N.M.I.: When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough

When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough: “‘[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.’” [quoting Kozinski] Here, the area was a beach at 3 am accessible by a one lane road. Commonwealth v. Crisostomo, 2014 MP 18, 2014 N. Mar. I. LEXIS 23 (December 12, 2014) (see this similar holding posted Friday):

B. High-Crime Area

¶ 10 Second, Crisostomo claims that the trial court erred in finding that the beach was a high-crime area because that finding should require more than a police officer’s unsubstantiated testimony that a place is a high-crime area.

¶ 11 The concept of a high-crime area is easy enough to imagine, but lacks a generally accepted definition. See Andrew Guthrie Ferguson & Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 AM. U. L. REV. 1587, 1590 (2008) (“The Supreme Court has never provided a definition. Lower courts are equally imprecise.”). Capitalizing on the concept’s amorphousness, officers routinely season their testimony with the magic words “high-crime area.” Id. at 1590-91. But seldom do they offer evidence- empirical or anecdotal-to back up the claim. Id. at 1591. In effect, testifying officers encourage the fact-finder to take the officer’s word for it. And often a fact-finder does; indeed, the mere mention that a place is a high-crime area “almost always shifts the analytical balance toward a finding of reasonable suspicion.” Id. at 1590.

¶ 12 Because the character of a stop’s location is factual in nature, United States v. Wright, 485 F.3d 45, 53 (1st Cir. 2007), we normally would defer to a trial court’s determinations. Commonwealth v. Atalig, 2002 MP 20 ¶ 69 (stating that we reverse factual determinations only if they are clearly erroneous). After all, the court observed the testimony; it had the benefit of seeing the witness’ body language and hearing the witness’ voice. These observations add color and context that a transcript cannot.

¶ 13 But here, an officer’s confident body language and tone of voice are not enough to prove a high-crime claim. Allowing such a finding solely through unsubstantiated testimony (no matter how confidently stated) would give police the power to transform “any area into a high crime area based on their unadorned personal experiences.” United States v. Montero-Camargo, 208 F.3d 1122, 1143 (9th Cir. 2000) (Kozinski, J., concurring). Yet those experiences can exaggerate the criminality of an area because “[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.” Id. This is natural-even expected-because police “are trained to detect criminal activity”; they view “the world with suspicious eyes.” Id. But seeing some crime does not automatically make a place a high-crime area.

¶ 14 Accordingly, we conclude that an officer’s sense of an area’s criminality by itself is not enough to support a high-crime-area finding. Instead, the Commonwealth must provide objective, verifiable data showing by a preponderance of the evidence that at the time of the arrest, the disputed location had a higher crime rate than other relevant areas in a constitutionally significant manner.

¶ 15 Applying this rule here, there was insufficient evidence to support finding that the beach was a high-crime area. First, one officer said the area was known for “minors consuming alcohol and curfew violations,” was one of the “usual spots for runaways,” and generally “well-known for a lot of illegal activities.” Tr. 8. Later, the other officer added that the beach is a “known area for drug users,” Id. at 59. In each instance, the testimony relied on the area’s reputation. The officers never said how many arrests took place at the beach, how many of those arrests led to convictions, or how those rates differed from other areas. In other words, they never provided the court the data necessary to independently review whether the beach was, in fact, a high-crime area.

¶ 16 In sum, it was an error to label the beach as a high-crime area solely on generalized assertions that an area was well-known for certain illegal activities.