By Nick Kaye
The Rise of the “High-Crime Area” Factor
In Illinois v. Wardlow, the United States Supreme Court held that an individual’s mere presence in a “high-crime area” is a significant factor in determining whether an investigative detention, commonly known as a “Terry stop” or “stop and frisk,” is constitutional under the Fourth Amendment.[1] Specifically, the Court held that presence in a “high-crime area,” coupled with “evasive behavior,” may be sufficient to create reasonable articulable suspicion for law enforcement officers to detain an individual.[2]
Since Wardlow was decided in 2000, law enforcement officers have relied heavily upon the “high-crime area” factor to justify investigative detentions. For example, in New York City between 2007 and 2012, police cited “high-crime area” as a factor in fifty-nine percent of all stops.[3] Likewise, in Newark, New Jersey, between 2009 and 2012, police cited “high crime area” as a factor in thousands of stops, often as the primary or sole justification.[4]
While similar data is not available for cities in Virginia, a survey of recent cases shows that law enforcement officers in our commonwealth regularly invoke the “high-crime area” factor.[5] Furthermore, the Virginia Supreme Court has embraced the “high-crime area” factor with open arms.[6] In one emblematic case from 2019, Hill v. Commonwealth, the Virginia Supreme Court held that police officers had reasonable suspicion to pull a man from his parked car in a “high-crime area” simply because he engaged in “a bunch of movement” when the officers approached him and did not respond to the officers’ subsequent commands to show his hands.[7] According to the Court, the officers acted lawfully when they opened Mr. Hill’s car door, seized him by his forearm, and searched his car, even though they had seen no particularized evidence of criminal activity.[8] One Justice, in dissent, described the scene as follows:
Here, we are left with a man sitting in a luxury vehicle in an area designated as high crime and high drug . . . He had no visible weapons or visible drug paraphernalia in the car . . . He reached into a space the officers could not see before the officers engaged him, and continued reaching while they spoke. The officers state they became concerned for their safety, but there is nothing in the record to support a reasonable inference that his behavior was threatening, suspicious, furtive, aggressive, or calculated to harm the officers.[9]
As Hill illustrates, lower courts have stretched the holding in Wardlow to allow law enforcement officers extensive leeway to conduct investigative detentions based only on an individual’s presence in a “high-crime area” and ambiguous behavior that might have any number of innocent explanations.[10]
The Inherent Problem with the “High-Crime Area” Factor
The ”high-crime area” factor is unique from other factors considered in Fourth Amendment analyses—and uniquely troubling—because it does not depend upon an individual’s actions but instead “defines neighborhoods and physical communities in which a person has, by default, diminished constitutional freedoms and lowered expectations of privacy.”[11] Put simply, under Wardlow, a person’s Fourth Amendment protections against search and seizure by the government vary solely based on where that person happens to live.[12]
Crucially, the areas police regard as “high crime” tend to have disproportionately high Black, Hispanic, and other minority populations.[13] Scholars have posited two primary explanations for this phenomenon. First, racial bias may lead police officers “to consciously or subconsciously believe that people of color are more likely to commit crime, and thus, to perceive that communities of color have higher crime rates.”[14] Second, the conditions of systemic racism in the United States—including segregation, poverty, limited social opportunity, and mass incarceration—may drive certain types of crime among communities of color as a rational response to a harsh material reality.[15]
While these explanations are complex, the bottom line is simple: Under Wardlow and related cases, countless people of color are deprived of complete Fourth Amendment protection against police intrusion based only on their race and the neighborhood they live in.[16] As Deputy Federal Public Defender Holt Ortiz Alden puts it, the United States Supreme Court has “armed police” with the tools to “oppress and criminalize people of color.”[17]
Unfortunately, many who have written about the problematic nature of the “high-crime area” factor offer only superficial reforms. A large body of scholarship focuses on courts’ failure to define what constitutes a “high-crime area” and the resulting deference given to police officers’ subjective perceptions of crime rates.[18] Scholars in this camp advocate for measures including requiring prosecutors to provide statistical evidence of crime rates when invoking the “high-crime area” factor,[19] using crime-mapping technology to designate “high-crime areas,”[20] and establishing “high-crime areas” through action by legislative bodies.[21]
While not necessarily unhelpful, these measures ignore the fundamental social harm of labeling entire communities and the people within them as “criminal” and less deserving of constitutional protections.[22] These measures also ignore the self-perpetuating nature of the “high-crime area” factor—that designation of an area as “high-crime” will necessarily lead to a more significant police presence, more searches, and more arrests, thus validating the designation in the first instance.[23]
Regardless of its parameters, the ”high-crime area” designation creates a destructive feedback loop that inflames community-police tensions, leads to greater resentment for the law, and inflicts devastating economic consequences on communities that are already impoverished—particularly communities of color—by reducing economic development, property values, and employment opportunities.[24] In the long run, this feedback loop may actually increase crime rather than reduce it.[25]
Therefore, the only viable solution is to eliminate the “high-crime area” factor and invest resources into elevating marginalized communities instead of criminalizing them.[26]
Public interest lawyers across the country must work to challenge the “high-crime area” factor, exploring all possible avenues of attack, including constitutional challenges under the Equal Protection Clause of the Fourteenth Amendment.[27] The framework created by Wardlow, which diminishes individuals’ constitutional protections based only on their race and neighborhood, cannot stand.
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[1] See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
[2] See id. at 124-25.
[3] Ben Grunwald & Jeffrey Fagan, The End of Intuition-Based High-Crime Areas, 107 Calif. L. Rev. 345, 370-72 (2019).
[4] U.S. Dep’t of Just., Civ. Rts. Div., Investigation of the Newark Police Department 9-10 (2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/07/22/newark_findings_7-22-14.pdf.
[5] See, e.g., Commonwealth v. Brown, No. CR22-1336, 2023 Va. Cir. LEXIS 86, at *12-16 (Va. Cir. Ct. May 10, 2023); Commonwealth v. Jackson, No. 22-F-1473, 2023 Va. Cir. LEXIS 28, at *6-8 (Va. Cir. Ct. Feb. 28, 2023); Commonwealth v. Oliver, No. CR22-F-1887, 2022 Va. Cir. LEXIS 234, at *5-7 (Va. Cir. Ct. Dec. 1, 2022).
[6] See, e.g., Hill v. Commonwealth, 832 S.E.2d 33, 40 (2019); Whitaker v. Commonwealth, 687 S.E.2d 733, 737 (2010).
[7] Hill, supra note 6, at 35-36, 40.
[8] Id. at 35-36; id. at 48 (Millette, J., dissenting).
[9] Id. at 48 (Millette, J., dissenting) (emphasis added).
[10] See Thomas R. Fulford, Writing Scripts for Silent Movies: How Officers Experience and High-Crime Areas Turn Innocuous Behavior Into Criminal Conduct, 45 Suffolk U. L. Rev. 497, 506 (2012) (noting that lower courts “have moved towards a general acceptance of categorical judgments serving as the basis for a stop and frisk . . . most often manifested in the dual assertions of ambiguous behavior . . . and the location of the stop being widely recognized as a ‘high crime area’”).
[11] Holt Ortiz Alden, Discovering the Victim: The Enduring Problem with “High-Crime Areas”, 16 Stan. J. Civ. Rts. & Civ. Liberties 385, 389-90 (2020).
[12] See 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, 1588 (2008) (providing a helpful illustration of how a particular behavior might be grounds for a lawful police stop in one neighborhood but not in another).
[13] See Rashaad Shirazi, It’s High Time to Dump the High-Crime Area Factor, 21 Berkeley J. Crim. L. 76, 77 (2016); David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L. J. 659, 677-78 (1994).
[14] Grunwald & Fagan, supra note 3, at 369.
[15] See Shirazi, supra note 13, at 79-87.
[16] See DeAndre’ Augustus, How the Race of a Neighborhood Criminalizes the Citizens Living Within: A Focus on the Supreme Court and the “High Crime Neighborhood”, 33 St. Thomas L. Rev. 84, 86 (2020) (explaining that the “high-crime area” factor has nearly eliminated the need for probable cause in communities of color).
[17] Alden, supra note 11, at 388-89.
[18] See, e.g., Ferguson & Bernache, supra note 12; Andrew Dammann, Categorical and Vague Claims That Criminal Activity is Afoot: Solving the High-Crime Area Dilemma Through Legislative Action, 2 Tex. A&M L. Rev. 559 (2015); Hannah Rose Wisniewski, It’s Time to Define High-Crime: Using Statistics in Court to Support an Officer’s Subjective “High-Crime Area” Designation”, 38 New Eng. J. Crim. & Civ. Confinement 101 (2012); Andrew Guthrie Ferguson, Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas”, 63 Hastings L. J. 179 (2011).
[19] See Ferguson & Bernache, supra note 12; Wisniewski, supra note 18.
[20] See Ferguson, supra note 18.
[21] See Dammann, supra note 18.
[22] See Alden, supra note 11, at 412-13; Shirazi, supra note 13, at 105-06.
[23] See Alden, supra note 11, at 414.
[24] See Shirazi, supra note 13, at 105-06.
[25] See Derek J. Paulsen & Matthew B. Robinson, Crime Mapping and Spatial Aspects of Crime 38 (2d ed. 2009) (“Still other research has shown that increasing crime rates follow the wide-scale application of ‘criminal area’ labels to specific neighborhoods, almost encouraging crime.”).
[26] See Alden, supra note 11, at 417-18 (describing the importance of investing resources in communities of color to combat the harms of systemic racism); Hanna Love, Want to Reduce Violence? Invest in Place, Brookings (Nov. 16, 2021), https://www.brookings.edu/articles/want-to-reduce-violence-invest-in-place/ (“If the causes of violence exist outside of the criminal legal system itself—rooted in inequities such as poverty, unemployment, segregation, and poorly maintained infrastructure—then we must all look outside of the criminal legal system for solutions to address it.”).
[27] See Shirazi, supra note 13, at 107-09 (providing a framework for as-applied constitutional challenges to the “high-crime area” factor under the Equal Protection Clause).