Adams v. Williams/Dissent Brennan
[p151] MR. JUSTICE BRENNAN, dissenting.
The crucial question on which this case turns, as the Court concedes, is whether, there being no contention that Williams acted voluntarily in rolling down the window of his car, the State had shown sufficient cause to justify Sgt. Connolly's "forcible" stop. I would affirm, believing, for the following reasons stated by Judge, now Chief Judge, Friendly, dissenting, 436 F. 2d 30, 38-39, that the State did not make that showing:
"To begin, I have the gravest hesitancy in extending (Terry v. Ohio, 392 U.S. 1 (1968)) to crimes like the possession of narcotics.... There is too much danger that, instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true. Against that we have here the added fact of the report that Williams had a gun on his person.... [But] Connecticut allows its citizens to carry weapons, concealed or [p152] otherwise, at will, provided only they have a permit, Conn. Gen. Stat. §§ 29-35 and 29-38, and gives its police officers no special authority to stop for the purpose of determining whether the citizen has one....
"If I am wrong in thinking that Terry should not be applied at all to mere possessory offenses,... I would not find the combination of Officer Connolly's almost meaningless observation and the tip in this case to be sufficient justification for the intrusion. The tip suffered from a threefold defect, with each fold compounding the others. The informer was unnamed, he was not shown to be reliable with respect to guns or narcotics, and he gave no information which demonstrated personal knowledge or—what is worse—could not readily have been manufactured by the officer after the event. To my mind, it has not been sufficiently recognized that the difference between this sort of tip and the accurate prediction of an unusual event is as important on the latter score as on the former. [In Draper v. United States, 358 U.S. 307 (1959),] Narcotics Agent Marsh would hardly have been at the Denver Station at the exact moment of the arrival of the train Draper had taken from Chicago unless someone had told him something important, although the agent might later have embroidered the details to fit the observed facts.... There is no such guarantee of a patrolling officer's veracity when he testifies to a 'tip' from an unnamed informer saying no more than that the officer will find a gun and narcotics on a man across the street, as he later does. If the state wishes to rely on a trip of that nature of validate a stop and frisk, revelation of the name of the informer or demonstration that his name is unknown and could [p153] not reasonably have been ascertained should be the price.
"Terry v. Ohio was intended to free a police officer from the rigidity of a rule that would prevent his doing anything to a man reasonably suspected of being about to commit or having just committed a crime of violence, no matter how grave the problem or impelling the need for swift action, unless the officer had what a court would later determine to be probable cause for arrest. It was meant for the serious cases of imminent danger or of harm recently perpetrated to persons or property, not the conventional ones of possessory offenses. If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows 'that criminal activity may be afoot.' 392 U.S., at 30.... I greatly fear that if the [contrary view] should be followed, Terry will have opened the sluicegates for serious and unintended erosion of the protection of the Fourth Amendment."