N.D.Cal.: When the gov’t claims “high crime” area justifying pursuit when one flees, it has to prove the area was

Flight in an area the officers claim is “high crime” doesn’t make the area “high crime”–the prosecution has to prove it. Some areas of California, and most of some cities cannot be labeled “high crime” at all. Wardlow requires flight in a high crime area, and this area clearly wasn’t. Therefore, pursuing the fleer into a house was unjustified as lacking legal justification. United States v. Conerly, 2014 U.S. Dist. LEXIS 169937 (N.D. Cal. December 6, 2014):

Turning to the evidence submitted by the parties pertaining to the area surrounding the intersection of Oregon Street and Park Street, the Court concludes the government has not demonstrated that the intersection and immediately surrounding area has a high volume of crime. The government has submitted the testimony of officers that the area in which they first saw Conerly was “an area where narcotics are sold on the street on a daily basis.” Lathrop Police Report, ECF No. 23-2 at 7. But the designation of areas as high crime must be “properly limited and factually based” and should be applied only “to specific, circumscribed locations where particular crimes occur with unusual regularity.” Montero-Camargo, 208 F.3d at 1138. Officer Lathrop’s subjective impression of the character of the neighborhood is not supported by objective indicia of frequent criminal activity that one would expect to find in such an area. This Court previously granted Conerly’s request for a Subpoena Duces Tecum requiring the Berkeley Police Department to produce “[a]ny and all records relating to statistics and other evidence regarding the number of arrests in the last year in the six block radius surrounding the intersection of Oregon and Park Street in Berkeley, California.” ECF No. 84. The information produced by the Berkeley Police Department indicates there were just thirteen arrests for the sale of narcotics within a six block radius surrounding the intersection in the last year. ECF No. 91, Exhibit 5. The Court also observes that the government submitted at the hearing a “heatmap” of criminal activity in the City of Berkeley, which indicates a relatively low concentration of criminal activity and calls for service on the blocks immediately surrounding the intersection of Oregon and Park Streets. The Court concludes that the evidence does not support a finding that the area surrounding the intersection is a “high crime area.”

Therefore, under the totality of the circumstances, Officer Flores lacked reasonable suspicion to detain Conerly upon seeing him flee at the intersection, as the area was not “high crime” and Conerly displayed no indicia other than flight that indicated he was engaged in criminal activity. Therefore, Officer Flores’ attempt to detain Conerly was unlawful and Conerly’s refusal to comply with his command did not provide officers with probable cause to arrest Conerly for a violation of § 148 upon their entry into the Acton Street home.