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Predictive Policing and Reasonable Suspicion Emory Law Journal Volume 62 Issue 2 2012 Predictive Policing and Reasonable Suspicion Andrew Guthrie Ferguson Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Recommended Citation Andrew G. Ferguson, Predictive Policing and Reasonable Suspicion, 62 Emory L. J. 259 (2012). Available at: https://scholarlycommons.law.emory.edu/elj/vol62/iss2/1 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. FERGUSON GALLEYSPROOFS2 2/19/2013 9:49 AM PREDICTIVE POLICING AND REASONABLE SUSPICION ∗ Andrew Guthrie Ferguson INTRODUCTION .............................................................................................. 261 I. PREDICTIVE POLICING: AN INTRODUCTION ........................................ 265 A. Predictive Policing: In Context .................................................. 270 1. Intelligence-Led Policing and Theories of Crime and Place ..................................................................................... 271 2. Predictive Models of Crime .................................................. 276 a. Near Repeat Theory ....................................................... 277 b. Risk Terrain Modeling ................................................... 281 B. Predictive Policing: Future Cases ............................................. 284 II. PREDICTION AND THE FOURTH AMENDMENT ..................................... 285 A. Tips: Predicting Criminal Activities of Specific Individuals ...... 288 1. Anonymous Tip Cases .......................................................... 289 2. Known Informant Tips .......................................................... 292 B. Profiles: Predicting Criminal Activities Based on Shared Characteristics ........................................................................... 293 1. Profiling as Prediction ......................................................... 294 2. Predictive Actions ................................................................. 297 3. Probabilities as Prediction ................................................... 298 C. High Crime Areas: Predicting Criminal Activities in Places ..... 300 D. Principles of Prediction and Reasonable Suspicion ................... 303 III. PREDICTIVE POLICING AND REASONABLE SUSPICION ........................ 304 A. Predictive Policing as a Data-Driven “Tip” ............................. 305 1. Predictive Policing as an Anonymous or Informant Tip ...... 305 2. Predictive Policing as a Tip About an Area ......................... 306 B. Predictive Policing as Profiling in an Area of Forecast Crime .......................................................................................... 308 C. Predictive Policing as a Micro-High Crime Area ...................... 310 D. The Future of Predictive Policing and Reasonable Suspicion ... 312 IV. FUTURE CONCERNS WITH PREDICTIVE POLICING ............................... 313 ∗ Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law. 2004 LL.M Georgetown University Law School, 2000 J.D. University of Pennsylvania Law School. With thanks and appreciation to Professors Christopher Slobogin, David Rudovsky, Arnold Loewy, Cara Drinan, Steven Morrison, George Mohler, Jeffrey Brantingham, Joel Caplan, and Leslie Kennedy. Special thanks to Jake Dworkin for his research assistance. FERGUSON GALLEYSPROOFS2 2/19/2013 9:49 AM 260 EMORY LAW JOURNAL [Vol. 62:259 A. Understanding the Logic of Why Prediction Works and Its Limits .......................................................................................... 314 B. Ensuring Reliability, Accuracy, and Transparency .................... 316 1. Reliability and Accuracy ...................................................... 317 2. Transparency ........................................................................ 319 C. Hard Cases ................................................................................. 321 D. Discriminatory Use or Discriminatory Effect ............................ 322 E. Courtroom Effect ........................................................................ 324 CONCLUSION .................................................................................................. 325 FERGUSON GALLEYSPROOFS2 2/19/2013 9:49 AM 2012] PREDICTIVE POLICING AND REASONABLE SUSPICION 261 Very soon we will be moving to a Predictive Policing model where, by studying real time crime patterns, we can anticipate 1 where a crime is likely to occur. INTRODUCTION The future of policing blinks on a computer screen in downtown Los Angeles.2 On that screen, police have predicted the next area of potential criminal activity.3 Based on crime data collection, analysis, and computer modeling, the Los Angeles Police Department (LAPD) is directing patrol officers to a targeted block of expected crime.4 In the LAPD’s Real Time Analysis and Critical Response Division, a new concept of “predictive policing” is being developed based on past crime patterns and sophisticated computer algorithms.5 Promoted as the next smart policing weapon in the war on crime, its promise is to predict crime before it happens.6 In another part of California, police stake out an area of predicted criminal activity. As described by the New York Times, in a parking garage forecast to be the location of future car thefts, two women are arrested after peering into car windows.7 One has an open arrest warrant.8 The other is caught carrying drugs.9 Without the predictive tip, it is arguable that peering into windows in a 1 A National Interoperable Broadband Network for Public Safety: Recent Developments: Hearing Before the Subcomm. on Commc’ns, Tech., & the Internet of the H. Energy & Commerce Comm., 111th Cong. 20 (2009) (statement of William J. Bratton, Chief, Los Angeles Police Department). 2 Guy Adams, The Sci-Fi Solution to Real Crime, INDEPENDENT (London), Jan. 11, 2012, (World), at 32; Joel Rubin, Stopping Crime Before It Starts, L.A. TIMES, Aug. 21, 2010, at A1; Christopher Beam, Time Cops: Can Police Really Predict Crime Before It Happens?, SLATE (Jan. 24, 2011, 6:06 PM), http://www. slate.com/articles/news_and_politics/crime/2011/01/time_cops.single.html; Weekend Edition Saturday (National Public Radio broadcast Nov. 26, 2011), available at http://www.npr.org/2011/11/26/142758000/at-lapd-predicting- crimes-before-they-happen (discussing predictive policing in Los Angeles); see also Andrew Guthrie Ferguson, “Predictive Policing” and the Fourth Amendment, AM. CRIM. L. REV. BLOG (Nov. 28, 2011, 11:25 PM), http://www.americancriminallawreview.com/Drupal/blogs/blog-entry/”predictive-policing”-and-fourth- amendment-11-28-2011. 3 Weekend Edition Saturday, supra note 2. 4 See id. 5 See id. The software used by the LAPD and the Santa Cruz Police Department was developed by Professors George Mohler, Jeffrey Brantingham, Martin Short, and George Tita. Erica Goode, Sending the Police Before There’s a Crime, N.Y. TIMES, Aug. 16, 2011, at A11. 6 Rubin, supra note 2. The idea behind predictive policing preemptive enforcement using crime data was named one of Time’s 2011 Fifty Best Inventions of the Year. Lev Grossman et al., The 50 Best Inventions of the Year, TIME, Nov. 28, 2011, at 55, 82 (discussing preemptive policing). 7 Goode, supra note 5. 8 Id. 9 Id. FERGUSON GALLEYSPROOFS2 2/19/2013 9:49 AM 262 EMORY LAW JOURNAL [Vol. 62:259 parking garage is sufficient reason to be stopped and detained by police.10 But with the predictive technologies the constitutional questions become more difficult. Can a computer program that predicts the probability of future crime locations change Fourth Amendment protections in the targeted area? Are data-driven “hunches” any more reliable than personal “hunches” traditionally deemed insufficient to justify reasonable suspicion?11 What measures exist to examine the reliability and accuracy of these new policing tools?12 These questions, and more, are raised by the use of any predictive policing strategy. This Article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. More broadly, this Article addresses the theoretical and doctrinal impact of predictive policing on the Fourth Amendment, leaving for future projects an empirical study of the program’s effectiveness or practical results. In its current form, the technology is too new to make any definitive conclusion on its merits as a crime suppression technique.13 Yet, as can be seen by the growing interest in the concept of predictive policing in the form of test programs, major government grants, national news articles, and awards, the future is now, and the constitutional implications of that future must now be addressed.14 This Article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current Fourth Amendment law are implicitly or explicitly based on 10 See Tessa Stuart, The Policemen’s Secret Crystal Ball, SANTA CRUZ WKLY., Feb. 15, 2012, at 9 (arguing that “the two women from The New York Times article were first stopped because they were in violation of a municipal code called the parking lot trespass law”). 11 See, e.g., United States v. Arvizu, 534 U.S. 266, 274 (2002) (requiring more than
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