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Tuesday
Sep182007

314. The genius of Terry (pt. 1)

Here's a story familiar to most criminal lawyers, although this telling is less familiar than the one subsequently published by a different court:

At approximately 2:30 in the afternoon of October 31, 1963, a Cleveland detective with thirty-nine years of experience observed two persons, later identified as John W. Terry and Richard D. Chilton, engaged in behavior, on the corner of East 14th Street and Euclid Avenue (in downtown Cleveland), which immediately attracted his attention and aroused his suspicions. Positioning himself across the street he observed these men for approximately ten to twelve minutes as they alternately left the corner on which the other was stationed, walked several hundred feet up the Huron Road block, peered into the window of either a jewelry store or an airline office and then returned to the corner to converse with the other. In turn the other person would leave the corner, repeat these actions and return to the corner. This procedure was repeated at least two to five times by both men. During this period, a third man, later identified as Carl Katz, approached the corner, spoke briefly to the two men and then departed.

After ten to twelve minutes of this behavior, Terry and Chilton left the corner and proceeded west on Euclid Avenue several hundred feet to where they again met Katz. The three then engaged in a conversation. As the detective testified: ‘* * * I didn't like their actions on Huron Road, and I suspected them of casing a job, a stick-up * * *.’ With this belief in mind, the detective approached the three men, identified himself and asked for their names. Receiving only a mumbled response, the detective turned the defendant around, quickly ‘patted down’ the outside of his clothing, and, perceiving a hard object in the inner breast pocket of his topcoat, inserted his hand and removed a fully loaded automatic. At this point, the detective ordered the three men into a store, told them to face the wall and yelled to a store clerk to ‘call the wagon.’ He then proceeded to ‘pat down’ Chilton and, upon perceiving a hard object in the lefthand pocket of his topcoat, inserted his hand and removed a fully-loaded revolver. A similar ‘patting down’ of Katz revealed nothing. The three men were then taken to the police station where Terry and Chilton were charged with carrying concealed weapons.

That's from the opinion of the Ohio Court of Appeals, Eighth District.  (214 N.E.2d 114) (The asterisks are in the original - I don't know who was the first judge who thought asterisks were better than ellipses for signaling excisions from a text, but until 20-30 years ago that was standard in judicial opinions.)

It's almost sweetly innocent that Officer McFarland (and what a terrible pension plan he must have had!) would hustle his suspects into a store and tell the proprietor to "call the wagon."  That's not far removed from leaping on the sideboard of a car and telling the driver to "follow that car."  Today's Risk Management attorneys would blanch at the mere prospect.  The liability issues!

Mr. Terry was lucky enough to be represented by Louis Stokes, later a longtime congressman from Cleveland and the brother of Carl Stokes, the first Black mayor of a major American city.   (Cleveland was also the place where the American League's first Black player suited up, and where the major leagues' first Black manager dressed in a ghastly all-red uniform.  But there's something about the shape of the word "Cleveland" that makes positive things slide off, while the negatives - that uniform! - stick.)  (Here's a fabulous timeline of the brothers' careers.)

Terry himself was African-American, which I confess I never knew until I read Congressman Stokes' memories of the case.  Stokes said: "I knew Terry from his hanging around with another person I represented, a fellow by the name of Billy Cox.  Billy Cox was a rather notorious individual around Cleveland.  I represented Billy Cox in a couple [!] murder cases and knew Terry from his hanging around Billy Cox, because Terry liked to be around the more notorious type of individuals in the community." 

Here's a little something about a Cleveland hood of the era named Billy Cox, though I couldn't say for sure it's the same Billy Cox.  (I'm pretty sure it's not the Billy Cox who played bass for Jimi Hendrix, although according to Wikipedia, the Stokes brothers were cousins of the late Rick James.)

Since Terry was acquainted with Stokes, he called Stokes from jail.  And that (I always like to include professional tips for my lawyer readers) is how you get to be counsel of record in a landmark Supreme Court case. You know those wannabe gangbangers, the pathetic yet sinister parasites who think they're being an entourage to someone worth entouraging for?  They're your ticket to glory.

In the Ohio Court of Appeals, Stokes argued that Terry was arrested at "the moment the defendant was questioned by the detective", and the arrest was illegal because Officer McFarland didn't have probable cause to think Terry had committed any crime - or, for that matter, to believe that any crime had been committed by anyone. 

But the court didn't buy it.  It ruled that an officer may stop and question a person without arresting him or her.  And once that was established, it followed that the officer could frisk the person: "What is the officer to do in this situation?  Are we to allow him the right of inquiry and then, when this right is exercised, reward him with an assailant's bullet?"

The court also pointed out that suppressing evidence found in the course of a frisk would hardly deter police officers from frisking, since (ex hypothesi) they do so for self-protection rather than to hunt for evidence.  (Defense attorneys should pause at this point to mutter, "Yeah, right.")  Rather poignantly, in 1966 the Ohio court still flew the flag of judicial self-respect.  The resentment state judges felt at the then-recent federal takeover can still be heard:

The exclusionary rule of illegally obtained evidence cannot be interposed solely to provide a tidy "fox hunting" theory of criminal justice. ...

We agree with the District of Columbia Court of Appeals when it stated that it cannot believe that the "Supreme Court has forbidden the police to investigate crime."

Chief Justice Warren's famous ruling upholding the Ohio Court of Appeals' opinion reads like a point-by-point rebuttal of it.

Everybody working in criminal law knows that 1968's Terry v. Ohio was a tremendously significant opinion.  Professor Stephen A. Saltzburg, in a moment of giddiness, called it "a practically perfect doctrine", which I'm almost certain was intended as a compliment.   

But what did Terry do and how did it do it?  It might seem strange to say about such a famous opinion (45,090 citations on Westlaw), but I think the real genius of Terry has largely gone unremarked-upon.  Future posts will remark upon it.

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