that theoretically protected both the police--by allowing room for safe investigation, and the citizenry--by permitting only the most limited of exchanges. But, the modern application of Terry has stretched the doctrine far beyond its humble beginnings.

The Court's decision in Terry has received considerable scholarly scrutiny regarding its disparate racial impacts as applied. These critiques suggest a variety of fixes. This article adds one more to the array of options. Specifically, I suggest that the fastest and most effective way to remedy at least some of the racial disparity currently seen in Terry stops is to prohibit stops for suspected possessory offenses. If adopted, my proposal would require that the pre-Terry rule be reinstated for such offenses--officers would need probable cause before they could forcibly stop an individual suspected of engaging in a mere possessory offense.

*886 This article proceeds in three parts. First, I examine the creation and subsequent expansion of the Terry doctrine. In the first section, I also consider the ways in which each expansion of Terry took it further from its foundation as a reasonable accommodation to the pressing needs of law enforcement. In the next section, I explore how the Court's post-Terry case-by-case reasonableness balancing has opened the door to stop-and-frisk abuses that are primarily endured by poor people of color. In the third and final section, I propose a remedy to the current state of affairs. As noted above, I recommend that we stop further extension of Terry by walking away from the Court's current articulation of the doctrine. As Justice Brennan once warned, the ongoing expansion of the Terry doctrine is "balancing into oblivion the protections the Fourth Amendment affords." It is time to reevaluate the extant treatment of Terry and return the doctrine to its narrowly delineated origins.

* * *

Every year, the police stop hundreds of thousands of people nationwide because the police are suspicious those individuals may be engaged in criminal activity. The authority to engage in these stops was created by the Supreme Court at a time when the nation confronted a particular moment of violent racial strife. The Court, perceiving *917 a need to give law enforcement greater authority to deal with danger on the streets, loosened the probable cause standard and allowed officers to impinge upon liberty and privacy interests with a degree of misgiving amounting only to reasonable suspicion. At the time this looser standard was created, the dissent warned that it was only a first step toward widespread relaxation of Fourth Amendment standards. In the years after Terry, justices writing in dissent routinely warned that the Terry doctrine was being deployed in a way that reduced constitutional protection. Since Terry, data is increasingly proving that the loosening of constitutional standards is causing substantial harms to people of color nationwide.

The authority to stop and frisk was created in response to "the rapidly unfolding and often dangerous situations on city streets" that police officers face. It strains reason, however, to suggest that a mere possessory offense, where no further wrongdoing is suspected, necessitates the same immediate and flexible police response that a "rapidly unfolding" imminent robbery might. Though far more will be needed to fully address the problem of racial disparities in the criminal justice system, this article joins the existing scholarly discussion to suggest one additional tool that might be used to address the racial impact of just one enforcement policy. Put directly, it is time to "stop" Terry to avoid the further erosion of rights caused by Terry stops.

 Associate Professor of Law, University of Maryland Francis King Carey School of Law.