Let's Not Bury TERRY: A Call for Rejuvenation of the Proportionality Principle

Abstract

Thirty years ago, "Terry v. Ohio" established a conceptual framework for the Fourth Amendment that makes more sense than any alternative the courts or commentators have come up with since. That frame-work, which I call the proportionality principle, is very simple: a search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action. As the Court put it, "there is 'no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails.' In "Terry" itself, this principle led to the "holding" that a stop and a frisk need be justified only on reasonable suspicion, rather than the higher probable cause standard required for more invasive arrests and full searches. If only the Court had applied "Terry's" proportionality framework in a consistent fashion and extended it to the entire Fourth Amendment universe, we'd be in much better shape than we are today. Contrary to the suggestions of many commentators, I think that if the promise of "Terry" had been realized by the Court, our law regulating search and seizure would be more, not less, coherent. We would have more protection of individual privacy, not less. And race would be less of an issue in the law enforcement context, not the all-pervasive problem it is now.