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From “Probable Cause” to “Reasonable Suspicion”: The Subversion of the Fourth Amendment

The subversion arises from a 1968 Supreme Court decision.

Terry v. Ohio effectively criminalized walking while Black in the US. The ruling removed the probable cause limitation on police power.

On March 9, Cleveland City Councilman Kevin Conwell was taking his daily stroll when Case Western Reserve University police officers stopped him on campus near his home. Minutes before, a Case Western student had called dispatch to complain about a Black man wearing a blue hat and tan coat who was mumbling through missing teeth. Conwell supposedly “fit the description.”

At a press conference soon after, Conwell, through a full set of teeth, said that the officers stopped him for “walking while Black.” He added: “How many African American males have traveled through University Circle and were stopped while walking [while] Black and were given misdemeanors?”

The question is less about raw numbers for this specific part of the US and more about the “totalitarian” police state that Justice William Douglas predicted in his great dissent in Terry v. Ohio in 1968. Terry effectively criminalized walking while Black and driving while Black — and pretty much doing anything while Black in the US. The ruling removed the probable cause limitation of the police power. The court’s paradigm shift made Conwell’s detainment 50 years later so very, very predictable.

The Fourth Amendment secures the citizen against any unreasonable search or seizure of their person or property. But what is “reasonable”? Before Terry, the reasonableness of a police officer’s seizure or search was defined by the magistrate’s authority to issue a warrant on a showing of probable cause.

Terry redefined “reasonableness” in more subjective terms. Before 1968, police officers operated, at least in theory, with reference to the magistrate’s authority. Ever since Terry, police officers have had the despotic discretion to search or seize any US citizen based on a “reasonable suspicion” that they are a criminal or are about to commit a crime.

The new Terry paradigm allows police officers to operate by their own standard of reasonableness — “reasonable suspicion.” By coining the phrase, the Supreme Court put its imprimatur on circular reasoning. Much as the doctrine of “papal infallibility” deemed the pope incapable of error when teaching on certain matters of faith or morals, “reasonable suspicion” sanctioned a sort of police infallibility. Police officers, especially when making “split-second decisions,” now arbitrarily determine what is reasonable within the meaning of the Fourth Amendment.

Case Western police thought it reasonable to stop a councilman taking his daily walk through campus because he wore the same color hat and coat (and had the same color skin) as a street-corner mumbler. This is Exhibit A of how absurd Terry’s construction of “reasonableness” really is. It reveals “reasonable suspicion” as both a euphemism for paranoia and as an oxymoron worthy of 1984’s Newspeak. Yet out-of-control policing is not new to the US.

The American Revolution was largely a reaction against Redcoats policing colonists as if they were all suspects. For example, the Crown imposed writs of assistance on Massachusetts to crack down on smuggling. Writs of assistance were general warrants permitting customs officials to enter any office or home without notice or probable cause. James Otis resigned his position as advocate general of the Admiralty Court in protest. He then challenged the legality of these writs in terms of the maxim: “Every man’s house is his castle.” Otis inspired the Fourth Amendment’s later codification of the castle doctrine and the need for probable cause.

Douglas invokes Otis in his Terry dissent to suggest an analogy between the Redcoats’ oppression of the colonists and the likelihood of post-Terry police oppression thanks to “reasonable suspicion.” What Otis argued against in 1765, Douglas dissented against in 1968 — police arresting and searching on suspicion because unchecked by probable cause. Douglas saw the unraveling of the Fourth Amendment as a matter of history repeating itself. He wrote: “Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required.”

Today, “reasonable suspicion” enables police to seize on suspicion. The Orwellian device subverts the Fourth Amendment’s original intent. Probable cause had been a limit on police discretion. Through Terry, magisterial authority gave way to police authoritarianism. Thus, the Supreme Court abdicated judicial control in favor of police control, what President Richard Nixon called “law and order.”

“Reasonable suspicion” gave police officers, in effect, general warrants to seize or search (“stop and frisk”) people of color with impunity. Conwell’s official title did not protect him from the de facto general warrant that led to his stop. Case Western President Barbara Snyder later apologized and promised more and better training of campus police officers. Would she have apologized if he were an ordinary citizen and not a legislator? What about the other racially-profiled African American males that Conwell wondered about?

Douglas wrote: “To give the police greater power than a magistrate is to take a long step down the totalitarian path.” Insofar as Case Western Reserve University makes Terry stops, it has taken that long step. Rather than apologize for a singular Terry stop, President Snyder should insist on no more Terry stops. Better yet, President Snyder should dissolve her police force to get our university back to being a college campus rather than miniature police state.

A private university should be a sanctuary away from the police state. A man should be able to walk through a college campus on a Sunday afternoon as a citizen, as a person, and not under a cloud of suspicion because at any moment he may “fit a description.” The incident at Case Western Reserve University illustrates a larger pattern of police officers subverting citizens’ constitutional rights. It illustrates that “reasonable suspicion” really means white paranoia. Police officers tend to ignore Black Americans’ right to a presumption of innocence. Rather, they tend to only see a Black “criminal” stereotype. We’re at least 50 years down the totalitarian path. If we would take a long step back from that path, we must overturn Terry.

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