To find analogies to how predictive policing might affect Fourth
Amendment protections, Ferguson reviews various Fourth Amendment
court cases involving anonymous tips, informant tips, profiling,
and high crime area designations. Tips refer to the activities of
particular individuals. Predictive policing forecasts do not.
Consequently, Ferguson argues, "Because predictive policing does
not provide personal knowledge about an ongoing crime, or
particularized identification of the suspect involved, it cannot
support the weight of reasonable suspicion.”
On the other hand, if a specific area has been identified by the
computer program as being at higher risk for an outbreak of, say,
burglaries, then courts would likely accept reasonable suspicion
arguments by police who had stopped a suspect in that area fitting
a burglar "profile,” e.g., carrying duffel bags, tools, ropes,
gloves in warm weather, etc. Ferguson concludes that "predictive
policing forecasts, alone, will not constitute sufficient
information to justify reasonable suspicion or probable cause,” but
instead will be seen by courts as a "plus factor” in making such
Ferguson also expresses the hope that the advent of predictive
policing might "cause courts to rethink the current overly flexible
approach to reasonable suspicion.” One possible liberty-enhancing
benefit from predictive policing might be that by focusing law
enforcement attention on specific city blocks that innocent
citizens living in higher crime neighborhoods (often inhabited by
members of ethnic minorities) may experience less intrusive police
contact. Is it too much to hope that better crime forecasts will
not only lead to fewer crimes, but also to less police interference
with our liberties? Maybe not. But we should always keep in mind
that any new technology that helps the police to better protect
citizens can also be used to better oppress them."
Read the full article in Reason Magazine, "Stopping Crime Before It Starts"
Professor Andrew Ferguson teaches and writes in the area of criminal law, criminal procedure, and evidence. Read his full bio here.