Document Type

Article

Comments

“Terry and Fourth Amendment First Principles,” 72 St. John’s L. Rev. 1097 (1998)

Abstract

Thirty years after the Supreme Court's landmark decision in Terry v. Ohio and almost seven-times-thirty years after the adoption of the Fourth Amendment, many lawyers, scholars, and judges still fail to grasp the basic insights of the case and the first principles of the Amendment. Chief Justice Warren's opinion for the Court in Terry must bear some of the blame for the current confusion. Even as the great Chief of the great Court pointed forward to a more sensible understanding of the Amendment, he gestured backward to contradictory language from earlier cases. Such is the unsteady path of common law evolution, of course, but three decades of confusion are enough. To the extent that there were in effect two inconsistent Terry opinions, we must choose which Terry to follow. I urge that we follow what I shall call the good Terry, not simply because it was more sensible and more truly progressive, but also because that opinion within the opinion was more consistent with constitutional text, history, and structure. Moreover, in the three decades since the case was decided, much of the Court's case law has built on the foundation of the good Terry. Thus, three decades after Terry and two centuries after the Fourth Amendment, we can, if we are wise, affirm insights that are not only forward-looking in the best sense (workable and progressive) but also backward-looking in an attractive sense (faithful to original intent and consistent with a good deal of precedent). In short, Terry can help us grasp Fourth Amendment first principles, and these principles, in turn, can help us grasp Terry, and aid us in deciding which Terry to follow today.

Date of Authorship for this Version

1998

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