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Amicus brief challenges “high-crime area” and “unprovoked flight” as justifications for police stops

July 12, 2022

The Fourth Amendment is supposed to protect people from unreasonable searches and seizures, yet Supreme Court precedent has eroded this right over the years. By relying on vague factors to define “suspicion,” the Supreme Court has granted police broad discretion to engage in racial profiling when deciding to stop a person and search them. According to the Supreme Court’s decision in Illinois v. Wardlow, a person’s presence in a “high-crime area” coupled with “unprovoked flight” from the police can constitute the reasonable suspicion necessary for a police stop. An amicus brief written by Public Justice Center Murnaghan Fellow Michael Abrams and joined by the ACLU of Maryland and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs in Washington v. State of Maryland called on the Court of Appeals of Maryland to define and limit the “high-crime area” and “unprovoked flight” factors so that they cannot serve as proxies for race. The Court recently agreed to hear the case.

In Washington v. State of Maryland, Baltimore police officers were patrolling a city neighborhood when Tyrie Washington and a friend spotted the police car and took off running. Officers eventually chased Mr. Washington down, searched him, and recovered a weapon. During the subsequent trial, Mr. Washington moved to suppress the evidence, arguing the search violated his Fourth Amendment rights. The Circuit Court for Baltimore City denied Mr. Washington’s motion, relying on Wardlow.

The Court of Special Appeals affirmed the Circuit Court’s decision but made a point to highlight the extensive criticisms of Wardlow that have developed in the 20 years since that decision. First, the Supreme Court never defined what makes a “high-crime area” or what evidence is required to prove it. As a result, courts essentially take for granted that an area is “high-crime” when a police officer says so. Second, the Supreme Court assumed that the only reasonable explanation for running from the police is “consciousness of guilt.” The Supreme Court ignored that many people reasonably fear the police, especially people of color living in overpoliced neighborhoods. While the Court of Special Appeals concluded it was bound by Wardlow and similar Maryland decisions, it emphasized that these factors effectively lower the bar for “reasonable suspicion” in predominantly Black and Latine neighborhoods.

Taking the lower court’s invitation, the Maryland Office of the Public Defender then petitioned for the Court of Appeals of Maryland to take the case, arguing that it should define and limit these factors when determining whether a police officer has reasonable suspicion to stop a person. Our amicus brief in support of the petition explained how the “high-crime area” and “unprovoked flight” factors are essentially proxies for race, granting police the discretion to engage in racial profiling. The brief explains that flight from police is a reasonable response and not inherently suspicious, given that many Black people and other people of color are justifiably afraid of police because of the history of police violence and surveillance in their communities. Nor do the “high-crime area” justifications reliably correspond with actual crimes: empirical research shows that police invoke the “high-crime area” factor more than any other but are least likely to find contraband in stops based on it. The “high-crime area” factor is a catch-all that police can invoke to justify their weakest stops, with little to no judicial oversight because their discretion over the factor is so broad. The Court of Appeals agreed to hear the case, and we look forward to providing a full amicus brief on the merits.

Thank you to PJC paralegal Lena Yeakey for helping to produce the brief.