Today in Supreme Court History: October 31, 1963

10/31/1963: Cleveland Police Detective patted down, and arrested John W. Terry.

The Warren Court (1962-1965)

Comments

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Terry v. Ohio

Facts of the case
Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.

Question
Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

Conclusion (8 - 1)

In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation. (oyez)

Justice William O. Douglas strongly disagreed with the permissibility of performing a stop-and-frisk action absent probable cause:

We hold today that the police have greater authority to make a 'seizure' and conduct a 'search' than a judge has to authorize such action. We have said precisely the opposite over and over again.

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. (wiki)

[Krayt]

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

Jesus Christ, what's wrong with this guy?

[Dan Schiavetta]

Weidrick v. Biden, 143 S.Ct. 368 (decided October 31, 2022): Court lacks a quorum, seven of the Justices having been named as defendants in this pro se suit alleging “mind-raping” of plaintiff by computer, terrorist acts, etc., see District Court’s order of dismissal of suit as frivolous, 2022 WL 3215590; only Kagan and Gorsuch appear to be innocent of these foul acts (unsigned decision cites 28 U.S.C. §1, which requires quorum of six Justices, and 28 U.S.C. §2109, under which without a quorum the Court’s disposition is equivalent to an affirmance due to an evenly split Court)

General Atomic Co. v. Felter, 434 U.S. 12 (decided October 31, 1977): state court can’t enjoin litigants from filing actions in federal court

Kane v. Garcia Espitia, 546 U.S. 9 (decided October 31, 2005): Does the right to self-representation require a pro se defendant to have access to the prison law library? Because the Supreme Court had not ruled on the issue, the Circuit Court erred in holding that the “clearly established federal law” requirement for habeas relief applied (but the Court here refuses to rule on the issue! — and remands for “further proceedings consistent with this opinion” — ???)

Louisiana v. Mississippi, 516 U.S. 22 (decided October 31, 1995): in this original jurisdiction case, Court holds that Stack Island is still in Mississippi even though main channel of the Mississippi River now runs on the Mississippi side of it and accretion plus erosion has shifted the island toward Louisiana (applies the “island exception to the rule of thalweg” which serves to prevent change of jurisdiction over the island) (a thalweg is a zigzag line tracing the deepest points of a river bed as one goes downstream; it is often used to define a border) (Stack Island was, according to Wikipedia, “a rendezvous for horse thieves, counterfeiters, robbers and murders” until the New Madrid earthquakes of 1811 – 1812 reduced it to a sand bar)

[SRG2]

Not quite on point but chain of thought prompted by Kane. Can a defendant with counsel himself examine or cross-examine a witness? I can think of a few subjects where I would be more able to impugn an expert witness's testimony than any attorney I could hire simply because of my own specialist knowledge, but I would not otherwise want to represent myself.

[Dan Schiavetta]

Where I practice, a judge would probably not allow it. You're either pro se or not. But you are allowed to serve as your own expert and can be put on the stand as such, if necessary. A good lawyer will consult with you ahead of time as to what to ask the other guy.

[SRG2]

A good lawyer will consult with you ahead of time as to what to ask the other guy.

Yes, but even a good lawyer might have trouble impugning the testimony if both highly specialised or technical, and unexpected, and surely it's more effective to cross-examine an opposing expert so undermining his testimony, rather than to be a countering-expert witness on your own behalf.

[Dan Schiavetta]

I didn’t say it was a good idea to take the stand as your own expert. It doesn’t look good, and being a good expert witness is an expertise in itself. But your lawyer should pick your brain and you might have hands-on knowledge that his paid expert might lack.

To take a recent real life example: in a med mal case, the experts were going to disagree as to whether plaintiff should have been sent to the step-down unit (the not-quite-ICU). Our client pointed out that this hospital (in a rural area) didn’t even have a step down unit.

[The Margrave of Azilia]

Whatever happened to Island No. 10?

[Dan Schiavetta]

I used to live near there. (A couple hundred miles upstream from Stack Island.)

Supposedly the New Madrid (pronounced MAD-rid) earthquakes caused the Mississippi to flow backwards for two days. Imagine that!

[Commenter_XY]

Happy Halloween VC Conspirators!

Go easy on that candy, that refined sugar is bad for you. 🙂

[F.D. Wolf]

On this day, October 31, 1864, Nevada became the 36th state.

President Lincoln and the Republicans were eager to admit Nevada before the 1864 presidential election, because they felt it’s three electoral votes might be critical. As late as mid-October, Lincoln himself calculated a projected electoral vote of 117 for himself and 114 for his Democratic challenger George McClellan. (That did not include Nevada’s vote. Given the Republican domination of the state, there was no real doubt about how it would vote). Another Republican representative would also help pass the Thirteenth Amendment prohibiting slavery, which had fallen 13 votes short of the required two-thirds in the House in June. (It had easily passed in the Senate, 38-6).

The Enabling Act for Nevada’s statehood passed by Congress allowed the President to proclaim the state’s admission into the Union upon his review of the state’s proposed constitution (as opposed to the usual method of Congress’ own review and approval). Nevada voters approved a constitution in September, and territorial Governor James Nye sent a telegram advising Washinton of the fact. Secretary of State Edwin Stanton produced this telegram during a Cabinet meeting on September 20, giving his opinion that it was sufficient to proclaim Nevada a state. President Lincoln and several other Cabinet members expressed their doubts that this would comply with the Enabling Act, which required Presidential review of the proposed state constitution.

However, it was no easy matter to get a copy of a document from Carson City to Washington, D.C., in 1864, especially in the midst of a Civil War. So, Gov. Nye decided to send a copy via telegraph. It took seven hours to enter all the dots and dashes. It was the longest and most expensive telegram in history, costing $4,313.27 (the equivalent of about $84,500 in today’s money). Congress would later vote to partially reimburse Nevada $3,416.77. The telegram was relayed through Philidelphia and Chicago and received in Washington on October 28. Lincoln would issue a proclamation of Nevada statehood on October 31, eight days before the presidential election.

Lincoln would easily defeat McClellan 212-21 in the electoral count, including two votes from Nevada. (Nevada’s third elector was snowbound and could not make it to the vote). On January 3, 1865, the lame-duck House voted again on the Thirteenth Amendment, with the outcome uncertain. It passed 119-56, reaching the two-thirds threshold by a margin of three votes, including that of Nevada’s first representative, Henry G. Worthington. (Worthington, whose total House tenure lasted four months, had failed to win renomination, though the Republicans would hold the seat in the 1864 election. He would serve as one of the pallbearers at the funeral of his close friend Abraham Lincoln.)

[Syd Henderson]

For many years, Nevada was not only the least populous state but less than many territories. Hell, in 1900, it was not only less populated than Oklahoma, New Mexico, Arizona and Hawaii, but Alaska (which had just had a gold rush). Nevada had 42,335 inhabitants which was well under a quarter of New Mexico. I'm assuming New Mexico's large Hispanic and Native American population was a big factor in delaying its entry. It certainly had enough people. Btw, DC had 278,718 people.

[The Margrave of Azilia]

True story (if Wikipedia can be believed): Worthington was with William Walker, the would-be President of Nicaragua who tried to reinstate slavery there.

So after the war, what else was there for Worthington but to become...a U. S. diplomat in Latin America?

[F.D. Wolf]

That would have been Secretary of State William Seward (not Edwin Stanton, who was Secretary of War.)

[Nameless But Highly Opinionated]

Illegally but not unconstitutionally. In Ohio, what McFadden did would still be illegal, save for the time it takes to have the person identify themselves.