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.”