State v. Terry

Citation34 O.O.2d 237,5 Ohio App.2d 122,214 N.E.2d 114
Parties, 34 O.O.2d 237 The STATE of Ohio Appellee, v. TERRY, Appellant.
Decision Date10 February 1966
CourtUnited States Court of Appeals (Ohio)

John T. Corrigan, Pros. Atty., and Rueben Rayne, Cleveland, for appellee.

Louis Stokes, Cleveland, for appellant.

SILBERT, Chief Justice.

This is an appeal on questions of law from a judgment and sentence imposed by the Court of Common Pleas of Cuyahoga County.

John W. Terry, the appellant herein, was indicted on a charge of carrying a concealed weapon, in violation of Section 2923.01, Revised Code. A pre-trial motion to suppress the evidence was denied, and, upon a plea of not guilty, the court, sitting without a jury, returned a verdict of guilty.

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

After ten to twelve minutes of this behavior, Terry and Chilton left the corner and proceeded west on Euclid Avenue several hundred feet to where they again met Katz. The three then engaged in a conversation. As the detective testified: '* * * I didn't like their actions on Huron Road, and I suspected them of casing a job, a stick-up * * *.' With this belief in mind, the detective approached the three men, identified himself and asked for their names. Receiving only a mumbled response, the detective turned the defendant around, quickly 'patted down' the outside of his clothing, and, perceiving a hard object in the inner breast pocket of his topcoat, inserted his hand and removed a fullyloaded automatic. At this point, the detective ordered the three men into a store, told them to face the wall and yelled to a store clerk to 'call the wagon.' He then proceeded to 'pat down' Chilton and, upon perceiving a hard object in the lefthand pocket of his topcoat, inserted his hand and removed a fully-loaded revolver. A similar 'patting down' of Katz revealed nothing. The three men were then taken to the police station where Terry and Chilton were charged with carrying concealed weapons. Separate trials were ordered, and, after a motion to suppress was denied, the defendant Terry was convicted of a felony under Section 2923.01, Revised Code.

In the defendant's brief, the following assignments of error are made:

1. The court erred in not sustaining defendant's motion to suppress upon making its finding that the arrest herein was illegal.

2. The court erred in refusing to apply constitutional guarantees prohibiting illegal searches and seizures and substituting therefor a doctrine of stop and frisk.

The Fourth Amendment to the United States Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

That amendment prohibits an arrest without 'probable cause,' Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and is applied against the states through the Fourteenth Amendment. Wolf v. People of State of Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.

However, the ambiguous nature of the word,' 'arrest,' and the issue of the right of the police to stop a person in a public street and question him under circumstances that would reasonably call for investigation and inquiry, present complex legal questions in the factual context of this case. Consequently, the initial question to be resolved is the authority of the detective in the circumstances shown here to stop and question the defendant. The validity of the subsequent police action and the determination of whether the detective had adequate 'reasonable grounds' to make the arrest will hinge, in part, on the propriety of this initial inquiry.

The right of the proper authorities to stop and question persons in suspicious circumstances has its roots in early English practice where it was approved by the courts and the common-law commentators. See: 2 Hawkins, Pleas of the Crown (6th Ed. 1777) 122, 129; 2 Hale, Pleas of the Crown (Amer.Ed.1847) 89, 96-97; Lawrence v. Hedger (Common Pleas 1810) 3 Taunt. 14, 128 Eng.Rep. 6. Today, in several states, the authority of police officers to detain suspects for a reasonable time for questioning is granted by statute. E. g., New York Code of Criminal Procedure (L.1964, Chapter 86, Section 180-a); General Laws of Rhode Island (1956), Section 12-7-1; New Hampshire Revised Statutes (1955), Chapter 594, Section 2; 11 Delaware Code (1953), Section 1902; Warner, 'The Uniform Arrest Act,' 28 Virginia Law Review (1942) 315; Massachusetts General Laws (1961), Chapter 41, Section 98. In others, the right is recognized by court decisions. E. g., People v. Rivera (1964), 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32; Gisske v. Sanders (1908), 9 Cal.App. 13, 98 P. 43; People v. Martin (1956), 46 Cal.2d 106, 293 P.2d 52; People v. Jones (1959), 176 Cal.App.2d 265, 1 Cal.R. 210; and People v. Faginkrantz (1961), 21 Ill.2d 75, 171 N.E.2d 5.

The United States Supreme Court, however, has never squarely decided whether the police may constitutionally stop and question a suspect without his consent in the absence of adequate grounds for arrest. However, the lower federal courts permit such field interrogations. See: Henry v. United States (1959), 361 U.S. 98, 106, 80 S.Ct. 168, 4 L.Ed.2d 134 (Clark, J., dissenting); Brinegar v. United States (1949), 338 U.S. 160, 178, 69 S.Ct. 1302, 93 L.Ed. 1879 (Burton, J., concurring); Keiningham v. United States (1962), 113 U.S.App.D.C. 295, 307 F.2d 632, certiorari denied (1963), 371 U.S. 948, 84 S.Ct. 502, 9 L.Ed.2d 497; Busby v. United States (C.C.A.9, 1961), 296 F.2d 328, certiorari denied (1962), 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278. The cases also indicate that an officer may stop and question even though he has insufficient grounds to make an arrest. See: Ellis v. United States (1959), 102 U.S.App.D.C. 86, 264 F.2d 372, certiorari denied (1959), 359 U.S. 998, 79 S.Ct. 1129, 3 L.Ed.2d 986; United States v. Bonanno (S.D.N.Y., 1960), 180 F.Supp. 71, 78, reversed on other grounds sub nomine, United States v. Bufalino (C.C.A.2, 1960), 285 F.2d 408, cited with approval in United States v. Vita (C.C.A.2, 1961), 294 F.2d 524, 530.

Admittedly, there is some division of authority on the legality of the right to stop and question; however, the better view seems to be that the stopping and questioning of suspicious persons is not prohibited by the Constitution. See, Note, 50 Cornell Law Quarterly (1965), 529, 533; United States v. Vita (C.C.A.2, 1961), 294 F.2d 524, certiorari denied (1962), 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788. Of great persuasive authority do we consider the long line of California cases, decided under the rule of People v. Cahan (1955), 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, in which this practice has been upheld. E. g., People v. Martin (1956), 46 Cal.2d 106, 293 P.2d 52; People v. Simon (1955), 45 Cal.2d 645, 290 P.2d 531; People v. Jones (1959), 176 Cal.App.2d 265, 1 Cal.R. 210. Also, of great persuasive authority is the recent New York Court of Appeals decision in People v. Rivera (1964), 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32, wherein this practice was also upheld. The courts of Ohio do not appear to have been squarely presented with this problem before. Therefore, we hold, in line with the great weight of authority, that a policeman may, under appropriate circumstances such as exist in this case, reasonably inquire of a person concerning his suspicious on-the-street behavior in the absence of reasonable grounds to arrest.

An individual who acts in a suspicious manner invites a preliminary inquiry by the proper authority. It does not unreasonably invade the individual's right to privacy to hold that the price of indulgence in suspicious behavior is a police inquiry. See, Traynor, 'Mapp v. Ohio at Large in the Fifty States,' Duke Law Journal (1962), 319. Such a minor interference with personal liberty would 'touch the right of privacy only to serve it well.' Traynor, supra, at page 334. If such questioning failed to reveal probable cause, it would thereby forestall invalid arrests of innocent persons on inadequate cause and the attendant invasion of personal liberty and reputation. If it revealed probable cause, it would do no more than open the way to a valid arrest. The business of the police is not only to solve crimes after they occur, but to prevent them from taking place whenever it is legally possible. As stated by the New York Court of Appeals in the recent case of People v. Rivera (1964), 14 N.Y.2d 441, at 444, 252 N.Y.S.2d 458, at 461, 201 N.E.2d 32, at 35:

'The authority of the police to stop defendant and question him in the circumstances shown is perfectly clear. * * * Prompt inquiry into suspicious or unusual street action is an indispensable...

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