Writing scripts for silent movies: how officer experience and high-crime areas turn innocuous behavior into criminal conduct.

• Author: Fulford, Thomas R.

"[L]ife is full of mysteries, bristling with unanswered questions, both on the street and off. If police were empowered to intrude and detain citizens in every instance in which they do not understand intentions or observed behavior, then any meaningful right to privacy is not only illusory but utterly lost." (1)

1. INTRODUCTION

   Despite being innocuous, behavior that appears to an experienced police officer to resemble a typical street-level drug transaction, especially when located in a "high crime area," may be sufficient to justify a stop and search of the individuals involved. (2) Courts addressing similar factual scenarios regularly state that while no single suggestive factor, standing alone, is sufficient to establish the requisite suspicion, the innocuous behavior, in light of the character of the neighborhood and the officer's training and experience--the whole "silent movie"--does tend to establish that a suspect is committing a crime. (3) Unlike actual silent movies, which provide dialogue in subtitles so the audience knows what is happening, the scenes of a street-level silent movie have no accompanying subtitles; instead, a police officer writes the "script" as he infers criminality from the otherwise innocuous behavior. (4) An officer's training and experience and the character of the neighborhood are certainly relevant for assessing the basis of suspicion, but the weight assigned to these categorical judgments creates an imbalance in search and seizure analysis that is inconsistent with the traditional requirement of particularized suspicion. (5)

   Street-level drug arrests rarely involve warrants, so suppression matters turn primarily on the testimony of the arresting officer, which almost invariably includes assertions that the neighborhood has a high crime rate and the officer drew inferences based on his training and experience. (6) These two factors often shift the analytical balance toward a finding of reasonable suspicion or probable cause because courts defer to police officers' judgment and do not meaningfully review the factual basis for a high-crime assertion. (7) Weighing these two factors so heavily results in otherwise innocuous behavior being treated as criminal activity based not on objective facts relating to the particular suspect, but on the conclusions of an officer who could not immediately find an innocent explanation to his subjective satisfaction and who chose to use intrusive means to resolve the puzzle in his mind. (8)

   This Note will begin by examining the historical background of the constitutional standards for search and seizure analysis. (9) Next, it will address the gradual erosion of the particularized-suspicion requirement, illustrating the modern trend of courts to allow categorical judgments to serve as the basis for suspicion, as well as the move away from strict standards towards general reasonableness inquiries. (10) The Note will then focus on officer training and experience, first addressing the seemingly inconsistent use of an officer's subjective experiences in what is supposed to be a purely objective analysis of the basis of suspicion, then discussing the differing treatments of officer training and experience, as well as the "expert" nature of officer testimony. (11) Then it turns to the high-crime area factor, highlighting the social, racial, and practical concerns implicated by the high-crime designation. (12) This portion of the Note concludes by providing an example of one court's framework for determining whether a neighborhood merits the high-crime designation, requiring objective, quantifiable support. (13)

2. HISTORY

   1. The Fourth Amendment: Origins, Interpretations, and Means of Enforcement

      The United States Supreme Court has observed that the Fourth Amendment to the United States Constitution grew largely out of early American colonists' negative experiences with writs of assistance and general warrants formerly used in England. (14) Commentators favoring a narrow reading of the amendment's protections often rely on such an interpretation, but the Supreme Court has since acknowledged that the amendment served to protect against other evils as well. (15) The most common area of disagreement regarding the framers' intent and the scope of Fourth Amendment protections, in general, is whether there is a connection between the Reasonableness Clause and the Warrant Clause--some commentators assert that all searches require warrants, while others claim that a general reasonableness inquiry governs all search and seizure issues. (16) Even in cases where a constitutional violation undoubtedly occurred, the exclusionary doctrine--the primary means of enforcing Fourth Amendment strictures--is not always applied, as evidenced by the Supreme Court's creation of multiple exceptions to the doctrine in recent cases. (17)

   2. The Traditional Standard: Probable Cause

      1. The Standard

         The Fourth Amendment provides that warrants are to be issued only upon a showing of probable cause, a requirement that served as the primary, if not sole, standard for determining the validity of searches and seizures for much of the history of this area of litigation. (18) Though courts' definitions varied slightly, the substance of all formulations of the standard is a reasonable ground for belief of guilt based on specific facts in the record, rather than mere general suspicions drawn from other sources. (19) Eventually, courts adopted a more refined standard, requiring that the facts and circumstances known to the police officer, and of which he had reasonably trustworthy information, be sufficient in themselves to warrant a man of reasonable caution in the belief that a crime had been, or was being, committed. (20) The Supreme Court has repeatedly characterized probable cause as a practical, nontechnical conception affording the best possible compromise for accommodating the often opposing interests of private citizens and law enforcement. (21)

      2. Applying the Standard

         The formulation just discussed remains the benchmark to this day, but courts have further refined its analytical application, primarily in response to the ever-increasing use of civilian and confidential informants to provide information in support of warrant applications, as opposed to first-hand observations of police officers. (22) In Spinelli v. United States, (23) the Supreme Court declared that when an informant supplies information used to support probable cause, both the informant's basis of knowledge and his veracity must be established. (24) This two-pronged test, however, was replaced by the "totality of the circumstances" approach established in Illinois v. Gates (25) The totality of the circumstances approach incorporates the basis of knowledge and veracity factors, but as flexible guidelines rather than independent elements, thereby allowing a weak showing in one to be made up for by a particularly strong showing in the other. (26) The Court has been careful to point out that this approach still requires a particularized and objective basis of suspicion regarding the specific individual in question. (27)

   3. The New Approach: General Reasonableness

      1. A Sliding Scale

         While never expressly adopting a sliding-scale approach to Fourth Amendment analysis, the Supreme Court appears to have employed one, as evidenced by its repeated practice of balancing the competing interests of the government, or the public, and the private citizen to determine not whether probable cause exists, but whether an intrusion is reasonable. (28) The resort to a general reasonableness inquiry, however, cuts both ways; government actions involving an unusually high degree of intrusiveness require a more substantial justification than ordinary probable cause--for instance, a "compelling need." (29) Nevertheless, courts generally use interest balancing to relax the relevant standards rather than require more from the police. (30) Many commentators, and even some judges, are troubled by this practice because they recognize that police officers often push any such relaxation or exception to the limit. (31)

         Some commentators are troubled by the very nature of the interest-balancing approach because it rests on the idea that the government or public interest is always at odds with the interests of the private individual, when, in reality, these interests are often aligned. (32) For example, members of communities that experience repeated invasions of privacy by police may, as a result, be less willing to participate in collective activity that benefits society, such as assisting the police in other investigations or participating in community-based organizations, for fear of intensified surveillance. (33) Another criticism of framing the approach in terms of "competing" interests is that courts often view the suppression of evidence as a major harm to the public's interests; however, the inevitable result of the Constitution's protections against unreasonable searches is that officers who obey constitutional strictures will in fact catch fewer criminals. (34)

      2. Warrants: From Requirement to Preference

         There is much debate about whether the Fourth Amendment imposes a warrant "requirement"--a warrant is an indispensable component of a reasonable search--or a warrant "preference"--a warrant helps demonstrate the reasonableness of a particular intrusion, but is not necessarily required. (35) Proponents of the warrant requirement assert that the Fourth Amendment is "quintessentially a regulation of the police," and a judicial predetermination of the basis for probable cause is a necessary check on otherwise unfettered police discretion. (36) The Supreme Court has expressed a similar position. (37) The opposing view is that the Warrant Clause does not inform the Reasonableness Clause, but is independent of it, meaning that a search may be reasonable notwithstanding the absence of a warrant--a position which also finds support in...