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State v. Boyea12/1/2000
kpoint "is slight").
To adequately appreciate the significance of Terry and its progeny for this and other cases one need look no further than the opinions of the dissenting Justices. Justice Douglas was the lone dissenter in Terry and he bitterly decried the demise of the requirement that a police officer have probable cause before effecting a search and seizure without a warrant, alleging that the decision was in response to "powerful hydraulic pressures" to "water down constitutional guarantees and give the police the upper hand." 392 U.S. at 36.
Four years after Terry, the Court considered whether a stop and frisk had to be based on the officer's personal observations, and answered the question with an emphatic "no." In Adams v. Williams, 407 U.S. 143 (1972), an informant who had previously provided information to the officer approached the officer at 2:15 a.m. and informed him that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. The officer went to the car, tapped on the car window and asked the occupant, Williams, to open the door. Instead of opening the door, Williams rolled down the window. The officer quickly reached into the car and removed a gun from Williams' waistband. Williams was tried and convicted of possession of a handgun and possession of heroin found during a full search incident to his arrest on a weapons charge.
The Court applied the test it had developed in Terry - whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place - and upheld the seizure. The majority reasoned that the officer was acting on a tip from an informant he knew, who had provided information previously, and whose information was immediately corroborated at the scene when the officer reached into the car window and retrieved the gun that the informant said would be there. The Court upheld the search as well, holding that it "constituted a limited intrusion designed to insure [the officer's] safety." Id. at 148. In so holding, the majority noted that the informant could have been subject to immediate arrest for making a false complaint had his information not been verified.
Again, reading the dissenting opinions in Adams illuminates the decision's broad significance. This time Justices Douglas, Marshall and Brennan dissented. Justice Douglas opined that the "easy extension of Terry v. Ohio . . . to 'possessory offenses' is a serious intrusion on Fourth Amendment safeguards." Id. at 151. Justice Brennan rued the extension of Terry to possessory offenses as well, arguing that the Terry rule was intended only for serious cases of imminent danger or of harm recently perpetrated to persons or property, not to conventional possessory offenses. Id. at 153 (quoting Williams v. Adams, 436 F.2d 30, 39 (2nd Cir. 1970) (Friendly, J., dissenting)). Justice Brennan also shared the concerns expressed by the dissenting lower court judge, Judge Friendly, who noted that there was no guarantee of a patrolling officer's veracity when he testifies to a "tip" from an unnamed informer. (The informant was never named during the trial of defendant.) Justice Marshall focused his analysis on the quality of the informant's contribution - the only basis for sustaining the officer's actions - concluding that it was insufficient to be considered reliable. Id. at 155-59. He noted that the only other time this particular informant had provided information to the officer, it did not involve guns or narcotics and had, in fact proved to be unsubstantiated. Further, there was no evidence the informant could identify narcotics, even if he could identify a
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