Returning to Reasonableness: The Argument Against Expanding Investigatory Searches and Seizures to Completed Misdemeanors
Daniel S. Lohse | 2010 U. Ill. L. Rev. 1629
A police officer may initiate a Terry stop and perform a search and seizure when he has a reasonable suspicion that a crime is presently be-ing committed. Courts are currently split over whether a completed mis-demeanor can form the reasonable suspicion required for a search and seizure. This Note surveys the history of search and seizure cases leading up to Terry v. Ohio, examines the contemporary Terry stop, and analyzes United States v. Hensley, which expanded Terry to completed felonies. The author examines the three-to-one circuit split with the Eighth, Ninth, and Tenth Circuits applying factual analysis to stops based on completed misdemeanors and the Sixth Circuit opining that these stops are per se unreasonable. If offense designation plays a role in justifying a Terry stop, the classification of crimes into felonies and misdemeanors allows the legislature to play a role in the application of Fourth Amendment rights. This also places significance on the meaning of “unreasonable” searches and seizures, which are prohibited by the Fourth Amendment of the Constitution. Additionally, the expanded authorization of searches and seizures based on less than probable cause can result in an increased risk of police misconduct. Consequently, resolution of this circuit split is necessary for the protection of civil rights.
This Note argues that the Supreme Court must address the circuit split by adopting a bright-line rule that searches and seizures for com-pleted misdemeanors with less than probable cause are unreasonable. The author reasons that, based on the meaning of probable cause, expan-sion of Terry is unnecessary; and furthermore, Terry is meant to be nar-rowly applied. Thus, this Note calls for a per se rule that Terry stops based on completed misdemeanors are unreasonable within the meaning of the Fourth Amendment.
It is easy to make light of insistence on scrupulous regard for the
safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.