Law Commons^™

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

Terry V. Ohio And The (Un)Forgettable Frisk, Seth W. Stoughton

Faculty Publications

No abstract provided.

The Unreasonable Rise Of Reasonable Suspicion: Terrorist Watchlists And Terry V. Ohio, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Terry v. Ohio's “reasonable suspicion” test was created in the context of domestic law enforcement, but it did not remain there. This Essay examines the effect of transplanting this test into a new context: the world of terrorist watchlists. In this new context, reasonable suspicion is the standard used to authorize the infringement on liberty that often results from being watchlisted. But nothing else from the case that created that standard remains the same. The government official changes from a local police officer to an anonymous member of the intelligence community. The purpose changes from crime prevention to counterterrorism. …

What’S Fear Got To Do With It?: The “Armed And Dangerous” Requirement Of Terry, Gerald S. Reamey

Faculty Articles

Reason to believe a person may be involved in criminal activity is not necessarily also reason to believe that person is armed and dangerous. "Stop and frisk," therefore, more accurately should be thought of as "stop and maybe frisk." But courts have conflated or ignored these two distinctive kinds of suspicion, inviting police officers to frisk automatically during an investigative detention, a practice that ignores the reasonableness requirement of the Fourth Amendment and subjects suspects to the indignity and intrusion of a search unsupported by any level of suspicion. This article explores some of the ways in which this undermining …

Very Like A Whale: Analogy And The Law, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Analogical reasoning is common in legal writing, just as analogies are a part of everyday life. Indeed, they may be inescapable features of human cognition. Used well, analogies illuminate the writer’s reasons and persuade the reader. Used poorly, however, they may obscure or even replace the precision and detail in reasoning that is crucial to the development of law. Without entering the ongoing debate about the nature of human thought, this article explores some of the dangers present in the relationship that analogy maintains with law. In particular, the article examines the risks inherent in analogizing across a technological or …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

The Law And Economics Of Stop-And-Frisk, David S. Abrams

All Faculty Scholarship

The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research.

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

All Faculty Scholarship

Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …

Setting Us Up For Disaster: The Supreme Court's Decision In Terry V. Ohio, Thomas B. Mcaffee

Scholarly Works

No abstract provided.

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Journal Articles

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Countermajoritarian Hero Or Zero - Rethinking The Warren Court's Role In The Criminal Procedure Revolution, Corinna Barrett Lain

Law Faculty Publications

With last fall marking the fiftieth anniversary of Earl Warren's appointment as Chief Justice, enough time has passed to place the criminal procedure revolution in proper historical perspective and rethink the Court's role there as countermajoritarian hero. In the discussion that follows, I aim to do that by examining five of the revolution's most celebrated decisions: Mapp v. Ohio, Gideon v. Wainwright, Miranda v. Arizona, Katz v. United States, and Terry v. Ohio. In none of these cases, I argue, did the Supreme Court act in a manner truly deserving of its countermajoritarian image. To be clear, I do not …

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

Police Patrol, Judicial Integrity, And The Limits Of Judicial Control, Debra A. Livingston

Faculty Scholarship

I want to thank St. John's for inviting me to be part of this reexamination of Terry v. Ohio – and particularly for this opportunity to participate in a roundtable discussion on the relationship between stop and frisk doctrine and the substantive law. This is an important and timely topic and I am happy to see it being discussed in such a serious venue.

When I was preparing my remarks for today, I thought I should call them, "Terry and the Substantive Law: A Hard, Hard Problem." Fortunately, I have sworn off titles with colons, so I settled on "Police …

The Age Of Unreason: The Impact Of Reasonableness, Increased Police Force, And Colorblindness On Terry "Stop And Frisk", Omar Saleem

Journal Publications

No abstract provided.

Terry V. Ohio At Thirty: A Revisionist View, Lewis R. Katz

Faculty Publications

In this Article, I suggest that, while the Warren Court provided a needed tool to police, it failed to achieve its stated purpose of tying the practice to the Fourth Amendment reasonableness standard. First, the Court failed to adequately define an "investigatory stop," leading later courts to harden the definition, eliminating the Fourth Amendment from most on-the-street police-citizen encounters. Second, the facts in Terry failed to meet the reasonableness standard Chief Justice Warren purported to apply and which subsequently has been further weakened in later cases. Finally, the decision in Terry failed to strike a meaningful Fourth Amendment balance between …

When “Special Needs” Meet Probable Cause: Denying The Devil Benefit Of Law, Gerald S. Reamey

Faculty Articles

Removing laws to pursue the lawbreaker may be well intentioned, but the result is that society is susceptible to the evils those laws protect against. The traditional Fourth Amendment safeguards--probable cause and warrants--have been abandoned due to the development of a reasonableness standard because of the presence of “special needs” that were used to justify searches. The adoption of this alternative approach to Fourth Amendment interpretation was signalled by the truly landmark case of Terry v. Ohio.

By adopting the “reasonableness” analysis, the Supreme Court altered the impact of the exclusionary rule without directly modifying the rule. After Griffin v. …

Michigan V. Chesternut And Investigative Pursuits: Is There No End To The War Between The Constitution And Common Sense?, Rachel A. Van Cleave

Publications

Section I of this Comment examines Terry v. Ohio, in which the Supreme Court decided that certain on-the-street encounters between police officers and citizens come within fourth amendment scrutiny. Section II traces the development of standards for determining when a seizure has occurred, that is, when a reasonable person would believe he was not "at liberty to ignore the police presence and go about his business."' In section III, this Comment argues that, when the police chase a citizen, their conduct constitutes a seizure because the citizen is aware of the police's attempt to apprehend him and is therefore …

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

Articles

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

Searches Without Warrants, Jerold H. Israel

Book Chapters

My primary area of concentration today is the search made without a warrant. Studies indicate that 95 percent or more of all searches are without warrants. It is quite understandable, then, that most of the search-and-seizure litigation concerns the validity of searches without warrants.

68/02/01 Brief For The United States As Amicus Curiae, Erwin N. Griswold, Fred M. Vinson, Jr., Ralph S. Spritzer, Beatrice Rosenberg, Mervyn Hamburg

United States Supreme Court

"In sum, we believe that it is consistent with the Fourth Amendment to recognize a power in law enforcement officers to detain and question under circumstances amounting to less than probable cause for a formal arrest, and that, in exercising such power, the officer may legitimately protect himself by a frisk for dangerous weapons" -- from page 18.

67/12/12 Oral Arguments Before The Us Supreme Court, Louis Stokes, Reuben M. Payne, Earl Warren, Hugo L. Black, William O. Douglas, John M. Harlan, William J. Brennan Jr., Potter Stewart, Byron R. White, Abe Fortas, Thurgood Marshall

United States Supreme Court

Tuesday, December 12, 1967 oral arguments before the United States Supreme Court.

67/11/17 Brief Of Americans For Effective Law Enforcement, As Amicus Curiae, James R. Thompson

United States Supreme Court

"Despite the evidence which has been found of cases in which some police have abused field interrogation in some instances - evidence upon which the amicus relies so heavily - the President's Commission on Law Enforcement and Administration of Justice unanimously recommends its adoption and use :

"The Commission believes that there is a definite need to authorize the police to stop suspects and possible witnesses of major crimes, to detain them for brief questioning if they will not voluntarily cooperate, and to search such suspects for dangerous weapons when such precaution is necessary."

This Amicus Curiae requests that the …

67/11/13 Brief Of National District Attorneys Assocation Amicus Curiae, In Support Of Respondent, Harry Wood, Harry E. Sondheim, Brenden T. Byrne, Charles Moylan Jr., Evelle T. Younger

United States Supreme Court

No abstract provided.

67/11/03 Brief Of Respondent, Reuben M. Payne, John T. Corrigan

United States Supreme Court

No abstract provided.

67/10/25 Brief Of Attorney General Of The State Of New York As Amicus Curiae In Support Of Appellees, Louis J. Lefkowitz, Samuel A. Hirshowitz, Maria L. Marcus, Brenda Soloff

United States Supreme Court

New York Attorney General Amicus Curiae brief argues that police should be able to stop and question suspects whom they reasonably believe have or are planning to commit a felony.

67/10/18 Brief For Petitioner, Terry, Louis Stokes, Jack G. Day

United States Supreme Court

No abstract provided.

67/09/27 Brief Of American Civil Liberties Union, American Civil Liberties Union Of Ohio, And New York Civil Liberties Union, Amici Curiae, Thomas H. Barnard, Irwin M. Feldman, Lewis R. Katz, Bernard A. Berkman, Lewis A. Stern, Melvin L. Wulf, Alan H. Levine

United States Supreme Court

The American Civil Liberties Union (ACLU), ACLU of New York and New York Civil Liberties Union's Amici Curiae Brief arguing against the "stop-and-frisk" practice as seen in Terry v. Ohio and Chilton v. Ohio, Peters v. New York, and Sibron v. New York.

67/08/31 Brief For The N.A.A.C.P Legal Defense And Educational Fund, Inc., As Amicus Curiae, Jack Greenberg, James M. Nabrit Iii, Michael Meltsner, Melvyn Zarr, Anthony G. Amsterdam, William E. Mcdaniels Jr.

United States Supreme Court

"The Court should hold that neither stops nor frisks may be made without probable cause. In each of these cases, the judgment of conviction should be reversed" -- conclusion, p. 69.

67/05/17 Brief In Opposition To Petition For A Writ Of Certiorari, Reuben M. Payne, John T. Corrigan

United States Supreme Court

No abstract provided.

67/03/17 Petition For A Writ Of Certiorari To The Supreme Court Of Ohio, Louis Stokes

United States Supreme Court

Argues that the introduction of evidence (their guns) against Terry and Chilton violated the Fourth and Fourteenth Amendments and that "bare suspicion alone" does not meet the requirements for "probable cause" set forth in the Forth and Fourteenth Amendments.