JUDGING CRIMES

Terry v. Ohio might be both the most influential and least-understood of the Warren Court criminal procedure extravaganzas.  It came very late in the day, just a year before the Super Chief's retirement.  The facts of the case were simple enough: a cop saw some people casing a jewelry store, so he rousted them and found that one of them, Mr. Terry, a convicted felon, was packing heat.  (See post 314.)

Terry was charged with being a felon in possession of a firearm.  His defense wasn't that he was innocent, but rather that Officer McFadden shouldn't have been allowed to find out he was guilty.

The Ohio Court of Appeals didn't buy that argument.  Its analysis was pretty simple.  The fourth amendment regulates searches and seizures.  Under longstanding law, "seizure" meant "arrest."  Terry wasn't arrested when McFadden began talking to him.  He was arrested only later, after the officer found the gun, and the gun was proof of Terry's guilt.  So there wasn't any illegal seizure.

Moreover, once you accept the general principle that police officers have the right to talk to people, it's only a tiny little step to the principle that they can disarm the people they're talking to.  If an angry man is running around the neighborhood with no shirt on, screaming at the top of his lungs while waving an AK-47, can the police take the gun from him before inquiring what's eating him? 

If so, it must be because of the threat the person poses: officers have the right to talk to people without supplying illustrations for a forensic pathologist's article about stippling.   And, if so, then they must have that right even if the gun in question is a pearl-handled derringer concealed in the breast pocket of the suspect's elegantly-retro Brooks Brothers suit.  Where the gun is located prior to the cop-shooting can't be the decisive factor - by the time the gun is in the open, in the suspect's hand, it's too late. 

The rest of us can avoid talking to dangerous people.  The government requires police officers to talk to them as a condition of employment, often on the express orders of a judge (in the form of a warrant).  For the same government, acting through those same judges, to deny police officers the authority to disarm the people they're talking to would be the same as giving people the right to shoot cops, provided they're prepared either to pay the price afterward or take their chances at getting away.

(And if you find yourself internally debating whether that's a good approach, striking the proper balance between individual liberty and the state's "interests in pursuing legitimate law enforcement objectives" in rather the same way we allow the media to print whatever they want so long as they're prepared to pay damages later, then strike the word "cops" from that last sentence and substitute "you, personally, and your children."  Try saying it out loud, your honor.  See if it feels any different.)

The Ohio court told its readers that "police officers seem unanimous in stating that ‘frisking’ is done for self-protection and not as a mere evidentiary ‘fishing expedition.’" [ 214 N.E.2d 114]  That, the court thought, was the key point.  A frisk, by the court's definition, wasn't a search for something.  It was self-protection.   Accordingly, the court concluded, permitting the guilty Mr. Terry to be found guilty "by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest."  

In short: because a frisk isn't a search, it can't be an illegal search.  No seizure, no search, no fourth amendment issue.

Terry v. Ohio presented a long sequence of problems for the U.S. Supreme Court.  As in accounts of military campaigns, we're so familiar with the result that we find it hard to appreciate that there were numerous turning points.  The result wasn't inevitable. 

After all, with better weather, Suleyman could have dragged his artillery up to the walls of Vienna.  Nothing but a fine disdain for reality prevented Napoleon from holding off on invading Russia.  The pickets might have recognized Stonewall Jackson before firing, or at least missed, allowing the South to win the Civil War on the battlefield instead of having to suffer through a 31-year self-siege before the Supreme Court finally issued the North's unconditional surrender in the guise of a constitutional ruling.

And the Supreme Court could have decided Terry differently.  There were any number of possible pivot points.  This was the first: 

1.  Does the Constitution give the justices (and their deputies, the lower federal judges) authority to tell city police officers how they must conduct themselves while on duty?

This was, constitutionally, the most momentous question, but for the swinging justices of the go-go years it was also the easiest to answer.   All those who were in the habit of reading this blog in the spring of 1968 (unfortunately they hadn't invented hyperlinks yet) knew exactly what to expect: the Supreme Court was nearly certain to rule in the way that did the most to increase its own power and that of judges, especially federal judges.  (See post 250 and post 275.)  So the answer to question 1 was "you betcha."

2.  Okay, then tell me this: how were federal judges - there were just 342 federal district judges in 1968, after all - supposed to ensure their instructions were obeyed by, or even communicated to, the local cop on the beat?

For law professors today, that's an easy question to answer: 1961's Mapp v. Ohio, also a Cleveland case, decreed that state courts had no choice but to adopt the federal rule of procedure that required concealing evidence from the jury, if the evidence was discovered in violation of the fourth amendment.  (Mr. Terry wasn't being ridiculous with his defense that Office McFadden should have been prevented from discovering his guilt.)  So therefore, the professor would tell you (in considerably more words than this), the state courts had no choice in the matter.

But that conventional answer just refines the question without answering it.  How were federal judges supposed to ensure that state judges enforced Mapp v. Ohio, in whatever new permutations it acquired or discarded?

The basic concept of Mapp v. Ohio is that criminal convictions are to police officers what fish are to trained seals.  You give the cop his conviction to reward him for balancing the ball on his nose.  If he violates the fourth amendment, no fish.  If the judge is consistent, the cop eventually gets the idea.

When Chief Justice Warren ordered his clerks to draft the Terry opinion, he and they had seven years of experience to reflect upon, and that was enough time for reality to pluck up courage to voice its complaints against doctrine.  In words that get too little attention today, Warren's opinion acknowledged reality's lack of cooperation:

Regardless of how effective the [judge-made, post-1961 exclusionary] rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

If the cop is a racist bully who only wants to harass someone, then the stop and search is itself the goal.  Discovery of contraband is just lagniappe.  Similarly, a cop who supplements his income by shaking down drug dealers  has no interest in seeing the cooperative among them go to prison.  Quite the contrary. 

The Mapp v. Ohio judge-made exclusionary rule performed its magic only on the good cops, the earnest and sincere ones, the ones who didn't need reining in.  The more Ellroyish the cop - the more likely he was to be portrayed by Russell Crowe in the movie version of his life - the less vulnerable he was to the berobed seal trainer's withholding of the conviction.

And, most to the point, an officer who genuinely fears for his or her own safety but is dissuaded from patting down a squirrelly suspect because of worry about what some judge is going to think six months from now is all-too likely to have his or her ID photo posted on this page. 

In my view, preservation of an officer's life is a higher priority than prosecuting any bad guy, and far worthier of respect than any judge's pronouncement on any topic whatsoever.  So the possibility that evidence might be suppressed should never be a reason for a cop to forego a pat-down. 

But even if you disagree with me on that -  we can agree to disagree, can't we, judge? - you can see that many a cop will, in the heat of the moment, be strongly tempted to line up on my side of the issue regardless of the risk of learning at second hand some months down the road that some judge has written severely disapproving words in an unpublished suppression order that the cop will never actually read.

What's fascinating about Terry, though, is that Warren acknowledged the judge-made exclusionary rule's built-in ineffectiveness as a tool for disciplining bad cops (he described the "wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain") even while expanding its use. 

That sounds like a paradox, or at least an irony, but it wasn't.  It was the corner into which the Supreme Court had painted itself.

In sum, the law professor is right.  The answer to # 2 is: The Supreme Court said so.  End of discussion.

More anon.