Hassle.

AuthorBambauer, Jane
PositionIndividualization in police search to minimize hassle burden on the innocent - II. Hassle B. The Importance of Hassle through Conclusion, with footnotes, p. 487-511
  1. The Importance of Hassle

    Hassle is a problem of constitutional importance. If suspicion requirements ensure that the hit rate stays high enough, the individualization requirements should ensure that the hassle rates stay low enough. This simple insight unlocks the motivation behind the requirement of individualized suspicion. Individualization measures the societal costs of a law-enforcement program, and suspicion measures its justification. Both are crucial, and they depend on one another to cabin law enforcement appropriately. This Section explores the theoretical and practical importance of hassle to Fourth Amendment interests.

    A constitutionally sound hit rate reveals nothing about a program's hassle rate until we know the base rate for the crime and the miss rate for the program. (127) An example will illustrate the point. Suppose the Boston Police Department develops a profile to detect a particular crime, and the profile has a 33 1/3% hit rate. When the profile identifies a suspect, two out of three times it is wrong, and the search is fruitless. (128) If the crime is quite rare (for example, murder), then the hassle rate is guaranteed to be low as long as the hit rate is respectable (as it is here). In 2011, only 403 murders occurred in the entire city of Boston. (129) Even if, by some miracle, the profile managed to detect every murder (a miss rate of 0), the false positives would have affected only 806 people. In a city of nearly 640,000 people, (130) this works out to a hassle rate of 0.13%: that is, a 0.13% chance that an innocent person would be questioned or searched in connection with a murder. Put another way, out of 100,000 innocent people, a maximum of 126 innocent individuals would be stopped or searched. Again, this assumes that every murder is detected--it represents an upper bound for hassle. I suspect most people would be willing to take these odds of having to undergo a stop or search if it meant that the police department were able to detect every last murderer.

    By contrast, if the crime is quite common, such as theft, then even a respectable hit rate cannot guarantee a low hassle rate unless it also happens to have a high miss rate. In 2011, there were just under 88,000 thefts in Boston. (131) Let's assume again that the profile has a 33 1/3% hit rate--one-third of the suspects identified turn out to be thieves. If the algorithm were deployed over the entire city and managed to detect all of the 90,000 thieves, it would have caused an additional 180,000 false-positive stops or searches in the process. That is a lot of hassle for a city of Boston's size. If the algorithm avoided searching the same innocent person more than once, the average Bostonian would face a 28% chance of being stopped or searched in the course of the year. (132)

    Still, even for theft, a profile with a 33 1/3% hit rate could be used without reaching these astronomical hassle rates. The police department could keep the hassle rate low by using the profile sparingly--that is, by using it to identify suspects less often. Or the profile itself may keep the hassle rate low if it regularly fails to alert, even in the presence of thieves. But these are dynamics that often go unnoticed by courts, which have so far focused on ensuring only that hit rates are high enough. By considering hit rates alone, courts risk accepting investigation methods with high hassle rates and rejecting methods with low ones.

    The hassle is potentially much worse under the more lenient Terry standard for stops and frisks, which requires only a reasonable suspicion of criminal conduct and officer danger rather than probable cause. (133) Since Terry stops are used to detect a wide range of offenses, some of which are quite common (high base rates), a program that satisfies the reasonable suspicion standard could cause a good deal of pain and grief, as measured by hassle.

    Two snapshots of New York City demonstrate the problem. During a two-year period from 1997 to 1998, the Street Crime Unit of the New York Police Department ("NYPD") stopped 45,000 people based on reasonable suspicion. (134) These stops resulted in 9,500 arrests--a hit rate of 21%. (135) The rest--the other 35,500--were false alerts. In absolute terms, this looks like a lot of stops, but in a city of over 7 million people (at the time), (136) the hassle rate was actually quite low. Assuming that each stopped suspect was unique, (137) the average New Yorker had only a 0.5% chance of being stopped during the two years. Of course, the chance of being stopped was not actually distributed evenly across society, so the hassle rate even in the late 1990s may have been disproportionate for some precincts and for some groups defined by race and gender. For now, let's put aside these equitable distribution problems. We will return to them shortly.

    Contrast the 1997-1998 hassle rates with the rates that developed in 2010-2011, at the height of NYPD's controversial stop-and-frisk program. (138) During those two years, New York police conducted nearly 1.3 million stops. (139) The city's population had grown to nearly 8.3 million by that time, (140) so if each stopped suspect was unique (and of course the suspects were not--some were stopped more than once), the chance that an average New Yorker would be stopped during the two-year period was over 16%. (141)

    The magnitude of the stop-and-frisk program, and the fact that the vast majority of stops were fruitless intrusions on the innocent, convinced Judge Scheindlin to find the program unconstitutional in Floyd v. City of New York. (142) The program had several Fourth and Fourteenth Amendment infirmities. The absence of sufficient suspicion was one of them. (Only 6% of the stops resulted in an arrest, a rate that was too low even under the more permissive Terry standard. (143)) But one of the most serious constitutional flaws, and the first detail mentioned in Judge Scheindlin's decision, was the astronomical number of stops conducted under the program. The great amount of hassle that the searches created was as concerning to Judge Scheindlin as the low level of suspicion supporting them.

  2. Individualization Reduces Hassle

    The last Section explained why courts should monitor hassle as a Fourth Amendment interest separate from suspicion. This Section demonstrates that they already do. Although courts and scholars rarely make explicit reference to the concept of hassle, the practices that pass the mysterious mandate for individualization nonetheless have the effect of reducing hassle rates. (144) They do so by using natural limits on how many individuals a law-enforcement agency can investigate at one time. Informant and witness information is difficult to investigate. Suspicious bulges usually go unnoticed unless a police officer happens to be nearby. And police dogs are not so numerous that they can be used everywhere at once. A police unit cannot practicably expand these old practices to investigate large swaths of the population, and these resource limitations keep the hassle rates down. Although the connection to hassle is subconscious, it is not coincidental.

    In the course of considering whether the government had sufficient suspicion to stop or search a suspect, courts often incorporate an analysis of hassle. Consider the case Reid v. Georgia, (145) in which the Supreme Court decided that a Drug Enforcement Administration ("DEA") officer could not stop a drug-courier suspect in an airport based on the facts that the suspect (1) arrived from Fort Lauderdale, a city known to be a source for cocaine distribution; (2) arrived early in the morning; (3) appeared to be avoiding the perception that he was traveling with his companion; and (4) arrived with no luggage other than a shoulder bag. (146) The Court concluded that this combination of factors could not support reasonable suspicion because the circumstances "describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." (147)

    This analysis touches on both hit and hassle rates. The conclusion that the combined factors would amount to "virtually random" selection shows that the Court questioned whether this profile had a better-than-random hit rate. This inquiry goes to the suspicion requirement. Reasonable minds could differ on whether the Court got this right--the third and fourth factors may increase a hit rate more than the Court cared to acknowledge. But the Court was quite clearly animated by hassle as well. The justices were concerned that the profile failed to exclude enough "presumably innocent travelers" who could have been swept up by the profile that the DEA agent employed. (148) This concern would persist even if the profile did have a decent enough hit rate to satisfy the suspicion requirements.

    Reid is not unusual. Courts frequently blend and blur the Fourth Amendment interests in suspicion and hassle, treating them as a single goal. One court explained the reasonable suspicion requirement by rhetorically asking, " [I]s it not better to frustrate the prosecution of an individual who may be guilty so that innocent citizens need not be fearful of a police stop and frisk under the circumstances here?" (149) And the Fourth Circuit Court of Appeals at one point had worked its way precisely to the notion of hassle rates. Describing what is required for using drug-courier profiles, the court said that "[t]he articulated factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied." (150) The Fourth Circuit did not recognize the radical nature of its approach. It was breaking the tradition of focusing on the defendant's facts and instead looking at an investigation's effects on everybody else. (151)

    Jurists and scholars have...

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