It’s Time to Define High-Crime: Using Statistics in Court to Support an Officer’s Subjective “High-Crime Area” Designation

8/12/2019 Its Time to Define High-Crime: Using Statistics in Court to Support an Officers Subjective High-Crime Area Designation

1/23

101

Its Time to Define High-Crime: Using

Statistics in Court to Support an OfficersSubjective High-Crime Area Designation

Hannah Rose Wisniewski

I. INTRODUCTION

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

The Fourth Amendment provides that the right of the people to besecure in their persons, houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated. 2 The crucial word in thatAmendment is unreasonable. Typically, an unreasonable search is oneperformed without a warrant. 3 However, the Supreme Court has delineatedcertain instances where a search and seizure conducted without a warrantmay be deemed reasonable and therefore not a violation of a citizensFourth Amendment rights. 4 Terry v. Ohio provides that an officer who hasa reasonable, articulable suspicion that criminal activity [is] afoot mayconduct a brief, investigatory stop. 5 Unlike a warrant that requires probablecause before a search and seizure takes place, 6 a Terry stop requires onlyreasonable suspicion that a crime has been, will be, or is in the process of

being committed.7

However, courts have cautioned against validating thesetypes of searches and seizures without objective justification; [w]hilereasonable suspicion is a less demanding standard than probable cause,there must be at least a minimal level of objective justification for the

1. United States v. Wright, 485 F.3d 45, 50 (1st Cir. 2007).2. U.S. C ONST . amend. IV.3. See id. 4. See Terry v. Ohio, 392 U.S. 1, 30 (1968).5. Id. 6. U.S. C ONST . amend. IV.7. Andrew Guthrie Ferguson & Damien Bernache, The High-Crime Area

Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis , 57 A M. U. L. REV. 1587, 1601 (2008).


2/23

102 CRIMINAL AND CIVIL CONFINEMENT [Vol. 38:101

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 ahigh-crime area was an articulable fact that could be taken into accountin assessing the legality of a Terry stop. 10 High-crime areas have sincebeen used as a tool by police departments for determining where to focustheir resources. 11 A National Academy of Sciences study reported thatfocusing police resources on crime hot spots provides the strongestevidence of police effectiveness. 12 The rationale behind designating ahigh-crime area is based on simple probability. 13 If a definedgeographical area is high in crime, there is a greater probability that futurecrimes will occur there, rather than in other areas. 14 This logic is why apolice officer needs less of a reason to stop a person in such an area. Itcould be said that this person is guilty by location.

Be that as it may, mere presence in a high-crime area is not enough tosupport reasonable suspicion of criminal activity. 15 Presence in a high-crime area must be coupled with other factors, such as nervous or elusivebehavior, to constitute reasonable suspicion for a stop. 16 Still, a locationscharacteristics are highly relevant and weigh heavily on an officersdetermination of whether the circumstances are sufficiently suspicious towarrant further investigation. 17 Flight, by itself, is also not enough toconstitute reasonable suspicion. 18 The Supreme Court has held that in thecase where a suspect flees from the scene, but there has been no show of

8. Illinois v. Wardlow, 528 U.S. 119, 123 (2000).9. 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, 208F.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.


3/23

2012] DEFINING HIGH-CRIME AREA WITH STATISTICS 103

police authority, such unprovoked flight is not enough to justify a stop. 19 The Supreme Court of Illinois, relying on the United States SupremeCourts decision in Florida v. Royer , explained, [A]lthough police have

the right to approach individuals and ask questions, the individual has noobligation to respond. The person may decline to answer and simply go onhis or her way, and the refusal to respond, alone, does not provide alegitimate basis for an investigative stop. 20 Flight may simply be anexercise 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 presencein a high-crime area acquired the name plus factor. 23 The Third Circuitcreated this designation after the Supreme Court decision in Illinois v.Wardlow found the mere presence in an area known for high narcoticstrafficking to be a sufficient plus factor that amounted to reasonablesuspicion. 24 Simply stated, flight upon noticing police presence, plus someother indicia of wrongdoing, such as being in a high-crime area, equalsreasonable suspicion in the eyes of the court. 25 Therefore, an officer maystop anyone who attempts to go on ones way as a reaction to noticingthe officers presence if the officer also subjectively believes he is in ahigh-crime area. 26

All citizens of the United States have a right to be free fromunreasonable searches and seizures. 27 Allowing police officers to alterthese rights by giving them discretion to decide what is reasonable orunreasonable in the heat of the moment 28 is so attenuated from ensuringFourth Amendment protection that safeguards need to be provided after-the-fact for the defendant. Even though reasonable suspicion itself seems todef[y] precise definition, 29 defining the factors that create reasonablesuspicion, such as high-crime area designations, will ensure that the termis applied consistently.

Factors used by police officers to form reasonable suspicion may seemvague, but may need to be so in order to allow police officers to make the

19. Id. 20. Id. (citing Florida v. Royer, 460 U.S. 491 (1983)).21. Id. 22. See id. 23. United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004).24. Id. 25. Id. 26. Wardlow , 528 U.S. at 122, 124-26.27. U.S. C ONST . amend. IV.28. 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).


4/23


kind of in-the-moment decisions that are required to apprehend criminals. Itwill 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 ofthe totality of the circumstances surrounding the situation, 30 must beallowed to use his or her best judgment without concern about infringingon Fourth Amendment rights. Allowing the officer to use his or herdiscretion does not, however, prevent the court system from installingsafeguards 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 beestablished as fact through the subjective account of an officer instead ofestablishing it through the use of statistical data. 31 A defendant who isarrested in a high-crime area, where location is a substantial factor in thereasonable suspicion determination, should be able to request statisticaldata in court to support the officers subjective high-crime areadesignation. It is circular reasoning to allow the officer who made thedesignation at the scene and during the time of pursuit to prove the areawas in fact high in crime by simply testifying so in court. This Note willpropose a bright-line rule that defines a high-crime area by usingstatistical data obtained from the current recording methods used by policedepartments. Implementing a bright-line rule upon which all courts couldbase high-crime area designations will improve the accuracy of the courtsystem, strengthen the protection of a citizens Fourth Amendment rights,and alleviate police departments of their testimonial burden. This methodwill allow police officers to make in-the-moment decisions necessary toapprehend elusive criminals and will also provide the unfortunatedefendant who happens to be in the wrong place at the wrong time with theability to escape longstanding prejudices created by an antiquated judicialsystem.

Part II discusses how courts vary in their evidentiary requirements forproving a high-crime area designation and how this has prevented theestablishment of a functional definition for the term. Part III presents anargument that high-crime area is a readily quantifiable factor and thatboth police departments and courts can easily and inexpensively obtain up-to-date high-crime area statistics. Part IV recommends implementing abright-line rule that employs a functional definition of high-crime area.The bright-line rule will require the use of statistics in court to provewhether the area described fits the functional definition. Part V will

30. State v. Lee, 658 N.W.2d 669, 670 (Neb. 2003).31. Ferguson & Bernache, supra note 7, at 1591-93.


5/23


conclude that implementing such a bright-line rule will provide consistencyand efficiency in the criminal justice system, as well as work to protectdefendants from prejudice and Fourth Amendment violations.

II. INCONSISTENCY OF HIGH-CRIME AREA DESIGNATIONS

In United States v. Swain , the Southern District Court of West Virginiastated that the issue of whether a particular area is high in crime is often anundisputed fact. 32 However, it is important to consider that a defendantmay have no useful means of challenging such a designation in court if italways comes down to his word against an arresting officers. 33 If such adesignation is considered fact on the record based solely on the arrestingofficers testimony, it is not difficult to see how such proof could be biased,posing a difficult challenge for the defendant. Either way, the lack ofdisputes regarding high-crime area designations have left some circuitswith little precedent when faced with deciding the burden and types of

proof necessary to establish that an area is high-crime.34

Althoughstatistics have recently been considered when a high-crime area ischallenged, 35 the courts traditionally only inquired into whether the policeofficer provided a reasonable and articulable basis to suspect that criminalactivity had occurred or was about to occur. 36 Only when the officer failsto provide a reasonable and articulable basis for the stop can a courtprovide a remedy for the defendant, such as suppression of the illegallyobtained evidence. 37

Courts have acknowledged that statistics would be useful to determinewhether an area is high-crime, but none have been so bold as to requirethem. 38 The court in D.R. v. State touched on the subject briefly after thedefendant 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 itis correct. There may be no dispute process available or a bigger policy concern may be atplay.

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 theadults, who is not the driver of the vehicle at the scene, are not enough for an officer toconclude that a person is engaged in criminal activity and thus not enough to justifyinvestigatory detention).

37. Id. at 993.38. D.R. v. State, 941 So. 2d 536, 538 n.2 (Fla. Dist. Ct. App. 2006).


6/23


departmental briefings might be sufficient, we do not decide the natureor 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 nocompetent evidence to prove this requirement in this case. 39

In this case, the only evidence provided to support the officers high-crime designation was the officers short testimony that he had heardabout multiple narcotic complaints from there, but then undermined thatevidence by stating he had not worked in the arrest location area for awhile. 40 Because this vague and presumptively stale testimonial evidencewas void of relevant characteristics of the location that would determinewhether the circumstances were sufficiently suspicious to warrant furtherinvestigation, the court recognized that the use of statistics was notnecessary. 41 Yet, the court failed to recognize that the use of statistics in thefirst place would have eliminated the need for the officers testimony andprovided the same result in a quicker and more efficient fashion.

It seems counterproductive for courts to spend their time and energy onthe difficult task of determining the sufficiency and reliability of anofficers testimony about a high-crime area. Courts would be moreefficient if they simply looked at reliable statistics, which are easilyobtained. 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 tobe high-crime, but that he could get them simply by making a phonecall.42 Instead of creating consistency by developing a balancing test usedto decipher officer testimony, courts could demand that officers presentstatistics when they claim that an area is high-crime, in lieu of testifyingwhy 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 suppressionhearing involving a Terry stop. 43 Courts often accept an officers definitionof high-crime area, giving the officer more credibility than perhapsdeserved; rarely does a court review statistical data or seek an expertsopinion. 44 The lack of consistency in this area stems from the SupremeCourts decision in Illinois v. Wardlow , where the Court held that officersare not required to ignore the relevant characteristics of a location in

39. Id. 40. Id. at 537.41. Id. (quoting Wardlow , 528 U.S. at 124).42. Id. at 538.43. Ferguson & Bernache, supra note 7, at 1590.44. Id. at 1591.


7/23


8/23


day and day of the year cannot be ignored. 58 Courts have rejected high-crime area designations where the officers actions are based on nothingmore than a hunch rather than objective, articulable factors. 59

More often than not, courts accept an area as high-crime when thelocal police department has designated it as such as a part of a programbeing implemented to combat a specific type of crime or a specific areawhere crime is most prevalent. 60 This has proven to be decisive in somecircuits, even where mitigating factors are present. 61 In United States v.Trullo , the court accepted the high-crime area designation used forreasonable suspicion by the officer. 62 The defendant in that case was foundin an area that was being targeted by the police department and labeled asthe Combat Zone because of its high levels of drug activity andprostitution. 63 The court failed, however, to take into consideration theconclusive facts that the incident took place in the middle of the day andthat there were many legitimate businesses operating in the Combat Zoneat that time. These additional facts serve to make the Combat Zone lessof a high-crime area during the day than it seemed in the record. 64 Similarly, in United States v. Mayo , the court accepted the policedepartments characterization of the area in question as a high-crime areabecause the police department was currently targeting that area for theirWave Initiative, a program designed to deal with drug activity. 65

In more recent years, some jurisdictions have started using policedepartment 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 aswell as support a defendants contention that the area in question was not infact a high-crime area. 68 In United States v. Swain , the officer testifiedthat the area in question was known for fights, gun calls, and narcoticactivity. 69 The officers testimony was further supported by that of the

58. Id. 59. 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.


9/23


10/23


measurement of the factor on statistics formed only in relation topopulation size, not superficial characteristics. In a concurring opinion toC.E.L. v. State of Florida , a similar warning was issued, suggesting that

classification by objective statistical measurement is more reliable and lessprejudicial than current techniques being used. 79 The opinion states:

After all, C.E.L. was in this high-crime neighborhood because it washis home and teenagers living in a different neighborhood would havebeen free to run when they saw the deputies. On this point, JudgeAltenbernd emphasized that there were no signs warning individualsthey were in a region with reduced Fourth Amendment rights and thatthe neighborhood had not been classified as a high-crime area bysome objective statistical measurement but only by the subjectivetestimony of individual law enforcement officers. 80

This realistic perspective leads to the next issue regarding the use of thedesignation 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-crimearea evidence as:

(1) The nexus between the type of crime most prevalent or common inthe area and the type of crime suspected in the instant case; . . . (2)limited geographic boundaries of the area or neighborhood beingevaluated; . . . and (3) temporal proximity between evidence ofheightened criminal activity and the date of the stop or search atissue . . . . 81

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

79. C.E.L. , 24 So. 3d at 1190 (Pariente, J., concurring).80. Id. 81. Wright , 485 F.3d at 53-54.82. Ferguson & Bernache, supra note 7, at 1612-14.83. Id.


11/23


of the mathematical formula. 84 This would free an officer from having toappear at trial and allow him to continue performing his duties while alsoproviding the court with an efficient way to examine the data.

Typical officer testimony includes either an assertion that an area had areputation for crime or that he had personal experience with crime in thatarea, meaning that he personally made arrests in the area. 85 The alterationof a persons Fourth Amendment rights should not be based on reputationevidence 86 or the officers personal experience when the arrests could beconverted into statistics within twenty-four hours, eliminating the need forthe officer to testify about his personal experience. 87 When a court assessesofficer testimony regarding whether a location should be considered high-crime, it is asking the officer to provide specific and articulable facts 88 so that if it finds in the affirmative, it has a factual basis for doing so. TheFirst Circuit stated that this requirement of specificity (which they oddlyequate to objectivity) ensures that courts will focus not on what the officerhimself believed but, rather, on what a reasonable officer in his positionwould have thought. 89 Specificity cannot be equated to objectivity whenthe details are being provided by a biased person. Furthermore, it would bea very difficult task to separate what the officer actually believed and whata reasonable officer would believe when the situation is being recreated forthe court through the ears and eyes of the person who has already decidedthat the location in question is high-crime.

In contrast, the Third Circuit held that police officers with experienceand an awareness of crime and arrest data are better suited than judgeswho operat[e] within the confines of a courtroom to make such a factual

84. See Crime Rates: Discover the Safest Neighborhoods in Any City , NEIGHBORHOODSCOUT , http://www.neighborhoodscout.com/neighborhoods/crime-rates/ (last visited Mar.26, 2011) (demonstrating how mathematical formulas can be used to input a variety offactorspopulation size, size of area in question, type of crime, frequency of type ofcrimeto accurately produce crime rates for neighborhoods using data provided by locallaw enforcement agencies).

85. See, e.g. , United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004); Mayo , 361F.3d at 803; United States v. General, 435 F. Supp. 2d 502, 504 (E.D.N.C. 2006); UnitedStates 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 mayact on the basis of reliable information short of probable cause to make a stop, andultimately 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. PoliceDept (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.


12/23


finding. 90 The court elaborated: Obviously, the differences in focus arenot only differences of experience and perspective, [for a] judge engaged inadjudicative 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 twooptions, it fails to consider other viable alternatives, such as a statisticalapproach. Relying on a single officers subjective account of awareness ofcrime and arrest data may be better than relying on the opinion of a judgewithout that particularized knowledge, but it is still subject to thepossibility of human error. 92 Courts have found officer testimony to be out-of-date, exaggerated, or insufficient on a few occasions, but only through afurther inquiry into whether their testimony was specific and articulable. 93 The inquiry instead should be focused on the use of statistics. 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 MadHatter. 94

III. HIGH-CRIME AREA AS A QUANTIFIABLE FACTOR

Although the term high-crime area sounds like a mathematicalconclusion, the term has eluded a formulaic definition since its inception.Police departments create their own rough formulas by comparingpopulation densities and the number of violent crime incidents. 95 However, when asked what the dimensions of a typical high-crime areaare, two different police officers were unable to provide a definite answerwhen interviewed by the author. 96 In fact, high-crime areas typically lackdefinite boundaries because it is difficult to admit that a person standing onthe high-crime area side of the street has less Fourth Amendmentprotection than the person standing on the other side of the street, or otherside of the boundary. 97 With a measurement system like this, it is nosurprise that police departments find it easier to simply allow their officersto testify about the area where the stop was made instead of presentingstatistics. 98 It also allows them to paint the picture however they please

90. Bonner , 363 F.3d at 216.91. Id. 92. See id. 93. Wright , 582 F.3d at 206; D.R. v. State , 941 So. 2d at 538.94. ONeill, supra note 28. 95. Telephone Interview with Jeff Jerome, supra note 11.96. Id. ; Telephone Interview with Jacinto Rivera, supra note 87.97. See Telephone Interview with Jacinto Rivera, supra note 87.98. See id.


13/23


14/23


seriousness. 104 The Federal Bureau of Investigation (FBI) provides thefollowing categories and rankings, which seem somewhat standard amongpolice 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 theirlevel of seriousness as burglary, larceny-theft, motor vehicle theft, andarson.107

2. Crime mapping

With the availability of these accurate and up-to-date statistics, policedepartments have been able to combine them with interactive mappingtechnology 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-mappingnetwork, 110 most likely because of its functionality. CrimeReports is now

being used by 750 police departments, including most major cities such asBoston and San Francisco, as well as two entire states, Maryland andUtah.111 CrimeReports provides up-to-date crime maps using informationprovided by police reports. 112 CrimeReports map feature looks similar toany websites mapping feature and is just as user-friendly, but it pinpoints

104. Id. 105. 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-us-2009/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, M ETRO . POLICE DEPT, (Mar. 27, 2011, 5:53PM), http://crimemap.dc.gov/presentation/query.asp; Crime Incidents ,CHICAGO POLICE DEPARTMENT CLEARMAP : CITIZEN LAW ENFORCEMENT ANALYSIS ANDREPORTING , (Mar. 27, 2011, 5:55PM), http://gis.chicagopolice.org/website/clearmap/viewer.htm; Interactive Crime Map, C ITY OF DALLAS , (Mar. 27, 2011, 5:56PM),http://dallas.dfwmaps.com/crimenew/.

109 . CRIMEREPORTS , supra note 108; C RIME MAPPING , http://www.crimemapping.com/default.aspx (last visited Oct. 1, 2011); HunchLab, http://www.azavea.com/products/hunchlab/ (last visited Oct. 1, 2011).

110 . Deborah L. Cohen, Entrepreneur Closes Door on Criminals , R EUTERS , (Feb. 17,2010, 1:29 PM), http://www.reuters.com/article/2010/02/17/us-column-cohen-crime-idUSTRE61G3FO20100217.

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/ 2009-09-09-onlinecrime_N.htm.


15/23


crimes only as to the block of the crime to protect a victims privacy. 113 Itallows the user to choose what types of crimes are shown on the mapsimply 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, twoweeks, or one month. 114 This information is free and can be accessed byanyone. 115 To see charts, graphs, and heat maps of trends in crime,increasing or decreasing, as well as to access numerous other moreparticularized services, police departments are charged $100-$200 permonth. 116 At such a low cost, it seems the value of such a service ispractically indisputable. It allows for a better allocation of police resourcesand 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 areanight after night may be better equipped to notice the beginning of a

specific crime trend.118

However, he also stated that the Las VegasMetropolitan Police Departments crime maps are updated every twenty-four to forty-eight hours. 119 This means that if an officer did make multiplearrests in the same area in a short amount of time so that a trend emerged,these arrests, known as his experience testimony, would become astatistic in a days time; this would allow a computer to calculate actualcrime trends using a consistent formula. 120

B. Measuring an Area

At first glance, high-crime area seems like an easy measurement tomake with the use of such well-kept statistics. The measurement can bemade by blocking off an area, counting the number of crimes that have

occurred in a set time period, and comparing that data to data fromprevious, equivalent sets of dates to determine whether this count ofcrimes is so many standard deviations above the previous averages.Although such a formula would produce a scientifically sound and accurateanswer, 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 theparticular 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.


16/23


have any functionality in the court system, needs to be flexible so that itcan 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 factorsinfluence what type of crime is focused on and in what areas police workwill be most efficient. 124 Police departments need this flexibility becausepolice work operates in a grey area. 125 There are no black and whitedefinitions, which is why police officers are expected to investigatesituations where they have a reasonable suspicion of criminal activity. 126

High-crime areas serve a different function for police departmentsthan they serve for the court system. 127 For police, high-crime areasserve as a predictive tool, allowing police officers to have a general notion

of high-crime activity and areas of concern.128

Courts, however, have theadvantage of hindsight. Police officers cannot be expected to know exactstatistics for the crime trends that may change by the day or for every blockin their jurisdiction. They can be expected to be aware of areas that havecaused concern in the past and use their best judgment when approachingthe diverse situations they are faced with on a daily basis. 129 Courts, on theother hand, should strive for perfection when faced with thesecircumstances, for it is a courts decision that potentially deprives a personof 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 thehigh-crime area to make the statistics specific to the case at hand or evenconsistent with their, or other courts, previous high-crime areaanalyses. 130 Even though the courts efforts to include statistics in their

121. See Telephone Interview with Jacinto Rivera, supra note 87.122 . Telephone Interview with Jeff Jerome, supra note 11.123. 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.


17/23


decisions are valiant, the process by which they do so may still be lackingin functionality. Instead of accepting how police departments measure theirhigh-crime areas, (i.e. dividing a city into different sized grids 131 or

designating an entire housing project a high-crime area132

), courts shouldimplement a uniform measurement of high-crime areas to produce moreaccurate, reliable, and truly objective results.

Creating a uniform measurement that can be applied equally to onethousand unique defendants, arrested in a variety of extremely differentareas, is difficult to apply proactively, which is why police departmentsshould not be required to do so. The duty must fall on the court system tocreate uniformity retroactively for it is the only way to ensure accurateresults and strive for the ultimate goal of providing equal protection ofevery defendants Fourth Amendment rights. If a court based the area inquestion on a defendants location at the time of arrest, each arrest wouldbe considered on its own merits, which would eliminate the questionablesituations where the defendant is arrested on the border of a high-crimearea. 133 Using a program such as CrimeReports, courts can create a radiusaround the location of the arrest and make a statistical inquiry into whetherthe area contained within the radius could be designated a high-crimearea. 134 This determination may be subject to other influencing factors,such as the similarity between the types of crimes and the frequency inwhich they occur, but at least the measurement of an area would beconsistent in both cases and courts nationwide.

C. Objectively Defining High-Crime Area

Defining high-crime area requires the use of numerous factors, eachone holding a different weight and each one interacting with the others in

different ways. Crimes should be ranked according to their level ofviolence because the seriousness of the crime influences the weight of theremaining factors. Fortunately, most police departments follow a scalesimilar to that of the FBI. 135 Therefore, for the purposes of this Note, thescale will be: (1) murder/manslaughter; (2) forcible rape; (3) robbery; (4)aggravated assault; (5) burglary; (6) larceny-theft; and (7) motor vehicletheft.136 The more violent a crime is, the less frequently it occurs, 137 so a

131. Swain , 2007 WL 7127027, at *3.132 . Bonner , 363 F.3d at 216.133 . Telephone Interview with Jacinto Rivera, supra note 87.134 . CRIMEREPORTS , supra note 108.135. See Offenses Reported , supra note 105.136. See id. 137 . 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_


18/23


higher-ranking crime should be examined in a broader range of time. Forexample, looking at violent offenses in Massachusetts for 2008, murderaccounted for less than 1% of all violent crime, while aggravated assault

accounted for 70.5% of all violent crime.138

To realistically calculatehigh-crime areas, one must account for the frequency. Therefore, ifmurder is the crime in question, due to its rarity, the comparative date rangeshould be one year. If aggravated assault is the crime in question, due to itsregularity, 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 typeof crime most prevalent or common in the area and the type of crimesuspected in the instant case 139 can be calculated using the same scale asviolent crimes. The nexus can be calculated by obtaining the distance onthe 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, themore weight the nexus factor should be given in determining whether thedefendant was arrested in a high-crime area.

The second piece of evidence summarized in Wright of a limitedgeographic boundaries of the area or neighborhood being evaluated, 140 could be calculated by a radius using the defendants arrest location as thecenter point. 141 This will ensure a limited geographic boundary in everycase. This factor will also account for population density: the denser thepopulation, 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 ishigh in crime. The smaller the radius, the more reliable the result would bebecause 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 ofhis arrest.The third piece of evidence summarized in Wright is the temporal

proximity between evidence of heightened criminal activity and the date ofthe stop or search at issue. 142 This will be satisfied partly by the effectfrequency has on the range of dates. Within the specified range of dates, thelength of temporal proximity will decide the weight of this factor on thefinal determination of whether the defendant was arrested in a high-crimearea.

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.


19/23


20/23


IV. IMPLEMENTING A BRIGHT -LINE RULE : HOW THE PROPOSED FORMULAWILL OPERATE IN THE COURT SYSTEM

A defendant, who happens to be in the wrong place at the wrong timeand is arrested, should be able to rest assured knowing that the court willprovide the highest protection possible of his or her Fourth Amendmentrights. If the defendants location in a high-crime area was a substantialfactor in the arresting officers reasonable suspicion to initially make aTerry stop, defense counsel should be able to request statistical proof thatthe arrest location was, in fact, a high-crime area and not just an area thearresting officer has previous experience with. The point of altering FourthAmendment rights in certain areas is based upon the overriding concern forpublic safety; when a certain area shows a proclivity towards criminalactivity, the concern for public safety is higher, requiring those in charge ofprotecting it, the police, to use less formal measures. 147 The increased levelof danger prevents the use of formal measures, such as a warrant. 148

Once the court provides the defendant with the statistics of his ownarrest location area created through the proposed formula above, the

judge or jury will make a high-crime area determination weighing thefactors (e.g. difference in averages, difference in time, and nexus in crimetype).149 If it is determined that the defendants arrest location area is nota high-crime area, any evidence against the defendant obtained after thenow deemed unlawful search and seizure should be excluded in furtheranceof the Exclusionary Rule, which requires the court to exclude unlawfullyobtained evidence in hopes of deterring unlawful police conduct. 150

In Cunningham v. State , for example, the defendant was arrested in aneighborhood [that] was not known to have a high crime rate, [but] anumber 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 ofbeing riddled with narcotics dealings and drug-related shootings, but therecent unlawful activity occurring there arguably was a pertinent factor

justifying the deputys increased suspicion. 152 The court failed to pointout, 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 lessformal 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.


21/23


burglary. 153 The court ultimately granted the suppression of evidencerequested by the defendant on the basis that the officer could not be certainthat the defendant was engaged in unprovoked flight. 154 If the court had

instead focused on the high-crime designation through the application ofthe proposed formula, it surely would have come to a conclusion muchquicker: the defendants own arrest location area was not a high-crimearea because the nexus between the type of crime the defendant wasarrested for and the new trend type of crime would not be strong enough tooverride the fact that the neighborhood was technically not a high-crimearea. 155

A. Benefits of a Bright-Line Rule

Implementing a bright-line rule requiring the use of statistics and anobjective calculation, such as the proposed formula, will undoubtedlyprovide more uniform protection to the citizens of this country in regards to

their Fourth Amendment rights. Implementation of such a rule will alsomake the court system more uniform, accurate, and reliable. Uniformitywill occur naturally if there is only one formula to determine the existenceof a high-crime area as opposed to the situation where multiple formulasare applied inconsistently in several different courts. Uniformity will alsooccur because the formula, although flexible in that it adapts to eachdefendants situation, is not so flexible as to allow for human influence.Because the formula does adapt to each individuals situation, it will alsoprovide a very accurate read of the area in question to determine whether alocation is, in fact, high in crime. This method is at least more accurate thanstrict grid application to an entire city or designating random housingprojects as high in crime. The results of using the proposed formula will bemuch more reliable as well, especially compared to using officer testimony,simply because the calculations can be repeated over and over again. Everyfactor is quantified, unlike officer testimony where not a single factor isquantified. An officers personal experience cannot be utilized like astatistic, such that he or another officer would form the same suspicionsevery 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 agreat financial burden and may even save the government money overtime. Although some companies providing police departments with crimemapping technology charge upwards of $50,000, CrimeReports only

153. See id. 154. Id. 155. See id.


22/23


charges police departments between $100 and $200 depending on theirsize.156 Aside from its high level of accuracy and reliability, what setsCrimeReports apart is its ease of use and relatively low cost. 157

Considering there are at least 750 police departments usingCrimeReports, 158 it can hardly be said that the cost would impose too highof a burden on the departments finances. 159 In fact, police departmentswill, in theory, save money because they will no longer need to pay policeofficers 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 abovewill be a significant cost in the beginning phase of implementation, but thisone time payment will likely pay for itself 161 and pales in comparison tothe benefit bestowed upon the unfortunate defendant whose liberty is atrisk. Such a meager cost should not even be a factor when the issue is howmuch protection should be afforded to a persons Fourth Amendmentrights.

V. CONCLUSION

Ultimately, this Note calls for a new definition of unreasonable. 162 Itis presumptively unreasonable that courts allow a mathematical conclusionlike high-crime area to be defined by subjective testimonyparticularlyin this era of computer and mapping technology. It is even moreunreasonable that courts demand an officer to provide an objective andarticulable basis for making a high-crime designation and then allow thisburden to be met by subjectivity. Requiring specificity in subjectivityneither rids the account of its subjectiveness nor transforms it intoobjectiveness. It is time the court system provides the unfortunate

defendant, who happens to be in the wrong place at the wrong time, theability to challenge the high-crime area designation that led to his arrestin a more meaningful way than simply putting the defendants word againstthe arresting officers in court.

Police officers do not have the same advantage as courts. They facedifficult situations proactively, while courts face these same situationsretroactively. Since a court has the advantage of hindsight, it is fair to

156 . Cohen, supra note 110.157. Id. 158. Id. 159. 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. C ONST . amend. IV.


23/23


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 theheat of the moment. Courts should eliminate the difficult task of

deciphering officer testimony and start demanding the use of statistics thatare readily available to them. These statistics are inherently more objectiveand, if applied uniformly through the proposed formula, would createconsistency.

Answering the question of what is a high-crime area has plaguedcourts for decades, and there has been little effort to answer it. 163 Byimplementing the proposed formula described in this Note, 164 this questioncan finally be answered and, most importantly, it can be answered inrelation to individual defendants and the unique set of circumstancessurrounding their arrest. Implementation will also eliminate the proceduraldiscrepancies among courts 165 of how a defendant proves the area in whichhe was arrested was not high in crime. Although police officers are bettersuited than judges to make the high-crime designation, statistics are farbetter suited than police officers to make that determination objectively.Courts are moving towards the use of statistics when they make thisdetermination, as evidenced by the increasing number of appearancesstatistics are starting to make even when they are not required. 166 It may bemore difficult, however, for courts to free themselves from officertestimony, as it is clear police departments view their testimonial burden asa necessity. Implementing a bright-line rule will provide this opportunityfor the courts, hopefully without offending the officers who view testifyingas their duty, since the bright-line rule provides an exception that allowspolice officers to testify on the basis of a new crime trend. The proposedformula and bright-line rule are flexible, applicable to diverse situationsand defendants, functional within the existing police departmentscapabilities and long standing court systems procedures, and free from thepossibility of human influence. For a court system that strives forperfection, implementing the proposed formula will undeniably be only asmall step in the right direction, but when a persons constitutionallyprotected rights are at stake, every tiny step matters.

163 . Ferguson & Bernache, supra note 7, at 1605-22.164. See supra Part III.C.2.165 . Ferguson & Bernache, supra note 7, at 1605-22.166. Swain , 2007 WL 7127027, at *3; Bonner , 363 F.3d at 216.

It’s Time to Define High-Crime: Using Statistics in Court to Support an Officer’s Subjective “High-Crime Area” Designation

Documents