Business Law Question

BUS-112 – Legal Environment of BusinessCase Brief Instruction
Instructions:
Select a case from the list or pre-approved cases below and submit a case brief of at least 400
and no more than 800 words stating the facts, issue, holding, and court’s reasoning (see case
brief rubric provided). A Case Brief does not need a bibliography/works cited/reference page
or in-text references. Additionally, no other cases or supporting documents and/or works
should be referenced unless they are specifically referenced in the case’s decision AND are
essential for you to explain the decision of the case. Points will be deducted if unnecessary
references are made in your brief. If you do need to cite/reference any other case, it must be
cited correctly; additional points will be deducted for an incorrect citation.
In addition, you must provide the PDF from Westlaw of the case you chose to brief. This is
part of your grade and therefore must be submitted along with your brief in PDF format to
receive full credit for the assignment. Instructions on how to use, view, and create a PDF in
Westlaw has been provided in the assignment and in the content section of D2L.
Your Case Brief must be double spaced, 12pt Times New Roman font, and formatted as
defined in the structure and example document provided. All papers must be submitted on
through D2L no later than the posted due date and time.
List of pre-approved cases that may be chosen:
Chapter 1 (Module 1):
Kuehn v. Pub Zone (2003)
Chapter 3 (Module 2):
International Shoe Co. v. State of Washington (1954)
Ashcroft v. Iqbal (2009)
Jones v. Clinton (1998)
John Doe #1 v. The College Board (2020)
Chapter 4 (Module 3):
Griggs v. Duke Power (1971)
United States v. Biswell (1972)
Federal Communications Commission v. Fox Television Stations, Inc. (2012)
Chapter 5 (Module 4):
Kennedy v. Louisiana (2008)
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)
Texas v. Johnson (1989)
Kelo v. City of New London, Connecticut
Chapter 6 (Module 5):
State Farm v. Campbell (2003)
Molson Coors Beverage Company USA LLC v. Anheuser-Busch Companies, LLC
(2020)
Hernandez v. Arizona Board of Regents (1994)
Daniell v. Ford (1984)
Chapter 8 (Module 6):
Skilling v. United States (2010)
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BUS-112 – Legal Environment of Business
Rodriguez v. United States (2015)
United States v Hoskins (2018)
Chapter 10 (Module 7):
Lund v. Lund (2014)
Carlill v. Carbolic Smoke Ball Company (1892)
Nicosia v. Amazon.com, Inc. (2019)
Hamer v. Sideway (1891)
Chapter 11 (Module 8):
Metsch v. Heinowitz (2020)
King v. Head Start Family Hair Salons, Inc. (2004)
Johnny Doe v. Epic Games (2020)
Browning v. Poirier (2015)
Chapter 12 (Module 9):
O’Brien v. Ohio State University (2007)
Hoosier Energy Rural Electric Cooperative, Inc. v. John Hancock Life Insurance Co.
(2009)
Hawkins v. McGee (1929)
Morgan Stanley Smith Barney v. O’Brian (2013)
Chapter 17 (Module 10):
Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC (2011)
Abkco Music, Inc. v. Harrisongs Music, Ltd. (1983)
Chapter 18 (Module 11):
Peterson v. Exide Technologies (2012)
Dalton School, Inc. and David Brune (2015)
Chapter 19 (Module 12):
Rizo v. Yovino (2020)
Gulino v. Bd. Of Educ. Of the City Sch. Dist. Of N.Y. (2012)
Reid v, Google, Inc. (2010)
Willoughby v. Conn. Container Corp. (2013)
Chapter 20 (Module 13):
Ferret v. Courtney (2015)
BLD Products, LTC v. Technical Plastics of Oregon, LLC. (2006)
Marsh v. Gentry (1982)
National Franchisee Association v. Burger King Corporation (2010)
Chapter 21 (Module 14):
In re Dole Food Co. (2015)
Marchand v. Barnhill (2019)
Raul v. Rynd (2013)
CASES ABSOLUTELY NOT ALLOWED:
Miranda v. Arizona (1966)
Obergefell v. Hodges (2015)
Terry v. Ohio (1968)
Roe v. Wade (1973)
Dobbs v. Jackson Women’s Health Organization (2022)
Marbury v. Madison (1803)
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BUS-112 – Legal Environment of Business
McCulloch v. Maryland (1819)
Dred Scott v. Sandford (1857)
Schenck v. United States (1919)
Gideon v. Wainwright (1963)
Brown v. Board of Education (1954)
Tinker v. Des Moines (1969)
Regents of the University of California v. Bakke (1978)
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BUS-112 – Legal Environment of Business
Case Brief Structure
A case brief is a research tool. The legal community will recognize the structure of a case brief
because its structure has been taught in law schools for many years. A case brief highlights the
key concepts from a case. Those key highlights relate to a particular legal issue that the author is
researching. When multiple individuals are involved in the research process, a case brief also
serves to inform other members of the research team of a particular case’s usefulness.
Close Reading
You should never write a case brief until you have fully read and fully understood the case. Be
careful about accurately representing what the court decided and the reasoning it used to get to
its decision. Accuracy is essential when doing a case brief, so take the time to read the case in
detail.
Structure
Case briefs are a common assignment in law school. A common structure is followed.
1. CASE NAME/FULL CITATION:
The top of your case brief should include a reference to the full case citation. This lets the
reader know which case you are briefing. This is the only place in the document where
the reader should see a citation. The entire document will be written in your own words
and will not need to include any citations. The reader understands that everything you’re
writing about is contained within the case you referenced at the top. Little hint, if you are
using one of the cases from the textbook, the full citation is most likely listed.
2. FACTS:
Be careful of including too much information in the section. You don’t need to include
specific dates or lengthy details; however, ensure to identify the relationship/status of the
parties (do not merely refer to the parties as the plaintiff/defendant or appellant/appellee;
be sure to also include more descriptive generic terms to identify the relationship/status at
issue, e.g., buyer/seller, employer/employee, landlord/tenant, etc.). Identify legally
relevant facts, that is, those facts that tend to prove or disprove an issue before the court.
The relevant facts tell what happened before the parties entered the judicial system.
Include enough of the facts to inform the reader (or remind yourself) what the case is
about. Identify procedurally significant facts. You should set out; the cause of action (the
law the plaintiff claimed was broken), relief the plaintiff requested, and any defenses, if
any, the defendant raised. You should tailor your facts to the reason you are briefing the
case. If you are going to be looking at a single legal issue from the case, focus on the
facts that relate to the case.
3. ISSUE:
The issue should be written in just a few sentences and include the primary question that
the court is addressing (Substantive Issue and/or Procedural Issue). Sometimes that can
be accomplished in a single statement or question. Don’t include all of the legal issues the
court will be looking at. Instead, focus on the legal issue that matters to you and the
research you’re doing.
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BUS-112 – Legal Environment of Business
4. HOLDING:
This should be brief and should directly relate to the question you asked in the issue
section. What was the court’s answer to that question? Don’t go into detail about why the
court reached that conclusion. Instead, focus on what the court decided. Try to write it in
a rule format. In other words, what’s the precedential rule on the issue the court resolved?
What does it mean for future cases? If you have written the issue statement(s) correctly,
the holding is often the positive or negative statement of the issue statement.
5. REASONING:
This is the most important section of the case brief. This is the court’s analysis of the
issues and the heart of the case brief; it connects the issue to the holding. It answers this
question: How did the court get to its conclusion? What was the reasoning behind its
resolution of the case? In understanding the court’s reasoning, the legal reader can better
understand how future cases will be resolved.
6. MAJORITY, CONCURRING, & DISSENTING OPINIONS:
A judge who hears a case may not agree with the majority’s decision and will write a
separate dissenting opinion. Another judge may agree with the decision but not with the
majority’s reasoning and will write a separate concurring opinion. Note the
concurring/dissenting judge(s)’ reasons for refusing to join in the majority opinion.
7. PERSONAL EVALUATION:
What are your reactions to and critique of the opinion? Anything you like/dislike? How
does this case fall in line with the other cases you have read in the course? Do not accept
the court’s opinion blindly. Assess the reasoning in each case. Is it sound? Is it
contradictory? What are the political, economic, or social impacts of this decision?
Page 2 of 4
BUS-112 – Legal Environment of Business
Sample Case Brief
John Rey Doe
Professor Andrew J. Sosnowski
Legal Environment of Business – BUS-112-701
May 15, 2021
Terry v. Ohio, 392 U.S. 1 (1968)
FACTS:
John W. Terry was stopped by police who after noticing Terry and Richard Chilton walking
back and forth past a specific store window. sAfter a third man, Katz, joined them and
walked away, the police followed Terry, and Chilton a few blocks away where they met up
with Katz. The police stopped the men, informed them they were police, and asked their
names. Without proper response from the suspects, officer McFadden took Terry, patted
down the outside of his cloths and found a pistol in his overcoat pocket, then proceeded to
pat down Katz and Chilton finding another pistol on Chilton, then taken to police station and
Terry and Chilton were charged with carrying concealed weapons. Defense filed motion to
suppress the guns seized by police, the prosecution’s argued was that the arrest was lawful
and would have happened even if the guns were not found. The judge dismissed the motion,
not on the grounds the prosecution asserted, but on the fact that the officer “had reasonable
cause to believe that the defendants were conducting themselves suspiciously, and some
interrogation should be made on their action.” The court also used the assertion that in order
to ensure his and the other officer’s safety, they had the right to “pat down” the outside of the
clothing to ensure they did not have any weapons. Additionally, the court also addressed the
difference between a stop and an arrest and frisk and full-blown search. Since the frisk was
essential to ensuring the safety of the police officers, the frisk and any fruit from that frisk
was admissible. Chilton and Terry waived their right to a jury trial, pleaded not guilty, and
were convicted. They appealed to the Eighth Judicial District Court of Appeals and the case
was affirmed. The Ohio Supreme Court denied their appeal brining in the question that a
“substantial constitutional question” was at hand.
ISSUE:
Was the search of Terry, Katz, and Chilton and the seizure of two revolvers from Terry and
Chilton in violation of the Fourth Amendment of United States Constitution?
HOLDING:
No.
REASONING:
The reasoning for this case rests on the fact that officer McFadden had reasonable grounds,
due to his 30+ years of knowledge and experience as a detective on the streets of Cleveland,
to perform a “stop and frisk” on a suspect who he felt was acting suspiciously and potentially
could cause harm to himself or others in the area. An on the street “stop” and an
Page 3 of 4
BUS-112 – Legal Environment of Business
accompanying “frisk” does not violate a person’s Fourth Amendment rights as long as these
measures are taken.
When a police officer observes unusual conduct and his experience as an officer brings him
to the conclusion that the person(s) may be armed and dangerous, he has the right to make
reasonable inquiries, after identifying himself as an officer to the suspect(s), if those inquiries
do not change his mind, he can then, if he believes his or other lives may be in danger,
perform a carefully limited search of the outer clothing of the suspect(s) to find weapons to
prevent an incident from occurring.
MAJORITY, CONCURRING, & DISSENTING OPINIONS:
The case was Affirmed in an 8 to 1 decision.
Black (Concur) – Felt that the majority opinion’s reliance on quotes from Katz v United
States and where the concurring opinion quotes from Warden v. Hayden did not fit into the
court’s opinion/concurring opinion and should not have been included.
Harlan; White (Concur) – Felt that the court’s decision is correct but lies only on the
aspects of Officer McFadden’s observances which allowed him to have justified suspicion to
“interrupt Terry’s freedom of movement and invade his privacy.” This alone gave the officer
the right to “stop and frisk” and ensure his safety.
Douglas (Dissent) – Felt that without probable cause, both the search and seizure were not
constitutional under the Fourth Amendment. In order for probable cause the officer must
believe that one of the following three scenarios must have occurred: a crime had already
been committed, that a crime was in the process of being committed, or a crime was about to
be committed. The crime in this case is carrying concealed weapons, but there is no probable
cause that the officer believed a crime was in the process of happening for a concealed
weapon. If the officer requested a court to issue a warrant for a proper search, it would have
been denied because a police officer is only allowed to arrest and then search a person
without a warrant if the facts admissible in court would satisfy probable cause. Probable
cause and reasonable suspicion are not interchangeable, and a search can only be reasonable
if it possesses probable cause.
PERSONAL EVALUATION:
The court did not convince me. I agree 100% with Douglas’ dissent for the same reasons
outlined above and, in his dissent. At no time does an officer, without actual evidence of a
crime, have the right to infringe on a person’s Fourth Amendment rights. Yes, this case
marginally does fit within the limits of Miranda v. Arizona, 384 U.S. 436 (1966) aligning
with the depravity of liberty under the Fifth Amendment. No, it does not have instructive
dicta.
Page 4 of 4
Caution
As of: February 15, 2023 1:02 AM Z
Terry v. Ohio
Supreme Court of the United States
December 12, 1967, Argued ; June 10, 1968, Decided
No. 67
Reporter
392 U.S. 1 *; 88 S. Ct. 1868 **; 20 L. Ed. 2d 889 ***; 1968 U.S. LEXIS 1345 ****; 44 Ohio Op. 2d 383
TERRY v. OHIO
Prior History: [****1] CERTIORARI TO THE SUPREME COURT OF OHIO.
Disposition: Affirmed.
Core Terms
weapons, arrest, frisk, probable cause, police officer, circumstances, seized, seizure, intrusion, armed, clothing,
outer, street, limitations, suspicion, personal security, investigate, encounter, walked, suspicious, questions, corner,
guns, police conduct, confronting, exclusionary rule, invasions, concealed weapon, store window, interrogation
Case Summary
Procedural Posture
Petitioner sought review of a judgment from the Supreme Court of Ohio that affirmed petitioner’s conviction for
carrying a concealed weapon. Petitioner contended that the weapon seized from his person and introduced into
evidence was obtained through an illegal search, under U.S. Const. amend. IV, and that the trial court improperly
denied his motion to suppress.
Overview
Petitioner sought review of his conviction for carrying a concealed weapon, contending that the weapon seized from
him was obtained through an illegal search, under U.S. Const. amend. IV, and that the trial court improperly denied
his motion to suppress. On certiorari the court affirmed petitioner’s conviction. The court ruled that despite the fact
that the arresting police officer lacked probable cause to arrest petitioner at the time he made the “stop and frisk”
warrantless intrusion upon petitioner that produced the weapon at issue, the search satisfied the conditions of U.S.
Const. amend. IV: the officer had a reasonable suspicion, based upon his experience, that petitioner and his
companions were about to commit a daytime robbery, and his belief that petitioner was presently armed,
dangerous, and posed a threat to him and to others justified both the officer’s “stop” of petitioner and the “frisk,” or
pat-down, of petitioner’s overcoat. Furthermore, the court ruled that the search of the outer clothing of petitioner and
his companions was properly limited in time and scope in order for him to determine the presence of weapons and
to neutralize the danger posed.
Outcome
The court affirmed a judgment that affirmed petitioner’s conviction for carrying a concealed weapon because the
“stop and frisk” tactics used by the police in the search of petitioner’s person and the seizure of the weapon
Page 2 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
produced from the search were reasonable under the Fourth Amendment, as the arresting officer reasonably
concluded that petitioner was armed and was about to engage in criminal activity.
LexisNexis® Headnotes
Constitutional Law > … > Fundamental Rights > Search & Seizure > General Overview
HN1[
] Fundamental Rights, Search & Seizure
See U.S. Const. amend. IV.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
HN2[
] Search & Seizure, Scope of Protection
The inestimable right of personal security provided for by U.S. Const. amend IV belongs as much to the citizen on
the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
HN3[
] Search & Seizure, Scope of Protection
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to
the possession and control of his own person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > Expectation of Privacy
Constitutional Law > … > Fundamental Rights > Search & Seizure > General Overview
Criminal Law & Procedure > Search & Seizure > General Overview
HN4[
] Search & Seizure, Scope of Protection
The Fourth Amendment protects people, not places, and wherever an individual may harbor a reasonable
“expectation of privacy,” he is entitled to be free from unreasonable governmental intrusion. The specific content
and incidents of this right must be shaped by the context in which it is asserted. For what the Constitution forbids is
not all searches and seizures, but unreasonable searches and seizures.
Constitutional Law > The Judiciary > Jurisdiction > Diversity Jurisdiction
Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > General Overview
Page 3 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
Constitutional Law > … > Fundamental Rights > Search & Seizure > Exclusionary Rule
HN5[
] Jurisdiction, Diversity Jurisdiction
The exclusionary rule has its limitations as a tool of judicial control. It cannot properly be invoked to exclude the
products of legitimate police investigative techniques on the ground that much conduct which is closely similar
involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts the rule is ineffective
as a deterrent.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
HN6[
] Search & Seizure, Scope of Protection
The Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and
prosecution for crime — “arrests” in traditional terminology. Whenever a police officer accosts an individual and
restrains his freedom to walk away, he has “seized” that person. It is a serious intrusion upon the sanctity of the
person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > General Overview
HN7[
] Search & Seizure, Scope of Protection
A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity
and scope. The scope of the search must be “strictly tied to and justified by” the circumstances which rendered its
initiation permissible.
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
Criminal Law & Procedure > … > Warrantless Searches > Exigent Circumstances > Reasonable & Prudent
Standard
HN8[
] Warrantless Searches, Stop & Frisk
The Fourth Amendment governs all intrusions by agents of the public upon personal security; the scope of the
particular intrusion, in light of all the exigencies of the case, is a central element in the analysis of reasonableness.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
Constitutional Law > … > Fundamental Rights > Search & Seizure > General Overview
HN9[
] Search & Seizure, Scope of Protection
Page 4 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
The central inquiry under the Fourth Amendment is the reasonableness in all the circumstances of the particular
governmental invasion of a citizen’s personal security. “Search” and “seizure” are not talismans. The U.S. Supreme
Court rejects the notions that the Fourth Amendment does not come into play at all as a limitation upon police
conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”
Constitutional Law > … > Fundamental Rights > Search & Seizure > Exigent Circumstances
Criminal Law & Procedure > … > Exclusionary Rule > Exceptions to Exclusionary Rule > Exigent
Circumstances
Constitutional Law > … > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Issuance by Neutral & Detached
Magistrate
Criminal Law & Procedure > … > Warrantless Searches > Exigent Circumstances > General Overview
HN10[
] Search & Seizure, Exigent Circumstances
The police must, whenever practicable, obtain advance judicial approval of searches and seizures through the
warrant procedure, and in most instances failure to comply with the warrant requirement can only be excused by
exigent circumstances.
Constitutional Law > … > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > … > Search Warrants > Probable Cause > General Overview
Constitutional Law > … > Fundamental Rights > Search & Seizure > General Overview
Criminal Law & Procedure > Search & Seizure > Governmental Action Requirement
Criminal Law & Procedure > Search & Seizure > Warrantless Searches > General Overview
HN11[
] Search & Seizure, Scope of Protection
In order to assess the reasonableness of a warrantless search and seizure as a general proposition, it is necessary
first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally
protected interests of the private citizen, for there is no ready test for determining reasonableness other than by
balancing the need to search or seize against the invasion which the search or seizure entails. And in justifying the
particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.
Constitutional Law > … > Fundamental Rights > Search & Seizure > General Overview
Criminal Law & Procedure > … > Exclusionary Rule > Exceptions to Exclusionary Rule > Good Faith
Page 5 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Issuance by Neutral & Detached
Magistrate
HN12[
] Fundamental Rights, Search & Seizure
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct
of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in
making that assessment it is imperative that the facts be judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the
belief” that the action taken was appropriate? Simple good faith on the part of the arresting officer is not enough.
Criminal Law & Procedure > … > Warrantless Searches > Exigent Circumstances > Absence of Probable
Cause
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
HN13[
] Exigent Circumstances, Absence of Probable Cause
When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close
range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to
deny the officer the power to take necessary measures to determine whether the person is in fact carrying a
weapon and to neutralize the threat of physical harm.
Criminal Law & Procedure > Criminal Offenses > Weapons Offenses > General Overview
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
HN14[
] Criminal Offenses, Weapons Offenses
Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished
personal security.
Criminal Law & Procedure > … > Warrantless Searches > Exigent Circumstances > Absence of Probable
Cause
Criminal Law & Procedure > … > Warrantless Searches > Exigent Circumstances > General Overview
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
HN15[
] Exigent Circumstances, Absence of Probable Cause
A search for weapons in the absence of probable cause to arrest must, like any other search, be strictly
circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby, and may realistically be
characterized as something less than a “full” search, even though it remains a serious intrusion.
Page 6 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
HN16[
] Warrantless Searches, Stop & Frisk
There must be a narrowly drawn authority 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 an armed and dangerous individual, regardless of
whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that
the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in
such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to
the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Criminal Law & Procedure > … > Exclusionary Rule > Exceptions to Exclusionary Rule > General Overview
Criminal Law & Procedure > Search & Seizure > Fruit of the Poisonous Tree > Rule Application & Interpretation
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
HN17[
] Exclusionary Rule, Exceptions to Exclusionary Rule
The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing
preconditions upon its initiation. U.S. Const. amend IV. The entire deterrent purpose of the rule excluding evidence
seized in violation of the Fourth Amendment rests on the assumption that limitations upon the fruit to be gathered
tend to limit the quest itself. Thus, evidence may not be introduced if it was discovered by means of a seizure and
search which were not reasonably related in scope to the justification for their initiation.
Criminal Law & Procedure > … > Warrantless Searches > Stop & Frisk > General Overview
Criminal Law & Procedure > … > Crimes Against Persons > Assault & Battery > General Overview
Criminal Law & Procedure > … > Assault & Battery > Simple Offenses > General Overview
HN18[
] Warrantless Searches, Stop & Frisk
Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under U.S. Const. amend. IV, and any weapons seized may
properly be introduced in evidence against the person from whom they were taken.
Lawyers’ Edition Display
Summary
Following the denial of a pretrial motion to suppress, the prosecution, at defendant’s trial in the Court of Common
Pleas of Cuyahoga County on a charge of carrying a concealed weapon, introduced in evidence a revolver seized
Page 7 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
from defendant by a police officer after the officer observed the unusual conduct of defendant and two other men
and, concluding that these men contemplated a daylight robbery, stopped and frisked them, thereby discovering
guns. The Ohio Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. (5 Ohio App 2d 122,
34 Ohio Ops 2d 237, 214 NE2d 114.) The Supreme Court of Ohio dismissed defendant’s appeal on the ground that
no substantial constitutional question was involved.
On certiorari, the Supreme Court of the United States affirmed. In an opinion by Warren, Ch. J., expressing
substantially the views of eight members of the court, it was held that the search was a reasonable search under
the Fourth Amendment, and that the revolver seized from the defendant was properly introduced in evidence,
where the police officer reasonably concluded in the light of his experience that criminal activity might be afoot and
that the persons with whom he was dealing might be armed and presently dangerous.
Black, J., without writing a separate opinion, concurred in the judgment and court’s opinion with the exception of
certain quotations from earlier opinions of the Supreme Court of the United States.
Harlan, J., also joined the court’s opinion upon the premise that once the officer was justified to interrupt
defendant’s freedom of movement, the officer’s right to take suitable measures for his own safety followed
automatically.
White, J., likewise joined the opinion of the court, reserving judgment, however, on some of the court’s general
remarks about the scope and purpose of the exclusionary rule which the court has fashioned in the process of
enforcing the Fourth Amendment.
Douglas, J., dissented, expressing the view that the search and seizure by way of stopping and frisking defendant
was constitutional only if there was probable cause to believe that a crime had been, or was in the process of being,
or was about to be, committed.
Headnotes
SEARCH AND SEIZURE §6 > Fourth Amendment — persons protected — > Headnote:
LEdHN[1][
] [1]
The Fourth Amendment right against unreasonable searches and seizures belongs as much to the citizen on the
streets as to the homeowner closeted in his study to dispose of his secret affairs.
ARREST §1 > SEARCH AND SEIZURE §3 > restraint of person — > Headnote:
LEdHN[2][
] [2]
No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to
the possession and control of his own person, free from all restraint or interference, unless by clear and
unquestionable authority of law.
SEARCH AND SEIZURE §5 > Fourth Amendment — > Headnote:
LEdHN[3][
] [3]
Page 8 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
The Fourth Amendment protects people, not places.
CONSTITUTIONAL LAW §101 > right of privacy — > Headnote:
LEdHN[4][
] [4]
Wherever an individual may harbor a reasonable expectation of privacy, he is, as a matter of constitutional law,
entitled to be free from unreasonable governmental intrusion; the specific content and incidents of this right must be
shaped by the context in which it is asserted.
SEARCH AND SEIZURE §5 > reasonableness — > Headnote:
LEdHN[5][
] [5]
What the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.
EVIDENCE §681 > exclusionary rule — > Headnote:
LEdHN[6][
] [6]
Without the rule excluding evidence seized in violation of the Fourth Amendment, a principal mode of, and the only
effective deterrent to, police misconduct in the criminal context, the constitutional guaranty against unreasonable
searches and seizures would be a mere form of words; the rule also serves another vital function, namely, the
imperative of judicial integrity.
EVIDENCE §681 > fruits of invasion of constitutional rights — > Headnote:
LEdHN[7][
] [7]
Courts which sit under the Federal Constitution cannot and will not be made party to lawless invasions of the
constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.
EVIDENCE §681 > exclusionary rule — > Headnote:
LEdHN[8][
] [8]
Evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some
conduct as comporting with constitutional guaranties and disapproves other actions by state agents; a ruling
admitting evidence in a criminal trial has the necessary effect of legitimizing the conduct which produced the
evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.
Page 9 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
EVIDENCE §681 > exclusionary rule — limitations — > Headnote:
LEdHN[9][
] [9]
The rule excluding evidence seized in violation of the Fourth Amendment has its limitations as a tool of judicial
control, and proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness
of these limitations; while some police field interrogation conduct violates the Fourth Amendment, the rule cannot
properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much
conduct which is closely similar involves unwarranted intrusions upon constitutional protections.
EVIDENCE §681 > SHERIFFS, CONSTABLES, AND POLICE §8 > police conduct — > Headnote:
LEdHN[10][
] [10]
Even though the rule excluding evidence seized in violation of the Fourth Amendment should not be applied rigidly
and unthinkingly in futile protest against police investigatory practices which it can never be used effectively to
control, courts still retain their traditional responsibility to guard against police conduct which is overbearing or
harassing, or which trenches upon personal security without the objective evidentiary justification which the Federal
Constitution requires; where such conduct is identified, it must be condemned by the judiciary and its fruits must be
excluded from evidence in criminal trials.
SEARCH AND SEIZURE §11 > of and from person — > Headnote:
LEdHN[11][
] [11]
The police “stop and frisk” practice is not outside the purview of the Fourth Amendment, which governs “seizures”
of the person not eventuating in “arrests” in traditional terminology; whenever a police officer accosts an individual
and restrains his freedom to walk away, he has “seized” that person, and a careful exploration of the outer surfaces
of a person’s clothing all over his body in an attempt to find weapons is a “search,” a serious intrusion upon the
sanctity of the person, which is not to be undertaken lightly.
EVIDENCE §681 > SHERIFFS, CONSTABLES, AND POLICE §9 > investigatory practices — community resentment -> Headnote:
LEdHN[12A][
] [12A]LEdHN[12B][
] [12B]
While abusive practices which play a major role in creating friction between the police and the community are not
susceptible of control by means of the rule excluding evidence seized in violation of the Fourth Amendment, and
cannot properly dictate judicial decisions with respect to the powers of the police in genuine investigative and
preventive situations, nevertheless, the degree of community resentment aroused by particular practices is relevant
to an assessment of the quality of the intrusion upon reasonable expectations of personal security caused by those
practices.
SEARCH AND SEIZURE §5 > standards — reasonableness — > Headnote:
LEdHN[13A][
] [13A]LEdHN[13B][
] [13B]
Page 10 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
The Fourth Amendment governs all intrusions by agents of the public upon personal security, and the scope of the
particular intrusion, in the light of all the exigencies of the case, is a central element in the analysis of
reasonableness; this rule seems preferable to an approach which attributes too much significance to an overly
technical definition of “search,” and which turns in part upon a judge-made hierarchy of legislative enactments in the
criminal sphere.
SEARCH AND SEIZURE §5 > scope of search — > Headnote:
LEdHN[14][
] [14]
A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity
and scope; the scope of the search must be strictly tied to and justified by the circumstances which rendered its
initiation permissible.
SEARCH AND SEIZURE §5 > police conduct — > Headnote:
LEdHN[15][
] [15]
The Fourth Amendment is a limitation upon police conduct even if the police officers stop short of something called
a “technical arrest” or a “full-blown search.”
SEARCH AND SEIZURE §11 > of person — > Headnote:
LEdHN[16][
] [16]
A police officer “seizes” a person and subjects him to a “search” when the officer takes hold of the person and pats
down the outer surfaces of his clothing; the decisive issue is whether at this point it is reasonable for the officer to
interfere with the person’s security, and in determining the reasonableness of the seizure and search, the court’s
inquiry is a dual one: whether the officer’s action is justified at its inception, and whether it is reasonably related in
scope to the circumstances justifying the interference in the first place.
SEARCH AND SEIZURE §11 > of person — > Headnote:
LEdHN[17A][
] [17A]LEdHN[17B][
] [17B]
Not all personal intercourse between policemen and citizens involves “seizures” of persons within the meaning of
the Fourth Amendment; only where the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen is the inference that a “seizure” has occurred justifiable.
SEARCH AND SEIZURE §11 > SEARCH AND SEIZURE §25 > “stop and frisk” procedure of police — > Headnote:
LEdHN[18][
] [18]
Page 11 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
While the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the
warrant procedure, and in most instances failure to comply with the warrant requirement can only be excused by
exigent circumstances, the police “stop and frisk” procedure–necessarily swift action predicated upon the on-thespot observations of the officer on the beat–cannot be subjected to the warrant procedure; instead, the conduct
involved must be tested by the Fourth Amendment’s general proscription against unreasonable searches and
seizures.
SEARCH AND SEIZURE §11 > stopping suspect — > Headnote:
LEdHN[19][
] [19]
In determining whether the Fourth Amendment was violated by a police officer’s seizure of a person by way of
stopping him for interrogation, the notions which underlie both the warrant procedure and the requirement of
probable cause remain fully relevant; in order to assess the reasonableness of the police officer’s conduct as a
general proposition, it is necessary first to focus upon the governmental interest which allegedly justifies official
intrusion upon the constitutionally protected interests of the private citizen, and in justifying the particular intrusion
the police officer must be able to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.
SEARCH AND SEIZURE §5 > reasonableness — > Headnote:
LEdHN[20][
] [20]
There is no ready test for determining reasonableness of a search or seizure other than by balancing the need to
search or seize against the invasion which the search or seizure entails.
SEARCH AND SEIZURE §5 > specificity in police information — > Headnote:
LEdHN[21A][
] [21A]LEdHN[21B][
] [21B]
The demand for specificity in the information upon which police action is predicated is the central teaching of the
United States Supreme Court’s Fourth Amendment jurisprudence.
SEARCH AND SEIZURE §5 > judicial scrutiny — reasonableness — > Headnote:
LEdHN[22][
] [22]
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct
of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or seizure in the light of the particular circumstances; in
making that assessment it is imperative that the facts be judged against an objective standard, namely, whether the
facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the
belief that the action taken was appropriate, and anything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than irrelevant inarticulate hunches.
Page 12 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
ARREST §2 > without warrant — > Headnote:
LEdHN[23][
] [23]
Good faith on the part of an arresting officer is not sufficient to establish the validity of an arrest without a warrant.
SEARCH AND SEIZURE §11 > “stop and frisk” procedure of police — > Headnote:
LEdHN[24A][
] [24A]LEdHN[24B][
] [24B]
In determining the lawfulness of a police “stop and frisk” procedure, the Supreme Court of the United States
considers the nature and extent of the governmental interests involved, that is, the general interest of effective
crime prevention and detection, and the more immediate interest of the police officer in protecting himself against
armed violence.
SHERIFFS, CONSTABLES, AND POLICE §8 > field investigation — > Headnote:
LEdHN[25][
] [25]
The governmental interest of effective crime prevention and detection underlies the recognition that a police officer
may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating
possibly criminal behavior even though there is no probable cause to make an arrest, as where a police officer
observed defendant and two other men go through a series of acts, each of them perhaps innocent in itself, but
which, taken together, warranted further investigation, in the instant case the investigation of daytime robbery.
SHERIFFS, CONSTABLES, AND POLICE §8 > risks — > Headnote:
LEdHN[26][
] [26]
Police officers are not required to take unnecessary risks in the performance of their duties.
SEARCH AND SEIZURE §11 > frisking — > Headnote:
LEdHN[27A][
] [27A]LEdHN[27B][
] [27B]
The easy availability of firearms to potential criminals is a fact relevant to an assessment of the need for some form
of self-protective search power on the part of the police, such as frisking.
SHERIFFS, CONSTABLES, AND POLICE §8 > self-protection — > Headnote:
LEdHN[28][
] [28]
Page 13 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
In view of the need for law enforcement officers to protect themselves and other prospective victims of violence in
situations where the officers may lack probable cause for an arrest, an officer has the power to take necessary
measures to determine whether a person lawfully stopped by the officer is in fact carrying a weapon and to
neutralize the threat of physical harm, where the officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the officer or to others.
SEARCH AND SEIZURE §11 > SEARCH AND SEIZURE §12 > incident to arrest — in absence of probable cause -> Headnote:
LEdHN[29][
] [29]
While a search incident to an arrest, although justified in part by the acknowledged necessity to protect the arresting
officer from assault with a concealed weapon, is also justified on other grounds and can therefore involve a
relatively extensive exploration of the person, a search for weapons in the absence of probable cause to arrest
must, like any other search, be strictly circumscribed by the exigencies justifying its initiation; thus it must be limited
to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby,
and may realistically be characterized as something less than a “full” search, even though it remains a serious
intrusion.
ARREST §2 > SEARCH AND SEIZURE §11 > search for weapons — > Headnote:
LEdHN[30][
] [30]
It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to
warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that
kind of evidence, in making any intrusions short of an arrest, such as frisking the person.
SEARCH AND SEIZURE §11 > search for weapons — > Headnote:
LEdHN[31][
] [31]
Under the Fourth Amendment there is a narrowly drawn authority to permit, for the protection of a police officer, a
reasonable search of a person for weapons where the officer has reason to believe that he is dealing with an armed
and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime; the
officer need not be absolutely certain that the individual is armed, the issue being whether a reasonably prudent
man in the circumstances would be warranted in the belief that his safety or that of others was in danger, and in
determining that issue due weight is to be given, not to the officer’s inchoate and unparticularized suspicion or
“hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in the light of his
experience.
SEARCH AND SEIZURE §11 > “stop and frisk” practice of police — > Headnote:
LEdHN[32][
] [32]
Page 14 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
A police officer’s search and seizure of defendant’s person by way of stopping and frisking him for weapons is
justified as reasonable under the Fourth Amendment, both at their inception and as conducted, where the police
officer had observed the defendant, together with others, acting in a manner he took to be preface to a “stick-up,”
and, on the facts and circumstances, a reasonably prudent man would have been warranted in believing that
defendant was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious
behavior, the actions of the defendant and the others being consistent with the officer’s hypothesis that these men
were contemplating a daylight robbery–which, it is reasonable to assume, would be likely to involve the use of
weapons–and nothing in their conduct from the time the officer first noticed them until the time he confronted them
and identified himself as a police officer gave him sufficient reason to negate that hypothesis, his decision to seize
defendant and pat his clothing for weapons not being the product of a volatile or inventive imagination, or
undertaken simply as an act of harassment, and the record evidencing the tempered act of a policeman who in the
course of an investigation had to make a quick decision as to how to protect himself and others from possible
danger, and took limited steps to do so.
SEARCH AND SEIZURE §5 > manner — > Headnote:
LEdHN[33][
] [33]
Under the Fourth Amendment the manner in which a seizure and search were conducted is as vital a part of the
inquiry as whether they were warranted at all.
SEARCH AND SEIZURE §4 > Fourth Amendment — > Headnote:
LEdHN[34][
] [34]
The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing
preconditions upon its initiation.
EVIDENCE §681 > exclusionary rule — > Headnote:
LEdHN[35][
] [35]
The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on
the assumption that limitations upon the fruits to be gathered tend to limit the quest itself; evidence may not be
introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the
justification for their initiation.
SEARCH AND SEIZURE §11 > for weapons — > Headnote:
LEdHN[36][
] [36]
The limitations which the Fourth Amendment places upon a protective seizure and search of a person for weapons
will have to be developed in the concrete factual circumstances of individual cases.
Page 15 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
SEARCH AND SEIZURE §11 > for weapons — scope — > Headnote:
LEdHN[37][
] [37]
A protective seizure and search of a person for weapons, 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 such a search 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 an assault against the police officer.
SEARCH AND SEIZURE §11 > for weapons — scope — > Headnote:
LEdHN[38][
] [38]
The scope of a police officer’s search of defendant’s person for weapons does not violate the Fourth Amendment
where the officer merely patted the outer clothing of defendant and his two companions until he felt weapons and
removed guns, and where the officer confined his search strictly to what was minimally necessary to learn whether
the men were armed and to disarm them once he discovered the weapons, and did not conduct a general
exploratory search for whatever evidence of criminal activity he might find.
EVIDENCE §681.5 > obtained by seizure — admissibility — > Headnote:
LEdHN[39][
] [39]
A revolver seized from defendant is properly admitted in evidence against him at his state trial for carrying a
concealed weapon, where the police officer, at the time he seized defendant and searched him for weapons, had
reasonable grounds to believe the defendant was armed and dangerous, and it was necessary for the protection of
the police officer himself and others to take swift measures to discover the true facts and neutralize the threat of
harm if it materialized, and where the officer carefully restricted his search to what was appropriate to the discovery
of the particular items which he sought.
EVIDENCE §681.5 > SEARCH AND SEIZURE §11 > of and from person — weapons — > Headnote:
LEdHN[40][
] [40]
A police officer is entitled, for the protection of himself and others in the area, to conduct a carefully limited search
of the outer clothing of individuals in an attempt to discover weapons which might be used to assault the officer, and
such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be
introduced in evidence against the person from whom they were taken, where the officer observed unusual conduct
leading him reasonably to conclude in the light of his experience that criminal activity might be afoot and that the
persons with whom he was dealing might be armed and presently dangerous; where in the course of investigating
this behavior he identified himself as a policeman and made reasonable inquiries; and where nothing in the initial
stages of the encounter served to dispel his reasonable fear for his own or others’ safety.
Page 16 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****1
Syllabus
A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed
two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and
forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24
times. Each completion of the route was followed by a conference between the two on a corner, at one of which
they were joined by a third man (Katz) who left swiftly. Suspecting the two men of “casing a job, a stick-up,” the
officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer
approached the three, identified himself as a policeman, and asked their names. The men “mumbled something,”
whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket,
but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner’s overcoat,
took out a revolver, and ordered the [****2] three to face the wall with their hands raised. He patted down the outer
clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands
under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon),
or under petitioner’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station.
Petitioner and Chilton were charged with carrying concealed weapons. The defense moved to suppress the
weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search
incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the
ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their
interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing
having reasonable cause to believe that they might be armed. The court distinguished between an investigatory
“stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for
evidence [****3] of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and
the State Supreme Court dismissed the appeal on the ground that “no substantial constitutional question” was
involved. Held:
1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the
Fourteenth Amendment, “protects people, not places,” and therefore applies as much to the citizen on the streets
as well as at home or elsewhere. Pp. 8-9.
2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against petitioner of
the evidence uncovered by the search and seizure. P. 12.
3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police
investigative techniques; and this Court’s approval of such techniques should not discourage remedies other than
the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15.
4. The Fourth Amendment applies to “stop and frisk” procedures such as those followed here. Pp. 16-20.
(a) Whenever a police officer accosts an individual and restrains his freedom to walk away, [****4] he has “seized”
that person within the meaning of the Fourth Amendment. P. 16.
(b) A careful exploration of the outer surfaces of a person’s clothing in an attempt to find weapons is a “search”
under that Amendment. P. 16.
5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety
or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be
armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the
absolute certainty that the individual is armed. Pp. 20-27.
Page 17 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****4
(a) Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure
cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P.
20.
(b) The reasonableness of any particular search and seizure must be assessed in light of the particular
circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action
taken was appropriate. Pp. 21-22.
(c) The officer here was performing a legitimate function of investigating suspicious [****5] conduct when he
decided to approach petitioner and his companions. P. 22.
(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is
armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is
carrying a weapon. P. 24.
(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the
exigencies of the situation. Pp. 25-26.
(f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being
possessed of information justifying arrest. Pp. 26-27.
6. The officer’s protective seizure of petitioner and his companions and the limited search which he made were
reasonable, both at their inception and as conducted. Pp. 27-30.
(a) The actions of petitioner and his companions were consistent with the officer’s hypothesis that they were
contemplating a daylight robbery and were armed. P. 28.
(b) The officer’s search was confined to what was minimally necessary to determine whether the men were armed,
and the intrusion, which was made for the sole purpose of protecting himself and others nearby, [****6] was
confined to ascertaining the presence of weapons. Pp. 29-30.
7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led
to its seizure was reasonable under the Fourth Amendment. Pp. 30-31.
Counsel: Louis Stokes argued the cause for petitioner. With him on the brief was Jack G. Day.
Reuben M. Payne argued the cause for respondent. With him on the brief was John T. Corrigan.
Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn
Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A.
Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.
Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General
Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J. Lefkowitz,
pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant
Attorneys General, for the Attorney General of New York; by Charles Moylan, Jr., Evelle J. Younger, and
Harry [****7] Wood for the National District Attorneys’ Assn., and by James R. Thompson for Americans for
Effective Law Enforcement.
Judges: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, Marshall
Opinion by: WARREN
Opinion
Page 18 of 33
392 U.S. 1, *1; 88 S. Ct. 1868, **1868; 20 L. Ed. 2d 889, ***889; 1968 U.S. LEXIS 1345, ****7
[*4] [***896] [**1871] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the
street between the citizen and the policeman investigating suspicious circumstances.
Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of
one to three years in the penitentiary. 1 Following [*5] the denial of a pretrial motion to suppress, the prosecution
introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton,
2 by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer
McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the
afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on [****8] the
corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say
precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a
detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and
pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that
he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this
[***897] case when I looked over they didn’t look right to me at the time.”
[****9] His interest aroused, Officer McFadden took up a post of observation in the [**1872] entrance to a store
300 to 400 feet [*6] away from the two men. “I get more purpose to watch them when I seen their movements,” he
testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The
man paused for a moment and looked in a store window, then walked on a short distance, turned around and
walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at
the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling
down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store
window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately
between five and six times apiece — in all, roughly a dozen trips. At one point, while the two were standing together
on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two
others and walked west on Euclid Avenue. Chilton and Terry resumed [****10] their measured pacing, peering,
and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on
Euclid Avenue, following the path taken earlier by the third man.
By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately
casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of “casing
a job, a stick-up,” and that he considered it his duty as a police officer to investigate further. He added that he
feared “they may have a gun.” Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of
Zucker’s store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the
situation was ripe for direct action, Officer McFadden approached the three men, identified [*7] himself as a police
officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not
acquainted with any of the three men by name or by sight, and he had received no information concerning them
from any other source. When the men “mumbled something” in response to his [****11] inquiries, Officer
McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between
1 Ohio Rev. Code § 2923.01 (1953) provides in part that “no person shall carry a pistol, bowie knife, dirk, or other dangerous
weapon concealed on or about his person.” An exception is made for properly authorized law enforcement officers.
2 Terry and Chilton were arrested, indicted, tried, and convicted together.
They were represented by the same attorney, and
they made a joint motion to suppress the guns. After the motion was denied, evidence was taken in the case against Chilton.
This evidence consisted of the testimony of the arresting officer and of Chilton. It was then stipulated that this testimony would
be applied to the case against Terry, and no further evidence was introduced in that case. The trial judge considered the two
cases together, rendered the decisions at the same time and sentenced the two men at the same time. They prosecuted their
state court appeals together through the same attorney, and they petitioned this Court for certiorari together. Following the grant
of the writ upon this joint petition, Chilton died. Thus, only Terry’s conviction is here for review.
Page 19 of 33
392 U.S. 1, *7; 88 S. Ct. 1868, **1872; 20 L. Ed. 2d 889, ***897; 1968 U.S. LEXIS 1345, ****11
McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat
Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this
point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As
they went in, he removed Terry’s overcoat completely, removed a .38-caliber revolver from the pocket and ordered
all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing
of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no
weapons were found on Katz. The officer testified that he only [***898] patted the men down to see whether they
had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt
their guns. So far as appears from the record, he never placed his hands beneath Katz’ outer garments. Officer
McFadden seized Chilton’s gun, asked [****12] the proprietor of the store to call a police wagon, and took all three
men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.
On the motion to suppress the guns the prosecution took the position that they had been seized following a search
incident to a lawful arrest. The trial court rejected this theory, stating that it “would be stretching the facts beyond
reasonable comprehension” to find that Officer [*8] McFadden had had probable [**1873] cause to arrest the
men before he patted them down for weapons. However, the court denied the defendants’ motion on the ground
that Officer McFadden, on the basis of his experience, “had reasonable cause to believe . . . that the defendants
were conducting themselves suspiciously, and some interrogation should be made of their action.” Purely for his
own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had
reasonable cause to believe might be armed. The court distinguished between an investigatory “stop” and an
arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. The
frisk, it [****13] held, was essential to the proper performance of the officer’s investigatory duties, for without it “the
answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.”
After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court
adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State
v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the
ground that no “substantial constitutional question” was involved. We granted certiorari, 387 U.S. 929 (1967), to
determine whether the admission of the revolvers in evidence violated petitioner’s rights under the Fourth
Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643 (1961). We affirm the
conviction.
I.
LEdHN[1][ ] [1] LEdHN[2][ ] [2] LEdHN[3][ ] [3] [****14] LEdHN[4][ ] [4] LEdHN[5][ ] [5]The Fourth
Amendment provides that HN1[ ] “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .” This HN2[ ] inestimable right of
[*9] personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in
his study to dispose of his secret affairs. For, as this Court has always recognized,
HN3[ ] “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free from all restraint or interference of others, unless by
clear and unquestionable authority of law.” Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 [***899]
(1891). [****15] We have recently held that HN4[ ] “the Fourth Amendment protects people, not places,” Katz v.
United States, 389 U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable “expectation of
privacy,” id., at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental
intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is
asserted. For “what the Constitution forbids is not all searches and seizures, but unreasonable searches and
seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960). Unquestionably petitioner was entitled to the
protection of the Fourth Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.S. 89 (1964);
Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United States v. Di Re,
332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). [****16] The question is whether in all the
circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search
and seizure.
Page 20 of 33
392 U.S. 1, *9; 88 S. Ct. 1868, **1873; 20 L. Ed. 2d 889, ***899; 1968 U.S. LEXIS 1345, ****16
[**1874] We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and
troublesome issues regarding a sensitive area of police activity — issues which have never before been squarely
[*10] presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments
pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk” — as it is
sometimes euphemistically termed — suspicious persons.
On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on
city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of
information they possess. For this purpose it is urged that distinctions should be made between a “stop” and an
“arrest” (or a “seizure” of a person), and between a “frisk” and a “search.” 3 [****18] Thus, it is argued, the police
should be allowed to “stop” a person and [****17] detain him briefly for questioning upon suspicion that he may be
connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power
to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has
committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of
the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” [***900] amount to a mere
“minor inconvenience and petty indignity,” 4 which can properly be imposed upon the [*11] citizen in the interest of
effective law enforcement on the basis of a police officer’s suspicion. 5
[****19] On the other side the argument is made that the authority of the police must be strictly circumscribed by
the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. 6
It is contended with some force that there is not — and cannot be — a variety of police activity which does not
depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon
probable cause to make such an arrest. The heart of the Fourth Amendment, the argument [**1875] runs, is a
severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly
developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution.
Acquiescence by the courts in the compulsion inherent [*12] in the field interrogation practices at issue here, it is
urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial
interference with liberty and personal security by police officers whose judgment is necessarily colored by their
primary involvement in “the often competitive enterprise of ferreting [****20] out crime.” Johnson v. United States,
3 Both the trial court and the Ohio Court of Appeals in this case relied upon such a distinction.
State v. Terry, 5 Ohio App. 2d
122, 125-130, 214 N. E. 2d 114, 117-120 (1966). See also, e. g., People v. Rivera, 14 N. Y. 2d 441, 201 N. E. 2d 32, 252 N. Y.
S. 2d 458 (1964), cert. denied, 379 U.S. 978 (1965); Aspen, Arrest and Arrest Alternatives: Recent Trends, 1966 U. Ill. L. F.
241, 249-254; Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315 (1942); Note, Stop and Frisk in California, 18 Hastings L. J.
623, 629-632 (1967).
4 People v. Rivera, supra, n. 3, at 447, 201 N. E. 2d, at 36, 252 N. Y. S. 2d, at 464.
5 The theory is well laid out in the Rivera opinion:
“The evidence needed to make the inquiry is not of the same degree of conclusiveness as that required for an arrest. The
stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less
incriminating than the ground for an arrest for a crime known to have been committed. . . .
….
“And as the right to stop and inquire is to be justified for a cause less conclusive than that which would sustain an arrest, so the
right to frisk may be justified as an incident to inquiry upon grounds of elemental safety and precaution which might not initially
sustain a search. Ultimately the validity of the frisk narrows down to whether there is or is not a right by the police to touch the
person questioned. The sense of exterior touch here involved is not very far different from the sense of sight or hearing -senses upon which police customarily act.” People v. Rivera, 14 N. Y. 2d 441, 445, 447, 201 N. E. 2d 32, 34, 35, 252 N. Y. S.
2d 458, 461, 463 (1964), cert. denied, 379 U.S. 978 (1965).
6 See, e. g., Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?,
51 J. Crim. L. C. & P. S. 402 (1960).
Page 21 of 33
392 U.S. 1, *12; 88 S. Ct. 1868, **1875; 20 L. Ed. 2d 889, ***900; 1968 U.S. LEXIS 1345, ****20
333 U.S. 10, 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded
centers of our Nation’s cities. 7
LEdHN[6][ ] [6] LEdHN[7][ ] [7] LEdHN[8][ ] [8]In this context we approach the issues in this case mindful of
the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens
confront each other on the street. The State has characterized the issue here as “the right of a police officer . . . to
make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as ‘stop and
frisk’). [****21] ” 8 But this is only partly accurate. For the issue is not the abstract propriety of the police conduct,
but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its
inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a
principal mode of discouraging lawless police conduct. [***901] See Weeks v. United States, 232 U.S. 383, 391393 (1914). Thus its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629-635 (1965), and
experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that
without it the constitutional guarantee against unreasonable searches and seizures would be a mere “form of
words.” Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function — “the imperative of
judicial integrity.” Elkins [*13] v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution
cannot [****22] and will not be made party to lawless invasions of the constitutional rights of citizens by permitting
unhindered governmental use of the fruits of such invasions. Thus in our system evidentiary rulings provide the
context in which the judicial process of inclusion and exclusion approves some conduct as comporting with
constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal
trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an
application of the exclusionary rule withholds the constitutional imprimatur.
LEdHN[9][ ] [9]HN5[ ] The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot
properly be invoked to exclude the products of legitimate police investigative techniques on the ground [****23] that
much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in
some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are
incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information
to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations
are not all of a piece. Some of them begin in a friendly enough manner, only to take a [**1876] different turn upon
the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide
variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. 9 Doubtless some [*14]
police “field interrogation” conduct violates the Fourth Amendment. But a stern refusal by this Court to condone
such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule
may be where obtaining convictions is an important objective of the police, 10 it is powerless to deter invasions
[***902] of constitutionally [****24] 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.
[****25] LEdHN[10][ ] [10]Proper adjudication of cases in which the exclusionary rule is invoked demands a
constant awareness of these limitations. The wholesale harassment by certain elements of the police community,
7 See n. 11, infra.
8 Brief for Respondent 2.
9 See
L. Tiffany, D. McIntyre & D. Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure,
Encouragement and Entrapment 18-56 (1967). This sort of police conduct may, for example, be designed simply to help an
intoxicated person find his way home, with no intention of arresting him unless he becomes obstreperous. Or the police may be
seeking to mediate a domestic quarrel which threatens to erupt into violence. They may accost a woman in an area known for
prostitution as part of a harassment campaign designed to drive prostitutes away without the considerable difficulty involved in
prosecuting them. Or they may be conducting a dragnet search of all teenagers in a particular section of the city for weapons
because they have heard rumors of an impending gang fight.
10 See Tiffany, McIntyre & Rotenberg, supra, n. 9, at 100-101; Comment,
47 Nw. U. L. Rev. 493, 497-499 (1952).
Page 22 of 33
392 U.S. 1, *14; 88 S. Ct. 1868, **1876; 20 L. Ed. 2d 889, ***902; 1968 U.S. LEXIS 1345, ****25
of which minority groups, particularly Negroes, frequently complain, 11 will not be [*15] stopped by the exclusion of
any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest
against practices which it can never be used effectively to control, may exact a high toll in human injury and
frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street
encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating
approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their
traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon
personal security without the objective evidentiary justification which the Constitution requires. When [****26] such
conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in
criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken [**1877]
on the basis of ample factual justification should in no way discourage the employment of other remedies than the
exclusionary rule to curtail abuses for which that sanction may prove inappropriate.
[****27] Having thus roughly sketched the perimeters of the constitutional debate over the limits on police
investigative conduct in general and the background against which this case presents itself, we turn our attention to
the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize
a person and subject him to a limited search for weapons unless there is probable cause for an arrest. [*16] Given
the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the
scope of a policeman’s power when he confronts a citizen without probable cause to arrest him.
[***903] II.
LEdHN[11][ ] [11] LEdHN[12A][ ] [12A]Our first task is to establish at what point in this encounter the Fourth
Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and
whether and when he conducted a “search.” There is some suggestion in the use of such terms as “stop” and “frisk”
that such police conduct is outside the purview of the Fourth [****28] Amendment because neither action rises to
the level of a “search” or “seizure” within the meaning of the Constitution. 12 We emphatically reject this notion. It is
quite plain that HN6[ ] the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to
the station house and prosecution for crime — “arrests” in traditional terminology. It must be recognized that
whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.
And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer
surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it
is simply fantastic to urge that such a procedure [*17] performed in public by a policeman while the citizen stands
helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” 13 It is a serious intrusion upon the
11 The
President’s Commission on Law Enforcement and Administration of Justice found that “in many communities, field
interrogations are a major source of friction between the police and minority groups.” President’s Commission on Law
Enforcement and Administration of Justice, Task Force Report: The Police 183 (1967). It was reported that the friction caused
by “misuse of field interrogations” increases “as more police departments adopt ‘aggressive patrol’ in which officers are
encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose
purpose for being abroad is not readily evident.” Id., at 184. While the frequency with which “frisking” forms a part of field
interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, see
Tiffany, McIntyre & Rotenberg, supra, n. 9, at 47-48, it cannot help but be a severely exacerbating factor in police-community
tensions. This is particularly true in situations where the “stop and frisk” of youths or minority group members is “motivated by
the officers’ perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating
anyone who attempts to undermine police control of the streets.” Ibid.
12 In this case, for example, the Ohio Court of Appeals stated that “we must be careful to distinguish that the ‘frisk’ authorized
herein includes only a ‘frisk’ for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or
anything else in the absence of reasonable grounds to arrest. Such a search is controlled by the requirements of the Fourth
Amendment, and probable cause is essential.” State v. Terry, 5 Ohio App. 2d 122, 130, 214 N. E. 2d 114, 120 (1966). See also,
e. g., Ellis v. United States, 105 U. S. App. D. C. 86, 88, 264 F.2d 372, 374 (1959); Comment, 65 Col. L. Rev. 848, 860, and
n. 81 (1965).
Page 23 of 33
392 U.S. 1, *17; 88 S. Ct. 1868, **1877; 20 L. Ed. 2d 889, ***903; 1968 U.S. LEXIS 1345, ****28
sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken
lightly. [****29] 14
[****30] LEdHN[12B][
] [12B]
LEdHN[13A][ ] [13A] LEdHN[14][ ] [14]The danger in the logic which proceeds upon distinctions between
[**1878] a “stop” and an “arrest,” or “seizure” of the person, and between a “frisk” and a “search” is twofold. It
seeks to isolate from constitutional scrutiny the initial stages of the contact [****31] between the policeman and the
citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it
obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of
constitutional regulation. 15 This Court has held in [*18] the past that HN7[ ] a search [***904] which is
reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.
Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. [*19] United States, 282 U.S. 344, 356358 (1931); see United States v. Di Re, 332 U.S. 581, 586-587 (1948). The scope of the search must be “strictly
tied to and justified by” the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S.
13 Consider the following apt description:
“The officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the
prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to
the feet.” Priar & Martin, Searching and Disarming Criminals, 45 J. Crim. L. C. & P. S. 481 (1954).
14 See n. 11, supra, and accompanying text.
We have noted that the abusive practices which play a major, though by no means exclusive, role in creating this friction are not
susceptible of control by means of the exclusionary rule, and cannot properly dictate our decision with respect to the powers of
the police in genuine investigative and preventive situations. However, the degree of community resentment aroused by
particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal
security caused by those practices.
15 These dangers are illustrated in part by the course of adjudication in the Court of Appeals of New York.
Although its first
decision in this area, People v. Rivera, 14 N. Y. 2d 441, 201 N. E. 2d 32, 252 N. Y. S. 2d 458 (1964), cert. denied, 379 U.S.
978 (1965), rested squarely on the notion that a “frisk” was not a “search,” see nn. 3-5, supra, it was compelled to recognize in
People v. Taggart, 20 N. Y. 2d 335, 342, 229 N. E. 2d 581, 586, 283 N. Y. S. 2d 1, 8 (1967), that what it had actually authorized
in Rivera and subsequent decisions, see, e. g., People v. Pugach, 15 N. Y. 2d 65, 204 N. E. 2d 176, 255 N. Y. S. 2d 833 (1964),
cert. denied, 380 U.S. 936 (1965), was a “search” upon less than probable cause. However, in acknowledging that no valid
distinction could be maintained on the basis of its cases, the Court of Appeals continued to distinguish between the two in
theory. It still defined “search” as it had in Rivera — as an essentially unlimited examination of the person for any and all
seizable items — and merely noted that the cases had upheld police intrusions which went far beyond the original limited
conception of a “frisk.” Thus, principally because it failed to consider limitations upon the scope of searches in individual cases
as a potential mode of regulation, the Court of Appeals in three short years arrived at the position that the Constitution must, in
the name of necessity, be held to permit unrestrained rummaging about a person and his effects upon mere suspicion. It did
apparently limit its holding to “cases involving serious personal injury or grave irreparable property damage,” thus excluding
those involving “the enforcement of sumptuary laws, such as gambling, and laws of limited public consequence, such as
narcotics violations, prostitution, larcenies of the ordinary kind, and the like.” People v. Taggart, supra, at 340, 214 N. E. 2d, at
584, 283 N. Y. S. 2d, at 6.
In our view the sounder course is to recognize that HN8[ ] the Fourth Amendment governs all intrusions by agents of the public
upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central
element in the analysis of reasonableness. Cf. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Mr. Justice Jackson,
dissenting). Compare Camara v. Municipal Court, 387 U.S. 523, 537 (1967). This seems preferable to an approach which
attributes too much significance to an overly technical definition of “search,” and which turns in part upon a judge-made
hierarchy of legislative enactments in the criminal sphere. Focusing the inquiry squarely on the dangers and demands of the
particular situation also seems more likely to produce rules which are intelligible to the police and the public alike than requiring
the officer in the heat of an unfolding encounter on the street to make a judgment as to which laws are “of limited public
consequence.”
Page 24 of 33
392 U.S. 1, *19; 88 S. Ct. 1868, **1878; 20 L. Ed. 2d 889, ***904; 1968 U.S. LEXIS 1345, ****31
294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e. g., Preston v. United States, 376 U.S. 364, 367-368
(1964); Agnello v. United States, 269 U.S. 20, 30-31 (1925). [****32] LEdHN[13B][ ] [13B]
[****33] LEdHN[15][ ] [15]The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from
HN9[ ] the central inquiry under the Fourth Amendment — the reasonableness in all the circumstances of the
particular [**1879] governmental invasion of a citizen’s personal security. “Search” and “seizure” are not
talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation
upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”
LEdHN[16][ ] [16] LEdHN[17A][ ] [17A]In this case there can be no question, then, that Officer McFadden
” [***905] seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer
surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have
interfered with petitioner’s personal security as he did. 16 And in determining whether the seizure and search were
“unreasonable” [****34] our inquiry [*20] is a dual one — whether the officer’s action was justified at its inception,
and whether it was reasonably related in scope to the circumstances which justified the interference in the first
place.
LEdHN[17B][
] [17B]
[****35] III. LEdHN[18][ ] [18]If this case involved police conduct subject to the Warrant Clause of the Fourth
Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which
took place. However, that is not the case. We do not retreat from our holdings that HN10[ ] the police must,
whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure,
see, e. g., Katz v. United States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United
States, 365 U.S. 610 (1961), or that in most instances failure to comply with the warrant requirement can only be
excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v.
United States, 376 U.S. 364, 367-368 (1964).But we deal here with an entire rubric of police conduct — necessarily
swift action predicated upon the on-the-spot [****36] observations of the officer on the beat — which historically has
not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved
in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and
seizures. 17
LEdHN[19][ ] [19]LEdHN[20][ ] [20]LEdHN[21A][ ] [21A]LEdHN[22][ ] [22]LEdHN[23][ ] [23]Nonetheless,
the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant
in this context. [****37] HN11[ ] In order to assess the reasonableness of Officer McFadden’s conduct as a
general proposition, it is necessary “first to focus upon [*21] the governmental interest which allegedly justifies
official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for
determining reasonableness other than by balancing the need to search [or seize] against the invasion which the
search [or seizure] entails.” Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 [***906] [**1880]
(1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 18 [****40]
16 We thus decide nothing today concerning the constitutional propriety of an investigative “seizure” upon less than probable
cause for purposes of “detention” and/or interrogation. Obviously, not all personal intercourse between policemen and citizens
involves “seizures” of persons. Only 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. We cannot tell with any certainty upon this
record whether any such “seizure” took place here prior to Officer McFadden’s initiation of physical contact for purposes of
searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights
had occurred.
17 See generally Leagre, The Fourth Amendment and the Law of Arrest,
54 J. Crim. L. C. & P. S. 393, 396-403 (1963).
18 This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s
Fourth Amendment jurisprudence. See Beck v. Ohio, 379 U.S. 89, 96-97 (1964); Ker v. California, 374 U.S. 23, 34-37 (1963);
Page 25 of 33
392 U.S. 1, *21; 88 S. Ct. 1868, **1880; 20 L. Ed. 2d 889, ***906; 1968 U.S. LEXIS 1345, ****40
HN12[ ] The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point
the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a
judge who must evaluate the reasonableness [****38] of a particular search or seizure in light of the particular
circumstances. 19 And in making that assessment it is imperative that the facts be judged against an objective
standard: would the facts [*22] available to the officer at the moment of the seizure or the search “warrant a man
of reasonable caution in the belief” that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S.
132 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 (1964). 20 Anything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently
refused to sanction. See, e. g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United
States, 361 U.S. 98 (1959). And simple “‘good faith on the part of the arresting officer is not enough.’ . . . If
subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the
people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police. [****39]
” Beck v. Ohio, supra, at 97. LEdHN[21B][ ] [21B]
LEdHN[24A][ ] [24A] LEdHN[25][ ] [25]Applying these principles to this case, we consider first the nature and
extent of the governmental interests involved. One general interest is of course that of effective crime prevention
and detection; it is this intere…