JUMPY COP Roughs Up Window Shopper and Changes the 4th Amendment, FOREVER!

A Companion Blog To The Daily Drawl

From Katz To Terry: When The Court Allowed Early Intervention

One of the most common misunderstandings about the Fourth Amendment is the idea that it only protects you when you are in private.

That is not, and has never been, the law.

In fact, some of the Supreme Court’s most important Fourth Amendment cases make clear that constitutional protection does not disappear just because you step into public.

That principle comes from Katz v. United States, where the Court explained that the Fourth Amendment protects people, not places. The question is not whether you are inside a house or outside on a sidewalk, but whether the government has crossed a boundary it was not supposed to cross.

Decades later, the Court reinforced that idea in United States v. Jones. Jones is often described as a technology case, but at its core it is about physical intrusion. The Court held that the government cannot physically intrude on a person’s property to gather information without triggering the Fourth Amendment, even when that person is traveling on public roads.

Those cases have something important in common.

They are boundary-enforcing decisions.

They are the Court telling the government, “You went too far. You crossed a line.” Not because law enforcement had bad intentions, and not because technology is inherently dangerous, but because physical intrusion still matters. Touching property matters. Occupying space matters. Interfering with a person’s liberty or effects matters.

Just as importantly, those cases reaffirm that warrants still matter. Probable cause still matters. The Fourth Amendment is designed to force the government to slow down, explain itself, and obtain permission before it intrudes.

That was the baseline understanding of Fourth Amendment law going into the late 1960s.

Then came 1968.

And for the first time, instead of slapping the government’s hand, the Supreme Court did something very different.

It moved the goalposts.

Terry v. Ohio And The Shift Toward Early Intervention

That case was Terry v. Ohio, and it marked a genuine turning point in Fourth Amendment doctrine.

What makes Terry different is not that the Court misunderstood the Constitution. It is that the Court understood it perfectly and decided to bend it anyway.

Up until that point, physical intrusion by the government was treated as the constitutional problem. If the government restrained your movement, touched your body, or inserted itself into your space, that intrusion generally required probable cause and, in most cases, a warrant.

Terry is the first case where the Court openly acknowledges a physical intrusion and then approves it.

Not because the officer had enough evidence to arrest.
Not because a judge had authorized it in advance.

But because the Court believed waiting might allow a violent crime to happen.

That distinction matters, because Terry is not about convenience or efficiency. It is about prevention.

The Facts Of Terry

The facts of Terry are simple, but they matter.

A Cleveland police officer named Martin McFadden was working plainclothes patrol when he noticed two men pacing back and forth in front of a store. They walked past the window, stopped, looked inside, walked away, and then returned to do it again. At one point, a third man briefly joined them, spoke with them, and left.

To McFadden, this did not look like innocent loitering. It looked like casing. It looked like preparation. And in his experience, robberies do not announce themselves. They unfold.

McFadden decided not to wait.

He approached the men and stopped them.

That decision, the stop itself, is the heart of the case.

Not what was discovered later.
Not what the men might have been carrying.
But whether the Constitution permits an officer to interrupt what appears to be criminal activity in progress, even though the crime has not yet fully occurred.

What The Terry Stop Authorizes

Traditionally, the Fourth Amendment required officers to wait. Wait until a crime was completed. Wait until probable cause fully ripened. Wait until the justification for intrusion was beyond dispute.

The Supreme Court recognized the cost of that approach in situations like this one.

If the officer was right, waiting meant waiting until a store was robbed, possibly at gunpoint. Waiting until someone was hurt. Waiting until prevention was no longer possible.

So the Court reframed the question.

Instead of asking whether the officer had enough evidence to arrest, the Court asked whether the officer had a reasonable basis to believe criminal activity was afoot.

That is where reasonable suspicion enters the law.

Reasonable suspicion is lower than probable cause, but it is not meaningless. It requires specific and articulable facts that suggest a crime may be unfolding in real time. Not a hunch. Not a feeling. Observations that can be explained and later evaluated.

Based on that standard, the Court held that an officer may briefly detain a person in order to investigate. This detention is a seizure, but it is a limited one. A short investigative pause designed to confirm or dispel suspicion.

The Terry stop is not a search.
It is not punishment.
It is not an arrest.

It is early intervention, justified by the need to interrupt potentially dangerous criminal activity before it becomes a completed offense.

The Limits The Court Tried To Preserve

The Court insisted that this new authority be narrow.

The stop must be brief.
It must be temporary.
And it must be tied directly to its purpose.

If the suspicion evaporates, the stop must end. If nothing develops, the officer’s authority disappears.

That is the bargain Terry strikes.

The Fourth Amendment bends to allow early intervention, but only to prevent crime, not to authorize open-ended control or generalized policing.

Terry matters because it is the first time the Supreme Court says the government does not always have to wait for a crime to finish before stepping in.

It allows officers to intervene before the gun comes out, not after.

But once the Court allows officers to physically stop someone based on suspicion alone, another question becomes unavoidable.

What happens next, when that stop brings the officer face to face with uncertainty?

That is where Terry goes further.

In the next post, we will turn to the Terry frisk, the moment the Court authorizes physical contact with a person’s body, and the point at which officer safety begins to compete directly with citizen liberty.

That is where the slope becomes much steeper.

As always, thanks for reading,

—SDL