In response to programmatic stop-and-frisk, police killings, and other recent controversies in American policing, many have called for "smart policing"--the evidence-based deployment of police resources. An often-heralded example of smart policing is hot spots policing, which involves directing police attention to locations where crime and disorder fester. It is difficult to argue with the logic of hot spots policing, and this Article does not do so. Instead, it critically examines how the Fourth Amendment operates when hot spots policing and similar targeted strategies are used in a common setting: public housing developments and their private counterparts.
Largely because of mass criminalization, Fourth Amendment law allows police to lay siege to public housing and the people who live in it. Public housing developments and their private counterparts have historical reputations as problem places, and law enforcement has subjected these locations to specialized policing programs for decades. Given the low Fourth Amendment standards for stops, arrests, and searches in connection with minor misconduct, that outsized attention combines with the astounding array of conduct regulated in public and patrolled housing to permit police nearly unfettered authority. Fourth Amendment protections usually associated with the home are virtually unrecognizable in these places. Instead, the Fourth Amendment fuels the use of law enforcement as a tool of social control in public and patrolled housing. As such, the harms of programmatic stop-and-frisk are not remedied, but simply concentrated and localized. Policing in public and patrolled housing thus offers a cautionary tale of the limits of "smart policing" as an answer to abusive police practices.
CONTENTS INTRODUCTION I. POLICING PROGRAMS IN PUBLIC AND PATROLLED HOUSING A. Targeting Public and Patrolled Housing B. Hot Spots Policing II. THE FOURTH AMENDMENT IN PUBLIC AND PATROLLED HOUSING A. Stop for Anything 1. Stops for Infractions, Regulations, and House Rules 2. High-Crime Areas B. Arrest for Anything C. Search for Anything: The Search Incident to Arrest Exception to the Warrant Requirement D. Policing Public and Patrolled Housing in New York City: "Just Go to the Well" III. MASS CRIMINALIZATION IN PUBLIC AND PATROLLED HOUSING AND FOURTH AMENDMENT VALUES IV. PROVIDING PROTECTION AND RESTORING DIGNITY TO PUBLIC AND PATROLLED HOUSING RESIDENTS A. Answering Open Questions of Fourth Amendment Law B. State Law C. Local Laws and Policies CONCLUSION INTRODUCTION
It is axiomatic that the home enjoys the greatest Fourth Amendment protection. Indeed, the "cult of the home" has led to Fourth Amendment jurisprudence that protects the home more than virtually any other location. (1) Although this concept has long been acknowledged to have greater resonance for those with more space rather than less, the notion that "the home is the castle" is widely accepted. (2) But closer examination reveals that this acceptance does not bear the weight of scrutiny. Fourth Amendment protection of the home is particularly circumscribed for some: residents of public housing and private housing developments subject to routine police patrol. (3) Residents of such developments and their visitors are subject to regular and intrusive police encounters--ranging from "voluntary" ones to stops, arrests, and searches--in and around their buildings based on little to no suspicion of criminal activity. These places, and the people who live in them, are subject to extensive scrutiny by law enforcement in the hallways, stairwells, courtyards, and other common spaces of their homes--encounters that are simply unimaginable in residences of the well-heeled and wealthy.
This Article examines the intersection of the policing strategies frequently used in such locations and Fourth Amendment doctrine to argue that Fourth Amendment law plays a critical role in fueling such intense police oversight and surveillance of public and patrolled housing that they are sometimes effectively rendered occupied territories. Police often label public and patrolled housing developments problem places and accordingly develop programs aimed squarely at them. In addition, they adopt "hot spots" strategies (4) and focus their use on public and patrolled housing. The primary way Fourth Amendment law encourages these practices is its permissiveness of seizures and searches in response to even the most minor misbehavior. The excessive regulation of conduct in and around such housing developments-- achieved by statutes and ordinances that specifically govern conduct in those locations as well as "house rules" and similar restrictions enforced by police--combined with the freedom accorded police when they operate in these locales effectively provides police carte blanche to stop, arrest, and search everyone they encounter.
While hot spots policing strategies like those used in public and patrolled housing has become wildly popular among American police departments, legal scholarship examining the implications of their use has not kept pace. Legal scholars have long lamented the limited protection the Fourth Amendment offers to the urban poor (5) and racial minorities more generally. (6) In the realm of police programs, they have also examined and criticized "programmatic stop and frisk," through which police departments instruct their officers to aggressively stop and frisk civilians. (7) And, although there is extensive criminology literature about hot spots policing, which primarily addresses the impact of hot spots strategies on crime, (8) there is a lack of legal scholarship that offers a critical analysis of how hot spots policing and similar place-based policing strategies interplay with the Fourth Amendment. (9) This Article fills the gap and explores the meaning of the Fourth Amendment when police implement programs in public housing and private patrolled housing developments. It concludes that residents and visitors of such developments are uniquely vulnerable to police surveillance and control. Moreover, it reveals that the long-acknowledged anemic Fourth Amendment protections for the urban poor are especially weak in hot spots; in the context of public and patrolled housing, that weakness profoundly affects the everyday interactions between residents and the police. Actions deemed lawful under the Fourth Amendment can leave public and patrolled housing residents particularly vulnerable to surveillance, police encounters and stops, as well as searches and arrests.
By permitting such extensive dominion over the residents and visitors of public and patrolled housing, the Fourth Amendment facilitates social control of the largely impoverished residents of public and patrolled housing, who are, at least in public housing, largely black and brown. (10) Similar to the criminalization of welfare recipients, who are subject to substantial regulation of their conduct, (11) the residents and visitors of public and patrolled housing do not enjoy the same freedom to move about their daily lives that most Americans expect. Instead, they may find that even the most mundane rule violations subject them to police encounters, which sometimes end with detentions, jail time, and criminal prosecutions. The treatment of these problem places in Fourth Amendment jurisprudence is yet another mechanism by which the Fourth Amendment permits profiling, with place effectively allowed to become a proxy for race and class. This dynamic undermines core Fourth Amendment interests and values, including autonomy, the right to locomotion, and dignity interests. It also demonstrates the limits of "smart policing," which reformers frequently call for in response to abuses like programmatic stop-and-frisk, and is supposed to use evidence to direct police resources where they are needed most.
This Article proceeds in four parts. Part I examines the rise of two categories of policing programs that have been used to target public and patrolled housing: those that are focused on housing developments, sometimes funded by the U.S. Department of Housing & Urban Development, and hot spots policing more generally. Resting largely on criminology scholarship, this examination is useful because it demonstrates that the police focus on public and patrolled housing has not occurred randomly or by happenstance; instead, it is the result of a conscious effort to exploit the uniquely expansive authority police have in public and patrolled housing.
Part II addresses the Fourth Amendment doctrines that work together to limit protection against searches and seizures in and around public and patrolled housing. Fourth Amendment law permits police to subject residents and others who frequent public and patrolled housing to routine and virtually suspicionless stops, arrests, and searches largely because of "mass criminalization" (12) in public and patrolled housing, i.e., the hyper regulation of behavior through the use of house rules and similar standards. First, the standards for stops and high-crime area doctrine function together to permit stops for virtually any infraction. Courts have utterly failed to attach any meaning to the term high crime area, giving police officers extraordinary latitude to conduct stops in any locations they define as such. This broad authority operates with mass criminalization to provide police with especially expansive power to conduct stops of people in and around public and patrolled housing. Second, there is the Atwater rule, which permits arrest for "very minor crimes," i.e., effectively anything--including behavior regulated by housing rules rather than criminal law. (13) This rule grants police expansive power to arrest, no matter how trivial the charge. Third, the search incident to arrest doctrine leads to exploratory searches in public and patrolled housing. The permission provided in Atwater to arrest for virtually any offense...