In his concurring opinion, Justice Antonin Scalia explained that while he joined the Court’s opinion in its entirety, he was skeptical as to whether the underlying Terry frisk complied with the original meaning of the Fourth Amendment. Scalia emphasized the originalist principle that “the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification and criticized the Court in Terry v. Ohio for making no serious attempt to evaluate historical standards, writing that the decision “simply adjudged that such a search was ‘reasonable’ by current estimations.” Scalia noted that historical night-walker statutes supported the common law authority of police to execute brief investigatory stops of suspicious persons, but he stressed that he was “unaware, however, of any precedent for a physical search of a person thus temporarily detained for questioning.” He explained that at common law, physical searches were permitted incident to a full custodial arrest based on probable cause, but there’s no clear historical support for physically searching a suspect during a brief detention prior to arrest.

Continuing his originalist critique, Scalia doubted whether the Framers would have accepted non-custodial frisks, writing, “I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity.” Scalia noted that while changing technological realities or 1868 understandings under the Fourteenth Amendment might influence reasonableness, Terry never addressed those historical or technological factors. Nevertheless, because the constitutionality of the initial Terry frisk wasn’t at issue in this case, Scalia accepted the premise that the frisk was lawful. Ultimately, Scalia concluded that any contraband incidentally discovered during a valid search is admissible under the plain feel doctrine, leading him to join the majority’s opinion in full.

• Joined by: Justice Harry Blackmun and Justice Clarence Thomas

In his separate opinion, Chief Justice William Rehnquist stated that while he joined parts of the Court’s opinion adopting the plain view doctrine for investigative stops, he would vacate the judgment of the Supreme Court of Minnesota and remand the case for further proceedings.

Rehnquist agreed with the Court that the “dispositive question” in this case was “whether the officer who conducted the search was acting within the lawful bounds marked by Terry… at the time he gained probable cause to believe that the lump in respondent's jacket was contraband.” Rehnquist noted that the lower courts acknowledged that they didn’t make precise findings on this point, and he explained that he believed their findings to be “imprecise and not directed expressly to the question of the officer’s probable cause to believe that the lump was contraband.” Ultimately, Rehnquist concluded that “[b]ecause the Supreme Court of Minnesota employed a Fourth Amendment analysis which differs significantly from that now adopted by this Court, I would vacate its judgment and remand the case for further proceedings there in the light of this Court’s opinion.”