Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion

• Publication year: 2012

PREDICTIVE POLICING AND REASONABLE SUSPICION

Andrew Guthrie Ferguson*

INTRODUCTION 261

1. PREDICTIVE POLICING: AN INTRODUCTION 265

   1. Predictive Policing: In Context 270

      1. Intelligence-Led Policing and Theories of Crime and Place 271

      2. Predictive Models of Crime 276

         1. Near Repeat Theory 277

         2. Risk Terrain Modeling 281

   2. Predictive Policing: Future Cases 284

2. PREDICTION AND THE FOURTH AMENDMENT 285

   1. Tips: Predicting Criminal Activities of Specific Individuals 288

      1. Anonymous Tip Cases 289

      2. Known Informant Tips 292

   2. Profiles: Predicting Criminal Activities Based on Shared Characteristics 293

      1. Profiling as Prediction 294

      2. Predictive Actions 297

      3. Probabilities as Prediction 298

   3. High Crime Areas: Predicting Criminal Activities in Places 300

   4. Principles of Prediction and Reasonable Suspicion 303

3. PREDICTIVE POLICING AND REASONABLE SUSPICION 304

   1. Predictive Policing as a Data-Driven “Tip” 305

      1. Predictive Policing as an Anonymous or Informant Tip 305

      2. Predictive Policing as a Tip About an Area 306

   2. Predictive Policing as Profiling in an Area of Forecast Crime 308

   3. Predictive Policing as a Micro-High Crime Area 310

   4. The Future of Predictive Policing and Reasonable Suspicion ... 312

4. FUTURE CONCERNS WITH PREDICTIVE POLICING 313

   * Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law. 2004 LL.M Georgetown University Law School, 2000 J.D. University of Pennsylvania Law School. With thanks and appreciation to Professors Christopher Slobogin, David Rudovsky, Arnold Loewy, Cara Drinan, Steven Morrison, George Mohler, Jeffrey Brantingham, Joel Caplan, and Leslie Kennedy. Special thanks to Jake Dworkin for his research assistance.

   1. Understanding the Logic of Why Prediction Works and Its Limits 314

   2. Ensuring Reliability, Accuracy, and Transparency 316

      1. Reliability and Accuracy 317

      2. Transparency 319

   3. Hard Cases 321

   4. Discriminatory Use or Discriminatory Effect 322

   5. Courtroom Effect 324

CONCLUSION 325

Very soon we will be moving to a Predictive Policing model where, by studying real time crime patterns, we can anticipate

where a crime is likely to occur.1

INTRODUCTION

The future of policing blinks on a computer screen in downtown Los Angeles.2 On that screen, police have predicted the next area of potential criminal activity.3 Based on crime data collection, analysis, and computer modeling, the Los Angeles Police Department (LAPD) is directing patrol officers to a targeted block of expected crime.4 In the LAPD’s Real Time Analysis and Critical Response Division, a new concept of “predictive policing” is being developed based on past crime patterns and sophisticated computer algorithms.5 Promoted as the next smart policing weapon in the war on crime, its promise is to predict crime before it happens.6

In another part of California, police stake out an area of predicted criminal activity. As described by the New York Times, in a parking garage forecast to be the location of future car thefts, two women are arrested after peering into car windows.7 One has an open arrest warrant.8 The other is caught carrying drugs.9 Without the predictive tip, it is arguable that peering into windows in a

1. A National Interoperable Broadband Network for Public Safety: Recent Developments: Hearing Before the Subcomm. on Commc’ns, Tech., & the Internet of the H. Energy & Commerce Comm., 111th Cong. 20 (2009) (statement of William J. Bratton, Chief, Los Angeles Police Department).

2. Guy Adams, The Sci-Fi Solution to Real Crime, INDEPENDENT (London), Jan. 11, 2012, (World), at

   32; Joel Rubin, Stopping Crime Before It Starts, L.A. TIMES, Aug. 21, 2010, at A1; Christopher Beam, Time Cops: Can Police Really Predict Crime Before It Happens?, SLATE (Jan. 24, 2011, 6:06 PM), http://www. slate.com/articles/news_and_politics/crime/2011/01/time_cops.single.html; Weekend Edition Saturday (National Public Radio broadcast Nov. 26, 2011), available at http://www.npr.org/2011/11/26/142758000/at-lapd-predicting- crimes-before-they-happen (discussing predictive policing in Los Angeles); see also Andrew Guthrie Ferguson, “Predictive Policing” and the Fourth Amendment, AM. CRIM. L. REV. BLOG (Nov. 28, 2011, 11:25 PM), http://www.americancriminallawreview.com/Drupal/blogs/blog-entry/”predictive-policing”-and-fourth- amendment-11-28-2011.

3. Weekend Edition Saturday, supra note 2.

4. See id.

5. See id. The software used by the LAPD and the Santa Cruz Police Department was developed by Professors George Mohler, Jeffrey Brantingham, Martin Short, and George Tita. Erica Goode, Sending the Police Before There’s a Crime, N.Y. TIMES, Aug. 16, 2011, at A11.

6. Rubin, supra note 2. The idea behind predictive policing preemptive enforcement using crime data was named one of Time’s 2011 Fifty Best Inventions of the Year. Lev Grossman et al., The 50 Best Inventions of the Year, TIME, Nov. 28, 2011, at 55, 82 (discussing preemptive policing).

7. Goode, supra note 5.

8. Id.

9. Id.

   parking garage is sufficient reason to be stopped and detained by police.10 But with the predictive technologies the constitutional questions become more difficult. Can a computer program that predicts the probability of future crime locations change Fourth Amendment protections in the targeted area? Are data-driven “hunches” any more reliable than personal “hunches” traditionally

   deemed insufficient to justify reasonable suspicion?11 What measures exist to

   examine the reliability and accuracy of these new policing tools?12 These questions, and more, are raised by the use of any predictive policing strategy.

   
   

   This Article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. More broadly, this Article addresses the theoretical and doctrinal impact of predictive policing on the Fourth Amendment, leaving for future projects an empirical study of the program’s effectiveness or practical results. In its current form, the technology is too new to make any definitive

   conclusion on its merits as a crime suppression technique.13 Yet, as can be seen

   by the growing interest in the concept of predictive policing in the form of test programs, major government grants, national news articles, and awards, the future is now, and the constitutional implications of that future must now be addressed.14

   
   

   This Article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current Fourth Amendment law are implicitly or explicitly based on

   
   

10. See Tessa Stuart, The Policemen’s Secret Crystal Ball, SANTA CRUZ WKLY., Feb. 15, 2012, at 9 (arguing that “the two women from The New York Times article were first stopped because they were in violation of a municipal code called the parking lot trespass law”).

11. See, e.g., United States v. Arvizu, 534 U.S. 266, 274 (2002) (requiring more than a mere hunch for a

    police stop); see also Albert W. Alschuler, The Upside and Downside of Police Hunches and Expertise, 4 J.L. ECON. & POL’Y 115, 122–23 (2007).

12. See infra Part IV.

13. In both Los Angeles and Santa Cruz, the formal rollout of the predictive policing experiment is not even a year old. As such, the results, while positive, are preliminary. See Goode, supra note 5; Josh Koehn, Algorithmic Crimefighting, SANJOSE.COM (Feb. 22, 2012), http://www.sanjose.com/news/2012/02/22/sheriffs_

    office_fights_property_crimes_with_predictive_policing (“[D]uring the first half of 2011, Zach Friend, a spokesman for the Santa Cruz Police Department, says that after using its predictive policing algorithm, the department reported a drop in property crimes ranging somewhere between 4 and 11 percent.”).

14. Predictive policing has been featured in the New York Times, made the front cover of Popular Science,

    and drawn national and international interest. Goode, supra note 5; POPULAR SCI., Nov. 2011; see also Beam, supra note 2 (“In November 2009, the National Institute of Justice held a symposium on ‘predictive policing,’ to figure out the best ways to use statistical data to predict micro-trends in crime.”). In addition, the federal government, through the Justice Department, has sponsored millions of dollars of research grants on the subject. Id.

    
    

    prediction.15 Search warrants are predictions that contraband will be found in a particular location.16 Investigative detentions are predictions that the person is committing, or about to commit, a crime.17 Fourth Amendment concepts like probable cause, reasonable suspicion,18 informant tips,19 drug courier profiles,20 high crime areas21 and others are based on evaluating levels of probability that criminal activity will occur or is occurring.22 Predictive

    policing both fits within this established tradition and also challenges it in novel ways. As will be argued, predictive policing may, in fact, necessitate a reconsideration of some of the existing reasonable suspicion doctrine, as well as point to refinements in future application.23

    
    

    The Article concludes that in its idealized form, predictive policing will impact reasonable suspicion analysis and become an important factor in a court’s Fourth Amendment calculus. While never enough alone, this predictive information will be used to justify stops under existing Fourth Amendment precedent. Evolving from a rich academic tradition of criminological insights around “crime and place” and building on real-world experiments with “hotspot” policing, the theory of predictive policing has both academic and

    practical grounding.24 In addition, in its initial implementation—focused on

    specific types of property crime in specific locations under controlled tests— the predictions appear to have positive results in reducing crime.25 At the same time, the underlying rationale of why predictive policing may be effective for certain crimes and areas may actually lead to a limitation on its applicability. These limitations should inform future Fourth Amendment analysis in

    determining reasonable suspicion. Further, these limitations raise deeper

    
    

15. See infra Part III.

16. United States v. Grubbs, 547 U.S. 90, 95 (2006).

17. ...