Terry V Ohio in the Trenches: A Glimpse at How Courts Apply "Reasonable Suspicion
Thomas, George C., III, St. John's Law Review
The papers by Professors Saltzburg1 and Harris2 are both splendid-in the best tradition of legal scholarship. Each paper is thoughtful, insightful, and provocative. I want to suggest that, in a sense, they are both right. How can this be?
Professor Saltzburg presents Terry3 in its aspirational stance. This is Terry as Chief Justice Warren and the other members of the Terry majority wanted it to be-permitting flexible, cautious law enforcement responses to fluid, potentially dangerous street encounters, but always requiring the police to demonstrate specific facts which give rise to permissible inferences that crime is afoot. Professor Saltzburg is satisfied with Terry, I think, because he believes it comes close to that aspiration.
Professor Harris, on the other hand, is a cynic. He sees the loose language that has evolved as a Terry standard-reasonable suspicion-and he believes that prosecutors can drive a truck through that language. He believes that judges will wink or nod or doze and rule in favor of the prosecution on very thin evidence. In the Terry opinion itself, the Court fretted about the burden of aggressive policing on racial minorities, noting that the exclusionary rule has no effect on the "wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain."4 If prosecutors win almost all Terry suppression hearings, it means the police can hassle just about anybody who happens to be in or near a high-crime area, which means the burden of Terry's loose standard falls disproportionately on racial minorities.
It seemed to me when I was reading these papers that each writer is right, in the sense that if the world feared by Professor Harris is the one we inhabit, there is good reason to reject Terry. But if the world is closer to that envisioned by Professor Saltzburg, then Terry may be more beneficial than harmful. So the issue, I think, is how best to determine which world we inhabit.
More than a half century ago, the legal realists rejected the notion that law was a science that could be applied the way engineers apply math.5 Instead of pretending that judges are bound by a rigid rule of law (which would be a ridiculous claim for Terry's standard of reasonable suspicion), the legal realists called for a better understanding of how judges apply law at the "wholesale" level of trial courts. This, they argued, would tell us more about law than any study of doctrinal categories. One way to understand how judges apply law is to count what they dowho wins, who loses. Examining this empirical reality would give us more confidence when describing how law works-in this case, how effectively the lower courts limit the discretion of police officers to make stops and frisks based on hunches or on class and race stereotypes.
Few researchers took the legal realist challenge to gain an empirical understanding of law.6 The reasons for this are varied, ranging from habit (if creating or clarifying doctrinal categories was good enough for Blackstone and Wigmore, it is surely good enough for us) to the tedious, time-intensive nature of most empirical projects. There has recently been a resurgence of interest in the empirical question of how Miranda v. Arizona7 has affected police interrogation and the confession rate. Professors Richard Leo and Paul Cassell have each undertaken recent field studies of police interrogation (Cassell was assisted by Bret Hayman).8 Closer to Terry's Fourth Amendment "home," Professor Peter Nardulli in the 1980s conducted two major studies of pre-trial motions to suppress, lumping into a single category all motions seeking to suppress physical evidence.9
I do not know of any similar research that isolates how Terry issues are decided. Without that kind of insight into what Terry means at the level of the day-to-day operation of the criminal justice system, I can claim that both Professor Saltzburg and Professor Harris describe a world that could be the world we inhabit. …