Its Time to Define High-Crime: Using Statistics in Court to Support an Officers Subjective High-Crime Area Designation

Hannah Rose Wisniewski

I. INTRODUCTION
[Judge Kermit Victor Lipez]: And I do not conclude on this evidence that the area is a, quote, high crime area, close quote. Primarily because Im not clear what that is.1

The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.2 The crucial word in that Amendment is unreasonable. Typically, an unreasonable search is one performed without a warrant.3 However, the Supreme Court has delineated certain instances where a search and seizure conducted without a warrant may be deemed reasonable and therefore not a violation of a citizens Fourth Amendment rights.4 Terry v. Ohio provides that an officer who has a reasonable, articulable suspicion that criminal activity [is] afoot may conduct a brief, investigatory stop.5 Unlike a warrant that requires probable cause before a search and seizure takes place,6 a Terry stop requires only reasonable suspicion that a crime has been, will be, or is in the process of being committed.7 However, courts have cautioned against validating these types of searches and seizures without objective justification; [w]hile reasonable suspicion is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the

United States v. Wright, 485 F.3d 45, 50 (1st Cir. 2007). U.S. CONST. amend. IV. See id. See Terry v. Ohio, 392 U.S. 1, 30 (1968). Id. U.S. CONST. amend. IV. Andrew Guthrie Ferguson & Damien Bernache, The High-Crime Area Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 AM. U. L. REV. 1587, 1601 (2008).

1. 2. 3. 4. 5. 6. 7.

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stop.8 A common factor often used to support reasonable suspicion is a defendants presence in a high-crime area.9 The Supreme Court first referred to a high-crime area in Adams v. Williams where it implied that a high-crime area was an articulable fact that could be taken into account in assessing the legality of a Terry stop.10 High-crime areas have since been used as a tool by police departments for determining where to focus their resources.11 A National Academy of Sciences study reported that focusing police resources on crime hot spots provides the strongest evidence of police effectiveness.12 The rationale behind designating a high-crime area is based on simple probability.13 If a defined geographical area is high in crime, there is a greater probability that future crimes will occur there, rather than in other areas.14 This logic is why a police officer needs less of a reason to stop a person in such an area. It could be said that this person is guilty by location. Be that as it may, mere presence in a high-crime area is not enough to support reasonable suspicion of criminal activity.15 Presence in a highcrime area must be coupled with other factors, such as nervous or elusive behavior, to constitute reasonable suspicion for a stop.16 Still, a locations characteristics are highly relevant and weigh heavily on an officers determination of whether the circumstances are sufficiently suspicious to warrant further investigation.17 Flight, by itself, is also not enough to constitute reasonable suspicion.18 The Supreme Court has held that in the case where a suspect flees from the scene, but there has been no show of

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). See, e.g., Wardlow, 528 U.S. at 124; Wright, 485 F.3d at 49; United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir. 2002); United States v. Montero-Camargo, 208 F.3d 1122, 1128 (9th Cir. 2000); United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006); United States v. Swain, No. 5:07-cr-00160, 2007 WL 7127027, at *1 (S.D.W. Va. Dec. 3, 2007); Cunningham v. State, 884 So. 2d 1121, 1122 (Fla. Dist. Ct. App. 2004). 10. Adams v. Williams, 407 U.S. 143, 159-60 (1972). 11. Telephone Interview with Jeff Jerome, Police Officer, Detroit Police Department (Mar. 21 2011) (on file with author). 12. Gary Hoelzer, Common Patrol Areas: Hot Spots Policing, LAW AND ORDER MAGAZINE (Feb. 2011), available at http://www.hendonpub.com/resources/articlearchive/ details.aspx?ID=208257 (last visited Nov. 20, 2011). 13. See id. 14. See id. 15. Brown v. Texas, 443 U.S. 47, 52 (1979). 16. Wardlow, 528 U.S. at 124; see also C.E.L. v. State, 24 So. 3d 1181, 1185 (Fla. 2009). 17. Wardlow, 528 U.S. at 124. 18. Id. at 122.

8. 9.

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police authority, such unprovoked flight is not enough to justify a stop.19 The Supreme Court of Illinois, relying on the United States Supreme Courts decision in Florida v. Royer, explained, [A]lthough police have the right to approach individuals and ask questions, the individual has no obligation to respond. The person may decline to answer and simply go on his or her way, and the refusal to respond, alone, does not provide a legitimate basis for an investigative stop.20 Flight may simply be an exercise of the right to go on his or her way.21 Because of this ruling, flight must be linked with some other factor.22 This is the reason presence in a high-crime area acquired the name plus factor.23 The Third Circuit created this designation after the Supreme Court decision in Illinois v. Wardlow found the mere presence in an area known for high narcotics trafficking to be a sufficient plus factor that amounted to reasonable suspicion.24 Simply stated, flight upon noticing police presence, plus some other indicia of wrongdoing, such as being in a high-crime area, equals reasonable suspicion in the eyes of the court.25 Therefore, an officer may stop anyone who attempts to go on ones way as a reaction to noticing the officers presence if the officer also subjectively believes he is in a high-crime area.26 All citizens of the United States have a right to be free from unreasonable searches and seizures.27 Allowing police officers to alter these rights by giving them discretion to decide what is reasonable or unreasonable in the heat of the moment28 is so attenuated from ensuring Fourth Amendment protection that safeguards need to be provided afterthe-fact for the defendant. Even though reasonable suspicion itself seems to def[y] precise definition,29 defining the factors that create reasonable suspicion, such as high-crime area designations, will ensure that the term is applied consistently. Factors used by police officers to form reasonable suspicion may seem vague, but may need to be so in order to allow police officers to make the
Id. Id. (citing Florida v. Royer, 460 U.S. 491 (1983)). Id. See id. United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004). Id. Id. Wardlow, 528 U.S. at 122, 124-26. U.S. CONST. amend. IV. See Timothy P. ONeill, Finding a Definition for High Crime Area, 154 CHI. DAILY L. BULL. 225 (2008), available at http://www.jmls.edu/facultypubs/oneill/oneill_ column_ 1108.shtml. 29. United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001).
19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

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kind of in-the-moment decisions that are required to apprehend criminals. It will not always be evident whether a person is engaged in criminal activity, and the decision as to whether or not the correct action is to pursue the fleeing individual must be left to the officer. That officer, taking account of the totality of the circumstances surrounding the situation,30 must be allowed to use his or her best judgment without concern about infringing on Fourth Amendment rights. Allowing the officer to use his or her discretion does not, however, prevent the court system from installing safeguards that validate the more subjective approach, freeing such judgments from possible prejudice. In todays world of advanced technology, courts allow a readily quantifiable factor such as a high-crime area designation to be established as fact through the subjective account of an officer instead of establishing it through the use of statistical data.31 A defendant who is arrested in a high-crime area, where location is a substantial factor in the reasonable suspicion determination, should be able to request statistical data in court to support the officers subjective high-crime area designation. It is circular reasoning to allow the officer who made the designation at the scene and during the time of pursuit to prove the area was in fact high in crime by simply testifying so in court. This Note will propose a bright-line rule that defines a high-crime area by using statistical data obtained from the current recording methods used by police departments. Implementing a bright-line rule upon which all courts could base high-crime area designations will improve the accuracy of the court system, strengthen the protection of a citizens Fourth Amendment rights, and alleviate police departments of their testimonial burden. This method will allow police officers to make in-the-moment decisions necessary to apprehend elusive criminals and will also provide the unfortunate defendant who happens to be in the wrong place at the wrong time with the ability to escape longstanding prejudices created by an antiquated judicial system. Part II discusses how courts vary in their evidentiary requirements for proving a high-crime area designation and how this has prevented the establishment of a functional definition for the term. Part III presents an argument that high-crime area is a readily quantifiable factor and that both police departments and courts can easily and inexpensively obtain upto-date high-crime area statistics. Part IV recommends implementing a bright-line rule that employs a functional definition of high-crime area. The bright-line rule will require the use of statistics in court to prove whether the area described fits the functional definition. Part V will
30. 31.

State v. Lee, 658 N.W.2d 669, 670 (Neb. 2003). Ferguson & Bernache, supra note 7, at 1591-93.

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conclude that implementing such a bright-line rule will provide consistency and efficiency in the criminal justice system, as well as work to protect defendants from prejudice and Fourth Amendment violations. II. INCONSISTENCY OF HIGH-CRIME AREA DESIGNATIONS In United States v. Swain, the Southern District Court of West Virginia stated that the issue of whether a particular area is high in crime is often an undisputed fact.32 However, it is important to consider that a defendant may have no useful means of challenging such a designation in court if it always comes down to his word against an arresting officers.33 If such a designation is considered fact on the record based solely on the arresting officers testimony, it is not difficult to see how such proof could be biased, posing a difficult challenge for the defendant. Either way, the lack of disputes regarding high-crime area designations have left some circuits with little precedent when faced with deciding the burden and types of proof necessary to establish that an area is high-crime.34 Although statistics have recently been considered when a high-crime area is challenged,35 the courts traditionally only inquired into whether the police officer provided a reasonable and articulable basis to suspect that criminal activity had occurred or was about to occur.36 Only when the officer fails to provide a reasonable and articulable basis for the stop can a court provide a remedy for the defendant, such as suppression of the illegally obtained evidence.37 Courts have acknowledged that statistics would be useful to determine whether an area is high-crime, but none have been so bold as to require them.38 The court in D.R. v. State touched on the subject briefly after the defendant challenged the sufficiency of the evidence used to establish reasonable suspicion by her arresting officer:
Although arrest statistics or information provided by regular police
32. United States v. Swain, No. 5:07-cr-00160, 2007 WL 7127027, at *6 (S.D.W. Va. Dec. 3, 2007). 33. See id. An undisputed fact can be undisputed for many reasons, not just because it is correct. There may be no dispute process available or a bigger policy concern may be at play. 34. See, e.g., id. 35. Id. at *3; Bonner, 363 F.3d at 216. 36. State v. Santos, 838 A.2d 981, 984 (Conn. 2004) (finding the presence of young adults in a high crime area at night and the smell of alcohol on the breath of one of the adults, who is not the driver of the vehicle at the scene, are not enough for an officer to conclude that a person is engaged in criminal activity and thus not enough to justify investigatory detention). 37. Id. at 993. 38. D.R. v. State, 941 So. 2d 536, 538 n.2 (Fla. Dist. Ct. App. 2006).

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departmental briefings might be sufficient, we do not decide the nature or type of evidence necessary to establish an area as a high crime area, as that issue is not before us. We hold here only that there was no competent evidence to prove this requirement in this case.39

In this case, the only evidence provided to support the officers highcrime designation was the officers short testimony that he had heard about multiple narcotic complaints from there, but then undermined that evidence by stating he had not worked in the arrest location area for a while.40 Because this vague and presumptively stale testimonial evidence was void of relevant characteristics of the location that would determine whether the circumstances were sufficiently suspicious to warrant further investigation, the court recognized that the use of statistics was not necessary.41 Yet, the court failed to recognize that the use of statistics in the first place would have eliminated the need for the officers testimony and provided the same result in a quicker and more efficient fashion. It seems counterproductive for courts to spend their time and energy on the difficult task of determining the sufficiency and reliability of an officers testimony about a high-crime area. Courts would be more efficient if they simply looked at reliable statistics, which are easily obtained. In fact, the officer whose testimony was being analyzed in D.R. v. State admitted that he did not know the statistics for the area he believed to be high-crime, but that he could get them simply by making a phone call.42 Instead of creating consistency by developing a balancing test used to decipher officer testimony, courts could demand that officers present statistics when they claim that an area is high-crime, in lieu of testifying why they thought the area was high in crime. A. What is a High-Crime Area? The Supreme Court has not provided a definition for high-crime area, yet the question appears in almost every Fourth Amendment suppression hearing involving a Terry stop.43 Courts often accept an officers definition of high-crime area, giving the officer more credibility than perhaps deserved; rarely does a court review statistical data or seek an experts opinion.44 The lack of consistency in this area stems from the Supreme Courts decision in Illinois v. Wardlow, where the Court held that officers are not required to ignore the relevant characteristics of a location in
39. 40. 41. 42. 43. 44.

Id. Id. at 537. Id. (quoting Wardlow, 528 U.S. at 124). Id. at 538. Ferguson & Bernache, supra note 7, at 1590. Id. at 1591.

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determining whether the circumstances are sufficiently suspicious to warrant further investigation.45 The Court decided that the area in that case was in fact high-crime,46 but never provided a method by which courts could distinguish areas of high-crime from areas of low or no crime.47 After that decision, courts have used a variety of factors to make such a distinction.48 Courts sometimes define a high-crime area to be an area of expected criminal activity, but as a functional definition this would surely still produce inconsistency due to its vagueness.49 Occasionally, some courts use specific definitions such as an area known for drug activity,50 riddled with narcotics dealings or drug-related shootings,51 or plagued by gang-related shootings, drug dealings, assaults, and robberies.52 Courts will also allow a recent, sudden increase in crime to define a high-crime area.53 In the right court on the right day, a high-crime area can be defined loosely as an area with a reputation for illegal conduct.54 Despite all the evidentiary safeguards against hearsay evidence, in this instance, ones Fourth Amendment rights can be severely compromised solely on the basis of vague reputational evidence. It is clear that some level of specificity must be required in the definition of high-crime area.55 The Supreme Court has explained that the demand for specificity in the information upon which police action is predicated is the central teaching of this Courts Fourth Amendment jurisprudence.56 The court in United States v. Trullo explained that a high-crime area cannot be defined by general characteristics that are also attributable to other sizeable portions of the city or even the entire city.57 Specific, distinguishing characteristics are required; important factors such as time of

Wardlow, 528 U.S. at 124. Id. C.E.L. v. State, 24 So. 3d 1181, 1194 (Fla. 2009). Ferguson & Bernache, supra note 7, at 1605-06. Id. at 1605. State v. Biehl, No. 22054, 2004 WL 2806340, at *5 (Ohio Ct. App. Dec. 8, 2004). Cunningham, 884 So. 2d at 1122. United States v. Rogers, No. Crim. 10-10313, 2005 WL 478001, at *1 (D. Mass. Mar. 1, 2005). 53. See State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976); Cunningham, 884 So. 2d at 1122. 54. People v. Davis, 815 N.E.2d 92, 98-99 (Ill. App. Ct. 2004). 55. United States v. Espinoza, 490 F.3d 41, 47 (1st Cir. 2007); United States v. Trullo, 809 F.2d 108, 114 (1st Cir. 1987). 56. United States v. Cortez, 449 U.S. 411, 418 (1981) (citing Terry, 392 U.S. at 21). 57. Trullo, 809 F.2d at 114, 116.

45. 46. 47. 48. 49. 50. 51. 52.

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day and day of the year cannot be ignored.58 Courts have rejected highcrime area designations where the officers actions are based on nothing more than a hunch rather than objective, articulable factors.59 More often than not, courts accept an area as high-crime when the local police department has designated it as such as a part of a program being implemented to combat a specific type of crime or a specific area where crime is most prevalent.60 This has proven to be decisive in some circuits, even where mitigating factors are present.61 In United States v. Trullo, the court accepted the high-crime area designation used for reasonable suspicion by the officer.62 The defendant in that case was found in an area that was being targeted by the police department and labeled as the Combat Zone because of its high levels of drug activity and prostitution.63 The court failed, however, to take into consideration the conclusive facts that the incident took place in the middle of the day and that there were many legitimate businesses operating in the Combat Zone at that time. These additional facts serve to make the Combat Zone less of a high-crime area during the day than it seemed in the record.64 Similarly, in United States v. Mayo, the court accepted the police departments characterization of the area in question as a high-crime area because the police department was currently targeting that area for their Wave Initiative, a program designed to deal with drug activity.65 In more recent years, some jurisdictions have started using police department data.66 This trend, and the judicial results that stem from it, only further demonstrate the usefulness of statistics in criminal law.67 Statistics have been used to verify both an officers subjective belief as well as support a defendants contention that the area in question was not in fact a high-crime area.68 In United States v. Swain, the officer testified that the area in question was known for fights, gun calls, and narcotic activity.69 The officers testimony was further supported by that of the
Id. Espinoza, 490 F.3d at 47; United States v. Wright, 582 F.3d 199, 206 (1st Cir. 2009); D.R., 941 So. 2d at 538; Cunningham, 884 So. 2d at 1124. 60. See United States v. Mayo, 361 F.3d 802, 803 (4th Cir. 2004); see also Trullo, 809 F.2d at 109. 61. Trullo, 809 F.2d at 115. 62. Id. at 114. 63. Id. at 109. 64. See id. at 117. 65. Mayo, 361 F.3d at 803. 66. See, e.g., Swain, 2007 WL 7127027, at *3; Bonner, 363 F.3d at 216. 67. Swain, 2007 WL 7127027, at *3; Bonner, 363 F.3d at 216. 68. Swain, 2007 WL 7127027, at *3, *8; Bonner, 363 F.3d at 216. 69. Swain, 2007 WL 7127027, at *3.
58. 59.

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technology coordinator for the city, who was responsible for collect[ing] information on every call the police department respond[ed] to and then categorizing each call by call type.70 The technology coordinator explained that the city had been divided into grids to track crime in the various parts of the city in order to determine where crime hot spots are located for officer deployment.71 The technology coordinator further explained that the grid that encompassed the apartment building where the arrest occurred ranked fourteenth out of seventy-five different grids for serious calls such as shots fired, assaults, and drug violations.72 The opposite occurred in United States v. Bonner where the court found that the statistics provided by the government did not support a high-crime area designation.73 In this case, the government submitted a log-book of arrests made at that particular housing project over a three-year period to prove that the housing project was in fact a high-crime area.74 However, the court found that there was an average of 1.3 arrests per week and that most of the arrests were for misdemeanors and summary offenses.75 The statistics were not enough to support a high-crime area determination.76 Both Bonner and Swain demonstrate how statistics can provide objectivity to the analysis of a high-crime area designation. While one can argue against the appropriateness of a particular statistical measurement, it is very difficult to disagree with what the statistics represent. Statistics can also help courts avoid the inherent prejudices in using the designation high-crime area for reasonable suspicion. The Ninth Circuit has cautioned that the citing of an area as high-crime requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity.77 The court further explained: to ensure that a high-crime area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, [it must be] limited to specific, circumscribed locations where particular crimes occur with unusual regularity.78 The Ninth Circuit failed to discuss that the most certain way to avoid using a high-crime area factor as a proxy for race or ethnicity would be to base the

70. 71. 72. 73. 74. 75. 76. 77. 78.

Id. Id. Id. Bonner, 363 F.3d at 216. Id. Id. Id. Montero-Camargo, 208 F.3d at 1138. Id.

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measurement of the factor on statistics formed only in relation to population size, not superficial characteristics. In a concurring opinion to C.E.L. v. State of Florida, a similar warning was issued, suggesting that classification by objective statistical measurement is more reliable and less prejudicial than current techniques being used.79 The opinion states:
After all, C.E.L. was in this high-crime neighborhood because it was his home and teenagers living in a different neighborhood would have been free to run when they saw the deputies. On this point, Judge Altenbernd emphasized that there were no signs warning individuals they were in a region with reduced Fourth Amendment rights and that the neighborhood had not been classified as a high-crime area by some objective statistical measurement but only by the subjective testimony of individual law enforcement officers.80

This realistic perspective leads to the next issue regarding the use of the designation high-crime area. How does a defendant procedurally challenge a designation of high-crime? B. Proving an Area is High in Crime in Court The First Circuit in United States v. Wright summarized high-crime area evidence as:
(1) The nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case; . . . (2) limited geographic boundaries of the area or neighborhood being evaluated; . . . and (3) temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue . . . .81

While this standard explains in broad terms the types of evidence that should be measured, it fails to explain how to measure that evidence.82 The court also qualifies its statement by saying that a substantial amount of this evidence is provided through officer testimony.83 It seems illogical to provide such evidence through human testimony when these components could be easily converted into a mathematical formula through which high-crime areas could be consistently measured. The simple maintenance of crime data by police departments would allow computer software to rapidly provide the statistical data needed for each component

79. 80. 81. 82. 83.

C.E.L., 24 So. 3d at 1190 (Pariente, J., concurring). Id. Wright, 485 F.3d at 53-54. Ferguson & Bernache, supra note 7, at 1612-14. Id.

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of the mathematical formula.84 This would free an officer from having to appear at trial and allow him to continue performing his duties while also providing the court with an efficient way to examine the data. Typical officer testimony includes either an assertion that an area had a reputation for crime or that he had personal experience with crime in that area, meaning that he personally made arrests in the area.85 The alteration of a persons Fourth Amendment rights should not be based on reputation evidence86 or the officers personal experience when the arrests could be converted into statistics within twenty-four hours, eliminating the need for the officer to testify about his personal experience.87 When a court assesses officer testimony regarding whether a location should be considered highcrime, it is asking the officer to provide specific and articulable facts88 so that if it finds in the affirmative, it has a factual basis for doing so. The First Circuit stated that this requirement of specificity (which they oddly equate to objectivity) ensures that courts will focus not on what the officer himself believed but, rather, on what a reasonable officer in his position would have thought.89 Specificity cannot be equated to objectivity when the details are being provided by a biased person. Furthermore, it would be a very difficult task to separate what the officer actually believed and what a reasonable officer would believe when the situation is being recreated for the court through the ears and eyes of the person who has already decided that the location in question is high-crime. In contrast, the Third Circuit held that police officers with experience and an awareness of crime and arrest data are better suited than judges who operat[e] within the confines of a courtroom to make such a factual

84. See Crime Rates: Discover the Safest Neighborhoods in Any City, NEIGHBORHOOD SCOUT, http://www.neighborhoodscout.com/neighborhoods/crime-rates/ (last visited Mar. 26, 2011) (demonstrating how mathematical formulas can be used to input a variety of factorspopulation size, size of area in question, type of crime, frequency of type of crimeto accurately produce crime rates for neighborhoods using data provided by local law enforcement agencies). 85. See, e.g., United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004); Mayo, 361 F.3d at 803; United States v. General, 435 F. Supp. 2d 502, 504 (E.D.N.C. 2006); United States v. Amaker, No. 2:05-00149-001, 2005 U.S. Dist. LEXIS 38883, at *4 (S.D.W. Va. Dec. 12, 2005). 86. Adams v. Williams, 407 U.S. 143, 159 (1972). As I read Terry, an officer may act on the basis of reliable information short of probable cause to make a stop, and ultimately a frisk, if necessary; but the officer may not use unreliable, unsubstantiated, conclusory hearsay to justify an invasion of liberty. Id. (emphasis added). 87. Telephone Interview with Jacinto Rivera, Police Officer, Las Vegas Metro. Police Dept (Mar. 24, 2011) (on file with author). 88. United States v. Hensley, 469 U.S. 221, 229 (1985). 89. Espinoza, 490 F.3d at 47.

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finding.90 The court elaborated: Obviously, the differences in focus are not only differences of experience and perspective, [for a] judge engaged in adjudicative fact-finding will apply standards of credibility and proof that differ from the cognitive processes of an officer acting in the field.91 Although the court is likely correct when deciding between these two options, it fails to consider other viable alternatives, such as a statistical approach. Relying on a single officers subjective account of awareness of crime and arrest data may be better than relying on the opinion of a judge without that particularized knowledge, but it is still subject to the possibility of human error.92 Courts have found officer testimony to be outof-date, exaggerated, or insufficient on a few occasions, but only through a further inquiry into whether their testimony was specific and articulable.93 The inquiry instead should be focused on the use of statistics. When highcrime area means whatever any individual police officer, prosecutor, or judge thinks it means, we have reduced law to the level of the Mad Hatter.94 III. HIGH-CRIME AREA AS A QUANTIFIABLE FACTOR Although the term high-crime area sounds like a mathematical conclusion, the term has eluded a formulaic definition since its inception. Police departments create their own rough formulas by comparing population densities and the number of violent crime incidents.95 However, when asked what the dimensions of a typical high-crime area are, two different police officers were unable to provide a definite answer when interviewed by the author.96 In fact, high-crime areas typically lack definite boundaries because it is difficult to admit that a person standing on the high-crime area side of the street has less Fourth Amendment protection than the person standing on the other side of the street, or other side of the boundary.97 With a measurement system like this, it is no surprise that police departments find it easier to simply allow their officers to testify about the area where the stop was made instead of presenting statistics.98 It also allows them to paint the picture however they please

90. 91. 92. 93. 94. 95. 96. 97. 98.

Bonner, 363 F.3d at 216. Id. See id. Wright, 582 F.3d at 206; D.R. v. State, 941 So. 2d at 538. ONeill, supra note 28. Telephone Interview with Jeff Jerome, supra note 11. Id.; Telephone Interview with Jacinto Rivera, supra note 87. See Telephone Interview with Jacinto Rivera, supra note 87. See id.

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using convincing words like training and experience.99 When Officer Rivera, who works for the Las Vegas Metropolitan Police Departments Office of Public Information, was asked if statistics might alleviate the police department of some of its burden, he made clear that his police department does not view testifying as a burden because taking someones liberty away is a very serious matter.100 Officer Rivera explained that each Terry stop or arrest must be considered on its own merits in support of his opinion that officer testimony is necessary.101 It seems logical that each arrest should be considered on its own merits, but to ensure the maximum protection of liberty for a person located in a high-crime area, the decision to take it away should be based on objective measurements applied to the specific arrest in question. Otherwise, high-crime areas should have been named area arresting officer has previous experience with. It might not sound as concise, but it is a more accurate description of how the term is actually used in practice. A. Measuring Crime 1. Police report statistics Police departments keep records of the arrests they make and many compile them into useful, up-to-date statistics.102 Maintaining statistics helps police departments understand where to allocate their resources and represents the same idea behind high-crime area designations.103 Violent crimes are categorized and ranked according to their level of
See Telephone Interview with Jeff Jerome, supra note 11. Telephone Interview with Jacinto Rivera, supra note 87. Id. E.g., Citywide Profile 05/08/11 - 06/04/11, COMPSTAT (Mar. 27, 2011, 4:51 PM), http://www.lapdonline.org/assets/pdf/cityprof.pdf; Index Crime January-February 2011, INDEX CRIME SUMMARY (Mar. 27, 2011, 4:52 PM), https://portal.chicagopolice.org/portal/ page/portal/ClearPath/News/Statistical%20Reports/Index%20Crime%20Statistics/2011%20 Index%20Crime%20Statistics/icsFeb11.pdf; District Crime Data At a Glance, METRO. POLICE DEPT (Mar. 27, 2011, 4:53 PM), http://mpdc.dc.gov/mpdc/cwp/view,a,1239,q,56 1242, mpdcNav_GID,1523,mpdcNav,|.asp; CompStat: Report Covering Week 3/7/20113/13/2011, POLICE DEPT: CITY OF NEW YORK (Mar. 27, 2011, 4:54 PM), http://www.nyc.gov/html/nypd/downloads/pdf/crime_statistics/cscity.pdf; Crime Reported January 1 - March 20, 2010 vs. January 1 - March 20, 2011, BOSTON POLICE DEPT, (Mar. 27, 2011, 4:55 PM), http://www.bpdnews.com/wordpress/wp-content/uploads/Mar-212011.pdf. 103. Telephone Interview with Jeff Jerome, supra note 11. However, high-crime areas also run the risk of being designated based on a prescribed allocation of resources. Id. (explaining that his department sometimes receives funding for a specific area of crime such as drug activity or gang violence and that this can influence which areas are deemed highcrime).
99. 100. 101. 102.

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seriousness.104 The Federal Bureau of Investigation (FBI) provides the following categories and rankings, which seem somewhat standard among police departments with a few variations.105 Murder is ranked as the most serious, followed by forcible rape, robbery, and aggravated assault.106 Property crimes follow these crimes and are also ranked according to their level of seriousness as burglary, larceny-theft, motor vehicle theft, and arson.107 2. Crime mapping With the availability of these accurate and up-to-date statistics, police departments have been able to combine them with interactive mapping technology to form crime maps representative of their jurisdictions.108 Although there are numerous crime mapping services available,109 CrimeReports is the largest and most comprehensive crime-mapping network,110 most likely because of its functionality. CrimeReports is now being used by 750 police departments, including most major cities such as Boston and San Francisco, as well as two entire states, Maryland and Utah.111 CrimeReports provides up-to-date crime maps using information provided by police reports.112 CrimeReports map feature looks similar to any websites mapping feature and is just as user-friendly, but it pinpoints
Id. Offenses Reported to Law Enforcement, by State, by City 100,000 and Over in Population, FBI: UNIFORM CRIME REPORTS, Table 4 (Mar. 27, 2011, 5:30 PM), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/preliminary-crime-in-the-us2009/downloads [hereinafter Offenses Reported] (click Table 4 to download spreadsheet). 106. Id. 107. Id. 108. See generally CRIMEREPORTS, (Mar. 27, 2011, 5:50PM), http://www.crimereports.com (search for Boston, MA); Crime Map, METRO. POLICE DEPT, (Mar. 27, 2011, 5:53PM), http://crimemap.dc.gov/presentation/query.asp; Crime Incidents, CHICAGO POLICE DEPARTMENT CLEARMAP: CITIZEN LAW ENFORCEMENT ANALYSIS AND REPORTING, (Mar. 27, 2011, 5:55PM), http://gis.chicagopolice.org/website/clearmap/ viewer.htm; Interactive Crime Map, CITY OF DALLAS, (Mar. 27, 2011, 5:56PM), http://dallas.dfwmaps.com/crimenew/. 109. CRIMEREPORTS, supra note 108; CRIME MAPPING, http://www.crimemapping.com/ default.aspx (last visited Oct. 1, 2011); HunchLab, http://www.azavea.com/products/hunch lab/ (last visited Oct. 1, 2011). 110. Deborah L. Cohen, Entrepreneur Closes Door on Criminals, REUTERS, (Feb. 17, 2010, 1:29 PM), http://www.reuters.com/article/2010/02/17/us-column-cohen-crimeidUSTRE61G3FO20100217. 111. Id. 112. Donna Leinwand, Online Mapping Services Help Police Spot Trends in Crime, USA TODAY, Sept. 10, 2009, http://www.usatoday.com/tech/products/services/ 2009-09-09onlinecrime_N.htm.
104. 105.

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crimes only as to the block of the crime to protect a victims privacy.113 It allows the user to choose what types of crimes are shown on the map simply by checking a box and also allows the user to narrow their search by limiting it to crimes that occurred in the past three days, a week, two weeks, or one month.114 This information is free and can be accessed by anyone.115 To see charts, graphs, and heat maps of trends in crime, increasing or decreasing, as well as to access numerous other more particularized services, police departments are charged $100-$200 per month.116 At such a low cost, it seems the value of such a service is practically indisputable. It allows for a better allocation of police resources and may be used to further the accuracy of the court system.117 3. Specific crime trends Officer Rivera made a valid point that officers who patrol the same area night after night may be better equipped to notice the beginning of a specific crime trend.118 However, he also stated that the Las Vegas Metropolitan Police Departments crime maps are updated every twentyfour to forty-eight hours.119 This means that if an officer did make multiple arrests in the same area in a short amount of time so that a trend emerged, these arrests, known as his experience testimony, would become a statistic in a days time; this would allow a computer to calculate actual crime trends using a consistent formula.120 B. Measuring an Area At first glance, high-crime area seems like an easy measurement to make with the use of such well-kept statistics. The measurement can be made by blocking off an area, counting the number of crimes that have occurred in a set time period, and comparing that data to data from previous, equivalent sets of dates to determine whether this count of crimes is so many standard deviations above the previous averages. Although such a formula would produce a scientifically sound and accurate answer, it fails to be functional. The measurement approach, if it is going to

113. CRIMEREPORTS, supra note 108. Enter any address in the Enter an address box. The crimes near the address will show in expandable boxes. Roll over the symbol of the particular crime to expand the box. 114. Id. 115. Id. 116. Cohen, supra note 110. 117. E-mail Interview with Melissa, CrimeReports Support Agent (Feb. 22, 2011). 118. Telephone Interview with Jacinto Rivera, supra note 87. 119. Id. 120. CRIMEREPORTS, supra note 108.

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have any functionality in the court system, needs to be flexible so that it can be applied to every situation.121 1. How police departments determine high-crime areas Police departments differ in how they determine high-crime areas.122 Every police departments jurisdiction varies in size, level of funding, available resources, population density, and geography.123 These factors influence what type of crime is focused on and in what areas police work will be most efficient.124 Police departments need this flexibility because police work operates in a grey area.125 There are no black and white definitions, which is why police officers are expected to investigate situations where they have a reasonable suspicion of criminal activity.126 High-crime areas serve a different function for police departments than they serve for the court system.127 For police, high-crime areas serve as a predictive tool, allowing police officers to have a general notion of high-crime activity and areas of concern.128 Courts, however, have the advantage of hindsight. Police officers cannot be expected to know exact statistics for the crime trends that may change by the day or for every block in their jurisdiction. They can be expected to be aware of areas that have caused concern in the past and use their best judgment when approaching the diverse situations they are faced with on a daily basis.129 Courts, on the other hand, should strive for perfection when faced with these circumstances, for it is a courts decision that potentially deprives a person of liberty. 2. Suggesting a uniform approach for courts Courts that have welcomed the use of statistics to support an officers testimony have never attempted to structure the area measurement for the high-crime area to make the statistics specific to the case at hand or even consistent with their, or other courts, previous high-crime area analyses.130 Even though the courts efforts to include statistics in their
See Telephone Interview with Jacinto Rivera, supra note 87. Telephone Interview with Jeff Jerome, supra note 11. See Telephone Interview with Jacinto River, supra note 87; see also Telephone Interview with Jeff Jerome, supra note 11. 124. Telephone Interview with Jeff Jerome, supra note 11. 125. Telephone Interview with Jacinto Rivera, supra note 87. 126. Id. 127. See id. 128. See id. 129. See id. 130. Bonner, 363 F.3d at 216; Swain, 2007 WL 7127027, at *6.
121. 122. 123.

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decisions are valiant, the process by which they do so may still be lacking in functionality. Instead of accepting how police departments measure their high-crime areas, (i.e. dividing a city into different sized grids131 or designating an entire housing project a high-crime area132), courts should implement a uniform measurement of high-crime areas to produce more accurate, reliable, and truly objective results. Creating a uniform measurement that can be applied equally to one thousand unique defendants, arrested in a variety of extremely different areas, is difficult to apply proactively, which is why police departments should not be required to do so. The duty must fall on the court system to create uniformity retroactively for it is the only way to ensure accurate results and strive for the ultimate goal of providing equal protection of every defendants Fourth Amendment rights. If a court based the area in question on a defendants location at the time of arrest, each arrest would be considered on its own merits, which would eliminate the questionable situations where the defendant is arrested on the border of a high-crime area.133 Using a program such as CrimeReports, courts can create a radius around the location of the arrest and make a statistical inquiry into whether the area contained within the radius could be designated a high-crime area.134 This determination may be subject to other influencing factors, such as the similarity between the types of crimes and the frequency in which they occur, but at least the measurement of an area would be consistent in both cases and courts nationwide. C. Objectively Defining High-Crime Area Defining high-crime area requires the use of numerous factors, each one holding a different weight and each one interacting with the others in different ways. Crimes should be ranked according to their level of violence because the seriousness of the crime influences the weight of the remaining factors. Fortunately, most police departments follow a scale similar to that of the FBI.135 Therefore, for the purposes of this Note, the scale will be: (1) murder/manslaughter; (2) forcible rape; (3) robbery; (4) aggravated assault; (5) burglary; (6) larceny-theft; and (7) motor vehicle theft.136 The more violent a crime is, the less frequently it occurs,137 so a

Swain, 2007 WL 7127027, at *3. Bonner, 363 F.3d at 216. Telephone Interview with Jacinto Rivera, supra note 87. CRIMEREPORTS, supra note 108. See Offenses Reported, supra note 105. See id. See Shelley Penman, Violent Crime in Massachusetts, COMMONWEALTH OF MASS., 4-8 (July 2009), http://www.mass.gov/Eeops/docs/eops/Publications/082009_violent_crime_
131. 132. 133. 134. 135. 136. 137.

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higher-ranking crime should be examined in a broader range of time. For example, looking at violent offenses in Massachusetts for 2008, murder accounted for less than 1% of all violent crime, while aggravated assault accounted for 70.5% of all violent crime.138 To realistically calculate high-crime areas, one must account for the frequency. Therefore, if murder is the crime in question, due to its rarity, the comparative date range should be one year. If aggravated assault is the crime in question, due to its regularity, the comparative date range should be one month. 1. Measuring the high-crime evidence summarized in Wright As summarized in United States v. Wright, the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case139 can be calculated using the same scale as violent crimes. The nexus can be calculated by obtaining the distance on the scale between the crime the defendant was arrested for and the crime most prevalent in that area. The closer the two crimes are to each other, the more weight the nexus factor should be given in determining whether the defendant was arrested in a high-crime area. The second piece of evidence summarized in Wright of a limited geographic boundaries of the area or neighborhood being evaluated,140 could be calculated by a radius using the defendants arrest location as the center point.141 This will ensure a limited geographic boundary in every case. This factor will also account for population density: the denser the population, the smaller the radius. In theory, if an area is heavily populated, the police will then need less in the way of statistical evidence to prove it is high in crime. The smaller the radius, the more reliable the result would be because the result is more specific to the defendant giving the defendant less room to argue he was not located in a high-crime area at the time of his arrest. The third piece of evidence summarized in Wright is the temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue.142 This will be satisfied partly by the effect frequency has on the range of dates. Within the specified range of dates, the length of temporal proximity will decide the weight of this factor on the final determination of whether the defendant was arrested in a high-crime area.
v5_jul09.pdf. 138. Id. 139. Wright, 485 F.3d at 53-54. 140. Id. at 54. 141. See supra Part III.B.2. 142. Wright, 485 F.3d at 54.

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Once these parameters are in place for the given case, the average number of crimes within the radius during the specified range of dates will be compared to the average number of crimes within that radius in five to ten previous equal date ranges. How different the defendants date set compares with the previous date sets will also be weighed. The final determination of whether the defendant was arrested in a high-crime area will be examined using average differences in types of crime as well as the time frame in which they are committed. The judge or the jury will be presented with the above evidence and instructed to give weight according to their strength in similarity. From there, an accurate, reliable, and consistent determination can be made. Although the formula above is not stated in mathematical terms, each factor is capable of being quantified, assigned to its respective role in a formula, and displayed visually on an easy to use and up-to-date crime map.143 This formula not only accounts for the factors courts most often use when determining the existence of a high-crime area after-the-fact as summarized in Wright,144 but it also accounts for factors that police departments use to determine high-crime areas before-the-fact.145 Most importantly, it allows the court to be completely objective and uninfluenced by the police department in its decision. To account for the justifiable fears of Officer Jacinto Rivera concerning new crime trends and an officers ability to spot them better than statistics, this approach to high-crime area determinations will include one exception. If the calculation fails to provide the court with information on which it could base a high-crime area finding, the arresting officer will have the opportunity to present testimony showing that the crime in question is part of a new crime trend. The officer will only be allowed to testify on the basis of a new trend. The officer will also need to explain why the trend is not yet apparent through the proposed formula. After all, taking someones liberty away is a very serious matter.146

143. 144. 145. 146.

See, e.g., CRIMEREPORTS, supra note 108. Wright, 485 F.3d at 53-54. Telephone Interview with Jeff Jerome, supra note 11. Telephone Interview with Jacinto Rivera, supra note 87.

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IV. IMPLEMENTING A BRIGHT-LINE RULE: HOW THE PROPOSED FORMULA WILL OPERATE IN THE COURT SYSTEM A defendant, who happens to be in the wrong place at the wrong time and is arrested, should be able to rest assured knowing that the court will provide the highest protection possible of his or her Fourth Amendment rights. If the defendants location in a high-crime area was a substantial factor in the arresting officers reasonable suspicion to initially make a Terry stop, defense counsel should be able to request statistical proof that the arrest location was, in fact, a high-crime area and not just an area the arresting officer has previous experience with. The point of altering Fourth Amendment rights in certain areas is based upon the overriding concern for public safety; when a certain area shows a proclivity towards criminal activity, the concern for public safety is higher, requiring those in charge of protecting it, the police, to use less formal measures.147 The increased level of danger prevents the use of formal measures, such as a warrant.148 Once the court provides the defendant with the statistics of his own arrest location area created through the proposed formula above, the judge or jury will make a high-crime area determination weighing the factors (e.g. difference in averages, difference in time, and nexus in crime type).149 If it is determined that the defendants arrest location area is not a high-crime area, any evidence against the defendant obtained after the now deemed unlawful search and seizure should be excluded in furtherance of the Exclusionary Rule, which requires the court to exclude unlawfully obtained evidence in hopes of deterring unlawful police conduct.150 In Cunningham v. State, for example, the defendant was arrested in a neighborhood [that] was not known to have a high crime rate, [but] a number of burglaries had recently occurred there.151 The court acknowledged that the location in which the deputy first observed Mr. Cunningham was technically not a high-crime area in the usual sense of being riddled with narcotics dealings and drug-related shootings, but the recent unlawful activity occurring there arguably was a pertinent factor justifying the deputys increased suspicion.152 The court failed to point out, however, that the defendant was arrested for possession of cocaine, not

147. See generally Terry, 392 U.S. at 30 (discussing a search and seizure where less formal measures are appropriate). 148. Id. 149. See supra Part III.B.2. 150. See generally YALE KAMISAR ET AL., BASIC CRIMINAL PROCEDURE 218-41 (12th ed. 2008). 151. Cunningham, 884 So. 2d at 1122. 152. Id.

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burglary.153 The court ultimately granted the suppression of evidence requested by the defendant on the basis that the officer could not be certain that the defendant was engaged in unprovoked flight.154 If the court had instead focused on the high-crime designation through the application of the proposed formula, it surely would have come to a conclusion much quicker: the defendants own arrest location area was not a high-crime area because the nexus between the type of crime the defendant was arrested for and the new trend type of crime would not be strong enough to override the fact that the neighborhood was technically not a high-crime area.155 A. Benefits of a Bright-Line Rule Implementing a bright-line rule requiring the use of statistics and an objective calculation, such as the proposed formula, will undoubtedly provide more uniform protection to the citizens of this country in regards to their Fourth Amendment rights. Implementation of such a rule will also make the court system more uniform, accurate, and reliable. Uniformity will occur naturally if there is only one formula to determine the existence of a high-crime area as opposed to the situation where multiple formulas are applied inconsistently in several different courts. Uniformity will also occur because the formula, although flexible in that it adapts to each defendants situation, is not so flexible as to allow for human influence. Because the formula does adapt to each individuals situation, it will also provide a very accurate read of the area in question to determine whether a location is, in fact, high in crime. This method is at least more accurate than strict grid application to an entire city or designating random housing projects as high in crime. The results of using the proposed formula will be much more reliable as well, especially compared to using officer testimony, simply because the calculations can be repeated over and over again. Every factor is quantified, unlike officer testimony where not a single factor is quantified. An officers personal experience cannot be utilized like a statistic, such that he or another officer would form the same suspicions every time they are presented with the situation in question. B. Costs of Implementation Further support for the proposed formula is that it would not create a great financial burden and may even save the government money over time. Although some companies providing police departments with crime mapping technology charge upwards of $50,000, CrimeReports only
153. 154. 155.

See id. Id. See id.

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charges police departments between $100 and $200 depending on their size.156 Aside from its high level of accuracy and reliability, what sets CrimeReports apart is its ease of use and relatively low cost.157 Considering there are at least 750 police departments using CrimeReports,158 it can hardly be said that the cost would impose too high of a burden on the departments finances.159 In fact, police departments will, in theory, save money because they will no longer need to pay police officers to spend their time in court testifying about high-crime areas. Instead, officers can focus on more pressing work.160 Developing the actual computer formula for the factors described above will be a significant cost in the beginning phase of implementation, but this one time payment will likely pay for itself161 and pales in comparison to the benefit bestowed upon the unfortunate defendant whose liberty is at risk. Such a meager cost should not even be a factor when the issue is how much protection should be afforded to a persons Fourth Amendment rights. V. CONCLUSION Ultimately, this Note calls for a new definition of unreasonable.162 It is presumptively unreasonable that courts allow a mathematical conclusion like high-crime area to be defined by subjective testimonyparticularly in this era of computer and mapping technology. It is even more unreasonable that courts demand an officer to provide an objective and articulable basis for making a high-crime designation and then allow this burden to be met by subjectivity. Requiring specificity in subjectivity neither rids the account of its subjectiveness nor transforms it into objectiveness. It is time the court system provides the unfortunate defendant, who happens to be in the wrong place at the wrong time, the ability to challenge the high-crime area designation that led to his arrest in a more meaningful way than simply putting the defendants word against the arresting officers in court. Police officers do not have the same advantage as courts. They face difficult situations proactively, while courts face these same situations retroactively. Since a court has the advantage of hindsight, it is fair to

Cohen, supra note 110. Id. Id. See Interview by CrimeReports with Leesburg Police Department, in Leesburg, Va., https://www.youtube.com/watch?v=-cSlTbV6g8Y& (last visited Oct. 5, 2011). 160. See id. 161. See id. 162. See U.S. CONST. amend. IV.

156. 157. 158. 159.

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demand higher levels of consistency and accuracy in its decision-making, rather than a police officer who is often required to make a decision in the heat of the moment. Courts should eliminate the difficult task of deciphering officer testimony and start demanding the use of statistics that are readily available to them. These statistics are inherently more objective and, if applied uniformly through the proposed formula, would create consistency. Answering the question of what is a high-crime area has plagued courts for decades, and there has been little effort to answer it.163 By implementing the proposed formula described in this Note,164 this question can finally be answered and, most importantly, it can be answered in relation to individual defendants and the unique set of circumstances surrounding their arrest. Implementation will also eliminate the procedural discrepancies among courts165 of how a defendant proves the area in which he was arrested was not high in crime. Although police officers are better suited than judges to make the high-crime designation, statistics are far better suited than police officers to make that determination objectively. Courts are moving towards the use of statistics when they make this determination, as evidenced by the increasing number of appearances statistics are starting to make even when they are not required.166 It may be more difficult, however, for courts to free themselves from officer testimony, as it is clear police departments view their testimonial burden as a necessity. Implementing a bright-line rule will provide this opportunity for the courts, hopefully without offending the officers who view testifying as their duty, since the bright-line rule provides an exception that allows police officers to testify on the basis of a new crime trend. The proposed formula and bright-line rule are flexible, applicable to diverse situations and defendants, functional within the existing police departments capabilities and long standing court systems procedures, and free from the possibility of human influence. For a court system that strives for perfection, implementing the proposed formula will undeniably be only a small step in the right direction, but when a persons constitutionally protected rights are at stake, every tiny step matters.

163. 164. 165. 166.

Ferguson & Bernache, supra note 7, at 1605-22. See supra Part III.C.2. Ferguson & Bernache, supra note 7, at 1605-22. Swain, 2007 WL 7127027, at *3; Bonner, 363 F.3d at 216.