Thu. Apr 11th, 2024

Terry v. Ohio

Amdt4.5.5.1 Terry Stop and Frisks Doctrine and Practice

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While arrests are subject to Fourth Amendment requirements, courts have followed the common law in upholding the authority of police officers to take a person into custody without a warrant if they have probable cause to believe the person has committed a felony or a misdemeanor in their presence.1 Probable cause must be satisfied by conditions existing prior to the arrest and cannot be established retroactively.2 There are, however, instances when a person’s conduct or manner arouse a police officer’s suspicions, but probable cause to arrest such a person is lacking.3 In its 1968 Terry v. Ohio decision,4 the Court, with only Justice William O. Douglas dissenting, approved a police officer’s on-the-street investigation that involved patting down the subject of the investigation for weapons.

Terry arose when a police officer observed three individuals engaging in conduct that appeared to him, on the basis of training and experience, to be casing a store for a likely armed robbery. Upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men, patted the exterior of his clothes, and discovered a gun. For the Court, Chief Justice Earl Warren wrote that the Fourth Amendment applies whenever a police officer accosts an individual and restrains his freedom to walk away.5 Because the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice considered whether the policeman’s actions were reasonable. The Chief Justice reasoned that the test of reasonableness in this sort of situation is whether the police officer can point to specific and articulable facts which, taken together with rational inferences from those facts would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a frisk was required.6 Because the police officer witnessed conduct that reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a frisk. Because the object of a frisk is to discover dangerous weapons, it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.7

In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, plain touch reveals the presence of the object, and the officer has probable cause to believe it is contraband.8 The Court viewed the situation as analogous to that covered by the plain view doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.9 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.10

Terry did not address the grounds that could permissibly lead an officer to stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. The Court provided a partial answer in its 2004 decision, Hiibel v. Sixth Judical District Court, when it upheld a state law that required a suspect to disclose his name in the course of a valid Terry stop.11 Questions about a suspect’s identity are a routine and accepted part of many Terry stops, the Court explained.12

After Terry, the standard for stops for investigative purposes evolved into one of reasonable suspicion of criminal activity. That test permits some stops and questioning without probable cause in order to allow police officers to explore the foundations of their suspicions.13 Although it did not elaborate a set of rules to govern applying the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.14 The Court invalidated extensive intrusions on individual privacy, for example, transporting a person to the station house for interrogation and fingerprinting, absent probable cause,15 and the Court has held that an uncorroborated, anonymous tip is an insufficient basis for a Terry stop and that there is no firearms exception to the reasonable suspicion requirement.16 Since the 1980s, however, the Court has taken less restrictive approaches.17

The Court’s approach for when a seizure has occurred for Fourth Amendment purposes has evolved. The Terry Court recognized in dictum that not all personal intercourse between policemen and citizens involves ‘seizures’ of persons, and suggested that [o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.18 In the 1980 United States v. Mendenhall decision, Justice Potter Stewart, joined by Justice William Rehnquist, proposed a similar standard—that a person has been seized only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.19 A majority of the Justices subsequently endorsed this reasonable perception standard20 and applied it in several later cases in which the admissibility of evidence turned on whether police actions prior to uncovering evidence violated the Fourth Amendment. No seizure occurred, for example, when Immigration and Naturalization Service (INS) agents seeking to identify unlawfully present aliens conducted workforce surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.21 The Court held this brief questioning, even with blocked exits, amounted to classic consensual encounters rather than Fourth Amendment seizures.22 The Court has also ruled that no seizure occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, flashing lights, display of a weapon, or blocking of the suspect’s path), the Court concluded the police conduct would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one’s] freedom of movement.23

The Court later ruled that the Mendenhall free-to-leave inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed.24 In conducting a bus sweep aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and at times, the luggage of selected passengers. The Court did not focus on whether an arrest had taken place, but instead suggested that the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.25 When the person is seated on a bus and has no desire to leave, the Court explained, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.26

The Supreme Court’s analysis of seizure, however, is different in the context of fleeing suspects, where the Court seemingly applies a more formalistic approach than the Mendenhall reasonable-perception standard. In Brower v. County of Inyo, the Supreme Court concluded that a seizure occurred when a suspect’s car collided with a police roadblock, and explained that a [v]iolation of the Fourth Amendment requires an intentional acquisition of physical control.27 The Court reasoned that such a use of force becomes a seizure only when there is a governmental termination of freedom of movement through means intentionally applied.28 The Court seemingly modified that standard in California v. Hodari D., another Fourth Amendment case involving a fleeing suspect.29 In Hodari D., the Court held that an actual chase with evident intent to capture did not amount to a seizure because the suspect had not complied with the officer’s order to halt. The Court reasoned that Mendenhall stated a necessary but not a sufficient condition for a seizure of the person is through a show of authority.30 A Fourth Amendment seizure of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands) or submission to the assertion of authority.31 Three decades after Hodari D., the Court revisited the nature of seizure in the context of a fleeing suspect in its 2021 Torres v. Madrid decision.32 In Torres, the Court held that a suspect was seized when struck twice by bullets fired by law enforcement, even though she temporarily evaded capture.33 The Court reasoned that the application of physical force to the body of a person with intent to restrain is a seizure within the meaning of the Fourth Amendment, even if the force does not succeed in subduing the person.34 According to the Court, such a seizure lasts only as long as the application of force.35 Thus, in Torres, officers seized the suspect the instant that the bullets struck her.36 The Court clarified that, unlike seizure by application of force, seizure by show of authority still requires either voluntary submission or termination of freedom of movement.37


  1.  Jump to essay-1See United States v. Montoya de Hernandez473 U.S. 531, 538 (1985) (recognizing Congress’ power to protect the Nation by stopping and examining persons entering this country); United States v. 12,200-Foot Reels of Super 8mm. Film413 U.S. 123, 125 (1973) (The Constitution gives Congress broad, comprehensive powers ‘(t)o regulate Commerce with foreign Nations.’) (quoting U.S. Const. art. I, § 8, cl. 3)).
  2.  Jump to essay-2See United States v. Ramsey431 U.S. 606, 616 (1977) (noting that Congress enacted the first customs statute in 1789).
  3.  Jump to essay-3Almeida-Sanchez v. United States413 U.S. 266, 272 (1973)United States v. Thirty-Seven Photographs402 U.S. 363, 376 (1971)Carroll v. United States267 U.S. 132, 154 (1925).
  4.  Jump to essay-412,200-Foot Reels of Super 8mm. Film413 U.S. at 125 (Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry.).
  5.  Jump to essay-5See Riley v. California134 S. Ct. 2473, 2482 (2014) (Such a warrant ensures that the inferences to support a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’) (quoting Johnson v. United States333 U.S. 10, 14 (1948)); Kentucky v. King563 U.S. 452, 459 (2011) (Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured.).
  6.  Jump to essay-6See United States v. Knights534 U.S. 112, 118–19 (2001) (The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’) (quoting Wyoming v. Houghton526 U.S. 295, 300 (1999)).
  7.  Jump to essay-7King563 U.S. at 459 ([B]ecause ‘the ultimate touchstone of the Fourth Amendment is reasonableness’. . . [t]he warrant requirement is subject to certain reasonable exceptions.) (quoting Brigham City, Utah v. Stuart547 U.S. 398, 403 (2006)); Texas v. Brown460 U.S. 730, 735 (1983) (Our cases hold that procedure by way of a warrant is preferred, although in a wide range of diverse situations we have recognized flexible, common-sense exceptions to this requirement.).







The Law, Field Examples and Analysis
Steven L. Argiriou
Senior Legal Instructor



In the next two editions of the “Quarterly Review,” a comprehensive look at the law of “stop and frisk” will be presented. This edition will focus exclusively on various
aspects of a Terry stop. The next edition will continue with an analysis of various aspects of a Terry frisk.

The Terry Stop (also known as an “Investigative Detention” or “Stop and Frisk”) is the authority to conduct an
investigative detention and frisk of acriminal suspect. It is arguably the most significant piece of case law evolution
supporting officer safety and proactive patrol and investigation in the twentieth century. When properly applied, it
permits law enforcement officers and agents to interdict a crime before it occurs and allows them to protect themselves
from a potentially deadly assault in the process. While this body of law traces its roots to the 1968 Supreme Court case of
Terry v. Ohio,

1 there have been several noteworthy developments in this body of law over the last forty years, several in the
year 2000 alone. This article is intended to serve as a brief overview of the current state of the law for easy reference by
Federal law enforcement officers – uniformed police or special agent. THE PURPOSE OF A TERRY STOP
The purpose of a Terry stop is to conduct a brief investigation to confirm or deny that  the suspect is involved in criminal activity.

2 A law enforcement officer may initiate a Terry stop when he or she suspects that an individual is committing, has committed, or is
about to commit a crime, but probable cause does not yet exist to arrest and the officer wants to “stop” the suspect and investigate.
If, during the stop, probable cause to arrest is developed, the suspect will be arrested. If probable cause is not developed, the suspect is
released. Lawful Terry stops can also be used to develop important criminal intelligence. If officers are documenting their Terry stops, a
file of persons stopped, their descriptions, names, addresses, locations they frequent, etc., can be compiled. For many years, the New
York City Police Department would refer to precinct-level “Stop and Frisk Cards” completed by an officer during Terry stops
when they were looking for leads on unsolved, major crimes in the area. Often, a victim’s general description of an assailant would
match that of a suspect stopped three or four times in the recent past in the same general area by precinct cops for suspicion of
“prerobbery” activities. In many cases, these documented Terry stops led to photo lineups,fingerprint runs, voluntary contacts,
submission to police questioning, etc., that eventually solved the “open” crimes.” THE “ROLLING” TERRY STOP Law enforcement officers
should remember that, just as a person may be subjected to a lawful Terry stop while walking down the street, so too can a moving auto
be pulled over (forcibly – via use of emergency lights and siren) if valid reasonable suspicion exists to support the stop.

3 Both uniformed and plainclothes personnel can employ this concept.
Field Example: A patrol officer on Highway #37 within the city limits of
Noblesville, Indiana hears a police radio dispatch broadcast a “be-on-the-lookout (BOLO)” for an “armed robbery / shots fired” – that just fled a
shopping mall six miles away. The suspect and vehicle are described as follows:
Perpetrator: Approximately 30 year old white male with blond hair Armed: Displayed a large silver revolver – shots fired
Vehicle: Fleeing the scene in a white, medium-sized, four-door sedan with Indiana passenger plates starting with the numbers “29”

Direction: Vehicle was last seen traveling north on Highway 37 past Fishers, Indiana heading towards Noblesville, Indiana
Time: Two – four minutes in the past Victim: One victim shot and likely to die Witnesses: Several witnesses on the scene.
About two minutes after hearing the radio broadcast, the patrol officer spots a 1994, white, Chrysler Concord four-door sedan
driven by what appears to be a white male, approximately 25 – 35 years old. The vehicle is driving Northbound on Highway #37,
through the city of Noblesville going the speed limit and committing no moving violations. As the officer pulls up behind the car,
he notices it bears Indiana passenger plates “29 N 1109.” The officer calls for backup units and initiates a highrisk felony
“Rolling Terry Stop” on the suspect vehicle. The driver stops without incident and the officer cautiously approaches.

The officer directs the driver out of the vehicle and immediately performs a frisk. A stainless steel .357 caliber, four-inch
revolver with full “lug” barrel is found in the driver’s waistband. The suspect is secured and asked if he has a permit for the
concealed weapon (required in Indiana). In response, the suspect says, “Yes, but it’s at home.” A check of the State Police
handgun permit data-base reveals no such permit. The suspect is arrested and later identified as the gunman.

Variation A: After the stop, the driver fully cooperates, no gun is found during the frisk, but, while the officers are checking the|
driver’s license and registration, a witness is driven approximately 8 miles to where the car has been stopped and identifies the driver as
the gunman. The suspect is then arrested.

Analysis: In this case, the officers did not have probable cause to arrest the suspect when the vehicle was spotted and could not even be
certain the driver was involved due to the general nature of the description. While probable cause to arrest did not exist,
“reasonable suspicion” (see the following sections for a detailed definition) that the driver may have been involved in the recent
armed robbery, due to the time, location, direction of travel, proximity to crime and matching of the general description. Once
lawful “reasonable suspicion” is established, the Terry stop may be executed on a moving vehicle, as well as on a pedestrian.


  1. Defined. A Terry stop is defined as “a brief, temporary involuntary detention of a person suspected of being involved in criminal
    activity for the purpose of investigating the potential criminal violation. 4 In order to lawfully conduct a Terry stop, a law
    enforcement officer must have “reasonable suspicion,” which has been defined as “articulable 5 facts that would lead a
    reasonable officer to conclude that criminal activity is afoot. More than an unsupported hunch but less than probable
    cause and even less than a preponderance of the evidence.”6
  2. Levels of Suspicion. To help understand just what “reasonable
    suspicion” is, it may be helpful to review other standards of proof that most impact a law enforcement officer.
       a. Mere Suspicion: A “gut” hunch that criminal activity is afoot. There are no “facts” a law enforcement officer can use
    to explain or justify his or her “feeling.” This standard will legally justify a voluntary stop only.7
       b. Reasonable Suspicion: See Section 1, above. c. Probable Cause: Probable cause
    means reasonable grounds to believe that a crime has been committed and that a particular suspect has committed it. This
    level of suspicion will justify an arrest (either a field arrest of an arrest via a warrant).
     d. Proof Beyond a Reasonable Doubt: This is the level of suspicion required for a criminal conviction. This phrase is described differently by different courts. One common reference regarding proof beyond a reasonable doubt is “to a moral certainty.”
  3. Factors Supporting Reasonable Suspicion to Conduct a Terry Stop. In order to support a Terry stop based upon reasonable suspicion, courts have looked at a number of different factors. Some of those factors are listed below. Often, more than one factor must be present to justify a stop, but this is not always the case.
    • a. Hour of the Day: Actions that are unusual for the hour of the day may indicate possible criminal activity, and can be used to support a Terry stop.
      Field Example: Law enforcement officers observe a van loading and unloading furniture and equipment out of a restaurant at 3:30 a.m., a time when
      the restaurant is normally closed. Possible Crime – Burglary.
    • b. Unusual Presence: Presence in a location that is unusual for the time of day may indicate possible criminal activity.
      Field Example: A person that a patrol officer does not recognize is seen in a government employee parking lot at 4:30 a.m., when the
      building is closed to the public and no night shifts are on-duty (other than police and maintenance). Possible Crime – Theft From An Auto.
    • c. High Crime Area: If an area has a documented history of being located in a “high crime area,” what might otherwise be considered
      “innocent conduct” may form the basis for reasonable suspicion to stop and investigate.
      Field Example: In an area known for illegal drugs sales (over 60 illegal drug sale arrests over the last three months), a law enforcement
      officer observes a person standing on a corner approach three different cars that drive up, stop, and exchange what appears to be currency for
      small plastic bags within a fifteen minute period.
      Possible Crime – Illegal Sale of Drugs.
    • d. Unusual Dress: Dress or apparel that is unusual for the area or weather can be indicative of possible criminal activity.
      Field Example: It’s August, the temperature is 96 degrees Fahrenheit, with a humidity factor of over 90 percent. A uniformed
      Federal police officer observes a person walk in to a Federal building wearing the following: A full-length, thick, down parka and a military “web
      gear” type belt, with a canteen / canteen cover, first aid pouch, what appear to be ammunition magazine carriers and a bayonet sheath without
      the bayonet in place, plus a World War II era German Army helmet on his head.
      Possible Crime – Possession of a Weapon.
    • e. Unusual Actions: Actions that are unusual and suspicious may indicate possible criminal activity and can be used as a factor to justify a Terry stop.
      Field Example: A person walks into a Federal Building and begins to scream at everyone who walks by, “Leave me alone!
      Don’t take me away! Don’t shoot me!” Possible Crime – Disorderly Conduct.
    • f. Smell: When a law enforcement officer detects odors that may indicate criminal activity, a Terry stop may be justified.
      Field Example: An officer talking to a motorist who requested directions smells what he or she thinks is marijuana emanating
      from the inside of the vehicle.
      Possible Crime – Possession of Marijuana.
    • g. Sounds: Sounds that are unusual and indicate possible criminal activity.
      Field Example: While walking past a fullsized van parked next to a large Federal building, a uniformed officer hears what she thinks
      is the sound of a semi-automatic rifle being charged (the slide being pulled back and released to load the weapon and prepare to fire).
      Possible Crime
      – Assault on Federal Employee / Possession of an Illegal Weapon
    • h. Information from Witnesses: Credible
      information from reliable witnesses that a crime may be in progress.
      Field Example: A Federal employee the officer / agent knows and a person the officer / agent does not know stop the law enforcement
      officer in a Federal building and point out a person waiting for the elevator and explain he just displayed a silver handgun and shouted:
      “Now I’ll show them.”
      Possible Crime – Illegal Possession of a Weapon / Assault on Federal Employee
    • i. Personal Knowledge of a Suspect:
      Information an officer / agent has acquired from personal contact in the past with a suspect indicating criminal activity may support a “stop.”
      Field Example: An officer / agent has arrested a suspect three times in the past two years for disorderly conduct in a Federal building.
      Each time, the suspect has been armed with a twelve-inch bayonet in violation of Federal law.
      The officer / agent sees the person walk toward the officer / agent in a peaceful manner while both are inside a federal building.
      Possible Crime – Illegal Possession of a Weapon
    • j. Statements by a Suspect:
      Things that a suspect says may support a stop if it indicates criminal activity.
      Field Example: During a car stop (or voluntary contact) with a citizen, within the jurisdiction of Washington D.C.
      (where it is rare for a citizen to have a valid concealed handgun permit), the citizen says to the officer / agent :
      “Hey, Ibet my 9 millimeter is bigger than yours!”Possible Crime – Illegal Possession of a Weapon / Assault on a Federal Employee Duration of the Stop: A suspect may be
      detained in connection with a Terry stop for as long a period as is “reasonable” to conduct a diligent field investigation.
      If a suspect is detained too long without obtaining probable cause to arrest, a possible civil judgment for unlawful detention is possible.
      This issue will be decided on a case-by-case review. A common “field rule” used by many law enforcement agencies across the nation is the “20 minute rule.”see 8 However, officers must understand that, depending on the facts and circumstances of each case, twenty minutes may be found to be
      excessive, while twelve hours may be deemed reasonable.
      see 9 One factor impacting on the lawful duration of a Terry stop is any delay caused by the actions of the suspect,
      such as lying to an officer who is attempting to corroborate a suspicious story (e.g., when a suspect claims to have borrowed the car from a
      relative, but cannot provide a complete name or address of the relative). However, delays caused solely by police conduct
      (such as waiting 90 minutes for a drug detection dog to arrive from across town for a “walk by”) are usually held against the police and will
      not justify delaying a suspect on a Terry stop. see 10



see below #1-#10

1 Terry v. Ohio, 392 U.S. 1 (1968)

2 Id. 
3 US v. Cortez, 449 U.S. 411 (1981) 

4 Terry, 392 U.S. at 30 ( “…an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, 
articulable suspicion that criminal activity is afoot …a police officer may in appropriate circumstances and in an appropriate manner approach a person 
for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest.”)

5 Articulable means able to explain in words. 

6 U.S. v. Sokolow, 490 U.S. 1 (1989) 

7 Also known as the Common Law Right of Inquiry. Permits an officer or agent to engage any citizen in a purely voluntary conversation (i.e.
“May I speak with you a moment? Do you need any help? How long have you been here?”). In these cases, a citizen must be free to terminate the
conversation at any time and go his or her way with no restrictions. 
8 Many police agencies have adopted an informal “20 minute rule” on Terry stops. 
Under the 20- minute rule, if after conducting a Terry stop, probable cause to arrest is not developed within twenty minutes, 
the suspect is released. 

9 United States v. Hernandez, 473 U.S. 531 (1985)(the Supreme Court held that reasonable suspicion existed that the suspect had ingested 
drugs and that detaining the suspect 12 hours until the suspected drugs were “passed” was reasonable under the circumstances, 
since the suspect refused to cooperated in any way.) 

10 United States v. Place, 462 U.S. 696 (1983) 

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