When Stop and Frisk Comes Home: Policing Public and Patrolled Housing

By Karteron, Alexis | Case Western Reserve Law Review, Spring 2019 | Go to article overview

When Stop and Frisk Comes Home: Policing Public and Patrolled Housing


Karteron, Alexis, Case Western Reserve Law Review


ABSTRACT

In response to programmatic stop-and-frisk, police killings, and other recent controversies in American policing, many have called for "smart policing"--the evidence-based deployment of police resources. An often-heralded example of smart policing is hot spots policing, which involves directing police attention to locations where crime and disorder fester. It is difficult to argue with the logic of hot spots policing, and this Article does not do so. Instead, it critically examines how the Fourth Amendment operates when hot spots policing and similar targeted strategies are used in a common setting: public housing developments and their private counterparts.

Largely because of mass criminalization, Fourth Amendment law allows police to lay siege to public housing and the people who live in it. Public housing developments and their private counterparts have historical reputations as problem places, and law enforcement has subjected these locations to specialized policing programs for decades. Given the low Fourth Amendment standards for stops, arrests, and searches in connection with minor misconduct, that outsized attention combines with the astounding array of conduct regulated in public and patrolled housing to permit police nearly unfettered authority. Fourth Amendment protections usually associated with the home are virtually unrecognizable in these places. Instead, the Fourth Amendment fuels the use of law enforcement as a tool of social control in public and patrolled housing. As such, the harms of programmatic stop-and-frisk are not remedied, but simply concentrated and localized. Policing in public and patrolled housing thus offers a cautionary tale of the limits of "smart policing" as an answer to abusive police practices.

CONTENTS

INTRODUCTION
  I. POLICING PROGRAMS IN PUBLIC AND PATROLLED HOUSING
     A. Targeting Public and Patrolled Housing
     B. Hot Spots Policing
  II. THE FOURTH AMENDMENT IN PUBLIC AND PATROLLED HOUSING
     A. Stop for Anything
           1. Stops for Infractions, Regulations, and House Rules
           2. High-Crime Areas
     B. Arrest for Anything
     C. Search for Anything: The Search Incident to Arrest Exception
        to the Warrant Requirement
     D. Policing Public and Patrolled Housing in New York City:
        "Just Go to the Well"
III. MASS CRIMINALIZATION IN PUBLIC AND PATROLLED HOUSING AND
    FOURTH AMENDMENT VALUES
IV. PROVIDING PROTECTION AND RESTORING DIGNITY TO PUBLIC AND
    PATROLLED HOUSING RESIDENTS
    A. Answering Open Questions of Fourth Amendment Law
    B. State Law
    C. Local Laws and Policies
CONCLUSION

INTRODUCTION

It is axiomatic that the home enjoys the greatest Fourth Amendment protection. Indeed, the "cult of the home" has led to Fourth Amendment jurisprudence that protects the home more than virtually any other location. (1) Although this concept has long been acknowledged to have greater resonance for those with more space rather than less, the notion that "the home is the castle" is widely accepted. (2) But closer examination reveals that this acceptance does not bear the weight of scrutiny. Fourth Amendment protection of the home is particularly circumscribed for some: residents of public housing and private housing developments subject to routine police patrol. (3) Residents of such developments and their visitors are subject to regular and intrusive police encounters--ranging from "voluntary" ones to stops, arrests, and searches--in and around their buildings based on little to no suspicion of criminal activity. These places, and the people who live in them, are subject to extensive scrutiny by law enforcement in the hallways, stairwells, courtyards, and other common spaces of their homes--encounters that are simply unimaginable in residences of the well-heeled and wealthy.

This Article examines the intersection of the policing strategies frequently used in such locations and Fourth Amendment doctrine to argue that Fourth Amendment law plays a critical role in fueling such intense police oversight and surveillance of public and patrolled housing that they are sometimes effectively rendered occupied territories. …

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