EQUALITY IN THE STREETS Using Proportionality Analysis to Regulate Street Policing

The racially disparate impact and individual collective costs of stop frisk, misdemeanor arrests, pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices Court’s recent tendency to strictly regulate technologically enhanced searches that occur outside street policing setting that—coincidentally or not—happen be more likely affect middle class. If, as has indicated, electronic tracking digital records require probable cause evidence crime will found, frisks should also a committed (in stops) found post-detention searches). This equalization regulatory regimes not only fits general notions fairness. It mandated by Fourth Amendment’s Reasonableness Clause cases construing it, which endorse “proportionality principle” requires justification for search seizure roughly proportionate its intrusiveness.Applying requirement streets would prevent police from carrying out investigative detentions when they believe criminal activity “may afoot.” Rather, it limit such subsequent situations where observe another good basis believing person engaged engaging in an attempted defined jurisdiction. While Terry v. Ohio some other still come same way under this formulation, judicial decisions permitted people simply because avoided police, fit “profile,” acted “furtive” manner, appeared place not. technological bring even significant changes governing incident arrest, could weapon possesses (although, given fact arrest made, handcuffing permitted). Imposing standard developed on can promote equality without sacrificing public safety.In Ohio1 held that, despite reference “probable cause,” may subject brief (a stop) lesser “reasonable suspicion” showing “criminal afoot” then conduct pat-down frisk) if develop reasonable suspicion armed dangerous. gave two reasons invention reasonable-suspicion standard. First, are less intrusive than arrests full therefore take required into custody them evidence.2 Second, need mechanism, short allows nip bud protect themselves others while doing so.3 These explanations notwithstanding, critics claimed supported language history,4 hands too much power police,5 opens door laxer standards whenever government argue interests weaker stronger typical case.6Terry particularly controversial among those concerned about racialized policing, who lambasted decision’s relaxation probable-cause invitation harass color. available data back up claims. In many American cities, tens thousands Black subjected every year, proportion their presence city’s population engagement illegal activity.7 Yet cities like New York during height stop-and-frisk campaign, percentage millions stopped were gun was below one percent, arrested any after ten “hit rates” significantly lower white people.8While stopping frisking pedestrians aspect most maligned racial justice, certainly policing’s only, primary, component. Millions times outright (rather merely based suspicion), claiming violation. And, once again, color disproportionately arrests.9 members groups taken crime10 car unsuccessfully searched violation.11The toll significant. A frisk one’s humiliating easily turn violent event unless complies meticulously with command (especially Black).12 Detention charge, does result conviction, last weeks months color), all personal familial disruption entails.13Street huge. Subjection urban communities routine offenses “walking Black” “driving Latino” raises tensions,14 sends message inferior human beings,15 ruptures relationships police,16 undermines legitimacy government.17 Police patrolling key reason calls defunding abolishing departments become popular Movement Lives.18The say important keeping weapons off streets, forestalling incipient crime, discovering outstanding warrants, serendipitously finding serious and, general, handle neighborhood.19 They backed research suggesting “aggressive policing” produces higher rates robbery, decreases various types thefts crimes, increases seizures guns.20 But there numerous counter-studies type very effective at reducing violence.21Proposals mitigate negative effects legion. effort deter use encounters pretexts reformers advocated decriminalization misdemeanors,22 conversion misdemeanors citation-only offenses,23 reduction custodial generally.24 For reason, propose no longer authority make task off-loaded unarmed officials)25 prohibited asking consent car.26 significantly, want eliminated; Terry, contend, reversed.27No jurisdiction seriously pursued ideas, however. And far contemplating moves, courts facilitated current state affairs. Undoubtedly opened here, but decision interpreted narrowly. Instead, pushed opposite direction. Stops allowed falls activity, virtually automatically occurred.28 relied Terry’s reasoning bolster permit incentivize abuse acting mere hunches, charged otherwise.29This well-documented. related stand telling put damper not—are class (and, concomitantly, people). Jones United States,30 instance, court order before prolonged GPS tracking, States Carpenter,31 warrant cell site location obtained. Counterposed jurisprudence, expose glaring inequality Amendment jurisprudence. took Jones, Carpenter, involving investigations work infringements privacy. do so remotely covertly thus trigger humiliation, stigmatization, fear accompany publicly visible policing. Not surprisingly, survey (some I conducted) strongly suggests spectrum intrusiveness, perceived similar addressed Carpenter.32If frisks). derived directly Amendment. time, promoting argument amendment’s including principle,” posits intrusiveness.33 Following reasoning, said cause, permissible suspicion.The proposition terms, involved Carpenter footing sits tension rationales requiring streets: person, mechanism act occurs.34 neither rationale justifies result. visits constraints liberty autonomy privacy invasions associated cases. applying jurisdiction.As applied street, rule veer original holding, robbery.35 difference rather amorphous conjured thin air, implementing substantive law—specifically, attempts, primary purpose criminalize inchoate behavior precedes crime. Compared courts’ interpretation attempt jurisprudence cabin preemptive relatively precisely observation amounts substantial step toward dangerous proximity commission crime.36 few approving not.37The proposed searches. If currently gaining ascendancy searches, change. Under today’s offense, arrestee weapons, just weapons.38 contrast, converting doctrine carry search, propose, mean automatic. To minimize temptation manufacture discover suspicionless misdemeanant, announce offense time occurs.While change search-incident law, note predicate detention restraints.39 Further, commit (such robbery suspected Terry), present usually exist. Similarly, someone connection drug possession sale. nonviolent jaywalking, trespass, infraction, lacking. nor permitted. itself close recognizing norm traffic-stop context prohibiting cars found.40Thus, restrict practices. most-abused aspects policing: stops. so, help rectify imbalance inherent street-policing Even reforms components remain stymied, norms nonconsensual go long accomplishing goals.After rehearsing article makes clear how disproportionate seizures. explains further implications comparison policing.The places streets. Beginning decision, approved wide array give close-to-unlimited discretion will. prime example permissive attitude, exclusionary rule, doctrine, vagueness (ir)relevance motivations broadened deepened power.Start frisk. At level alone, over dozen address definition suspicion. them, tried distinguish “hunches,” hand, other, “a particularized objective suspecting particular activity.”41 Applying distinction, cannot near border solely apparent Mexican ancestry42 vehicle ancestry whose occupants fail acknowledge agent wave “oddly” him.43 individuals “high problem area” walk away see police44 high-crime area runs police.45 invalidated airport gets plane supposed drug-source city luggage shoulder bag desire conceal he traveling person46 coming pale nervous, heavy luggage, used cash pay his ticket, did provide identifying information tags.47Although differences pairs cases, ephemeral nothing whether “particularized” “objective.”48 Factors ancestry, criminality location, departure characteristics apply hundreds people. failed waved “oddly,” left scene quickly, nervous subjective judgments, relevance factors “suspiciously.” Perhaps realizing this, again stated viewed perspective “versed field enforcement”49 “specialized training.”50 effect, formulation police.David Harris’s lower-court twenty-five years ago supports view.51 Harris concluded insufficient (presaging 2000 Illinois Wardlow52), decided combined evasion constitute suspicion, avoiding itself, ground stop.53 noted “racial incongruity” consideration “along factors.”54 Finally, “almost situation involves drugs, routinely allow following matter course” distinguishing, trafficking simple possession.55It unlikely tightened things past quarter century. fact, 2018, David Rudofsky, relying Philadelphia, frequently “bulge,” uncooperativeness, pockets, neighborhood, nervousness, furtive movements, “flight,” combination thereof, individuals, yet infrequently—well percent time—the produced crime.56 Although report Philadelphia reacted stops, presumably repercussions cities.Police unconcerned pushback granted considerable threat exclusion, real tool monitoring direct effect something recognized;57 occasionally get feedback constitutionality suppression hearing, main concern meeting quotas getting drugs streets.58 Additionally, deterrent exclusion vis-à-vis weakened Utah Strieff,59 unconstitutional admissible if, stop, authorizes arrest. Since jurisdictions warrants exist, often picayune failure fees violations,60Strieff incentivizes suspicion.61As Strieff illustrates, matters worse. decisions, regardless arrest.62 limitation imposes officer must willing authorized,63 latter issue entirely department.64 own constitutions prohibit minor infractions like,65 refused providing additional incentive detain infractions.66Using Due Process Amendment, struck down loitering laws—laws ironically, criminalized suspicious says form stop—on statutes discretion!67 Read generously, least wrongdoing. regulating As William Stuntz pointed out,68 rely petty antisocial vague; rather, codes precisely, penalize inordinately broad pick choose. Indeed, violations called new warrant—not describe ubiquity means us violate (think speeding red-light laws, seat-belt, stop-sign, cell-phone, traffic-lane, turn-signal, equipment violations).69 Misdemeanors subway turnstile jumping, possession, loitering, vandalism, disorderly serve function respect pedestrians.70 league Strieff, (or less) unnecessary each year.Finally, lurking background highly influential both level, refusal investigate motives beliefs. Most famous vein unanimous Whren States71 holding triggered hunch worse) point legitimate stop. pretext envelope upholding validity different committed,72 crimes statute books,73 valid known facts. understandable formal grounds (the prohibits “unreasonable” searches) practical ones (reading officer’s mind difficult). But, together stipulation proof discriminatory intent shown prove violation Equal Protection Clause,74 blind eye biased practices.Street continue generate abysmally low hit rates, color, disrupt police-community relations, fodder anti-policing movement legal bases frisks, radically changed. developments so.The term handed Katz States,75 occurs infringe “expectation … society prepared recognize ‘reasonable.’”76 An surveillance case, meant move scope beyond property orientation had permeated earlier capacious conception. Neither phone booth bugged Katz’s conversation booth’s house, paper, four “constitutionally protected areas” Amendment) terms traditionally defined.77 Nor placement bugging device top common-law trespass.78 sense communication worth constitutional protection interception warrant.79However, next twenty years, doctrines pretty confined application attempts content private communications. Through “knowing exposure” unprotected knowingly displays public.80 “general use” technology generally citizens activities goings-on inside home.81 “evidence-only” declared investigation revealed (as allegedly drug-detection dogs) search.82 “assumption risk” “third party” provided knows know third party assumes risk government.83 apply, pronounced, irrelevant; cause.Beginning dawn twenty-first century, however, began slow about-face. first hit, albeit glancing one, general-public-use doctrine. Kyllo States,84 thermal imager gauge heat differentials though devices easy obtain. Eleven later States,85 attacked knowing-exposure planting travels thoroughfares. year later, Jardines Florida,86 needed drug-sniffing dog putting dent evidence-only momentous date, States87 obtain person’s common carrier, dissenters marked beginning end third-party doctrine.88For purposes, importance set decisions—what call cases—is holdings progeny. Whereas physical confrontation legally minutes goes longer89 systematically running limbs crotch, takes view public,90 covertly. Kyllo, Jardines, privacy—a emphasized my writing91—they discomfort, anger does, color.92 Surveys conducted participants rate “intrusiveness” confirm short-term imaging93 sniffs,94 somewhat accessing financial records.95 today, occurring occurred. adopted cases; explicitly asked so.96 insisted setting, test applies cases.Formal explana