On appeal, Mr. Johnson again argued that the search was a violation of his Fourth Amendment rights. The Indiana Supreme Court relied on Terry v. Ohio, but misapplied the law. The court did not consider whether the agent actually suspected that Mr. Johnson was armed and dangerous. Rather, it looked exclusively to whether a hypothetical person in the same circumstances could reasonably have suspected that he was armed and dangerous. The Indiana Supreme Court’s decision stretches Terry’s narrow exception to the Fourth Amendment beyond recognition, and lower courts are split on how to weigh an officer’s actual suspicion (or lack thereof) when considering the constitutionality of a Terry search.
Cato has submitted a brief urging the Supreme Court to take this case and rule that a warrantless search must be justified by an officer’s actual suspicion that a suspect is armed and dangerous. In the brief we argue that the original public meaning of the Fourth Amendment would not have supported a warrant exception without an actual suspicion standard, and when courts allow Terry pat downs on the basis of something less than actual suspicion they abdicate their duties to enforce constitutional limits on government power. Simply put, what some purely hypothetical officer might have believed under the same circumstances is an exercise in raw speculation and one that ends up being undertaken on the wrong side of the veil of ignorance—after the government has discovered whether the suspect was in fact armed or carrying contraband.
