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‘High crime’ label new Fourth Amendment flashpoint?

Is the “high crime area” label the new “racial profiling” in Fourth Amendment jurisprudence in Virginia?

In the late ’90s, the rubric of “racial profiling” came under suspicion as a poorly disguised excuse for discrimination against minorities. At a 1999 panel program at the annual Virginia State Bar meeting on profiling in traffic stops, Norfolk lawyer Patricia Wright told the audience that when police “profile,” they use race as a substitute or proxy for criminality.

But in 2002, Virginia State Police reported to a Virginia legislative committee that a year-long study turned up no evidence of a widespread profiling problem. State police had received only 63 race discrimination complaints since 1997 – about half from motorists – out of more than a million “contacts’ per year.

Now there seems to be a heightened sensitivity in courts about the limits of the “high crime” shorthand as a shortcut to reasonable suspicion.

In April the Supreme Court of Virginia handed down decisions in several cases that arose in “high crime” areas. In a split decision, the high court in McCain v. Commonwealth reversed a cocaine conviction that followed a traffic stop in a “high crime” area, saying that even in high crime areas, where there’s a good chance any given individual is armed, Terry v. Ohio requires reasonable, individualized suspicion before a weapons frisk.

Now a 4th Circuit judge has issued an admonition against leaning too hard on the high crime label. Dissenting in U.S. v. Black, Judge Roger Gregory said maybe a man walking near a Richmond housing project had a legitimate reason to keep his hand “cupped” in his pocket on a cold December evening. The panel majority cobbled together reasonable suspicion from a close parsing of the give-and-take during the cop’s encounter with the defendant. But Gregory warned that the majority had created a zone of lower constitutional protection in a poor neighborhood and engaged in “a blatant display of class discrimination of the basest variety.”

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