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Terry Stops

November 14, 2011

1. History, 2. Law

Terry Stops

Lots of issues in the law are referred to by the case within which the rule was formed.  What we know as our Miranda rights actually came from a consolidated opinion on four cases: Miranda v. Arizona, Westover v. United States, Vignera v. New York, and California v. Stewart.  They could just as readily been called out Westover rights, but Miranda happened to appear first in the caption.  Brady v. Maryland is another such case – filing a Brady motion is to assert that the prosecution wasn’t complete in the evidence it disclosed to the defense.  The list is long.  Terry v. Ohio is the subject here.  It authorized something known as a Terry Stop.

Set the Way-Back Machine for 1963 (the decision was issued in 1968).  There had been a string of robberies.  The cops were briefed and asked to keep their eyes open.  Officer McFadden, a seasoned cop (this is important), was walking his beat.  He noticed two yahoos walking the same path several times.  A third guy joined.  The walk was along the front and side of the building.  They also stopped to stare inside the building.  It was clear that these clowns were casing the place, and perhaps waiting for the right moment to enter.

Now we have a problem.  How “clear” was it?  They committed no crime.  In the parlance of such things, there was no “probable cause” to arrest them.  There was, however, “reasonable suspicion” that criminal activity was about to occur.  But so what, right?  Explain what you observe to another person and he would agree with your observation – that makes it reasonable.  But you’re still left with just a suspicion.  Lots of people are suspicious of things they observe:  Every morning I leave the building for work and the same guy is there – oh-so-ever supposedly also going to work.  There’s no such things as coincidences.  He’s CIA or KGB or Mossad or something.  Someone sent him to spy on me.  Then one day I was late leaving for work, and guess what!  So was he!  It’s OK, though.  I wear tin foil on my left arm.  It throws their Thought-Gathering Machine off.  Makes it read Mrs. McCreedy that’s always sitting by the window just behind me.  Where was I?

So Officer McFadden was suspicious that these guys were going to hit the store – just as several other places had been hit recently.  And this was his beat – he knew the delivery guys, store owners, etc.  These yahoos were not them.  So based upon his reasonable suspicion, he approached the guys.  He also patted them down – external clothes only.  And when he believed that he sensed a gun under a coat, he confiscated it.

Now let’s drift back to the 4th Amendment:

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

(You can get a little more background here.)  Ut oh!  We can’t be searched and we can’t be seized unless based upon probable cause.  There’s gotta be a Warrant!  Yet Officer McFadden seized the yahoos – he forced them to stop – and then he searched them for weapons.  All admittedly without probable cause and, clearly, without a Warrant.

Ah, but now look at the greater public good of crime prevention.  The stop was limited in scope.  McFadden sought to develop his reasonable suspicion – either confirm his suspicion or do away with it.  And since he claimed the right to briefly detain the yahoos, he had a further right to do so safely – the search was deemed a “frisk” and only for purposes of detecting weapons.

So rather than “seizure and search,” we have a new label: “Stop and frisk.”  Rather than needing probable cause, we only need reasonable suspicion.  And the Court did find it important that McFadden was a seasoned cop – that introduced some level of certainty to the suspicion.  You can read an overview of the case here (there’s links to the full opinion and more).

Terry has been around long enough that we’re OK with it now.  The limits of the stop and also of the frisk have been set.

But now comes another wrinkle.  Kevin Cole at CrimProf Blog has a short post here.  He links an article … check this excerpt – they’re calling it a “Cyber-Terry Stop”:

The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources which are primarily owned by the private sector are governed by a different set of constitutional principles and laws. This Article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements.

The article can be downloaded here.  It comes not from some academic who sleeps with a Teddy Bear and wears bow ties at breakfast, but from the US Department of Justice.  These clowns want to be allowed to scoop up cyber-activities.  Based upon what filter?  The words I type?  They say that it’ll be in binary form and not readable by humans – until when?  Until they slap it in front of Rainman or they think they got something?

Articles such as these is why the gun folks go ballistic over any intrusion on the 2d Amendment and why Planned Parenthood spent millions of dollars to defeat a homicide statute because if a child in the womb can be a murder victim then an abortion can be … something – I don’t know.  PP never made sense to me.

Here’s another article on the Cyber-Terry issue.

Since the government never stops trying to intrude into our privacy, lawyers will always have jobs.  Thank you.

Terry Stops allow a cop to stop you on the street.  If you get stopped, ask immediately:  “Please tell me the basis for your reasonable suspicion.”  If the cop gets hostile or can’t answer, don’t react.  Always cooperate, but remember that he stumbled.  He will again when asked on cross-examination.

UPDATE Nov 16, 2011, 200PM.  Well, isn’t this fun?  I checked my stats.  I come up on Google page 1 for the search “Scott Glick and cyber.”  I learned this because someone on a US DOJ server (IP 149.101.1.115) clicked through to this post.  Alright, no issue.  Lots of folks google themselves (assuming Scott did this and not someone else within DOJ).  Ah, but then it gets interesting …

Immediately upon clicking through to the article – a one-second delay, actually – another US DOJ pounced on my feed to gather 100% of everything written here.  And at the very same time another server came – nat-dc5.es.bluecoat.com – that, too, hit the feed.  All the servers are run out of Laurel, Maryland (although some hits brought back only “US” as location).

So here is what we’ve learned.  The US DOJ finds anything of interest on the Internet, their servers are programmed to immediately grab everything on that server.  But I’m sure it’s in binary.  I’m sure they had reasonable suspicion.  Whew …

The government is our friend.  Smile.  And people wonder why I’m a criminal-defense attorney.

UPDATE – December 15, 2011.  Does Holder’s DOJ have nothing better to do?  Since the first hit from a DOJ server discussed above, I got another a few weeks ago.  Same search for the girl’s article.  Now again today.  Are you people bored or something?  Go out and catch some criminals rather than surfing the net for who’s posting on an article one of your clowns posted.  Good fricking lord …

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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