The slow death of Mr. Terry
- The Gentleman Esquire
- Jan 20, 2016
- 5 min read
In 1968, the Supreme Court handed down the landmark decision in the case of Terry v. Ohio, 392 U.S. 1 (1968). That case laid down the framework of how police are supposed to interact with regular citizens, like you and me, in public places. This case helped many people against the injustices brought down on citizens, especially minorities, by the police in the areas of searches and seizures. It established a three tier structure defining the type of interaction and the amount of necessary police evidence to engage in a particular type of interaction.
The Tier 3 interaction is called probable cause. When looking at police encounters with citizens in public places, probable cause is required in order for police to arrest, or seize an American citizen. The standard of probable cause requires that government agents and/or police have reliable evidence making it probable, i.e., more likely than not, that a crime has been committed by the person to be searched.
The Tier 2 interaction is called Reasonable Suspicion. Reasonable suspicion is a lower standard than probable cause and requires less in terms of evidence. The Court has held that, under the reasonable suspicion analysis, an officer must have specific articulable facts supporting his belief that criminal activity is being engaged in.
However, and most times unfortunately, the reasonable suspicion analysis by an officer allows the officer to rely upon his experience and instincts, which, can often as we have seen, be wrong or negatively motivated by other factors.
The Tier 1 interaction is called a regular police citizen encounter. Based on the premise of Terry, a citizen is supposed to have the right to refuse to speak to the police at any time if there is no reasonable suspicion to stop a citizen. I mean, if the law allows a person to resist an unlawful arrest, the ability to simply refuse to talk to police and leave should be a no-brainer.
While the establishment of such a framework was essential to curtail rampant police misconduct during that era, the nebulous nature of the reasonable suspicion standard, fueled by recent decisions by the Court regarding the 4th Amendment and an overall explosion of police militarization, has the potential to become like a destructive all-consuming Blob, swallowing the rights of the citizen afforded in the Tier 3 and Tier 1 interaction.
The use of the officer’s “experience and instincts” in and of itself negatively impacts minorities due to the history of policing in the country. Surely it would be expected that the overall negative history between police forces across the country, both urban and rural, and minorities, especially blacks, would have a role in the “experience” of today’s officers, who regardless of the makeup of the community being policed, look like and descend from the creators and perpetrators of the negative history, or were the relatives, neighbors, or friends of those people.
The officer’s “experience” and police culture itself tends to create a sense of entitlement within law enforcement officials that a lot of times is at odds with the spirit of the Constitution, most times as it relates to the Fourth Amendment. To put it bluntly, it has created the mindset that any challenge to police authority, even the exercise of one’s rights, is a threat that needs to be "neutralized". As you have seen in the cases of Walter Scott, and Laquan McDonald, both shot while moving away from the police, this mentality is a very dangerous one that sadly has become part of a greater nationwide trend.
This trend can be summarized with one word….comply. Comply means to obey, submit or conform. Doesn’t it seem that most law enforcement officials, politicians too, emboldenly operate under the sinister assumption that their word is law and that there is no room for any form of disagreement or even question. Anything short of swift, strict compliance is now perceived as resistance and a potential threat. Kinda explains how people get shot reaching for a wallet, holding a toy, or even something as terrible as being handcuffed…..
No longer do the police act as peace officers guarding the public against violent criminals. But rather more like overseers directing their underlings who must obey without question. While this mentality is definitely bad by itself, the fact the Supreme Court has also limited the protections of the Terry analysis of the 4th Amendment, has helped fuel this domineering, above the law mentality.
In a case out of North Carolina, The Supreme Court said it was ok for an officer to stop a car even if the officer, who supposedly is sworn to uphold the law, is mistaken about what the law actually is. How can an officer, who doesn’t know the law, come up with specific, articulable facts that a person has broken a law, which again they don’t know, to justify a stop?
In a case out of Kentucky, the Supreme Court upheld the search of an apartment without a warrant just because the police mistakenly thought the person they were looking for was inside. Basically saying if the police can come up with a reasonable explanation for their action it doesn’t matter if they are wrong or mistaken. Huh?
In a case out of Illinois, which is very troublesome, the Supreme Court basically said even though you have a right to refuse to speak to the police under the 1st tier of Terry, you better not run if you live in whatever we call a “high crime area”.
Given the open definition of what constitutes suspicious vs. non-suspicious flight, which includes factors such as the time of day, the number of people in the area, the character of the neighborhood, whether the officer was in uniform, the way the runner was dressed, the direction and speed of the flight, and whether the person's behavior was otherwise unusual are all factors that you know will be looked at in the way which most justifies their already existing suspicions. This effectively subjects every person in the “high crime area” to a search by the cops.
1st: Since if you live in “high crime area” any attempt to leave or walk away from the cops could seen as a reason to justify a stop and search based on this opinion.
2nd: In order to exercise your right to refuse to speak to the police, you have to actually come into physical contact with the police because your attempt to evade or elude will most certainly be upheld as suspicious by the courts, validating the police stopping and searching you.
3rd: So when you come in physical contact with the police, most times they will use a so-called protective sweep or pat down to search you for their “safety” regardless of whether you actually have weapon or have been established as a threat.
4th: Then, based on their “experience and instincts” they most likely are going to come up with a reason to search or detain you further.
All of these things have helped to create a monster. Police forces that are not for the people but believe they are above the people. When peaceful protests are met with military style riot gear and a phalanx of lethal weapons, this belief is reinforced. Not only does it seem to set law enforcement officers beyond the reach of the Fourth Amendment, it also serves to chill the First Amendment's assurances of free speech, free assembly and the right to petition the government for a redress of grievances.
The consistent erosion of the protections afforded by the Terry case are slowly creating the impression that police are above the law. Many people are afraid that we may be approaching a police state. While that may be debateable, on thing is clear, we certainly live in a police "get away with a lot of bulls&&t" state. We know their position on us, so the only thing that really can change is our position on them.
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