It is less a neighborhood than a sinkhole. Seventy-five percent of the buildings are burned out or bricked up. The main industries are drug-dealing and the stripping of stolen cars. For police, this section of the Bronx is technically designated a "robbery target area," requiring the precinct's robbery squad to be beefed up and become more diligent.
One April night three years ago, two cops in a patrol car received a radio report of "robbery in progress, man with a gun!" at a gas station. Four minutes later, another radio report told them a black male was still at the station. When they arrived three minutes after that, the attendant, a Hispanic who spoke limited English, said the robber had fled and described him as a "big black guy" with a gun.
Running in the direction to which the gas station attendant had pointed, the cops came upon four black men of medium height and thin-to-moderate build standing on the steps of an apartment house. Inside the threshold of the doorway was a tall, broad black man who held in his left hand a black mid-length overcoat. (The radio report had said the robber had been wearing black.)
With their guns drawn, the cops approached the gathering. One of them herded the four black males on the steps into the lobby, and searched them. The other ordered the large man, who had turned and started walking up the stairs, to stop and put down his coat. (A coat can suddenly be enough of a weapon to allow a more deadly one to come into play.) As the coat fell onto the marble step, a decided "clunk" was heard. The cop felt a hard, small object in a pocket of the coat. It turned out to be a .32 caliber revolver. The large man was promptly handcuffed and arrested for the possession of the gun. Later found in another pocket were two .32 caliber bullets. Not found at all were the proceeds of the gas station robbery. The search of the four other males still being held at gunpoint had also failed to reveal the stolen money. Nor was any of it in the hallway.
When the large man was brought back to the gas station, the attendant said he was not the robber. The gun possession arrest nonetheless stood, the defendant was convicted, and he appealed on the ground that the police search had violated his Fourth Amendment rights.
This month, a four-judge panel of New York state's Appellate Division First Department, upheld the police. After all, an armed robbery had plainly been committed; and the description by the gas station attendant had resembled that of the defendant. Moreover, this had all taken place in a designated robbery target area, thereby intensifying the cops' fear for their safety. Nothing the police had done, including the searches, had violated the Constitution, said the court.
In a concurring opinion, however, Justice Arnold Fein, a veteran jurist with a reputation for being a strict and clear constructionist, declared himself troubled by part of the police action. There had been four other black men beside the defendant who did not fit the description of the armed robber but were nonetheless forced into the lobby of the building and searched.
"Even if the gunpoint stop of the four be deemed reasonable in order to protect the officer who searched the defendant," said Justice Fein, "there was no reasonable basis to search them."
Justice Fein went on to ask a question of his colleagues: "Are Fourth Amendment rights to freedom from 'unreasonable searches and seizures' to be lessened because the events take place in a 'high crime area' or 'robbery target area?' cases, the jurist added, and believes "the courts may be in the process of carving out a high crime area exception" to Fourth Amendment rights.
We're all concerned, Justice Fein continued, with the risk that cops face in those parts of the city, "but there must also be a concern for the rights of those who live in the areas involved. We cannot permit our concern with criminals to turn selected neighborhoods into places where police can make gunpoint stops of citizens who are doing no wrong."
Justice Fein told me that he had recently made this point in a discussion with a colleague who resides, as Fein puts it, in a fancy part of town. "There are embezzlers who live in that expensive neighborhood," said Fein. So, he told the other judge, under the theory that certain constitutional protections must be lessened in high crime areas, if a cop sees a man with a black briefcase in that neighborhood, he might be expected to believe that a search would disclose stolen bonds.