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July 3, 2006

Here's a golden oldy from the archives:  the post of May 28, 2006.

Location, location, location.  Every criminal defense attorney knows that the Cleveland Police Department subscribes to Tuco's Law of Human Dichotomies in believing that there are two kinds of people in this world: those who live in "high crime areas," and those who don't, the former group coinciding fairly precisely with the population of the City of Cleveland.

Fortunately, it hasn't spread to the suburbs, at least according to the court in Euclid v. Favors, which involved the propriety of a stop and frisk by a Euclid policeman.  The stop was more than a little bit shaky, anyway; after the defendant gave contradictory answers to the officer's questions, the officer claimed to have seen a gun pointing at him from underneath Favor's coat. The officer exited the car, drew his gun, ordered Favors to the ground, cuffed him, and reached into his right hand coat pocket to retrieve the gun. Which, it turned out, wasn't there. A search of the left hand coat pocket was more fruitful, revealing a quantity of marijuana; a continuation of the search found more marijuana in a pants pocket.

The municipal court suppressed the search, and the appeals court found the state's justification for the search similarly unimpressive, noting that, "the area of Euclid where Favors was stopped and questioned is not known as a high crime area." This raises the mildly interesting question of whether that would have made any difference.

In fact, it's a little difficult to determine from the case law exactly what impact a "high crime area" has on the analysis of stops and frisks. According to our good buddy Lexis, that phrase or a close variant appears in no fewer than 193 Cuyahoga County appeals cases in the past ten years, the latest less than two weeks ago.  And in the leading Ohio case on stop and frisk, State v. Bobo, 37 O.St.3d 177 (1988), the fact that the area was "high crime" was one of the "totality of the circumstances" the Court used in gauging the legitimacy of a stop and frisk.

On the other hand, you have this language from State v. Clark:

The general "special attention check" issued for the area does nothing to create reasonable suspicion in a particular case. If this were so, any individual found in an area so designated would be a criminal suspect subject to a Terry stop. Even in high crime areas, a citizen is entitled to the presumption that he obeys the law. The investigatory stop in a high crime or "special attention" area still requires specific, articulable facts about the individual suspect or it is nothing more than random harassment.

On the surface, Bobo makes logical sense: a pedestrian waving at cars on Kinsman has different connotations than the same activity occurring in Beachwood. But then again, there are a lot of people who wave at cars on Kinsman for the same reason they wave at them in Beachwood. Absent some other indication of criminal activity, it's not clear what the phrase "high crime area" adds to the equation.

And it may be that the phrase has become so overworked that it doesn't contribute anything. At the last oral argument I had on a search and seizure issue, the panel openly laughed at the prosecutor's "high crime area" reference.

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