Earl Warren: Number 67, John W. Terry, et al., petitioners versus Ohio. Mr. Stokes?
Louis Stokes: Mr. Chief Justice and May it please the court. State versus Terry comes to this court by virtue of a writ of certiorari granted to the Ohio State Supreme Court. This case originally arose in the Common Pleas Court of Cuyahoga County, based upon the indictment for carrying a concealed weapon, in violation of Ohio Revised Code, Section 2923.01. The defendant in this case filed a motion to suppress the evidence, and at the trial there was a hearing on the motion. After hearing the motion, the motion was overruled and the case proceeded to trial. This was a bench trial, jury having been waived. After hearing the evidence, the motion originally filed was overruled again. The defendant was convicted of carrying a concealed weapon. The trial court ruled an opinion in this case, and we then appealed to the Court of Appeals for Cuyahoga County. This court sustained and affirmed the conviction of the lower court. This court also wrote an opinion. Subsequently, application was made to the Ohio State Supreme Court for review, and that court dismissed the application for review stating: no debatable constitutional question. This court granted certiorari. The facts in this case are these and I think they are signally important, if we are to try to arrive at the proper verdict, with reference to this case. This incident occurred at 2:30 in the afternoon, in broad daylight in the downtown section of Cleveland, Ohio. The police officer in this case, one Martin McFadden, noticed two Negro males standing at the corner of Fourteenth Street, in the City of Cleveland, where Euclid Avenue and Huron Road intersect. These two streets, if the court please, form a triangle at the apex of East Fourteenth Street -- the police officer was approximately 100 feet away from where these two men were. He positioned himself --
Potter Stewart: What kind of neighborhood is that, generally, in Cleveland? A business neighborhood?
Louis Stokes: That is our downtown section, a business section of the City, Your Honor.
Potter Stewart: Downtown retail stores, and offices, and so on?
Louis Stokes: Yes, Your Honor. The testimony of the police officer was that there was business as usual in the downtown center of the city; stores were open and there were pedestrians on the street.
Potter Stewart: What time of day was it?
Louis Stokes: 2:30 in the afternoon.
Potter Stewart: On a weekday?
Louis Stokes: On a weekday. The police officer stated that he positioned himself in the doorway of a department store by the name of Rogauffs. For a period of 10 to 12 minutes, he observed these two males at the corner. Alternately, each made five or six trips over to two stores located on Huron Road. He said that he didn't know whether it was the United Airlines Store, or the Diamond Store, but the stores were immediately adjacent to one another on Huron Street. During these five trips that they made during the 10 or 12 minute period, a third male came by, white male who stood and talked with the two males for a moment or so and then the other male proceeded west, on Euclid Avenue, and the two males continued on this corner. After the 10 to 12 minute period, the two men then walked west on Euclid Avenue, some several hundred feet down Euclid Avenue. When they arrived at Zucker's Store, which is in the vicinity of 9th Street, or 11th Street, there on Euclid Avenue, the three males then again met up, at which time the three of them, according to the police officer's testimony, merely standing in front of Zucker's Store --
Potter Stewart: What kind of a store is Zucker's Store?
Louis Stokes: Zucker's is a haberdashery, Your Honor. His testimony was that their backs were to the plate glass windows. They were facing the street, and when interrogated with reference to what they were doing, he said they were merely standing there talking. He described their gate away from Fourteenth Street as they walked down to the haberdashery as a normal walk, nothing unusual about it. The police officer then says, I then went over to the three men. I said to them, I'm a police officer. What are your names? In the first instance, he said, they gave it to me quick. In all other places in the record, he says, They mumbled something. He said, at this, I then reached out and got Terry. I spun him around, holding him in front of me. I then began to pat him down. Once he had patted, patted this man down, he says: I felt inside of his top coat what felt to be the handle of a gun. I then reached inside the coat and tried to remove the gun. I could not remove the gun. I therefore took the entire coat off of him and then took the gun out of the coat. At this point, he says, I ordered the three of them into the store. As I walked through the doorway, I said to the store personnel, ‘Order the wagon. He later explained that ordering the wagon means you are then under arrest. Once inside the store, the three men were ordered up against the wall, whereupon he then searched Chilton. Inside of Chilton's top coat, he also found a loaded revolver. He searched the third male, Katz, upon whom he found nothing. He then calls these men to be removed from the haberdashery to the Cleveland's Police Station. When they arrived at the police station, they were then booked for investigation. Some time late the next day, after having been interrogated the following morning, these men were then charged, officially late the second day, with carrying concealed weapons. The police officer testified further with reference to questions propounded to him having to bear on the question of probable cause. We asked him, did you know any of these men? No. Had you ever seen any of these men previously? Had anyone given you any information regarding them? He was then asked what had attracted his attention to them. He said, Well, to tell you the truth, I didn't like them. And I was attracted to their actions up there on Fourteenth Street.
Hugo L. Black: He said what? I didn't like--?
Louis Stokes: In the record --
Hugo L. Black: What was his answer?
Louis Stokes: He said, Well, to tell you the truth, I didn't like them.
Hugo L. Black: He didn't like them?
Louis Stokes: Yes. Then, he said further, Mr. Justice, that, I was attracted to their actions there at Fourteenth Street. This officer testified further, though, that he felt that they might be casing the place for a stick-up. We then -- the court then inquired of him specifically if he had ever, and by the way, this police officer had been a police officer for 39 years, and a detective for 35 years.
William J. Brennan, Jr.: Was he in plain clothes?
Louis Stokes: He was in plain clothes, Your Honor. The court specifically asked him if he had, during his 39 years as a police officer ever previously observed any one casing a place. He said, No, he had not. Asked if he had arrested anyone for casing a place, in his 39 years, he said that he had not. We should like to make reference, just briefly to the decision of the lower court in this matter. Our court held, in that opinion, that there is no evidence that any warrant had been issued for a search or frisk, and I am not going to stress the facts and state that there was a lawful arrest prior to the frisk of the defendants. I believe it would be stretching the facts beyond reasonable comprehension, and foolhardy, to say there was an unlawful arrest because there wasn't from the facts as presented. Later, in the same opinion, our trial court said, I believe, and I reiterate again, that search and seizure laws cannot be applied to this particular situation, although Mr. Reuben Payne endeavored to show there was a lawful arrest. But the court cannot agree. If there was an arrest, it came subsequent to the frisk. The court then based its decision upon Ker versus California. The court said that the Ker decision did not preclude the states from developing workable rules in order to bring about effective law enforcement in the states. The court said, with reference to the acquisition of the gun, that the gun was the fruit of the frisk and that probable cause arose once the police officer had frisked, found the gun; he then had the probable cause to arrest. Our Court of Appeals, in affirming the decision, stated that, a policeman may, under appropriate circumstances, reasonably inquire of a person concerning his suspicious on-the-street behavior, in the absence of reasonable grounds to arrest. Our court admitted that in all probability this would lead to abuses by the police, but then went on to say that, the court would deal with the abuses as they arose before the court. The court stated, further, that this of course was just a minor inconvenience with the personal liberty that is guaranteed, and that therefore each citizen ought to be willing to give up this amount of his personal liberty in order that they might have effective law enforcement in the community. Our court offered this definition of arrest, that as the term is used in criminal law, it signifies the apprehension or detention of the person of another in order that he may be forthcoming to answer an alleged or supposed crime. They distinguished Henry versus U.S. by saying that in that case the government had made a concession, and therefore when this court rendered Henry that it was rendering it on the unique situation where the government had come in and conceded that at the time the automobile was stopped, the arrest had occurred. They, therefore, said this court had not, in that case, rendered an independent view of the facts; and, in fact held that this was an arrest in the absence of probable cause.
Abe Fortas: I suppose the -- your contention here is that the policemen had --there is nothing in the record to indicate that the policeman had any reason to fear bodily harm to himself?
Louis Stokes: Well, we're saying that and we're saying in addition to that, this Your Honor. We are saying that, at the point this police officer approached these men, and at the point he lay his hands on the citizen, that he had -- he did not have the probable cause that is required -- he has stated that all he had, at that point, was this intuitive sixth sense, and that he had never in his long experience as a police officer ever arrested anyone for this purpose.
Abe Fortas: I understand that. But we have to think about your case, and the preceding cases, in whatever relationship may be appropriate, one to the other. Here there is no suggestion, is there, that the policeman had any basis for fear as to his own safety? Am I right? Because there is nothing in the record to indicate that.
Louis Stokes: There is nothing in the record whatsoever, and we might add--
Abe Fortas: What happened here, and perhaps it would be your contention that the policeman was engaged in a search for evidence when he spun Terry around and put his hand inside of his coat. Is that your position?
Louis Stokes: This is our position, Mr. Justice Fortas.
Potter Stewart: I don't understand your answer to Mr. Justice Fortas when you said there is nothing in the record to indicate, that the policeman didn't have the concern for his own personal safety, because I thought he said that, based on his intuition, he thought these people were casing the place in order to rob it. Isn't that what he said?
Louis Stokes: This is what he said.
Potter Stewart: Well presumably, then, he would be armed; and the minute he walked up to talk to them, he would quite reasonably be concerned for his own personal safety, I should think.
Louis Stokes: Well, if I understood Mr. Justice Fortas' question correctly, I understood him to say, was there anything in the record which indicated he had any reason to be concerned with his own personal safety?
Potter Stewart: Well this much was in the record, that he thought, whether with, or without, reasonable cause, he thought or suspected that these were armed robbers about ready to hold up a place. I suppose if you walk up to such people, and begin asking them embarrassing questions, you might have some little concern for your safety if you bonafide believe that they have weapons on them. Now that much is in the record.
Louis Stokes: Yes, Your Honor.
Abe Fortas: Is that so? Excuse me, is that so. Does the record show that he had --he thought these men were armed, before he put his hands on them?
Louis Stokes: Yes. He says, after he says he thought they might be casing the place -- and I felt that they might have guns. He did say that.
Abe Fortas: He testified to that effect?
Louis Stokes: Yes, he did. But in our, both our lower court and in our Appellate Court, in stating that a police officer should inquire promptly into suspicious on-the-street activity, we brought out the fact, and the record will show, that there was no interrogation, there was no investigation in this case as a result of the officer approaching. Now the court has said that he had the right to approach, to investigate, and to interrogate. But the only question in the record is, what are your names? At which point, he then grabbed Terry, spun him around, and began his search. During the interim period while they were waiting for the other police to arrive, there was no conversation between the police officers --
William J. Brennan, Jr.: But, Mr. Stokes, do you really think that if there is enough to suggest that he had reason to believe they had weapons, if that's so then it is justified for that reason in asking them what they were doing, don't you think he would be justified in the first instance in confirming whether or not they did have weapons before he went on further to interrogate them, or even to interrogate him at all?
Louis Stokes: Well, if I understand your question properly, Mr. Justice, you do preface it by saying if there is enough?
William J. Brennan, Jr.: That is right, yes, in this colloquy you and Mr. Justice Fortas and Mr. Justice Stewart were having, on the premise that it was reasonable for him to think that they had weapons.
Louis Stokes: Well, if there was enough, if the constitutional criteria had been met, I would say, yes, I have no quarrel with the fact that where one makes a valid arrest--
William J. Brennan, Jr.: Well, did you quarrel with the fact that--or do you suggest there had to be more than appeared, before he could ask him a question?
Louis Stokes: No, I say if he wanted to, he had the right to ask them a question.
William J. Brennan, Jr.: Well, now, if he had the right to ask them a question, lay that aside for a moment, and he also had reason to think they might have weapons on them, would he have to question before he frisked him for weapons?
Louis Stokes: Well, if we are to say, first, that he has a right to question, I am saying that he can exercise a discretion if he chooses. I am not saying that, at that point, he has an absolute right to question them.
William J. Brennan, Jr.: No. Would he, in your view, be abusing any right of the three of them in walking up to them and asking their names and what they were doing there?
Louis Stokes: Yes, I am saying that, Mr. Justice. I am saying that where a citizen is on the streets, and where all of the criteria that we know of by way of the development of probable cause is absent, in that situation--
William J. Brennan, Jr.: That, then, the officer has no right to stop and ask, what's your name? What are you doing here? Is that it?
Louis Stokes: Well, if we are going to use the absolute term no right, and we're to be held to that, then I would just have to say he has no right. It seems to me he wants to exercise some discretion on his part, of walking up and posing a question, asking a name, asking an address, this is a right he has. By the same token that the person whose liberty is being invaded, the person who has committed no overt wrong, and the person who is only a suspect, at that point--
William J. Brennan, Jr.: Well, may we try to get at it, in this way, Mr. Stokes, up to the point where he spun Terry around, had he done anything outside what a policeman might properly do?
Louis Stokes: No. He had done nothing outside of what a policeman might ordinarily do.
William J. Brennan, Jr.: Now, if then at that juncture he had reason to believe they might be armed, did he have to complete his questioning first? Or could he frisk them?
Louis Stokes: I would say that under the circumstances presented to me, that he did not under those circumstances have the right to lay hands on this citizen and spin him around.
William J. Brennan, Jr.: This would be because you do not think the record shows that he had any reason to believe they had weapons?
Louis Stokes: No that he didn't have -- I am saying that at the point that you lay the hand on the citizen, and you begin to exercise dominion over that citizen on the street by spinning him around, I am saying, in order for you to do this you must have the probable cause that is required to place a person under arrest, because if the person is substantially under your custody, your dominion--
William J. Brennan, Jr.: Then you mean he can't frisk for weapons, without probable cause to arrest? Is that what you re saying?
Louis Stokes: Yes.
Hugo L. Black: How long had he been observing?
Louis Stokes: A period of ten to twelve minutes, Your Honor. It seems to us, and of course our position is in this case that the Mapp exclusionary rule under the Fourth Amendment would apply to this situation. We're not here advocating any change with reference to the Fourth Amendment. It seems to us that the state is in a position of saying to the court that they are not satisfied with the Mapp exclusionary rule. As we read the rule as we read Mapp, we don't see where the court carved out any exception with relation to a gun. It seems to us that the court said that any arrest based upon anything other than a probable cause is an unreasonable arrest, and that all of the evidence must be excluded. We think that the deterrent that Mapp affords us with respect to illegal searches and seizures is something that we are willing to continue living with. Although Terry is before you, we think it goes much farther than this. We think that when the state is saying that there is something called reasonably suspects, reasonable suspicion, as it is put in some jurisdictions, and they're asking this court to relax the Fourth Amendment, as it is known, they are in effect asking this court to nullify the Fourth Amendment and to overrule Mapp versus Ohio. We think, therefore, that if this is to prevail, that it is for the state to be able to persuade this court that this court has some where in history permitted something other than probable cause to determine whether an arrest and a search and seizure is probable, or one that is impermissible. Some of the jurisdictions--
Earl Warren: Mr. Stokes, I wonder if that could be broken down a little? I wonder what you would say to this, of course the police officer does have the right to investigate a crime; and this police officer, in this instance, had the right to investigate the crime. He did see what one might well say were suspicious acts on the part of the people whom he thought might be preparing to commit a crime. He had a right, did he not, to pursue that farther to determine whether or not he would have probable cause, perhaps, for an arrest? Pursuant to that, he went to talk to these men. Now, because of the nature of the crime that he suspected, a robbery, he felt that when he went into the company of these three men, against himself alone, that he was in a dangerous position; and, that, therefore, he had probable cause to see if they had weapons on them, not because he had probable cause to believe they had committed a crime, but because in investigative matters he had probable cause to believe that his life was in danger. Under those circumstances, would you think that he did, or did not have a right to ascertain whether he was in a position of danger, by seeing if they had weapons?
Louis Stokes: Only if we're going to relax the standard of probable cause, as we know it, under the Fourth Amendment. He didn't permit the situation to ripen into the point where it had ripened into a probable-cause-type of a situation. He was a little ahead of himself, in this situation, and our position would have to be that you don't have a right to protect a constitutionally impermissible arrest; and, consequently, this is the way we would have to answer it.
Earl Warren: Police officers are very often in a position where they might not be able to make an actual arrest, but they are in a position of great danger. Now, where they are in a position of great danger, are they in a position to protect themselves from violence, by looking into the situation to see if anyone is armed to do the violence?
Louis Stokes: Yes, Mr. Chief Justice. He certainly has a right of self-defense, and he has a right to protect himself. But the product, once it has been removed, the danger has been removed; we are saying that in this case, since it was not based upon probable cause, we should not protect the constitutionally impermissible arrest, by permitting the yield of that arrest to come into evidence against the defendant.
Earl Warren: Take a situation of this kind, where a police officer sees someone acting very peculiarly. It might not be in connection with any information he has about any crime. Maybe the person is abnormal, mentally. Maybe he thinks he's insane and he wants to talk to him. But the man shows indications of, he thinks, of violence and he wants to be sure he won't be attacked when he goes to talk to him. He goes up to speak to him, and also ascertains whether he has any weapon on him. Do you think he had a right to do that, as a matter of probable cause that he might be injured himself if he doesn't take precautions?
Louis Stokes: I think we are faced with this, Mr. Chief Justice. The average police officer would do this under these circumstances. If he felt himself to be in any type of danger that he would conduct a search, for the purpose of protecting his own life in a possibly dangerous situation. But I am saying that we cannot merely because of that type of situation, and not being what is required by the Fourth Amendment, we can't give sanctity to it by way of saying, since you did find this product, we're going to permit it into the evidence.
Earl Warren: I'm not arguing with you. I'm just seeing how far we have to go in a situation of this kind. That's the only reason for my question.
Louis Stokes: Certainly, Your Honor. Another reason we think that the court -- another thing that I think the court has to take into consideration here, of course, is the impossibility that this court has of standardizing such a subjective thing as intuition. All the amicus briefs say, permit us this standard that is less than probable cause; permit us to stop and frisk people on the streets. Now experience has already taught us, if the court please, that policemen have had enough difficulty being able to grapple with and to determine for themselves what is tantamount to probable cause, as it has been enunciated in the decisions by this court. Now they're saying to this court, give us another standard. Give us this, reasonably suspects, or based upon suspicion, or whatever the standard is that's less than probable cause. We think that we're just compounding the policeman's problems if the court does permit this type of a thing to occur. With reference to the basic guarantee that we are concerned about here, I don't think we are so much concerned, really, about Terry, because over the years it has been the person who has been involved in criminal activity that has come before this court in order for this court to again take a look at some of our basic constitutional guarantees. I think, through Terry, that we look at the hundreds of people walking the street by the day because police officers, or a police officer, finds himself observing a situation where he says, as he did in this case, Well, to tell you the truth, I just didn't like them and then I began watching them. Then the fact that he wants to go further, and at that point, I think we're subjecting all of the people who have this inviolate right of privacy, to this type of activity on the public streets throughout our nation. I would like to reserve five minutes of my time.
Earl Warren: Mr. Payne?
Reuben M. Payne: Mr. Chief Justice, it please the members of the court, at the outset, may I direct my attention to page 19 of my brief. There it is indicated that after the officer had testified that he observed the conduct of these men, and that he had concluded that they were casing an establishment for a robbery, we find this quote appearing from the record, Question: Detective McFadden, can you tell us why you turned John Terry around facing the other two men, with you behind him? Answer: Due to my observation, the observation on Huron Road of these two men, I felt as though they were going to pull a stick-up and they may have a gun. That is supported and substantiated in the record of this particular case. A question has been asked here, what is the difference between reasonable suspicion, and probable cause? In one instance, in the arguments of the case before this court, the Court of Appeals in the Peters case, has said, it is that cause which is somewhat below probable cause on the scale of absolute knowledge of criminal activity.
Hugo L. Black: The question I had in my mind was this, I can understand why you have a difference of words, this scale a little below. I can't, myself, see any difference in, I'm talking about conduct, in having a reasonable suspicion something is about to be done, and in having probable cause to believe something is about to be done.
Reuben M. Payne: I cannot see any basic difference in having a reasonable suspicion and equating it with the term probable cause, in of itself. It has been indicated that we have asked for a different standard here, as to probable cause. I find no problem with this particularly, because I do not ask for a different standard of probable cause, as it may relate to the right to lawfully arrest a person. I think the quantum of evidence that is basic and essential under the circumstances to establish probable cause for the officer to arrest or to stop a person and to ask him questions, may be somewhat lesser in degree but, by the same token, it is probable cause under any circumstances. The same circumstances are indicated --
Hugo L. Black: What do you understand probable cause to mean?
Reuben M. Payne: I understand probable cause to mean, for an arrest, that --
Hugo L. Black: Wait a second. Probable cause to believe something will happen. What do you mean when you say that?
Reuben M. Payne: When a person is observed in circumstances which suggest that he has committed, or is about to commit a felony or a misdemeanor, and such action is reasonably necessary to enable the officer to determine the lawfulness of the person's conduct; and the key word here is the circumstances at that particular time.
Hugo L. Black: Would you mind telling me, in your language -- plain ordinary language -- what you understand to be meant when somebody says, for that reason, says that a thing is probable cause to believe that something will happen?
Reuben M. Payne: I understand that to mean the taking into consideration of the totality of the circumstances, as a responsible person views it, at that particular time in relation to his work. For example, the police officer here, in taking in the totality of the circumstances that he observed, under the conditions which he observed them, that the conduct that existed and the idea that maybe were flowing from the conduct which he observed here, would establish probable cause.
Hugo L. Black: Do you understand it to mean reasonable grounds to believe something is going to happen?
Reuben M. Payne: I understand -- I believe that it does mean reasonable grounds that something is going to happen.
Hugo L. Black: It does not mean, does it, that it's bound to happen?
Reuben M. Payne: It does not mean that it is bound to happen.
Hugo L. Black: Therefore, you've got to have something that is ‘‘reasonable grounds'' for saying you believe it will happen.
Reuben M. Payne: I agree with you, sir.
Thurgood Marshall: Mr. Payne, in this case this arresting officer testified, did he not, that he had never seen anybody for a case a joint?
Reuben M. Payne: That is correct; he did so testify.
Thurgood Marshall: He also testified that he had been on that same area for some thirty years, doing the following things: Checking for pick-pockets, and shoplifters?
Reuben M. Payne: That's correct.
Thurgood Marshall: So, where did he get his expertise about somebody about to commit a robbery?
Reuben M. Payne: I think that he would get his expertise by virtue of the fact that he had been a member of the police department for forty years, and by being a member of the police department for forty years I am quite sure that, even if by osmosis, some knowledge would have to come to him of the various degrees of crimes --
Thurgood Marshall: Now we're getting intuition by osmosis?[Laughter]
Reuben M. Payne: Not at all, sir. Not at all. I didn't mean to imply that; nor did I mean any disrespect by so using that particular term. I think that, for example, if I as a lawyer I'm around a particular office for a number of years but I certainly must gain knowledge about various concepts of law that may come about from time to time.
Thurgood Marshall: There are exceptions to this. [Laughter]
Reuben M. Payne: I would agree with the Court in these circumstances also.
Thurgood Marshall: Seriously, Mr. Payne, the point is that the only thing he noticed was: A man leaves from a position of talking to another man and goes across the street, looks in a window, and goes back. Now, number one, you will agree that everybody who looks in a public window is not casing the joint agreement.
Reuben M. Payne: I agree.
Thurgood Marshall: What they did it twice, or three times. How many times?
Reuben M. Payne: It was --
Thurgood Marshall: It was not too clear to me from the record.
Reuben M. Payne: May I then, in response to the Justice's question, indicate first of all, and clarify this, his testimony was not that he didn't like him. His testimony was that he didn't like their looks. Now I don't think that he meant by that any reference to pigmentation or anything else. I think that he meant by that, when we take the entire record into consideration, the fact that this was in a downtown area that these people were not continuing in the regular flow of commerce of other people on the street --
Thurgood Marshall: That they beared watching, you would say?
Reuben M. Payne: I'm sorry. I didn't --
Thurgood Marshall: They beared watching?
Reuben M. Payne: They beared watching. They were standing on the corner conversing. Then, because of their not continuing in the flow of regular commerce, he observed one of the petitioners walk away from the other one and proceed approximately 100 feet west, up the street. He noticed the unusual activity of this petitioner peering into the jewelry store, or the airline office there, that there was something in the vicinity of the airline office -- or the jewelry store, which excited the petitioner's attention in some manner, or in some way. He then returned to his companion on the corner, had a conversation with his companion; his companion, in turn alternately proceeded up the street, and conducted himself in the very same manner; that they alternated in this way, four or five times; that, thereupon, a third man came from across the street and had a conversation with them and after having that conversation with them; that the third man returned back across the street and stationed himself there; that these individuals then engaged in the conduct which I have described previously, four or five additional trips after that. And, that then after engaging in these additional trips, making a total of some ten to twelve trips, he observed that their interest was centered on the jewelry store or the airline office; that after so making the total number of trips, they then went across the street, and there again the three men came together, at which time they were having a conversation and at which time the officer had concluded that they were casing the establishment for a stickup. Under these circumstances, I say to the Court that the taking into consideration that an officer who is by himself, taking into consideration the number of persons involved --
Thurgood Marshall: But didn't your own court say they did not have probable cause to arrest, as of this point we are now talking about?
Reuben M. Payne: The trial court indicated that, at this point, that there was not probable cause for arrest. The appellate court did indicate that there was probable cause for arrest, after the frisk took place.
Thurgood Marshall: No, I mean -- well, we haven't frisked him yet.
Reuben M. Payne: That is correct.
Thurgood Marshall: So he didn't have probable cause to arrest, when he approached.
Reuben M. Payne: I would agree with this.
Thurgood Marshall: And he didn't get probable cause until he put his hands on the butt of the gun.
Reuben M. Payne: He didn't get probable cause to arrest--
Thurgood Marshall: -- him until he put his hands on the butt of the gun, in his inside coat pocket.
Reuben M. Payne: No, sir.
Thurgood Marshall: Is that right?
Reuben M. Payne: No, sir.
Thurgood Marshall: When did he get probable cause to arrest?
Reuben M. Payne: He received probable cause for arrest when he turned Terry around and ran his hands over the outside of his clothing and, feeling a gun in the upper left-breast pocket, and indicating emphatically at that time that, What I felt was a gun, a weapon.
Thurgood Marshall: Well, he didn't have it, as counsel for petitioner says, he didn't have it when he laid hands on him and turned him around?
Reuben M. Payne: I would agree. He did not have probable cause to arrest.
Thurgood Marshall: Right.
Reuben M. Payne: I would agree that he would have probable cause to frisk, or to lay hands on him, at this point.
Thurgood Marshall: Why?
Reuben M. Payne: Because of the nature of the circumstances and protection of his own life.
Thurgood Marshall: He didn't say he saw the gun bulging, or anything like that?
Reuben M. Payne: No, he did not say that he saw a gun bulging. He indicated that: They were casing a joint for a robbery, which implies a crime of violence, which implies that they have a gun. That, coupled with the fact that after he made an identification of himself when approaching these men, and indicated to them that he was a police officer, that the response which they gave was in the manner of evading the question which he had put to them, under these circumstances I think that --
Earl Warren: What was the colloquy at that point?
Reuben M. Payne: The question which was put to them by the officers: What are your names? As to this, there was a mumbled, incoherent response made in reply to that particular question. And this, of course, coupled with his observations and conclusions which he had made previously, there was probable cause for this officer to further investigate for weapons, under these circumstances, to determine and to protect his own life here. Now, it is my contention --
William J. Brennan, Jr.: Mr. Payne, regarding the use of -- you have said repeatedly now, if I understand you, that probable cause -- are you saying something like this: that while there may not have been probable cause to arrest, in the sense of taking him to the police station and booking him for some crime, that at least in these circumstances there was probable cause to arrest, in the sense of asking them questions such as: Who are you, and what are you doing here? Is that what you're saying?
Reuben M. Payne: I hesitate in the use of the term arrest.
William J. Brennan, Jr.: You are saying probable cause, in these circumstances -- and I gather what you must mean -- is that if the detainment is an arrest, it was to be a detention only long enough to find out what they were doing. Is that correct?
Reuben M. Payne: That is correct.
William J. Brennan, Jr.: And that then, if the officer had probable cause to think they had weapons on them, that in those circumstances he was justified in frisking them for weapons. Is that it?
Reuben M. Payne: That is correct. And, to -- if I may put it in my own language, I am saying that there was probable cause for the officer to interfere with their freedom of action, at this point, and that such interference with their freedom of action is not in a significant way at this time.
William J. Brennan, Jr.: Well that's what I understood to be your argument in the use of probable cause. What you're really doing is saying you don't have to change the label; it's still probable cause, and it's still an arrest -- but an arrest, for the purpose merely of asking the question: Who are you and why are we here? And this is a different thing than an arrest for the purpose of taking them to the station house and booking them for a crime. Is that it?
Reuben M. Payne: Under Ohio law, I could not agree with this concept because under Ohio law the definition of arrest, is by statute.
William J. Brennan, Jr.: Well, forgetting Ohio law for a moment, how about for the purposes of the Fourth Amendment?
Reuben M. Payne: For the purposes of the Fourth Amendment, it would be reasonable action on the part of this officer --
William J. Brennan, Jr.: But I thought you agreed with Justice Black before, that really, reasonable action and probable cause are pretty much synonymous terms?
Reuben M. Payne: I do, Your Honor.
William J. Brennan, Jr.: So we can stick to the jargon of probable cause and make the distinction that way?
Reuben M. Payne: I agree. I think that the Court can stick to the jargon of probable cause and make any distinctions under the circumstances in this respect.
Hugo L. Black: As I see it, what you and your case are really substantially arguing is that to stop a man, or to ask him a question by an officer, is not an arrest under the Fourth Amendment description of an arrest?
Reuben M. Payne: It is not an arrest.
Hugo L. Black: It seems to me that that's the real basis of your argument. What you're talking about is an arrest, and you're saying it doesn't arrest him to ask him a question.
Reuben M. Payne: It does not arrest him to ask him a question.
Hugo L. Black: And I imagine you're saying, also, it doesn't necessarily arrest him to touch him?
Reuben M. Payne: It does not arrest him to touch him.
Hugo L. Black: It might be an assault, but not an arrest, under the constitutional meaning?
Reuben M. Payne: It does not interfere with his freedom in a significant way.
Hugo L. Black: He hasn't taken him into custody, you say?
Reuben M. Payne: That is correct.
Hugo L. Black: That is, under an arrest?
Reuben M. Payne: That is absolutely correct.
William J. Brennan, Jr.: Well, Mr. Payne, that's not quite the same thing you said to me.
William J. Brennan, Jr.: I don't understand. I thought You said to me earlier that there might be an arrest, for some purposes; and an arrest for some other purposes -- Fourth Amendment purposes; and that an arrest, for the purpose of asking a chap his name -- which follows from a detention -- or, what's he doing here, there might be probable cause for that sort of thing without any violations, even though it could not be in the same circumstances probable cause to take him to the station house and book him for a crime.
Reuben M. Payne: I did not mean to imply -- because I had indicated to the Court that certainly arrest, in Ohio, is defined by statute. And I thought I did indicate to the Court that the detention of his freedom here, at that time, is not an arrest in the sense that we understand it to be --
William J. Brennan, Jr.: It's certainly not an arrest in the sense of taking him to the station house and booking him for a crime; but, if he's detained, isn't it in the nature of an arrest?
Reuben M. Payne: No.
Thurgood Marshall: Well, Mr. Payne, couldn't you say that when he laid hands on him and swung him around that petitioner's freedom of movement was arrested?
Reuben M. Payne: I would agree that his freedom of movement was arrested.
Thurgood Marshall: But that's not arrest.
Reuben M. Payne: I do not agree that his freedom of movement was arrested in a significant way.
Thurgood Marshall: You mean because he only turned him around? It didn't take long to turn him around?
Reuben M. Payne: No. I mean in the sense of the circumstances involved at that particular time.
Thurgood Marshall: Well, in this particular case he laid hands on him, and swung him around. How many days later was Payne free to go, from that moment on, in this case?
Reuben M. Payne: If there had been no more --
Thurgood Marshall: No. In this particular case, when did he next get out? When did Terry get his freedom?
Reuben M. Payne: Some time after he was convicted of the crime of carrying a concealed weapon.
Thurgood Marshall: So his freedom was arrested, for quite a while.
Reuben M. Payne: Not on the basis of his swinging him around; but on the basis of the concealed weapon which he was carrying, and the crime that he was committing in the presence of the officer at that time.
Hugo L. Black: You don't deny he was arrested; you're arguing about what time before he was arrested.
Reuben M. Payne: That is correct.
Earl Warren: When did the arrest take place? Just speaking in ordinary terms, now, not little arrest, or big arrest, but speaking in ordinary terms, when was he arrested?
Reuben M. Payne: Speaking in ordinary terms, he was arrested after the officer dropped that weapon and ordered them into the interior of the store. And it was not until that time, after he felt the weapon on the outside -- he did insert his hand and felt the butt of the gun afterwards, and after taking them on the inside and they were placed against the wall; when the coat was pulled from his shoulders and then the gun was taken from out of the pocket of Terry; he then went to the other petitioner and patted him on the outside of his clothing and thereupon felt a weapon that he had testified to -- it was after patting on the outside of his clothing, that he inserted his hand into his pocket and removed the weapon from the second individual, or person involved here. So, the arrest took place the moment that he ordered them into the store itself. Their freedom of movement was interfered with, significantly, at that time so that they could not --
William J. Brennan, Jr.: Let's use the Fourth Amendment language, then. When was the first seizure of the person?
Reuben M. Payne: The first seizure of the person was at the time that he ordered them into the store.
William J. Brennan, Jr.: You mean when he took Terry and swung him around there was no seizure of the person?
Reuben M. Payne: I think there was a temporary detaining, or interference with his person.
William J. Brennan, Jr.: Well, he had his hands on him and he switched him around. Surely -- there was no seizure of the person?
Reuben M. Payne: But here again we're dealing in simply semantic words.
William J. Brennan, Jr.: That word is in the Fourth Amendment, isn't it?
Reuben M. Payne: I agree that it is, sir.
Hugo L. Black: What is the difference between seizure and arrest? You know, a seizure -- you don't seize a man -- I mean, you may seize him because you seize something tangible, but that's not what you are talking about in a seizure in the Fourth Amendment. I thought it was an arrest?
Reuben M. Payne: It is an arrest that I understand we are discussing in this matter.
Hugo L. Black: An officer could very easily turn a man around, without arresting him, couldn't you?
Reuben M. Payne: I agree with this --
Hugo L. Black: It might not be easy, depending on his size --
Reuben M. Payne: -- that he could very easily turn the man around, and some may term that as a seizure of the person himself; but I would not term that it as a seizure of the person himself unless he has the intention of taking that person into custody, even though he may lay hands on him at that particular time.
Hugo L. Black: Well, he undoubtedly did this when he ordered them to get into the store and turn their palms towards the wall and stand there. At that point, there can be no doubt about an arrest, I guess.
Reuben M. Payne: I would agree. I think that the affirmance of the conviction of the petitioners on the law in the instant case is reasonable, is necessary, and is appropriate to secure the safety and the welfare and the best interest of the public of the State of Ohio, because we are asking here -- and I am, perhaps, bound to indicate that the Court of Appeals has suggested in this particular case -- that we authorize the stopping under these circumstances where there are these surrounding circumstances, for the protection of the officer's life and for the protection to the community that will exist if this is not permitted in this manner and this way, depending upon the circumstances that exist at this time. The means that is selected, as enunciated by our trial court and the Court of Appeals in this case, have a direct substantial relationship to the concept of the safety and the welfare sought to be attained in the affirmance of this particular case here. If we consider the comments of the trial judge at the time that he gave his opinion in connection with this matter, the trial judge made these remarks: I am a great believer of the personal rights propounded by our Supreme Court, reiterated and reaffirmed, neglected over the years and given to us under the Fourth Amendment and other amendments of the Constitution. Secondly, the trial court said, At the same time, a police officer cannot, as far as this Court is concerned, and will not be permitted to stop and frisk an individual simply because he has a suspicion -- a mere suspicion -- unless there are reasonable circumstances justifying the frisk. Three. When the circumstances justify, and there is reasonable suspicion, and for his own personal protection, he may frisk to determine if there are weapons for his personal safety. Four. The officer assigned in the area in which he had been placed, doing the job he had been doing, and had reasonable cause to believe and to suspect that the defendants were conducting themselves suspiciously and some interrogation should be made of their action. Five. There was reasonable cause in this case for the officer to approach these individuals and pat them down. Here is a decided attempt on the part of the trial judge to equate and balance the rights of the individuals with the rights of the public and the safety that is involved herein as it pertains to the officer in this particular case. What are the reasonable cause -- circumstances that existed in the mind of the officer at that particular time? One, we have a police officer in his particular area, on duty, and his duty is to maintain law and order. His duty, too, is to prevent crime if he can so do. Secondly, he has 39 years of experience herein. Fourth, the observations of the suspicious activity which he observed, which may be determined as pre-detention conduct. Five, he concludes from the observations and the conduct of these men that a crime of violence with the use of weapons in probability may be committed under these circumstances. Sixth, he decides to investigate and to interrogate, and the record indicates and shows that at this particular time, why did you go over to these men? I went over to them to ask them some questions. Eight, when he asked their names, he received this mumbled incoherent response, which further gave rise to the circumstances that he had concluded previously that a stick-up was possible here. At this point, taking into consideration the nature of the crime which he has concluded -- a stick-up -- and the use of weapons as they are characteristically used in a stick-up, there is only one course of conduct then open to a prudent police officer. And that is, to frisk or pat for weapons, for the protection of his life. This is why we considered it in the interest of safety and public welfare in the State of Ohio. Seven -- or, not seven, but -- ten, there was the absence of assistance to this officer, at this time, in relation to the number of individuals involved here. There was one police officer and three men. The type of clothing, also, he considered at this particular time because they were wearing overcoats, and the possibility that they might have concealed weapons, as they did exist here; the sex of the subjects, also, I think he had to take into consideration, at this particular time. There were three agile, young men that he was confronting, and he was by himself at this particular time. Under these circumstances that he was confronted with at this time, I believe that it was in the interest of public safety; I believe it is in the interest of the welfare of the community and society, that he have the right, based on these probable cause circumstances, to frisk this man, to temporarily detain him, to ascertain that which he has observed, and to confiscate any weapons which he may find on his person at that particular time; and, that they are admissible in the evidence of his trial subsequent thereto. I think that if, as the question was placed by one of the justices of the court, that after the probable cause that exists here in this particular case, I feel that the judgment in the case should be affirmed.
Earl Warren: You may have three more minutes to finish.
Louis Stokes: Thank You, Your Honor.
Earl Warren: Your time had expired.
Louis Stokes: Thank you very much.
Earl Warren: We would just ask the Court to consider that, on the state of the record, this police officer is acting upon the suspicion he has that these two men are casing a place; that the stores where they are supposedly casing, are located on Huron Avenue at Fourteenth Street at the apex. These men have gone down Euclid Avenue, where Huron Avenue cannot even be seen. They are standing in front of a store there that has not, on the state of this record, been cased at the time that they are approached and subjected to the arrest. We would ask this Court to be mindful, also, of the fact that if this Court does affirm this decision, it will, in effect, be affirming the decision rendered by the Court of Appeals, in which they have established the fruit-of-the-frisk doctrine for the State of Ohio. I would ask you to keep in mind that the State of Ohio's legislature has just considered, a few months ago, and rejected a stop-and-frisk bill similar to that of the State of New York. Lastly, we would ask you to consider that in accordance with decisions such as DeRay, where this Court has said a search is either good or bad when it starts, and it does not change character thereafter; and, that the after-the-event justification does not relate back to justify the original, initial unlawful search. Thank you.
Hugo L. Black: Let me ask you if this is not what you're really asking us to hold -- I'm not saying we shouldn't. You ask us to hold, as I understand it, that no officer has a right to interrogate people, and expect to get an answer, unless he already has in his possession, or in his mind, evidence sufficient to show probable cause that that person has committed a crime, or is about to commit one?
Louis Stokes: I can't take it that far.
Hugo L. Black: Well, how far would you take it?
Louis Stokes: I'm saying that where the police officer chooses, with reference to whatever his determination has been, to interrogate or to investigate further with respect to citizens lawfully on the street, that in order to exercise dominion or custody or control over that citizen, and thereby deprive him of his rights under the Fourth Amendment, that he must have before approaching him that probable cause which this Court has made reference to in its decisions.
Hugo L. Black: Well, what about asking him questions and expecting him to answer?
Louis Stokes: He has the right to approach him and ask his questions.
Hugo L. Black: Does he has a right to expect an answer, and to do anything whatever if he doesn't get it?
Louis Stokes: I think that in the absence of this person having committed any crime of any sort, and where the approach is based on suspicion alone, the person being subjected to the interrogation has the right to refuse to answer, or to turn away.
Hugo L. Black: What you're saying is that a policeman does not have the right to ask a person a question on the street and get an answer, or to keep him, or do anything else except just ask him a question, unless he's in possession of sufficient facts to know that he has probable cause to believe that that man has committed a crime or is about to commit a crime?
Louis Stokes: Mr. Justice, I'm sorry if I'm giving you the impression that a police officer cannot ask him a question.
Hugo L. Black: I said, can ask him a question, but cannot get an answer, and do nothing about it.
Louis Stokes: He can arrest him, if he chooses.
Hugo L. Black: He can arrest him. But supposing he doesn't choose to arrest him? Suppose he wants to do something short of arresting him?
Louis Stokes: Then I don't think he has that right.
Hugo L. Black: Then the man can go on and off, not answer the question because the officer doesn't have at that time a sufficient amount of evidence to make a case of probable cause that he has committed a crime?
Louis Stokes: That is precisely what I'm saying, because otherwise the Fourth's -- inviolate right of privacy is being invaded.
Hugo L. Black: I thought that was it.
Louis Stokes: Yes, sir.
Earl Warren: Very well, Mr. Stokes.
Louis Stokes: Thank you.


Warren E. Burger: Mr. Bennett.
Robert W. Bennett: Mr. Chief Justice and may it please the Court. Appellant's constitutional arguments are premised on an attempt to identify this case with the situation presented in Maher against Roe. But this case is not like Maher against Roe and it differs in ways that are central to the constitutional analysis that is appropriate. In Maher, the plaintiff complained that the State favored normal childbirth over abortion and this Court held that it was permissible to express a value judgment in favor of childbirth. The value judgment was expressed by use of a medical assistance program in which refusal to fund elective abortions did no violence whatsoever to the medical assistance goals on which that program was grounded. If a woman desiring an abortion could not obtain one, she could go through normal childbirth with all medically necessary expenses paid and neither her life nor her health will be put in jeopardy.
Byron R. White: What if we disagree with you on what the medical goals as the fact are? What if -- what if we decided like the District Courts did that it's not inconsistent with -- with the Act?
Robert W. Bennett: I guess I'm -- I'm (Voice Overlap) --
Byron R. White: Well, with the Hyde Amendment it's -- it's not inconsistent, according to District Court.
Robert W. Bennett: Well, if the Hyde --
Byron R. White: That is --
Robert W. Bennett: -- if the Hyde Amendment, Your Honor, modified the State's obligations under Title XIX, then I would agree that the totality of the State judgment and the federal judgment was one which excluded those procedures. That's clear, but that would be true of any state discriminatory action. That does not prevent the application of the Equal Protection Clause, the equal protection analysis. Indeed, the Constitution commands the application of the Equal Protection Clause.
Byron R. White: Yes, but one of the reasons for saying it violated the Equal Protection Clause wouldn't be that it was inconsistent with the statute, which is what you were just arguing.
Robert W. Bennett: No, I'm -- I'm sorry. I was trying to distinguish this case from the situation in Maher.
Byron R. White: I know you were. Yes.
Robert W. Bennett: In -- in Maher, the State could express a value judgment, but do no violence to any health goals, do no violence to the general area of activity in which it itself had decided that it would undertake a very substantial program.
Warren E. Burger: Did Congress express a value judgment in the Hyde Amendment, do you think?
Robert W. Bennett: I'm sure that in some sense, Congress expressed a value judgment. Indeed, I think Congress expressed a pure sort of value judgment that abortions were evil and hence, federal money was not to be associated with that.
William H. Rehnquist: Mr. Bennett, I am a little bit confused in the same way my Brother White is. Is this a --
Robert W. Bennett: Mr. Justice White.
William H. Rehnquist: Mr. Justice White [Laughs]. Is this a -- is this a statutory as opposed to a constitutional argument that you're making now --
Robert W. Bennett: With both.
William H. Rehnquist: -- or is it a constitutional argument, but somewhat different than the other parties have made?
Robert W. Bennett: I take it that all constitutional arguments about discrimination must define the area in which the discrimination takes place and against which the discriminatory denial of a benefit must be judged.
William H. Rehnquist: I would think my question could be answered yes or no. I mean whether this is a constitutional argument you are now advancing or whether it's a statutory argument that really there isn't any constitutional question here for us to decide because the Hyde Amendment didn't change the requirements of the Medicaid Act.
Robert W. Bennett: I advance both those arguments, Your Honor --
William H. Rehnquist: You mean, you --
Robert W. Bennett: -- which the alternative.
William H. Rehnquist: Which were you advancing at the time Mr. Justice White asked?
Robert W. Bennett: The constitutional argument. The State obviously has wide discretion to choose its spending and regulatory activity, but when it does make a choice, that choice defines the area of discrimination for equal protection purposes. And regardless of the equal protection standard that is to be applied here, what Illinois has done cannot stand. The abortion decision centrally touches the health of indigent pregnant women. That theme has been reiterated time and again in this Court's decisions. And indeed the two or three provisions in abortion regulations that have been upheld, have all been, I would submit, carefully sculpted so as to avoid any serious jeopardy to the pregnant woman's health. Here, Illinois refuses to fund medically necessary abortions in pursuit, I would submit, of no legitimate interest at all. This Court has found that the State has a legitimate interest in protecting potential life.But Illinois was not attempting to protect potential life. What Illinois was doing was trying to prevent abortions with the view that a fetus was a human life in same sense that a two-year-old was and in the same sense that a 22 and a 44-year-old was. If Roe against Wade stands for any proposition, it must stand for the proposition that a State cannot proceed on that assumption, when proceeding on that assumption will do substantial harm to the interest of others involved.
Potter Stewart: Your constitutional argument, Mr. Bennett, is exclusively an Equal Protection Clause argument, is it?
Robert W. Bennett: Your Honor, the equal protection standards and the due process standards are obviously closely related.
Potter Stewart: Well, is it any part of your argument as indeed it seemed to me logically to be part of the -- your brother's argument in the preceding case that a State is under a constitutional duty to finance abortions quite a part from whether or not, it finances anything else?
Robert W. Bennett: No, Your Honor. We make no such claim.
Potter Stewart: So, it is basically an Equal Protection Clause.
Robert W. Bennett: It is a claim of discriminatory denial --
Potter Stewart: Right.
Robert W. Bennett: -- of public benefits.
Potter Stewart: That that were granted to others for similar things.
Robert W. Bennett: That is correct, for all medically necessary procedures.
Potter Stewart: It's -- it's not your claim that there's any duty on the State to finance abortions or indeed to finance anything for health?
Robert W. Bennett: That is correct, Your Honor. But this is not just any discrimination that the State has undertaken here.
Potter Stewart: It's -- according to you, it's unconstitutional discrimination.
Robert W. Bennett: Yes, but it's not even an ordinary unconstitutional discrimination. Because the discrimination here is against exercise of a fundamental right, a right that this Court has repeatedly recognized to be fundamental.That is the woman's interest in making the abortion decision for herself. Illinois --
Byron R. White: But Maher -- it's Maher --
Robert W. Bennett: Maher --
Byron R. White: Yes, said that -- said that Congress could do that or a State could do it in the first trimester, anyway.
Robert W. Bennett: No.
Byron R. White: I mean none of that -- it - it said as a -- Congress needn't -- needn't fund elective abortion.
Robert W. Bennett: That is correct. And we are not claiming --
Byron R. White: Even though it can't -- even though it trespasses on the results and the inability, practical inability of a woman to make her own decision.
Robert W. Bennett: That is correct, Your Honor. But in Maher there was no discrimination in a -- in the sense that the Equal Protection Clause makes relevant, because there was no jeopardy to the healthcare interest that the State had defined for itself, whereas here, there is disastrous significance. The State will fund all other medically necessary procedures, but these, it will not. And that is precisely a discrimination based on the woman's exercise of a fundamental right.
Warren E. Burger: Could the Illinois legislature provide an -- comprehensive program for drug addiction and not provide a comprehensive program for alcohol addiction or vise versa?
Robert W. Bennett: It might well, Your Honor, if it had a rational basis.
Warren E. Burger: Well, that's arranged. Just -- just take it as is.
Robert W. Bennett: Well, I would have to no know more about both drug addiction and --
Warren E. Burger: Most -- most of the time -- most of the time, state legislatures don't go to any great extent to telling us why.
Robert W. Bennett: I understand. Most state decisions to fund or not to fund, are justifiable by a value judgment in choosing between two goals.
Warren E. Burger: Or could they -- could they make the choice of one and not include the other? That's my question to you.
Robert W. Bennett: I would think they might well be able to. I -- without knowing more about the particulars of alcoholism and narcotics addiction, I -- I hesitate to make an unequivocal judgment, but my hunch would be that a State could make such a distinction. And it would be justifiable by the value judgment that alcoholism is a more significant problem or less, depending on how the judgment came out, in our society than was drug addiction. But, the State here is acting on the assumption that this Court has held to be impermissible, namely, that abortion is to be stopped and yet the -- and the people who's desired abortion, the State has chosen to stop and discriminate against are those of a helpless group of indigent citizens, those that the legislative process most easily can ignore when it decides to launch upon a discrimination. Justice Rehnquist asked this morning, whether one had to assume that legislators were irrational in order to decide that they had adopted an irrational means to the pursuit of a legitimate objective. I would point out first of all that there is no legitimate objective here, but even if there were a legitimate objective that the Illinois legislature had in mind, it is not at all necessary to assume that legislators may or did have acted irrationally as individuals, in order to conclude that the constitutional test of irrationality is met. Ever since James Madison and probably a long time before, our constitutional theorists recognized that a legislative majority would often be tempted to ignore utterly the interest of a legislative minority. And the judgment on a legislative level that the costs that have been exacted from a minority are too great is what justifies the conclusion that what the legislature has done isn't an irrational means to pursuit, even of legitimate objectives.
William H. Rehnquist: Well that's the easiest --
Harry A. Blackmun: May I -- may I ask --
Robert W. Bennett: After you, sir.
William H. Rehnquist: That's easy to see in the case of the Bill of Rights where you can't say that because appointed counsel costs so much, the -- the State legislatures are going to get together and say, “We're not going to point it in the State and therefore, we're not irrational and therefore, this is okay.” Obviously, that would be the wrong result because that is specifically proscribed in the Sixth Amendment. But when you come to the Equal Protection Clause, this in -- and the standard is the so-called rational basis, then to say that the legislature has in mind a -- a goal which is perfectly acceptable, but was totally irrational in pursuing it, to -- to my mind, it does mean that -- that they belong in a bughouse.
Robert W. Bennett: Forgive me, Your Honor. I read your dissent in Weinberger against -- or your concurrence in Weinberger against Wiesenfeld to reach exactly that conclusion about the discrimination there. I don't understand how a State could ever have a legitimate objective and there could be any content to the requirement that they pursue a rational means unless this Court at some level was willing to make a judgment that the State had simply gone too far in exacting cost from a helpless political minority. I take it that that is precisely what the rational basis test both under the Equal Protection Clause and under the Due Process Clause means. But I would repeat that we are not here dealing with an ordinary -- even an ordinary unconstitutional discrimination, but rather a discrimination against a woman's exercise of her fundamental rights.
Harry A. Blackmun: May I come to the question I was about to ask. You are arguing as I understand it, that there is no legitimate state interest.
Robert W. Bennett: That's correct, Your Honor.
Harry A. Blackmun: Did -- did the District Court in your case, agree with that?
Robert W. Bennett: Yes, the District Court -- well --
Harry A. Blackmun: I -- I understood the District Court recognized a legitimate state interest, I -- I understood the District Court recognized a legitimate state interest, but weighed it against the interest of -- for which you're advocating.
Robert W. Bennett: I think that the District Court's language sort of straddled the -- the two conclusions.
Harry A. Blackmun: But you can't point any language in the District Court that goes as far as you have gone, can you?
Robert W. Bennett: Well, the District Court did characterize what the State had done as illegitimate. It said it had no legitimate interest in favoring potential life at the expense of --
Harry A. Blackmun: But no legitimate interest in -- in -- no legitimate -- none of the legitimate interest identified by the Solicitor General? He identified two primarily that is a --
Robert W. Bennett: Yes.
Harry A. Blackmun: -- the State interest in -- in bringing a -- a fetus to a normal type birth and the State interest in not expending public funds to further a cause which a large segment of population perceives to be an immoral one. I'm not passing out my judgment on those interests. I'm just asking whether or not, the District Court below in this case, found no such state interest.
Robert W. Bennett: Well, all I can say, Your Honor, is that the District Court did not articulate its conclusion in those terms. It subsumed its conclusion of illegitimacy -- within its conclusion of illegitimacy, it has subsumed an articulation of the interest that the State was ignoring here.
Warren E. Burger: Did the 1973 opinion say something -- have something to say about the interest of the State in encouraging natural birth and normal term birth.
Robert W. Bennett: The Roe against Wade and Doe against Bolton did recognize a legitimate state interest in furthering potential life, but the -- those opinions also addressed the balance that a State was permitted to make. And even in the third trimester, when the State's interest was held there to be compelling and concluded that even in that third trimester, a State could not forbid abortion when that would post jeopardy to the pregnant woman's life or health. That I think is essentially equivalent to the exact rationality balance that we're asking this Court to make even on the assumption that Illinois' interest here was to further potential life, which it was not. Illinois wanted to stop abortions and it was willing to adopt a healthcare funding program to do that, because that was the only means that it saw available to it. And the victims of that desire are precisely the most helpless of Illinois' citizens. Maher against Roe --
Lewis F. Powell, Jr.: May I ask this question? What was the State interest involved in Maher, you call it Maher against Roe? We found a legitimate state interest in that case.
Robert W. Bennett: That is correct. You found a legitimate state interest in furthering potential life --
Lewis F. Powell, Jr.: That's right.
Robert W. Bennett: -- and in expressing a value judgment in favor of childbirth. The --
Lewis F. Powell, Jr.: But that, you -- you --
Robert W. Bennett: -- potential life, I'm -- I'm suggesting, is not involved here because Illinois was not actually pursuing that interest.
Lewis F. Powell, Jr.: Does Illinois -- a record of -- the legislative record, supports your view as what to his purposes were?
Robert W. Bennett: Yes, Your Honor. The Illinois legislative records supports that view, but you don't even have to resort to that.Illinois in 1975 and again in 1979 adopted legislation which articulates that view, of when life begins and of the interest that it is furthering and the State in its brief embraces that as a Statement of what they refer to as the State's interest in fetal life. Maher against Roe as you just indicated spoke of a State favoring normal childbirth and appellants would like to expand that language to include all childbirth and then claim that Illinois is serving that interest, but Illinois has no actual interest in increasing the number of unwanted births. Illinois' Medicaid program even funds nontherapeutic sterilizations. What Illinois is doing is effectively coercing indigent women to have abnormal childbirths, sometimes resulting in death. The United States argument is that death is okay too. The United States says that it would be perfectly rational for a State to decide for the Congress or for the State -- for a State to decide not to fund any abortions under its medical assistance program.
Potter Stewart: But you -- I thought you agreed that it would be perfectly constitutional for a State to decide not to fund any healthcare of any kind?
Robert W. Bennett: I do agree.
Potter Stewart: Well, then death's involved there, isn't it?
Robert W. Bennett: Death is involved there, but death is involved in all sorts of things and states --
Potter Stewart: (Voice Overlap) --
Robert W. Bennett: That's correct. But -- but also, all sorts of judgments to fund or not to fund that a State makes, may have implications for the longevity of the population. But the Equal Protection Clause insists that we look at the context in which the State discrimination takes place. For then, the State has itself, told us of great deal about the things that it values and here the State has said, “For everyone else, health is of surpassing significance, but not for this one group that we will disfavor.” That is a classic, I would submit, a classic case of discrimination where the Equal Protection Clause test comes into play.
William H. Rehnquist: What if -- what if the Illinois legislature had said that, “We will fund all treatments medical -- medically necessary, except for rabies and that we have come to the conclusion from evidence that the chances of survival of rabies are 1 in 100, once a person gets it. And we just don't want to spend our money there, money can be -- a lot of money can be spent that way and it just isn't worth it, even though what we realized that people will -- might recover, if they -- if they were treated of, but it would only 1 out of 100.”
Robert W. Bennett: There being no fundamental right involved, I take it that only the rational basis test would then be properly applied and that state interest in conserving the fund, so as to maximize the healthcare benefit in its program, would be a rational basis. I take it that the -- this Court's decision in Geduldig, rested on an analysis similar to that. But here, of course, what Illinois does cause the stray -- State's substantial funds thus, not only exacerbating the health problems of pregnant women when they cannot obtain a medically necessary abortion, but of the health problems of others as well, because the State -- the program actually cost more, because of the refusal to fund medically-necessary abortions. So that justification, even if it had motivated the State, is not available here and of course, it did not motivate the State, Illinois.
Potter Stewart: Is your -- is your equal protection argument confined to the what you submit as unconstitutional discriminatory classifications of -- in the -- of all other healthcare and of not giving healthcare to -- in the case of abortions or is it -- do you refine it as between men and women and between teenagers and adults and so on?
Robert W. Bennett: No, Your Honor. We make no claim that there is sex discrimination here, for instance. Though, I -- I would argue that --
Potter Stewart: You could --
Robert W. Bennett: -- actual real life impact of the discrimination is relevant to the analysis.
Potter Stewart: Well then, but do you -- but you don't.
Robert W. Bennett: I don't claim any special constitutional scrutiny is involved here, because of a discrimination on the basis of sex. I do not think that there was any --
Potter Stewart: So, it's purely a discrimination as between all other healthcare and -- and healthcare and -- and -- which will be implicated in financing abortions --
Robert W. Bennett: That is correct.
Potter Stewart: -- the therapeutic abortions.
Robert W. Bennett: That is correct, Your Honor.
Potter Stewart: Thus, you can find your equal protection case to that.
Robert W. Bennett: That's correct.
John Paul Stevens: Mr. Bennett, I understood you to say that the program was a holocaust for money, because they deny funding for abortions. Is the -- does the record establish that because it's entirely possible that there would be fewer than the number of unfunded abortions, doesn't necessarily mean all those went to full term. There could be abortions that were obtained by the means.
Robert W. Bennett: That the record quite conclusively establishes it. The State doesn't dispute it. The United States doesn't dispute it. The intervenors do dispute it.
John Paul Stevens: I mean not just the comparison between abortion and -- and childbirth, but the total program is more expensive because of this exception.
Robert W. Bennett: That is correct, Your Honor.
Potter Stewart: Well, that's assuming the same number of pregnancies?
Robert W. Bennett: No, I don't think it's necessary to assume it.
Potter Stewart: And when just arguably, if -- if this statute is upheld, there will be fewer pregnancies.
Robert W. Bennett: Yes. Well, I -- I understand the argument. Now, Mr. Hardy, made that argument in an Arizona law journal article that the intervenors have repeatedly relied upon although I think that in their most recent submissions, they have somewhat backed away from it and perhaps that's a sign of the weakness of the argument.
Potter Stewart: In request, we don't know, but at least arguably this might inhibit carelessness, might it not?
Robert W. Bennett: Well, it arguably might, but the amount of carelessness that it would have to inhibit --
Potter Stewart: Who knows?
Robert W. Bennett: Well -- but it would have to be enormous in order to make this action not costly for the State. Mr. Hardy's argument is based on some studies done in Japan and in Eastern Europe where abortions were made available freely, not in response to medical necessity. And even there, the mathematics that he employs comes out a little strain. We addressed this argument at more length in some of our briefs in the lower court and our brief in this Court does refer to those submissions which are in the record.
Warren E. Burger: Let me go back again with the hypothetical about program for care and for -- drug addicts. Would you think it's reasonable from general knowledge available to everybody that there is a higher incidence of drug addiction among the youth and the poor on this country, than other categories?
Robert W. Bennett: It could be.
Warren E. Burger: Well, it's been widely stated by many experts. Assume that to be true then, assume it. Then does not the denial of -- of drug addiction program that have the same or similar equal protection flaws that you argue here?
Robert W. Bennett: No, I don't think so, Your Honor. The State has to make judgements about some activities it will undertake and others that it will not. Here, the State has made that judgment and it is within the context -- within a state-defined context that the discrimination takes place. If drug addiction problem were part of a larger hole in which it made sense to view it as an integral part of that larger hole and the State discriminated it against drug addiction, then we would have the classical equal protection questions presented.
William H. Rehnquist: Will you say that although the State has adopted both the affirmative and the negative part, the negative part simply is inconsistent with the affirmative part?
Robert W. Bennett: When the State discriminates --
William H. Rehnquist: That's where it amounts to, isn't it?
Robert W. Bennett: No. Here, the negative part, I – I repeat, is in the service of an illegitimate interest. But if we were to assume that it was in pursuit of a legitimate interest, then the State would be permitted under the Equal Protection Clause to call upon that interest in order to provide the justification for the discrimination, but that is – but the judgment of whether you have a sufficiently rational relationship to the pursuit of a legitimate interest is one of the Equal Protection Clause commands this -- this Court to make. The United States' understanding of the Equal Protection Clause in the context of a funding program such as this, I submit, drains that clause of all human content. But legislation serves human ends and its rationality must be judged in terms of human cause. If there are no more questions, Your Honor, with the reasons stated, I would ask that the judgment of the court below be affirmed.
Warren E. Burger: You have about three minutes remaining, Mr. Wenzel.
William A. Wenzel, III: Mr. Chief Justice and may it please the Court. We would like to reply to three points. The first point, regards the record in the case below involving the effectiveness of alternative treatment. The record does contain the affidavit of Dr. Jasper Williams at the Appendix 97. And Dr. Williams did state in his affidavit that alternatives to abortion were available, which were effective and as effective, the State submits that no purposeful discrimination is intended by the Illinois General Assembly to harm the State's interest or the interest in maternal health. This is also supported in the Appendix 138 by a survey put together by the Center for Disease Control. That survey concluded that there was no increase in abortion-related complications, observed after the implementation of the Hyde Amendment in the project. It is the willingness of the State of Illinois to fund alternatives to abortion which we believe satisfies within the context of a non-comprehensive medical assistance program for the indigent, the standard of reasonableness.
Potter Stewart: According to one of a – at least one of the amicus briefs, that's precisely the constitutional vice of what Illinois has done, when it finances sterilization for example.
William A. Wenzel, III: The equal protection discrimination that I understand the plaintiffs were making is that Illinois has selected out of all the necessary medical categories of care, solely medically necessary abortions. We have argued --
Potter Stewart: And find – and does finance alternatives?
William A. Wenzel, III: And does finance alternatives, but that is not an accurate statement of Illinois' practice, nor is an inaccurate statement of Illinois' obligations under the Medicaid Act. Illinois can, as this Court recognized in Beal, select which procedures to fund. The Court expressly stated that the State need not fund each and every kind of care or each of every procedure available. It is that discretion within the Medicaid program, coupled with Illinois' reasonable -- reasonable efforts to fund alternatives to complications of pregnancy, which satisfies the rational basis test for equal protection purposes. The second point we want to make is that contrary to the suggestions of the Solicitor General, the Hyde Amendment is at issue in this case. It's logically and we feel inextricably interrelated with plaintiff's statutory claims. It was placed in issue by all of the defendants and emotions for summary judgment. And finally, it is before this Court insofar as the final judgment order on review, incorporated the statutory rulings. Thank you.
Warren E. Burger: Mr. Solicitor General, you have about eight minutes remaining.
Wade H. McCree, Jr.: Mr. Chief Justice and may it please the Court. There are two points I'd like to make because I do not wish to permit two assertions to go unanswered. One assertion that was made was that the United States says that death is -- is okay. And I think this was the contention that I heard. This, of course, is not so. The other related contention was that the United States places fetal life above maternal life and that explicitly is not so, because the first exception in the Hyde Amendment provides that funding is available when the life of the mother would be endangered, if the fetus were brought to term. The second point I wish to make is that, since the entire Medicaid Act was passed to help indigents drawing a line within the program, then doesn't punish any of them. With those two comments, we will rest on our brief.
Warren E. Burger: Thank you, counsel. The case is submitted. We'll hear arguments next in Dawson –-