Chicago Daily Law Bulletin
Volume: 154 Issue: 225

November 14, 2008

Finding a Definition for 'High Crime Area'

Did you know that Raymond Chandler is now a justice on the U.S. Supreme Court?

How else can you explain these opening paragraphs in the recent case of Pennsylvania v. Dunlap:

''North Philly, May 4, 2001. Officer Sean Devlin, Narcotics StrikeForce, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the strike force. He'd made fifteen, twenty drug busts in the neighborhood.

''Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.''

No, I am not making this up. These are the opening paragraphs of Chief Justice John G. Roberts Jr.'s dissent from a denial of certiorari in Pennsylvania v. Dunlap, No. 07-1486, decided Oct. 14. The Pennsylvania Supreme Court had held that a single, isolated transaction in a ''high-crime area'' was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not attempt to flee. Disagreeing with the U.S. Supreme Court's decision to deny certiorari, Roberts (along with Justice Anthony M. Kennedy) stated that ''A drug purchase was not the only possible explanation for the defendant's conduct, but it was certainly likely enough to give rise to probable cause.''

Roberts' short dissent makes three references to the incident having occurred in a ''high-crime area.'' But what exactly is a ''high-crime area''? And what possible relevance does it have to Fourth Amendment issues?

The U.S. Supreme Court first referred to a ''high-crime area'' in 1972. In upholding the propriety of a Terry stop based on an informant's tip, the court implied that the fact that the incident occurred in a ''high-crime area'' was an articulable fact that could be taken into account in assessing the legality of the stop. Adams v. Williams, 407 U.S. 143 (1972). A LexisNexis search shows that since 1972 the phrase ''high-crime area'' has appeared in 130 published Illinois appellate decisions. And in perhaps the most important decision applying this concept, the U.S. Supreme Court in 2000 held that unprovoked flight alone could be sufficient to uphold a Terry stop, as long as the unprovoked flight occurred in a ''high-crime area.'' Illinois v. Wardlow, 528 U.S. 119 (2000).

So what's wrong with all this? First, it creates the troubling situation where two individuals performing exactly the same acts can be treated differently based solely on the nature of the neighborhood they happen to be in. There is a nagging equal protection problem behind the use of the concept of the ''high crime area.''

But even assuming it is proper to consider whether an area is ''high-crime,'' there is another problem: American courts use the expression ''high-crime area'' without any attempt to define just what this means. One commentator has noted that we currently have a ''hodgepodge of inconsistent and incoherent case law'' attempting to define this phrase. When ''high-crime area'' means whatever any individual police officer, prosecutor, or judge thinks it means, we have reduced law to the level of the Mad Hatter.

An important new law review article sets out to solve this problem. Andrew Guthrie Ferguson and Damien Bernache, The ''High-Crime Area'' Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 American University Law Review 1587 (2008).

The first issue is what type of evidence courts should require before they designate an area as ''high-crime.'' The article finds that the majority of jurisdictions simply rely on a police officer's testimony on this issue without requiring any supporting data or evidence. It approvingly cites an opinion that holds that ''more than mere war stories'' by police witnesses should be required before a court accepts the characterization of an area as ''high-crime.'' And beyond the need for data, there are two other issues: defining how extensive an ''area'' is and what the burden of proof should be for all these issues.

The article suggests a possible solution. First, whether an area is ''high-crime'' is a legal fact. Therefore, the prosecution should have an affirmative burden of production to establish this fact. There is verifiable and quantifiable data to support the conclusion that an area is ''highcrime.'' Police now have sophisticated crime mapping software and crime pattern analysis. (For an excellent example, see the Chicago Police Department Clear Map located at www.chicagopolice.org.)

The article contends that the prosecution should use this data to establish three component parts. First, it must show that the area in question is marked by a high incidence of particularized criminal activity in comparison to other areas. Second, the area must be narrowly defined geographically and the data used must be recent. Third, the government must prove a connection between the statistics and the officer's observations.

The article notes that there are problems within each of these three component parts. As to the first, there is no agreed standard on just how ''high'' is ''high.'' If a designation of ''highcrime area'' will actually shift the constitutional standard as to what makes a Terry stop reasonable, then it would seem that the area should be significantly different from other areas. This is a decision for the courts.

As to the second component part, just what is the definition of ''area''? Is it a police district? A police patrol area? A particular street or intersection? Is it a radius of some established distance around where the incident occurred? Again, this is an issue for the courts.

As to the third component part, the article contends that not only should the officer be actually aware of the ''high-crime'' character of the area, but the officer should also know what particular crimes make it a ''high-crime'' area. For example, it is irrelevant if an officer sees a hand-to-hand transaction that might be drug activity occurring in a ''high-crime area'' if the crime that is prevalent there is burglary.

 The article concludes by noting that establishing the ''high-crime'' character of an area through objective and verifiable evidence accomplishes several goals. First, it strengthens individual rights by insisting that where a person is found should not ordinarily be used to determine the reasonable suspicion needed for a Terry stop. Second, it demands real data and not just police anecdotes to establish whether an area is ''high-crime.'' Third, it cabins the geographic area that is deemed ''high-crime.'' Fourth, it demands a nexus between the suspect's conduct and the particular crimes that make an area ''high-crime.''

Defense attorneys need to be proactive in raising these issues. This law review article can be downloaded free at http://www.ssrn.com/.