Nathaniel C. Sutton

Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law

Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat litigation. But after Terry, the state courts became silent. Since 1968, every state court has lockstepped with Terry in interpreting its own constitutional provisions.

This presents a puzzle, since state courts are free to provide more expansive (or less expansive) rights protections in interpreting their own state constitutions. And in other contexts, they have not been shy in doing so. In roughly a quarter of the Supreme Court’s Fourth Amendment cases, state courts have read their state guarantees to exceed the U.S. Constitution’s protections.

Terry’s suspect pedigree further complicates the puzzle. Over the past few decades, stop-and-frisk has helped spark a breakdown in police-community relations. Multiple federal investigations have uncovered its connection to systemic racism. By many accounts, both the stop and the frisk have disproportionately targeted minorities. Terry has also led to nationwide unrest. A Terry stop precipitated the deaths of Eric Garner, Michael Brown, and Freddie Gray.

This Note proposes a change in perspective: that litigants challenge stop-and-frisk under state law. It also lays the groundwork for such challenges. It examines the history of stop-and-frisk at the state level before Terry. It analyzes the Terry litigation, relying especially on the NAACP’s briefing, which accurately predicted stop-and-frisk’s perverse potential. And it synthesizes this analysis into three arguments that should be raised against stop-and-frisk under state law.

Introduction

In November 2019, former New York City Mayor Michael Bloomberg launched his campaign for the presidency in unprecedented fashion—with an apology.1 1.Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).Show More Speaking at a predominantly Black evangelical church in Brooklyn, Bloomberg renounced the stop-and-frisk policing strategy that had served as a “pillar of his 12-year mayoralty.”2 2.Id.Show More “The fact is, far too many innocent people were being stopped while we tried to do that,” Bloomberg said, later adding, “I got something important really wrong.”3 3.Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].Show More

Despite his contrition, Bloomberg was unable to shake the stigma of the city’s stop-and-frisk policy. “It’s not whether he apologized or not,” argued Joe Biden.4 4.Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].Show More “It’s the policy. The policy was abhorrent. And it was in fact a violation of every right people have.”5 5.Id.Show More Elizabeth Warren echoed these sentiments: “It targeted Black and brown men from the beginning . . . You need a different apology here, Mr. Mayor.”6 6.Id.Show More The denunciations only escalated after a 2015 video emerged in which Bloomberg expounded a racist methodology for targeting minority communities. “[W]e put all the cops in the minority neighborhoods,” he said.7 7.Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate, NPR (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].Show More “Why’d we do it? Because that’s where all the crime is. And the way you should get the guns out of the kids’ hands is throw them against the wall and frisk them.”8 8.Id.Show More The soundbite went viral and Bloomberg’s candidacy floundered thereafter.

The repercussions of stop-and-frisk extend beyond Bloomberg’s mayoralty in New York City. In 2015, the Department of Justice released its Ferguson Report, investigating the practices that contributed to riots in the St. Louis suburb. Among the DOJ’s cause-and-effect findings was this: an unchecked “pattern of suspicionless, legally unsupportable stops.”9 9.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].Show More The Ferguson Police Department “must fundamentally change the way it conducts stops and searches,” the DOJ concluded.10 10.Id. at 91.Show More Other jurisdictions have faced similar controversies. After 250,000 stops in 2009, the Philadelphia Police Department pledged to appoint an independent monitor and retrain officers as part of a settlement agreement with the ACLU.11 11.Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).Show More The ACLU has been similarly assertive in critiquing the “troubling frequency” of stops in Newark, and it has identified “similar controversies” in Miami, Baltimore, Chicago, and Detroit.12 12.Id. at 5–6.Show More

Americans have heard a lot of stop-and-frisk-related apologies from their elected officials over the past decade.13 13.This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.Show More But state court judges—many of whom are elected officials in their own right14 14.See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].Show More—have been conspicuously silent during this time in interpreting their state constitutions. How have they avoided this explosive controversy? In short, they have shielded themselves for decades behind federal precedent. In 1968, the United States Supreme Court constitutionalized stop-and-frisk under the Fourth Amendment in Terry v. Ohio.15 15.392 U.S. 1 (1968).Show More And ever since, state courts have interpreted search-and-seizure protections in their own constitutions in lockstep with Terry.

This Note demands a change. State courts are free to do what they wish, but they should not hide under the umbrella of federal precedent in construing the search-and-seizure guarantees found in their own constitutions. The Supreme Court and state courts alike recognize that “[i]t is an established principle of our federalist system that state constitutions may be a source of ‘individual liberties more expansive than those conferred by the Federal Constitution.’”16 16.State v.Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting PruneyardShopping Center v. Robins, 447 U.S. 74, 81 (1980)).Show More Indeed, over the past few decades, state courts have adopted muscular interpretations of their state provisions to reject controversial criminal procedure decisions like California v. Hodari D.,17 17.499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, seeLaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).Show More Illinois v. Gates,18 18.462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).Show More and United States v. Leon.19 19.468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).Show More As Mayor Bloomberg (and the millions of citizens subjected to stop-and-frisk) can attest to, Terry may be the most controversial of all. And it is time that it receives reassessment in America’s state court systems.

Part I of this Note examines the societal forces that shaped Terry and the state-level decision making that contributed to its enshrinement as Supreme Court precedent. Part II analyzes the Terry litigation, focusing on the problems Terry was designed to solve and the courts’ different methodologies. Part III argues that state courts play a crucial role as guardians of individual rights and, thus, should not lockstep with Supreme Court precedent. Relying upon this analysis, Part IV raises three arguments that could be marshalled against stop-and-frisk under state law. Finally, Part V offers this Note’s conclusion. Michael Bloomberg is on the record. The citizens of New York City, Philadelphia, and other American cities are too. It is time for state courts and state constitutions to have their turn. It is time to reassess stop-and-frisk under state law.

  1. * J.D., University of Virginia School of Law, 2021. I am grateful to Professor Anne Coughlin for her patience and guidance throughout this project. I am also indebted to Louis Capozzi, Justin Aimonetti, Olivia Roat, and the members of the Virginia Law Review for their thoughtful feedback. Thank you to my dear friends Josh Hanley, Drew Mackenzie, Janessa Mackenzie, Blake Page, Anna Cecile Pepper, and Avery Rasmussen for always believing in me. I will miss you next year. Finally, I am deeply blessed to have such a supportive family. John, Margaret, Marlise, Nala, Mom, and Dad, I love you.This Note was inspired by and is dedicated to my father, Jeffrey Sutton. ↑
  2. Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”). ↑
  3. Id. ↑
  4. Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB]. ↑
  5. Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT]. ↑
  6. Id. ↑
  7. Id. ↑
  8. Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate,
    NPR

    (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3]. ↑

  9. Id. ↑
  10. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7]. ↑
  11. Id. at 91. ↑
  12. Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016). ↑
  13. Id. at 5–6. ↑
  14. This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times. ↑
  15. See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ]. ↑
  16. 392 U.S. 1 (1968). ↑
  17. State v. Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)). ↑
  18. 499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, see LaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020). ↑
  19. 462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test). ↑
  20. 468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid). ↑
  21. The Nat’l Advisory Comm’n on Civ. Disorders (The Kerner Comm’n), The Kerner Report 32 (Princeton University Press 2016) (1968). ↑
  22. Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, at
    194, 267–68

    (2016). ↑

  23. The Kerner Comm’n, supra note 20, at 37. ↑
  24. See, e.g., Marcus Casey & Bradley Hardy, 50 Years After the Kerner Commission Report, the Nation is Still Grappling with Many of the Same Issues, Brookings (Sept. 25, 2018), https://www.brookings.edu/blog/up-front/2018/09/25/50-years-after-the-kerner-commission-report-the-nation-is-still-grappling-with-many-of-the-same-issues/ [https://perma.cc/R3UW-C9S5]. ↑
  25. Debra Livingston, Gang Loitering, the Court, and Some Realism About Police Patrol, 1999 Sup. Ct. Rev. 141, 178. ↑
  26. Gisske v. Sanders, 98 P. 43, 44–45 (Cal. Ct. App. 1908). ↑
  27. Id. at 45. ↑
  28. Id. at 44. ↑
  29. State v. Hatfield, 164 S.E. 518, 519 (W. Va. 1932). ↑
  30. 54 P.2d 211, 214 (Okla. Crim. App. 1935). ↑
  31. Hatfield, 164 S.E. at 519; Hargus, 54 P.2d at 213. ↑
  32. White & Fradella, supra note 11, at 36. ↑
  33. A few other cases addressed the stop-and-frisk practice during these decades. In State v. Gulczynski, 120 A. 88, 89 (Ct. Gen. Sess. 1922), a Delaware court held that an officer could stop and question a suspect without probable cause, as cited in John A. Ronayne, The Right to Investigate and New York’s “Stop and Frisk” Law, 33 Fordham L. Rev. 211, 215–16 (1964). See also People v. Henneman, 10 N.E.2d 649, 650–51 (Ill. 1937) (holding that police officers had a right to stop and question the plaintiff even though he was not committing any crime at the time of arrest, nor did the officers have reason to believe he had committed a crime); State v. Zupan, 283 P. 671, 675 (Wash. 1929) (holding that police officers were justified in stopping the plaintiff without probable cause to inquire about his business). ↑
  34. Henry F. Fradella & Michael D. White, Reforming Stop-and-Frisk, 18 Criminology, Crim. Just., L. & Soc’y 45, 46–47 (2017) (citing Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev.

    315, 317 (1942)). ↑

  35. Id. at 47. ↑
  36. Goluboff, supra note 21, at 198 (citing Uniform Arrest Act § 2, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942)). ↑
  37. Uniform Arrest Act § 3, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942). ↑
  38. Warner, supra note 33, at 316–17. ↑
  39. Id. at 317. ↑
  40. Ronayne, supra note 32, at 215 (noting statutes enacted in California, Illinois, Missouri, and Wisconsin). ↑
  41. Frank J. Remington, The Law Relating to “On the Street” Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, 51 J. Crim. L. Criminology & Police Sci. 386, 387 n.4 (1960). ↑
  42. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199. ↑
  43. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199; see also Goluboff, supra note 21, at 198 (noting that a number of scholars argued that “[d]etention was shorter and thereby less liberty depriving or stigmatizing than arrest for vagrancy”). ↑
  44. Remington, supra note 40, at 391. ↑
  45. Warner, supra note 33, at 324. ↑
  46. U.S. Dep’t of Just., Fed. Bureau of Investigation, 18.2 Uniform Crime Reports 75, 122 (1947). ↑
  47. Id. at 124. ↑
  48. U.S. Dep’t of Just., Fed. Bureau of Investigation, 27.2 Uniform Crime Reports 67, 113 (1956). These statistics probably failed to capture the full gravity of “reasonable suspicion” seizures nationwide. As Caleb Foote asked: “What proportion of the total number of arrests is made up of persons abruptly arrested, investigated for minutes or hours or days, and as abruptly released without booking?” Caleb Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J. Crim. L. Criminology & Police Sci. 402, 406 (1960). ↑
  49. William O. Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 12 (1960). ↑
  50. Id. at 13. ↑
  51. White & Fradella, supra note 11, at 40. ↑
  52. Id. ↑
  53. Brief for the NAACP Legal Defense and Education Fund, Inc. as Amicus Curiae at 34, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67) [hereinafter Brief for the NAACP]. ↑
  54. So did the pages of law journals. The NAACP’s brief provides nearly two full pages of critiques of stop-and-frisk doctrine. Among those mentioned are Foote, supra note 47, at 406 (arguing for a “reassess[ment]” of “the role the police should play in our society” focused on “stricter compliance with the [F]ourth [A]mendment”); Theodore Souris, Stop and Frisk or Arrest and Search—The Use and Misuse of Euphemisms, 57 J. Crim. L. Criminology & Police Sci. 251, 262 (1966) (arguing that the country should look to other means of preventing crime “which do not require that we tamper with the most fundamental of our constitutional rights as citizens, our right to be free”); Comment, Police Power to Stop, Frisk, and Question Suspicious Persons, 65 Colum. L. Rev. 848, 866 (1965) (contending that “the Court must proceed to develop rules on the power to stop, frisk and question suspicious persons which, based on analysis, will properly protect the individual’s right to be free from unreasonable imposition by the police”). Brief for the NAACP, supra note 52, at 10–11. ↑
  55. 293 P.2d 52, 53 (1956). ↑
  56. Id. Few state court decisions comprehensively addressed the frisk power before People v. Rivera, 201 N.E.2d 32 (N.Y. 1964). In State v. Collins, 191 A.2d 253, 255 (1963) the Supreme Court of Connecticut was unable to squarely address the frisk power because “[n]othing found as a result of the frisking was offered in evidence.” But in dicta, the court adopted a reasonableness approach under the Fourth Amendment of the federal Constitution and Article I, Section 8 of the Connecticut Constitution. Id. And in People v. Jones, 176 Cal. App. 2d 265, 267 (1959), a California appeals court held that “[w]here reasonable under the circumstances, an officer may run his hands over a person’s clothing to protect himself from attack with a hidden weapon.” ↑
  57. Martin, 293 P.2d at 54 (Carter, J., dissenting). ↑
  58. Id. ↑
  59. Id. ↑
  60. Id. ↑
  61. Harvey E. Henderson Jr., Note, Stop and Frisk in California, 18 Hastings L.J. 623, 625 (1967) (citing People v. Davis, 222 Cal. App. 2d 75, 78 (1963), People v. Hilliard, 221 Cal. App. 2d 719, 723 (1963), People v. Beverly, 200 Cal. App. 2d 119, 125 (1962), and People v. Porter, 196 Cal. App. 2d 684, 686 (1961)). ↑
  62. 163 A.2d 244, 247 (Del. 1960). ↑
  63. Id. at 249. ↑
  64. 171 N.E.2d 5 (Ill. 1960). ↑
  65. Id. at 7; see also Wayne R. LaFave & Frank J. Remington, Controlling the Police: The Judge’s Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987, 1005–06 (1965) (noting that the decisions of a judge may vary based upon the nature of the crime. For example, what is reasonable in a narcotics case is different than what is reasonable in a gambling case). ↑
  66. 364 U.S. 253 (1960). ↑
  67. Id.; see also Remington, supra note 40, at 390–91. ↑
  68. Goluboff, supra note 21, at 202. ↑
  69. Evelle J. Younger, Stop and Frisk: “Say It Like It Is,” 58 J. Crim. L. Criminology & Police Sci. 293, 295 (1967). ↑
  70. Goluboff, supra note 21, at 202 (quoting A. Fairfield Dana, ed., New York State Legislative Annual 67 (1964)). ↑
  71. Ronayne, supra note 32, at 211–12. ↑
  72. Goluboff, supra note 21, at 203. The law became effective on July 1, 1964. See Emanuel Perlmutter, New ‘Frisk’ Law Goes into Effect: Police Are Dubious About Curbs That Go with It, N.Y. Times, July 2, 1964, at 52, https://www.nytimes.com/1964/07/02/archives/new-frisk-law-goes-into-effect-police-are-dubious-about-curbs-that.html [https://perma.cc/ZSW8-HK5H]. Only two weeks later, the Harlem and Bedford-Stuyvesant Race Riots “got their impetus from the killing of a black youngster by a police officer.” Daniel J. Monti, Patterns of Conflict Preceding the 1964 Riots: Harlem and Bedford-Stuyvesant, 23 J. of Conflict Resol
    .

    41, 43–44 n.1 (1979). ↑

  73. Perlmutter, supra note 71. ↑
  74. Josh Segal, Note, “All of the Mysticism of Police Expertise”: Legalizing Stop-and-Frisk in New York, 1961–1968, 47 Harv. C.R.-C.L. L. Rev.
    573, 585

    (2012) (citing Nelson A. Rockefeller, Annual Message to the Legislature (Jan. 8, 1964) in Public Papers of Nelson A. Rockefeller: Fifty-Third Governor of the State of New York 17–18 (1964)). ↑

  75. 367 U.S. 643 (1961) (holding that the Fourth Amendment prohibits prosecutors from using evidence obtained through an unconstitutional search or seizure in a state court). ↑
  76. See, e.g., Richard H. Kuh, Reflections on New York’s “Stop-and-Frisk” Law and Its Claimed Unconstitutionality, 56 J. Crim. L. Criminology & Police Sci. 32, 36 (1965); Arlen Specter, Mapp v. Ohio: Pandora’s Problems for the Prosecutor, 111 U. Pa. L. Rev. 4, 42 (1962). ↑
  77. Goluboff, supra note 21, at 203. ↑
  78. Douglas Dales, Rockefeller Signs Bills Increasing Powers of Police; Bar and Civil Rights Groups Call ‘Stop-and-Frisk’ and ‘No-Knock’ Laws Illegal; Harassment is Feared; But Governor Says Judicial Safeguards Are Provided—Calls Bills Imperative, N.Y. Times, Mar. 4, 1964, https://www.nytimes.com/1964/03/04/archives/rockefeller-signs-bills-increasing-powers-of-police-bar-and-civil.html [https://perma.cc/F7YH-WPP2] [hereinafter Rockefeller Signs Bills]. ↑
  79. Id. ↑
  80. And where did New York’s state courts look when they faced this constitutional question? They looked to other state courts. Among the decisions cited by the majority and dissent in People v. Rivera include those mentioned earlier: State v. Collins, 191 A.2d 253 (Conn. 1963); People v. Martin, 293 P.2d 52 (Cal. 1956); Hargus v. State, 54 P.2d 211 (Okla. Crim. App. 1935); State v. Hatfield, 164 S.E. 518 (W. Va. 1932); Gisske v. Sanders, 98 P. 43 (Cal. Ct. App. 1908). People v. Rivera, 201 N.E.2d 32, 35–37 (N.Y. 1964). ↑
  81. People v. Rivera, 38 Misc. 2d. 586, 589 (N.Y. Misc. 1963). ↑
  82. Id. ↑
  83. Id. ↑
  84. Rivera, 201 N.E.2d at 34. ↑
  85. Id. at 35–36. ↑
  86. Id. at 35. ↑
  87. Id. at 36. Justice Traynor had used similar language in a 1962 article: “Such a minor interference with personal liberty would touch the right to privacy only to serve it well.” Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States,
    1962

    Duke L.J. 319, 334. After fifty years of stop-and-frisk, one has to imagine the New York state courts would like another look at this constitutional assessment. As Judge Scheindlin lamented in Floyd v. City of New York, “[w]hile it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience.” 959 F. Supp. 2d 540, 557 (S.D.N.Y. 2013). ↑

  88. Rivera, 201 N.E.2d at 37 (Fuld, J., dissenting). ↑
  89. Id. at 38 (citing Douglas, supra note 48, at 12, 13). ↑
  90. Id. at 39. ↑
  91. Id. The ACLU cited Justice Fuld’s “stirring language” as a conclusion to its amicus brief in Terry: “The loss of liberty entailed in authorizing a species of search on the basis of mere suspicion is too high a price to pay for the small measure of added security it promises.” Brief of ACLU, et al. as Amici Curiae, at 33, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67). ↑
  92. Rivera, 201 N.E.2d. ↑
  93. Right to Frisk Gets Supreme Court OK, Cleveland Press, June 10, 1968, at A1, A12, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?‌article=1003&‌con‌text‌‌=‌terryvohio_newspaper [https://perma.cc/LG2Y-VAX7]. ↑
  94. Id. at A12. ↑
  95. State v. Chilton, 95 Ohio L. Abs. 321, 325 (1964). ↑
  96. Bus Bergen, Illegal Search is Charged at Concealed Weapons Trial, Cleveland Press, Sept. 22, 1964, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent–.cgi?article=1005&context=terryvohio_newspaper [https://perma.cc/Z5SW-XYT3]. ↑
  97. Id.; Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 431 (2004). Accounts dispute the number of times the suspects “repeated this ritual.” Terry v. Ohio, 392 U.S. 1, 6 (1968). The United States Supreme Court believed that “roughly a dozen trips” were taken. Id. But the Court of Appeals of Ohio claimed the suspects walked past the store “two to five times by both men.” State v. Terry, 214 N.E.2d 114, 116 (Ohio Ct. App. 1966). It turns out Officer McFadden’s memory was particularly fuzzy on this point. In his police report from the day of the incident, he claimed they looked into the store “about three times each.” Katz, supra, at 431. Later, at a suppression hearing, he upped the ante to “four or five times apiece” and eventually to “four to six trips each.” Id. Finally, at trial, he confessed “maybe four to five trips, maybe a little more, it might be a little less. I don’t know, I didn’t count the trips.” Id. For some, this pointed to a potential problem with the reasonable suspicion standard. Ambiguous evidence like the number of times a suspect walked by a store or their “mumbled response” to a question could foster suspicion when all an officer had to go on was “they didn’t look right to me.” Id. at 430, 434. Tellingly, these nuances were largely lost on the trial court judge, who noted, “There is no question about the facts in this case.” Chilton, 95 Ohio L. Abs. at 322. ↑
  98. Terry, 392 U.S. at 6. ↑
  99. Id. at 6–7. ↑
  100. Id. ↑
  101. Id. ↑
  102. Id. at 7. ↑
  103. Id. This is a familiar story, so for the sake of brevity I have omitted many of the details. For a more comprehensive account, see, for example, id. at 5–8; Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine, 72 St. John’s L. Rev. 911, 912–14 (1998); Katz, supra note 96, at 430–34. ↑
  104. See Saltzburg, supra note 102, at 914–15. ↑
  105. State v. Chilton, 95 Ohio L. Abs. 321, 322 (1964). ↑
  106. Id. at 323. Indeed, Judge Friedman cited both People v. Rivera and People v. Martin in his opinion, demonstrating that the laboratories of democracy were aware of each other’s precedent. Id. at 324. ↑
  107. Id. at 322. ↑
  108. Id. at 323. ↑
  109. The name of the defendant changed because Richard Chilton was killed in a drug store holdup in Columbus in June 1867. James T. Cox, Bullets Write Finish to Chilton Case, Cleveland Plain Dealer, June 18, 1967, available at https://engagedscholarship.‌csuohio.edu/cgi/viewcontent.cgi?article=1015&context=terryvohio_newspaper [https://perma.cc/C343-P2YJ]. ↑
  110. Brian Albrecht, Hough Riot, 50 Years Ago, Couldn’t Destroy a Neighborhood, Cleveland.com (July 24, 2016), https://www.cleveland.com/metro/2016/07/hough_riot_–50_years_ago_couldn.html [https://perma.cc/Z9ZN-ZCZ9]. ↑
  111. Marc E. Lackritz, The Hough Riots of 1966, 1, 8 (Apr. 10, 1968) (B.A. thesis, Princeton Univ.). ↑
  112. Id. at 9. Another policeman described the riots as “like the part in an old western where you’re caught in crossfire in a box canyon.” Id. at 8. ↑
  113. State v. Terry, 214 N.E.2d 114, 117 (Ohio Ct. App. 1966). The citations included Gisske, Faginkrantz, Rivera, and Martin. Id. ↑
  114. Id. at 118 (looking to various other state tribunals because “[t]he courts of Ohio do not appear to have been squarely presented with this problem before”). ↑
  115. Id. The NAACP took particular exception to this phrase in its amicus brief. Over the course of five pages, the Association explained how even the most discrete of police encounters—a “hey, there”—might be interpreted as a threat by “the man in the ghetto.” Brief for the NAACP, supra note 52, at 35. Compounding the injustice was the fact that these stops would occur “day in day out, and for the same reasons.” Id. ↑
  116. Terry, 214 N.E.2d at 120. ↑
  117. Id. at 120. See also Saltzburg, supra note 102, at 916 (“The court was careful to distinguish a frisk for dangerous weapons from a ‘search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest.”). ↑
  118. Goluboff, supra note 21, at 200. ↑
  119. Id.; see, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (applying the exclusionary rule against the states); Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963) (mandating the appointment of counsel under the Sixth Amendment in all state court prosecutions); Escobedo v. Illinois, 378 U.S. 478, 479, 484 (1964) (holding that Illinois denied a suspect in custody the assistance of counsel in violation of the Sixth Amendment); Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that a defendant “must be warned prior to any questioning that he has the right to remain silent . . . .”). ↑
  120. Earl Warren, The Memoirs of Chief Justice Earl Warren 316 (Madison Books 2001) (1977); see also Michal R.

    Belknap, The Supreme Court under Earl Warren, 1953–1969, at 218 (2005) (detailing the Warren court’s creation of new constitutional rules of criminal procedure applicable to the states); Paul Moke, Earl Warren and the Struggle for Justice 209–11 (2015). ↑

  121. Jack H. Pollack, Earl Warren: The Judge Who Changed America 267–68 (1979); see also Leo Katcher, Earl Warren: A Political Biography 440 (1967) (noting Chief Justice Warren’s concern about abusive police practices). ↑
  122. Goluboff, supra note 21, at 201 (citing 2 Albert J. Reiss, Studies of Crime and Law Enforcement in Major Metropolitan Areas 112 (1967)). ↑
  123. Goluboff, supra note 21, at 205. McFadden had thirty-nine years of experience at the time of the arrest. ↑
  124. Brief for the ACLU, supra note 90, at 31 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)). ↑
  125. Id. at 31–32. ↑
  126. Brief for the NAACP, supra note 52, at 24. ↑
  127. Id. at 21. Demonstrating its complete distrust of the local officer, the NAACP drew a clear line: “Concerning both the occasions and extent of police intrusion upon the individual, ‘nothing is left to the discretion of the officer.’” Id. (citing Berger v. New York, 388 U.S. 41, 58 (1967)). Part IV addresses the NAACP’s analytical approach to the Fourth Amendment and probable cause in more detail. ↑
  128. Brief for the NAACP, supra note 52, at 22–24. In fact, the NAACP already had evidence of the malleability of the stop-and-frisk framework. Simultaneously, litigation was ongoing regarding whether the police could seize contraband from a suspect “wholly within” an officer’s control, whether a policeman could reach into a suspect’s pocket to grab evidence without first frisking the defendant, and whether a frisk could “encompass the search of an automobile in which the ‘stopped’ suspect is riding.” Id. at 49–50. ↑
  129. Id. at 51, 58. ↑
  130. Id. at 62. The NAACP tried to convey to the Justices how stop-and-frisk played out in practice, citing to specific police manuals and instructions. See, e.g., id. at 45–46. One such manual encouraged officers to: “Be suspicious. This is a healthy police attitude . . . .” Id. at 45. Another provided a list of individual qualities that might justify field interrogation, like “known trouble-makers” or “unescorted women or young girls in public places.” Id. at 46. In case the list was not exhaustive enough, number twenty conferred complete discretion: “Many others. How about your own personal experiences?” Id. Goluboff, supra note 21, at 207 called my attention to this part of the brief. ↑
  131. Brief for the NAACP, supra note 52, at 62. (As the New York Times noted: “[T]he script was familiar. Some minor incident begins it all, often the arrest of a Negro by a policeman.”). Americans outside the ambit of the Court’s briefing also understood the stakes. The Cleveland Plain Dealer would note after oral arguments that the case was heard “against a background of day-by-day stop-and-frisk actions by police that are increasingly resented by Negroes and others in the big-city ghettos.” Sanford Watzman, High Court Sifts Street Search Arguments, Cleveland Plain Dealer 5 (1967), available at https://engagedscholarship.csuohio.edu–/cgi/viewcontent.cgi?article=1004&context=terryvohio_newspaper [https://perma.cc/Y97X-YC6E]. ↑
  132. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). ↑
  133. Earl C. Dudley, Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk’s Perspective,
    72

    St. John’s L. Rev. 891, 892 (1998). ↑

  134. Id. Title II of the Omnibus Crime Control and Safe Streets Act, which included provisions designed to overturn Miranda, was also passed in 1968. Belknap
    ,

    supra note 119, at 255. ↑

  135. In 1967, the year before Terry was decided, “one out of eight policemen across the country was assaulted.” Goluboff, supra note 21, at 268. ↑
  136. Dudley, supra note 132, at 892. ↑
  137. Katz, supra note 96, at 440 n.88 (citing Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 538). ↑
  138. Belknap
    ,

    supra note 119, at 256. ↑

  139. McCray v. Illinois, 386 U.S. 300, 300 (1967). ↑
  140. Id. at 304. ↑
  141. Warden v. Hayden, 387 U.S. 294, 294, 307–08 (1967). ↑
  142. Goluboff, supra note 21, at 206. Between 1960 and 1965, the national violent crime rate jumped 24.4%. Katz, supra note 96, at 435 n.79. Then, from 1965 to 1970, it spiked 81.6%. Id. This was precisely what the government felt that field interrogations were designed to solve. ↑
  143. Brief for the State of Ohio at 40, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67). ↑
  144. Id. at 15. ↑
  145. Id. at 41. ↑
  146. Id. ↑
  147. Id. ↑
  148. Dudley, supra note 132, at 893. ↑
  149. Goluboff, supra note 21, at 210. Around this time, the Court expressed a similar concern about unbounded police discretion in the context of the vagueness doctrine. See Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 356 (2021) (observing that the Court invalidated an ordinance prohibiting loitering in Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) “because of the excessive authority it granted to police” and “enabled them to make their own decisions about when loitering would and would not be allowed”). ↑
  150. Id. ↑
  151. Terry v. Ohio, 392 U.S. 1, 8–9 (1968). ↑
  152. David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, 3 U. Pa. J. Const. L. 367, 373–74 (2001). ↑
  153. Terry, 392 U.S. at 17. Dudley recalls that Chief Justice Warren was also skeptical of the “scope of the authority claimed by the police.” The power to “detain” on suspicion seemed “susceptible of major abuse” given the Kerner Commission’s reports about “aggressive patrol” tactics and the “political tensions” that “ran high” during the Cold War. Dudley, supra note 132, at 893. ↑
  154. Terry, 392 U.S. at 10. ↑
  155. Id. ↑
  156. Id. at 22. ↑
  157. Id. at 23. As Dean Goluboff notes, “[c]ertainly, the guns McFadden found on Terry and Chilton illustrated the need for the police to have authority to protect their own lives.” Goluboff, supra note 21, at 209–10. ↑
  158. Dudley, supra note 132, at 895; see also Saltzburg, supra note 102, at 922 (“This analysis virtually ignored the potential ‘stop’ aspect of the case . . . . Were they free to leave? Was this a seizure? The Court neither asked nor answered these questions.”). ↑
  159. Terry, 392 U.S. at 26. In other words, the officer had to limit the scope of his search to a protective “pat-down” “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29–30. He could not conduct a full-on search incident to arrest for contraband or evidence relevant to the crime. Moreover, the officer could not “place his hands in their pockets or under the outer surface of their garments until he had felt weapons.” Id. ↑
  160. Terry, 392 U.S. at 28. ↑
  161. Id. at 33 (Harlan, J., concurring); Dudley, supra note 132, at 895. ↑
  162. Terry, 392 U.S. at 32 (Harlan, J., concurring). ↑
  163. Id. ↑
  164. Id. at 33–34. ↑
  165. But see Katz, supra note 96, at 457 n.144. Harlan’s assessment that the right to frisk flowed automatically from the stop has not been adopted by courts. The two remain separate inquiries. ↑
  166. Terry, 392 U.S. at 38 (Douglas, J., dissenting). ↑
  167. Id. at 37, 38. ↑
  168. Id. at 39. In Terry, the Chief Justice cited statistics demonstrating the assaults, injuries, and deaths that policemen had incurred over the past decade. Terry, 392 U.S. at 24 n.21. These were the same type of statistics cited by the law enforcement associations in their briefs. ↑
  169. Id. at 39. ↑
  170. Id. ↑
  171. Dudley, supra note 132, at 893. ↑
  172. While the state courts agreed with the Justices’ evaluation of the frisk, none of them had uncoupled the frisk and the stop like the Chief Justice. ↑
  173. E.J. Kissell, Court Ruling is Gratifying to Detective in Frisk Case, Cleveland Press (June 11, 1968), https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1002&–context=terryvohio_newspaper [https://perma.cc/84MB-XPYU]. ↑
  174. Brown v. Allen, 344 U.S. 443, 540. (1953) (Jackson, J., concurring). ↑
  175. U.S. Const., art. III, § 1. ↑
  176. This section draws generally on insights from Jeffrey Sutton, 51 Imperfect Solutions (2018). ↑
  177. Justice Kavanaugh offered this reminder to litigants in a recent Establishment Clause blockbuster, American Legion v. American Humanist Association, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring). Even though the individuals challenging the Bladensburg cross had lost at the federal level, Justice Kavanaugh reminded them that they still could appeal to their state constitution. Maryland courts were free to provide more expansive protections for religious liberty under their founding document. The Supreme Court “is not the only guardian of individual rights in America.” Id. (citing Sutton, supra note 175). Both sides of the Court are in agreement on this point. In Robinette v. Ohio, 519 U.S. 33, 42 (1996) (Ginsburg, J., concurring), a Fourth Amendment case, Justice Ginsburg agreed that “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.” (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)). ↑
  178. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447, 455 (1990). ↑
  179. Id. at 455. ↑
  180. The Michigan Supreme Court reminded litigants that the “appropriate analysis of our constitution does not begin from the conclusive premise of a federal floor.” Sitz v. Dep’t of State Police, 506 N.W.2d 209, 217 (Mich. 1993). ↑
  181. Id. at 225. ↑
  182. Id. at 223–24. ↑
  183. The Federalist No. 51 at 339 (James Madison); see also William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.
    489

    , 504 (1977) (“[W]e may be confident that [Madison] would welcome the broadening by state courts of the reach of state constitutional counterparts beyond the federal model . . . .”). ↑

  184. The Federalist No. 51 at 339 (James Madison); see also The Federalist No. 10 at 61 (James Madison) (“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.”). ↑
  185. Stephen Kanter, Sleeping Beauty Wide Awake: State Constitutions as Important Independent Sources of Individual Rights 15 Lewis & Clark L. Rev. 799, 801–02 (2011). (quoting James Wilson, Of Government, in The Works of the Honorable James Wilson, L.L.D. 383, 398 (1804)). ↑
  186. The Federalist No. 46 at 305 (James Madison). ↑
  187. Id. at 307. ↑
  188. Id. Professor Micah Schwartzman deserves credit for many of the insights in this paragraph. The organization of the virtues of federalism section into the categories of individual choice, competition, experimentation, prevention against tyranny, and protection of liberty stems from one of his class lectures. ↑
  189. The Federalist No. 51 at 337 (James Madison). ↑
  190. The Federalist No 46 at 305 (James Madison). ↑
  191. For instance, one can imagine a jurisdiction that strikes down stop-and-frisk under its state constitution proving particularly appealing for minorities who have been the subject of profiling or allies who hope to live in a jurisdiction that embraces their concern for social justice. Independent interpretation of state constitutions also is neutral, as it applies equally to liberty and property rights, individual rights, and structural rights. ↑
  192. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). ↑
  193. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.
    489

    , 503 (1977). ↑

  194. Id. at 495, 503. ↑
  195. Robert Williams, The Law of American State Constitutions 137 (2009); Goodwin Liu, State Constitutions and the Protections of Individuals Rights: A Reappraisal, 2018 Forum for State Appellate Court Judges, Pound Civil Justice Institute 51 (2019), http://www.poundinstitute.org/wp-content/uploads/2019/04/2018_forum-report_2.26.19.pdf [https://perma.cc/T2QY-AHVR]; see also, State v. Hempele, 576 A.2d 793, 800 (N.J. 1990) (“Cognizant of the diversity of laws, customs, and mores within its jurisdiction, the United States Supreme Court is necessarily ‘hesitant to impose on a national level far-reaching constitutional rules binding on each and every state.’” (citing State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring))). ↑
  196. Furthermore, as Justice Brandeis warned, “[d]enial of the right to experiment may be fraught with serious consequences to the Nation.” New State Ice Co., 285 U.S. at 311. Indeed, one of the benefits of state experimentation is that it would serve as an essential check against tyranny and a separate source of liberty for the people. State courts can prevent tyranny by serving as an intermediary against federal overreach—a separate forum for Americans to air their grievances. And they can protect liberty by enforcing separate state legal regimes to protect Americans from laws passed in excess of governmental power. For a cautionary story of how state courts have served this role, see Sutton, supra note 175, at 84–132 (describing how state courts initially voided a number of early eugenics laws as unconstitutional, before ceding the field to the Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the federal Constitution in Buck v. Bell, 274 U.S. 200 (1927)). ↑
  197. In the words of Jacob Landynski, the Fourth Amendment has “both the virtue of brevity and the vice of ambiguity.” Tracey Maclin, The Central Meaning of the Fourth Amendment 35 Wm. & Mary L. Rev. 197, 247 (1993) (quoting Jacob W. Landynski, Search and Seizure and the Supreme Court 42 (1966)). ↑
  198. Compare Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 759 (1994) (“We need to read the Amendment’s words and take them seriously: they do not require warrants, probable cause, or exclusion of evidence, but they do require that all searches and seizures be reasonable.”); Telford Taylor, Two Studies in Constitutional Interpretation 91–92 (1969) (critiquing the Court for “treat[ing] warrantless searches as disreputable second cousins” while recognizing that “I am swimming against the current of opinion.”); Richard Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 75 (“Probable cause, a phrase from the second clause of the Fourth Amendment, is a limitation on the issuance of warrants; it is not part of the definition of reasonableness”), with Maclin, supra note 196, at 202 (“At a minimum, the Fourth Amendment commands compelling reasons, or at least a substantial justification, before a warrantless search or seizure is declared reasonable.”); United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., dissenting) (“When the Fourth Amendment outlawed ‘unreasonable searches’ and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is ‘unreasonable’ unless a warrant authorizes it, barring only exceptions justified by absolute necessity.”); Harris v. United States, 331 U.S. 145 (1947) (Jackson, J., dissenting) (“[N]o search of premises, as such, is reasonable except the cause for it be approved and the limits of it fixed and the scope of it particularly defined by a disinterested magistrate.”). ↑
  199. Which may not always be a given, although state protections do closely mirror the Fourth Amendment. ↑
  200. In the context of the right to counsel, for instance, states that provided broader protections than the United States Supreme Court cited historical evidence from their state ratifying conventions to justify their interpretation. See Louis J. Capozzi III, Sixth Amendment Federalism, 43 Harv. J.L. & Pub. Pol’y 645, 684 (2020) (observing that the Iowa Supreme Court studied the debates surrounding the state’s right-to-counsel provision to “justify the court’s holding that the state constitution guaranteed the right to counsel to all defendants charged with a jailable offense”). Originalist judges should do the same with respect to their state search and seizure provisions. ↑
  201. People v. Sundling, 395 N.W.2d 308 (Mich. Ct. App. 1986). Many of the state cases I cite in the next few pages were found in: Faulkner & Green, supra note 17. ↑
  202. State v. Quino, 840 P.2d 358, 362 (Haw. 1992). ↑
  203. Id. at 365 (Levinson, J., concurring). ↑
  204. Id. ↑
  205. See, e.g., State v. Guzman, 842 P.2d 660, 671 (Idaho 1992) (rejecting Leon’s deterrence rationale for the exclusionary rule. Under state law “this Court has held that the exclusionary rule does more than merely deter police misconduct.” It is also “a constitutionally mandated remedy for illegal searches and seizures.”); State v. Oquendo, 223 Conn. 635, 651 (Conn. 1992) (“We are persuaded that the distinction made by the United States Supreme Court between an arrest and an attempted arrest at common law does not guide our determination of what constitutes a seizure under . . . our state constitution.”); In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (“[W]e reject [Hodari] because . . . we are not persuaded by the arguments favoring the Hodari approach, and . . . we are persuaded that there is no need to depart from the pre-Hodari approach.”); Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (stating that the Gates totality-of-the-circumstances test “is flexible, but [it] is also ‘unacceptably shapeless and permissive.’ The Federal test lacks the precision that we believe can and should be articulated in stating a test for determining probable cause.” (citation omitted)); State v. Jones, 706 P.2d 317, 324 (Alaska 1985) (“After carefully reviewing the majority’s reasoning in Gates, we conclude [it] does not provide the constitutional protection against unreasonable searches and seizures required by [the Alaska constitution].”). ↑
  206. State courts, after all, can weigh geographic and demographic considerations unique to their jurisdictions. Crime rates and police practices vary between cities and states. For a thoughtful study of this factor in the context of the right to appointed counsel, see Capozzi III, supra note 199, at 709–10, 712–13. ↑
  207. California v. Greenwood, 486 U.S. 35, 37 (1988). ↑
  208. Id. at 36, 43. ↑
  209. In Greenwood, police acquired the garbage from a trash collector. 486 U.S. at 37. In Hempele, the police themselves removed the garbage. State v. Hempele, 576 A.2d 793, 796 (N.J. 1990). ↑
  210. State v. Hempele, 576 A.2d 793, 807–08 (N.J. 1990). ↑
  211. Id. at 808. ↑
  212. Id. ↑
  213. Id. ↑
  214. Id. at 814. ↑
  215. See, e.g., State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019) (quoting State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016)) (“We jealously guard our right to construe a provision of our state constitution differently than its federal counterpart, though the two provisions may contain nearly identical language and have the same general scope, import, and purpose.”); Interest of B.C., 683 A.2d 919, 926 (Pa. Super. Ct. 1996) (“[I]t is well settled that our courts are free to establish greater protection of such rights in the provisions of the Pennsylvania Constitution.”); State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992) (“[W]e have at times determined that the state constitution affords greater protections to the citizens of Connecticut than does the federal constitution, as interpreted by the United States Supreme Court.”). ↑
  216. Faulkner & Green, supra note 17, at 198. ↑
  217. I use Green’s estimate, taken from Harold Spaeth’s databases (available at http://scdb.wustl.edu/index.php), of 342 “Fourth Amendment” cases. Id. ↑
  218. Id. at 200. Faulkner & Green cite one case, State v. Lopez, 896 P.2d 889 (Haw. 1995), in which they contend Hawaii departed from Terry. But the case is not about stop-and-frisk; it is about the unconstitutional search of a home. Moreover, in cases like State v. Ugalino, 107 Haw. 144, 150 (2000), Hawaii courts have “applied the standards set forth in Terry in determining whether police conduct complied with” the Hawaii constitution. ↑
  219. Benjamin Zycher, Michael Bloomberg and the Stop-and-Frisk About Face, Am. Enter. Inst. (Nov. 19, 2019), https://www.aei.org/politics-and-public-opinion/‌michael-bloomberg-and-the-stop-and-frisk-about-face/ [https://perma.cc/B47W-YBEX]. ↑
  220. Maclin, supra note 196, at 202. ↑
  221. Terry, 392 U.S. at 17, 26. ↑
  222. Id. at 33 (Harlan, J., concurring). ↑
  223. See Kavanagh v. Stenhouse, 174 A.2d 560, 562 (1961); People v. Rivera, 201 N.E.2d 32, 34–35 (1964). ↑
  224. See Brief for the NAACP, supra note 52, at 26–27. ↑
  225. This is not to say that the NAACP was at all comfortable with the current state of criminal procedure or the functioning of probable cause in American society. Asking if the standard “function[ed] unerringly, or with perfect clarity,” the brief responded sharply: “Of course, it does not.” Even in the progressive sixties, Black and brown Americans were still fighting a rearguard action to protect “the only standard which [the] Court ha[d] ever developed under the Fourth Amendment for judicial regulation of the police.” Id. at 29–30. ↑
  226. Id. at 27. ↑
  227. Id. at 29. ↑
  228. Id. at 39. ↑
  229. Id. at 39–40. ↑
  230. Id. at 40 (citing Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 22 (1958)). ↑
  231. People v. Martin, 293 P.2d 52, 55 (1956) (Carter, J., dissenting) (quoting People v. Simon, 290 P.2d 531, 534 (1955)). ↑
  232. See Rockefeller Signs Bills, supra note 77. ↑
  233. Floyd v. City of New York, 959 F. Supp. 2d 540, 575 (S.D.N.Y. 2013). ↑
  234. Id. at 558–59. ↑
  235. Id. at 578. ↑
  236. Id. at 559. In fact, this trend was only increasing when Floyd was decided. From 2004 to 2009, “the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.” Id. ↑
  237. See, e.g., The National Association for the Advancement of Colored People
    ,

    Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America, (2014), https://www.prisonpolicy.org/scans/naacp/Born_Suspect_Report_final_web.pdf [https://perma.cc/MML3-HUVV]. ↑

  238. Floyd, 959 F. Supp. 2d at 559. ↑
  239. Id. ↑
  240. Ashley Southall & Michael Gold, Why ‘Stop-and-Frisk’ Inflamed Black and Hispanic Neighborhoods, N.Y. Times (Nov. 17, 2019), https://www.nytimes.com/2019/11/17/–nyregion/bloomberg-stop-and-frisk-new-york.html [https://perma.cc/F67P-Y29X]. ↑
  241. Ray Rivera, Al Baker, & Janet Roberts, A Few Blocks, 4 Years, 52,000 Police Stops, N.Y. Times (July 11, 2010), https://www.nytimes.com/2010/07/12/nyregion/12frisk.html [https://perma.cc/W4EE-8JVB]. ↑
  242. Id. ↑
  243. Id. ↑
  244. One reason that state constitutions provide a helpful mechanism to question stop-and-frisk is that the practice’s ramifications differ across the country. The examples below are from major cities, where Black Americans have been disproportionately stopped. Perhaps stop-and-frisk would be more palatable in a rural state where the same discriminatory practices are not as common. ↑
  245. Chad Pradelli & Cheryl Mettendorf, Racial Disparities in Philadelphia Police’s Use of Stop-and-Frisk, Data Shows, 6 ABC Philadelphia (Sept. 9, 2020), https://6abc.com/stop-and-frisk-philadelphia-data-philly/6413942/ [https://perma.cc/8H9R-8ATC].Black residents make up 40% of Philadelphia’s population, but roughly 70% of the stops targeted Black Americans. Id. ↑
  246. A.D. Quiq & Sarah Zimmerman, ‘Stop and Frisk’ Still Disproportionately Impacting Black Chicagoans: Study, Crain’s Chicago Business
    (

    Oct

    . 24, 2019)

    , https://www.chicagobusiness.com/government/stop-and-frisk-still-disproportionately-impacting-black-chicagoans-study [https://perma.cc/Z2S7-FPUC]. But see Monu Bedi, Commentary: Stop-and-Frisk Is Not Racist, and We Need to Stop Saying It Is, Chicago Tribune (Mar. 2, 2020), https://www.chicagotribune.com/opinion/commentary/ct-opinion-stop-and-frisk-police-bloomberg-20200302-6skrfrw5ujcppjdmq2jkqwmnya-story.html [https://perma.cc/5YPE-3MZX]. ↑

  247. Elliot C. Williams, New Stop-And-Frisk Data Still Shows Wide Racial Disparities in D.C., DCist

    (Mar. 5, 2020), https://dcist.com/story/20/03/05/new-stop-and-frisk-data-still-shows-wide-racial-disparities-in-d-c/ [https://perma.cc/RT5X-F4HJ]. See also Brianne K. Nadeau, Opinion, End Stop and Frisk in D.C., Wash. Post (Feb. 15, 2019), https://www.washingtonpost.com/opinions/localopinions/end-stop-and-frisk-in-dc/2019/02/14/cdd59c2c-2fab-11e9-8ad3-9a5b113ecd3c_story.html [https://perma.cc/FY9F-78YV] (calling on officials to “end the practice of stop and frisk in the District.”). But see Peter Newsham, Opinion, Yes, D.C. Police Use Stop and Frisk, but in a Legal Manner, Wash. Post (Feb. 22, 2019), https://www.washingtonpost.com/opinions/yes-dc-police-use-stop-and-frisk-but-in-a-legal-manner/2019/02/22/b85f6518-35f9-11e9-8375-e3dcf6b68558_story.html [https://perma.cc/GLA2-SFML]. ↑

  248. NAACP
    ,

    supra note 236. ↑

  249. See discussion supra Part III. ↑
  250. Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St. John’s L. Rev. 1097, 1125 (1998). ↑
  251. Brief for the NAACP, supra note 52, at 22–23; Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 366 (1974) (“[T]he primary abuse thought to characterize the general warrants and the writs of assistance was their indiscriminate quality, the license that they gave to search Everyman without particularized cause . . .”). For a more in-depth study, see generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009) (surveying the history of unreasonable searches and seizures stemming from the traditional British maxim of privacy within the home and shaped by early use of the general warrant). ↑
  252. See Cuddihy
    ,

    supra note 250, at 602 (“[T]he laws and constitutions of most states abrogated general warrants and searches years before the Fourth Amendment did so.”). Cuddihy also noted,

    “

    Not only did those [state] constitutions disallow general warrants, they also elevated specific warrants, probable cause, and the idea of unreasonable search and seizure to the position of higher law.” Id. at 603. In particular, “John Adams articulated the most far-reaching repudiation of general warrants in the constitutions of 1776–84.” Id. at 609. ↑

  253. Terry v. Ohio, 392 U.S. 1, 17 (1968); see also Brief for the NAACP, supra note 52, at 35–38. ↑
  254. People v. Rivera, 201 N.E.2d 32, 36 (1964) (Fuld, J., dissenting). ↑
  255. Terry, 392 U.S. at 29. ↑
  256. Id. at 27. ↑
  257. A study by the New York Civil Liberties Union showed a frisk occurring in 66% of stops. NYCLU, Stop-and-Frisk in the De Blasio Era 14 (2019), https://www.nyclu.org/–en/publications/stop-and-frisk-de-blasio-era-2019 [https://perma.cc/5U2X-QHAT]. ↑
  258. White & Fradella, supra note 11, at 110. ↑
  259. Brief for the NAACP, supra note 52, at 50. ↑
  260. Id. (quoting People v. Taggart, 229 N.E.2d 581, 586 (N.Y. 1967)). ↑
  261. White & Fradella, supra note 11, at 63. A more recent study in the De Blasio era found weapons discovered in 7% of frisks. NYCLU, supra note 256. ↑
  262. White & Fradella, supra note 11, at 104 (citing Report of Jeffrey Fagan, Ph.D., at 4, Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013)). ↑
  263. Id. See also Benjamin Mueller, It Wasn’t a Crime to Carry Marijuana. Until the Police Found a Loophole., N.Y. Times (Aug. 2, 2018), https://www.nytimes.com/2018/08/02/–nyregion/marijuana-police-nyc.html [https://perma.cc/8QE9-VCUV] (describing how “police officers stopping and frisking people [would] ask[] them to empty their pockets, and when marijuana fell out, [the police officers would] arrest[] them because their hidden stash had suddenly become ‘open to public view’”). ↑
  264. Mueller, supra note 262; see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness
    170

    (2010) (noting that stop-and-frisk operations “amount to much more than humiliating, demeaning rituals for young men of color” and “often serve as the gateway into the criminal justice system”). ↑

  265. Stop-and-Frisk: The Facts, ACLU N.J., https://www.aclu-nj.org/theissues/–police‌practices/newark-stop-and-frisk-data/stop-and-frisk-facts [https://perma.cc/KH7K-722K]. ↑
  266. Pradelli & Mettendorf, supra note 244. ↑
  267. Eric Flack & Jordan Fischer, DC Police Search and Frisk Black People 6 Times More Often During Stops, Data Shows,
    WUSA9

    (June 15, 2020), https://www.wusa9.com/article/–news/crime/stop-and-frisk/blacks-6-times-more-likely-to-be-searched-in-dc-than-whites-stop-and-frisk-black-lives-matter/65-379ed07f-bc94-45c0-a7a8-2193601c6df0 [http://perma.cc/VH47-V3U2]. ↑

  268. Floyd v. City of New York, 959 F. Supp. 2d 540, 559 (S.D.N.Y. 2013) (“In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.”); see also ACLU of Ill., Stop and Frisk in Chicago 23 (2015), https://www.aclu-il.org/sites/default/files/wp-content/uploads/2015/03/ACLU_–StopandFrisk_6.pdf [https://perma.cc/XJL2-ZKHV] (“A study prepared for the ACLU of Southern California found that during a one-year period from 2003 to 2004, black and Hispanic residents were far more likely to be stopped, frisked, searched and arrested than white residents, and that black and Hispanic residents who were searched were less likely to have contraband than white residents.”). ↑
  269. White & Fradella, supra note 11, at 110. ↑
  270. Id. (“88 percent of young people surveyed believe that residents of their neighborhood do not trust the police.”). ↑
  271. Id. at 109. ↑
  272. Center for Constitutional Rights, Stop and Frisk: The Human Impact 5 (2012), https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf [perma.cc/7DEF-WWK4]; see also Jason Meisner, Chicago Sued Over Police Department’s Alleged Stop-and-Frisk Practices, L.A. Times (Apr. 21, 2015), https://www.latimes.com/–nation/ct-stop-and-frisk-lawsuit-met-20150421-story.html (describing alleged constitutional abuses like excessive force) [https://perma.cc/N2G7-2JZG]. ↑
  273. Center for Constitutional Rights, supra note 271, at 5. These are a few accounts of NYPD encounters during the Floyd era. “It’s the difference between frisking somebody and going in [their] underwear or like putting gloves on outside, checking other people’s private areas, and people’s rectal area to see if they have drugs in them. It’s just too much, outside—that’s embarrassing.” Id. (alteration in original). Another said:My jeans were ripped. I had bruises on my face. My whole face was swollen . . . . I felt like I couldn’t defend myself, didn’t know what to do. No witnesses there to see what was going on. I just wish someone was there to witness it. I felt like no one would believe me. I couldn’t tell anyone. I kept it in till now . . . I still am scared.

    Id. (second alteration in original). ↑

  274. ACLU of Ill., supra note 267, at 21. ↑
  275. Id. at 22–23. ↑
  276. Center for Constitutional Rights, supra note 271, at 5–6. ↑
  277. Id. at 6. ↑
  278. White & Fradella, supra note 11, at 10–11. ↑
  279. 508 U.S. 366, 381 (1993) (Scalia, J., concurring). ↑
  280. Id. ↑
  281. Id. at 380. ↑
  282. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). ↑
  283. Brief for the NAACP, supra note 52, at 38. ↑
  284. See Kansas v. Carr, 577 U.S. 108, 118 (2016) (“The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions.”) (citing Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1971–77 (2008)). ↑
  285. Terry, 392 U.S. at 29; see also People v. Faginkrantz 171 N.E.2d 5, 7 (1960) (“What the constitution prohibits is an unreasonable search and seizure, and the circumstances of this case do not establish that the search was unreasonable.”). ↑
  286. See supra note 86 and accompanying text. ↑
  287. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 264 (1984). ↑
  288. Amar, supra note 249, at 1098. ↑
  289. Id. ↑
  290. Id. ↑
  291. Brief for the NAACP, supra note 52, at 45. ↑
  292. See, e.g., Opinion, Stop Talking and Start Listening, White People, Wash. Post (June 9, 2020), https://www.washingtonpost.com/opinions/stop-talking-and-start-listening-white-people/2020/06/09/7071da24-a9a2-11ea-a43b-be9f6494a87d_story.html [perma.cc/Q8J6-M5NU]. ↑
  293. White & Fradella, supra note 11, at 10–11. ↑
  294. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring). ↑
  295. Confirmation Hearing on the Nomination of Amy Coney Barrett To Be an Associate Justice on the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2020) (statement of Amy Coney Barrett, Judge). ↑
  296. Id. ↑
  297. Brennan, supra note 182, at 503. ↑

  298. Sutton, supra note 175, at 212. ↑

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