Terry v. Ohio/Dissent Douglas
United States Supreme Court
TERRY v. OHIO
Argued: Dec. 12, 1967. --- Decided: June 10, 1968
Mr. Justice DOUGLAS, dissenting.
I agree that petitioner was 'seized' within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a 'search.' But it is a mystery how that 'search' and that 'seizure' can be constitutional by Fourth Amendment standards, unless there was 'probable cause'  to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.
The opinion of the Court disclaims the existence of 'probable cause.' If loitering were in issue and that was the offense charged, there would be 'probable cause' shown. But the crime here is carrying concealed weapons;  and there is no basis for concluding that the officer had 'probable cause' for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of 'probable cause.' We hold today that the police have greater authority to make a 'seizure' and conduct a 'search' than a judge has to authorize such action. We have said precisely the opposite over and over again. 
In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their 'seizure' without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that 'probable cause' was indeed present. The term 'probable cause' rings a bell of certainty that is not sounded by phrases such as 'reasonable suspicion.' Moreover, the meaning of 'probable cause' is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100-102, 80 S.Ct. 168, 170:
'The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of 'probable cause' before a magistrate was required.
'That philosophy (rebelling against these practices) later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even 'strong reason to suspect' was not adequate to support a warrant for arrest. And that principle has survived to this day. * * *
'* * * It is important, we think, that this requirement (of probable cause) be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. * * * And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. * * * This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.'
The infringement on personal liberty of any 'seizure' of a person can only be 'reasonable' under the Fourth Amendment if we require the police to possess 'probable cause' before they seize him. Only that line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the officer's personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime. 'In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310.
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. Until the Fourth Amendment, which is closely allied with the Fifth,  is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can 'seize' and 'search' him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.
^1 The meaning of 'probable cause' has been developed in cases where an officer has reasonable grounds to believe that a crime has been or is being committed. See, e.g., The Thompson, 3 Wall. 155, 18 L.Ed. 55; Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Director General v. Kastenbaum, 263 U.S. 25, 44 S.Ct. 52, 68 L.Ed. 146; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. In such cases, of course, the officer may make an 'arrest' which results in charging the individual with commission of a crime. But while arresting persons who have already committed crimes is an important task of law enforcement, an equally if not more important function is crime prevention and deterrence of would-be criminals. '(T)here is no war between the Constitution and common sense,' Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 1693. Police officers need not wait until they see a person actually commit a crime before they are able to 'seize' that person. Respect for our constitutional system and personal liberty demands in return, however, that such a 'seizure' be made only upon 'probable cause.'
^2 Ohio Rev.Code § 2923.01.
^3 This Court has always used the language of 'probable cause' in determining the constitutionality of an arrest without a warrant. See, e.g., Carroll v. United States, 267 U.S. 132, 156, 161-162, 45 S.Ct. 280, 288, 69 L.Ed. 543; McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 194, 93 L.Ed. 153; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Wong Sun v. United States, 371 U.S. 471, 479-484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441. To give power to the police to seize a person on some grounds different from or less than 'probable cause' would be handing them more authority than could be exercised by a magistrate in issuing a warrant to seize a person. As we stated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, with respect to requirements for arrests without warrants: 'Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained.' Id., at 479, 83 S.Ct. at 413. And we said in Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879.
'These long-prevailing standards (for probable cause) seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.' And see Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436; Wrightson v. United States, 95 U.S.App.D.C. 390, 393-394, 222 F.2d 556, 559-560 (1955).
'For the 'unreasonable searches and seizures' condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the fourth amendment.'