Wednesday, November 1, 2017
Alexandra Natapoff (University of California, Irvine School of Law) has posted A Stop is Just a Stop: Terry's Formalism (Ohio State Journal of Criminal Law, Vol. 15, 2017, Forthcoming) on SSRN. Here is the abstract:
Terry v. Ohio expanded police authority by creating a new legal category—the stop based on reasonable suspicion, an easier standard to meet than an arrest based on probable cause. The formal line between those two categories, however, has turned out to be blurry. In practice, stops morph easily into arrests even without new evidence, an elision that Terry doctrine does not contemplate. The implications are significant for the enormous misdemeanor arena where legal rules generally lack traction, and Terry stops are common. Once those stops become arrests, they typically convert smoothly into criminal charges, which easily become convictions. Terry stops thus influence eventual outcomes far more than they should given their lightweight evidentiary basis. This slippery slope undermines the integrity of basic distinctions between policing and prosecution throughout the petty offense process, an unprincipled state of affairs exacerbated by the original Terry compromise.