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I want to thank St. John's for inviting me to be part of this reexamination of Terry v. Ohio – and particularly for this opportunity to participate in a roundtable discussion on the relationship between stop and frisk doctrine and the substantive law. This is an important and timely topic and I am happy to see it being discussed in such a serious venue.

When I was preparing my remarks for today, I thought I should call them, "Terry and the Substantive Law: A Hard, Hard Problem." Fortunately, I have sworn off titles with colons, so I settled on "Police Patrol, Judicial Integrity, and the Limits of Judicial Control." My remarks (like some of the ones you have already heard) are going to point out some difficulties in regulating street encounters through the exclusion of evidence in criminal trials. In my case, however, I'm going to focus in particular on difficulties that emanate from the interaction between substantive and procedural law. More importantly, I am going to defend Terry for its frank recognition of these difficulties and for its partly implicit, partly explicit, call upon other actors – police, prosecutors, mayors, and legislators – for their assistance. To me, the strength of the Terry opinion – its integrity – lies in its modesty concerning the ability of the Court to affect police behavior in police-citizen encounters through the exclusion of evidence in criminal cases. The Court in Terry did not foster the illusion of judicial control. This, I will argue, was the better part of its wisdom.


Fourth Amendment | Law | Law Enforcement and Corrections


Originally published in the St. John's Law Review.