Commonwealth v. PrivetteCommonwealth v. Privette
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Firearms. Practice, Criminal, Motion to suppress, Interlocutory appeal. Evidence, State of police knowledge. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Reasonable suspicion, Threshold police inquiry. Threshold Police Inquiry.
Indictments found and returned in the Superior Court Department on October 10, 2018.
A pretrial motion to suppress evidence was heard by Elaine M. Buckley, J.
An application for leave to prosecute an interlocutory appeal was allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Anne Rousseve, Committee for Public Counsel Services, for the defendant.
Kathryn Sherman, Assistant District Attorney, for the Commonwealth.
We are tasked with deciding whether, through the collective knowledge doctrine, information known to other investigating officers may be imputed to the officer who initiated the stop, and thus be included in the calculus of reasonable suspicion without violating
We conclude that, with respect to the horizontal collective knowledge doctrine,
In the circumstances here, some, but not all, of the other investigating officers’ knowledge can be imputed to the acting officer. We conclude that, with or without this imputed knowledge, the officer who stopped the defendant had reasonable suspicion to do so.
1. Background.
a. Facts.
We summarize the relevant facts concerning the stop from the motion judge‘s findings, supplemented by uncontroverted and undisputed facts from the record that have been credited by the motion judge, leaving
On August 12, 2018, Doherty, who was assigned to the police department‘s C-11 district, was working the midnight shift and covering the Clam Point area of Dorchester. He was in plain clothes and driving an unmarked vehicle. At approximately 3:35 A.M., Doherty received a police department radio transmission over channel six2 reporting that there had been an armed robbery at a gasoline station on Morrissey Boulevard. The dispatcher thereafter transmitted a description of the suspect as “Black male, late twenties, five foot seven, blue hoodie, blue jeans, on foot towards [a pharmacy].” In the first dispatch, there was no mention of the suspect having facial hair.
Officers continued to communicate via channel six. Dwan, who was canvassing the surrounding streets, reported at
In response to the dispatched report of the armed robbery, Doherty headed toward the area near the pharmacy from the police station where he had been working. At that time, Doherty had been a Boston police officer for four years and had been working in Clam Point for two years. He also had grown up a few blocks away from the scene of the robbery. Doherty was aware of a large gap in a fence that separated Morrissey Boulevard and Ashland Street not far from the scene. As he was responding to the dispatch, Doherty drove through approximately nine streets
When Doherty saw the defendant at 3:41 A.M., it was raining and dark. Doherty observed that the individual walking toward him was a Black male with facial hair, wearing a green sweater and black jeans, and of the same approximate age as the broadcast description. At the time of the encounter, the defendant was five feet, eleven inches tall and thirty-two years old. Doherty pulled over and parked, identified himself as “Boston Police,” and told the defendant to “show me your hands.” The defendant complied; he made no attempt to run or to evade the officer. Doherty then conducted a patfrisk of the defendant and felt a large wad in the defendant‘s pocket. Doherty instructed the defendant to remove what was in his pocket, which turned out to be $432. No weapons were recovered from the defendant‘s person.
Dwan arrived at the corner of Ashland Street and Everdean Street, from the opposite direction, at the same time that Doherty reached that location. As Dwan approached the defendant from behind, he saw that the defendant was wearing a red plaid backpack. Dwan pat frisked the backpack, without opening it, and felt a hard object near the top. Upon opening the backpack, Dwan saw a silver gun.
b. Procedural background.
On October 10, 2018, a grand jury returned indictments charging the defendant with five firearms offenses.5 He filed a motion to suppress the evidence obtained as a result of the stop, the patfrisk of his person, and the patfrisk of his backpack. He also moved to suppress the subsequent showup identification. Following an evidentiary hearing, a Superior Court judge denied the defendant‘s motion.
In her findings, the motion judge reasoned that Doherty had had adequate reasonable suspicion to conduct the investigatory stop based on the defendant‘s presence “in the locus of the
The defendant filed an application for leave to pursue an interlocutory appeal in the county court pursuant to
On appeal, the defendant challenges only the validity of the stop. He does not challenge the patfrisk of his person or his backpack, nor does he challenge the identification procedure. Thus, the narrow question before us is whether the investigatory stop was constitutionally permissible.
a. Standard of review.
In reviewing a ruling on a motion to suppress, we accept the motion judge‘s findings of fact absent clear error. Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018). We conduct an independent review of the judge‘s application of constitutional principles to the facts found. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
b. Reasonable suspicion.
As an initial matter, the motion judge found, and the parties agree, that the defendant was seized when Doherty announced to him, “Boston Police,” and told him to “show me your hands.” The question before us is whether Doherty had reasonable suspicion to justify the stop. This, in turn, implicates the narrow legal issue whether Dwan‘s and Lopez‘s knowledge and observations that night may be imputed to Doherty, under the collective knowledge doctrine.
i. Collective knowledge doctrine.
The collective knowledge doctrine, sometimes referred to as the fellow officer rule, originated in Williams v. United States, 308 F.2d 326, 327 (D.C. Cir. 1962), where the United States Court of Appeals for the District of Columbia Circuit rejected a defendant‘s assertion that the arresting officer was required to have had firsthand information in order to make an arrest. The court concluded that “the collective knowledge of the organization as a whole can be imputed to an individual officer when he is requested or authorized by superiors or associates to make an arrest.” Id. The United States Supreme Court subsequently adopted the doctrine. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971). The Court initially
More recently, the collective knowledge doctrine has evolved into two different types: horizontal collective knowledge and vertical collective knowledge. Each is used in determining the existence of reasonable suspicion and probable cause. See United States v. Massenburg, 654 F.3d 480, 495-496 (4th Cir. 2011) (distinguishing between horizontal and vertical collective knowledge and analyzing collective knowledge doctrine as it applies to reasonable suspicion); United States v. Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008), cert. denied, 555 U.S. 1121 (2009) (analyzing probable cause based on collective knowledge).
Vertical collective knowledge, the original version of the doctrine, involves one officer directing or requesting another
The horizontal knowledge doctrine, by contrast, permits the aggregation of information known to multiple officers; no one officer need have sufficient information to support probable cause or reasonable suspicion. Instead, “a number of individual law enforcement officers have pieces of the probable cause puzzle” that are aggregated to meet the threshold. See Chavez, 534 F.3d at 1345. Under the horizontal collective knowledge doctrine, officers are not acting at the direction of another, as they would be under the vertical collective knowledge doctrine. See Commonwealth v. Yong, 644 Pa. 613, 636, cert. denied, 139 S. Ct. 374 (2018) (doctrine of horizontal collective
Reliance upon vertical collective knowledge has sparked little controversy and is supported by the United States Supreme Court‘s decision in Hensley, 469 U.S. at 231 (“this rule is a matter of common sense“). By contrast, both Federal and State courts are split over how broadly to apply the horizontal outgrowth of the collective knowledge doctrine, the question at issue here. Moreover, further complicating the issue, notwithstanding the evolution of the doctrine into these two distinct approaches, not all fact patterns will necessarily fall squarely within either the vertical or horizontal framework. See Yong, 644 Pa. at 636, citing Chavez, 534 F.3d at 1345 n.12.
At this point, those courts to have addressed the question of horizontal collective knowledge have required communication between officers prior to an intrusion, a joint cooperative effort, close physical proximity, or some combination thereof. See, e.g., Grassi v. People, 2014 CO 12, ¶ 1, cert. denied, 574 U.S. 1014 (2014) (allowing imputation of collective knowledge to officer only if “(1) that officer acts pursuant to a coordinated investigation and (2) the police possess the information at the time of the search or arrest“). To date, courts have developed at least three variations of the horizontal collective knowledge doctrine.
The United States Court of Appeals for the Fourth Circuit discussed this approach in some detail in Massenburg, 654 F.3d at 491-496. The court noted concerns about the effect that after-the-fact aggregation of information would have on the exclusionary rule. “Because it jettisons the present requirement of communication between an instructing and an acting officer, officers would have no way of knowing before a
Another concern that has been mentioned with the aggregation of uncommunicated information is that it could reward police officers who were acting in bad faith; for example, investigatory teams invariably could find sufficient probable cause or reasonable suspicion based on information that had been learned after the stop. See Gorham, 317 F. Supp. 3d at 473, citing Massenburg, 654 F.3d at 494. For these reasons,
Following a decision by the United States Court of Appeals for the Fifth Circuit, see United States v. Ragsdale, 470 F.2d 24, 30 (5th Cir. 1972), a small number of jurisdictions have adopted an exception to the requirement that the acting officer act with awareness of the other officers’ knowledge, sometimes known as the inevitable discovery exception, see 2 W.R. LaFave, Search & Seizure § 3.5(c), at 351-352 (6th ed. 2020). See, e.g., Hurlburt v. State, 425 P.3d 189, 194-195 (Alaska Ct. App. 2018) (adopting inevitability exception in analysis of reasonable suspicion in case involving driving under influence); State v. Ochoa, 131 Ariz. 175, 178 (Ariz. Ct. App. 1981)
The second approach to the horizontal collective knowledge doctrine requires communication amongst officers to establish that they are engaged in a joint effort, even though explicit communication of the underlying facts supporting reasonable suspicion or probable cause is not necessary. To date, a plurality of United States Courts of Appeals, and a handful of States, have permitted aggregation, so long as there is evidence of some communication between the officers involved in the investigation; relaying the specific facts that provided the basis for reasonable suspicion or probable cause generally has not been required. See United States v. Ramirez, 473 F.3d 1026,
For instance, the United States Court of Appeals for the Fifth Circuit has held that “probable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest, when there is some degree of communication between” those officers (quotations and citation omitted). United States v. Kye Soo Lee, 962 F.2d 430, 435 (5th Cir. 1992), cert. denied, 506 U.S. 1083 (1993). See United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007) (“Under the collective knowledge doctrine, it is not necessary for the arresting officer to know all of the facts amounting to probable cause, as long as there is some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts“). The United States Court of Appeals for the Sixth Circuit permits the knowledge of a group of officers to “be considered in determining probable cause, not
Finally, the minority view, which has been adopted by the United States Courts of Appeals for the First and Third Circuits, and a handful of States (including, to date, Massachusetts), has allowed information to be aggregated amongst officers even absent evidence of any sort of communication between them. See, e.g., United States v. Cruz-Rivera, 14 F.4th 32, 44 (1st Cir. 2021), cert. denied, 142 S. Ct. 1456 (2022), quoting United States v. Azor, 881 F.3d 1, 8 (1st Cir. 2017) (“we ‘look to the collective information known to the law enforcement officers participating in the investigation rather than isolat[ing] the information known by the individual arresting officer‘“); United States v. Whitfield, 634 F.3d 741, 746 (3d Cir. 2010) (“it would be impractical to expect an
ii. Horizontal collective knowledge doctrine under art. 14.
The defendant urges us to reject all forms of the horizontal collective knowledge doctrine; he argues that the doctrine of horizontal collective knowledge undermines the deterrent effect of the exclusionary rule and is offensive to the requirements of
Where there is no directive or instruction from a superior officer, in order to aggregate officers’ knowledge for use in the determination of reasonable suspicion without running afoul of
In order for their knowledge to be pooled such that “[i]n effect all of them participated in the decision to make the
“‘Working as a team’ is also conceptualized as agents working ‘in close communication with one another.‘” United States v. Duval, 742 F.3d 246, 253 (6th Cir.), cert. denied, 574 U.S. 823 (2014), quoting Woods, 544 F.2d at 260. See, e.g., Sandoval-Venegas, 292 F.3d at 1105-1106 (detectives investigating bank robbery “were in continuous collective contact” during pursuit of robber, and one of detectives at scene of arrest knew of facts establishing probable cause and was standing at elbow of officer who made arrest, such that arresting officer need not be viewed as “an island,” but, rather, “their pooled knowledge” could be considered to support probable cause for apprehension of suspected robber). “The inquiry in such a circumstance is ‘whether the individual officers have communicated the information they possess individually, thereby pooling their collective knowledge’ to
For officers in a joint investigation to be considered in close communication, they must be continuously conferring with each other throughout the course of the investigation, exchanging information to the extent possible. See State v. Barnes, 58 Haw. 333, 336 (1977), and cases cited (“While police officers are acting in concert and are keeping each other informed of the progress of a particular investigation, the knowledge of each is deemed to be the knowledge of all“).
“Basing the legitimacy of the stop solely on what the officer who first approaches the suspect knows” rather than on the collective knowledge of the officers involved and communicating throughout the stop “makes little sense from a practical standpoint.” See United States v. Cook, 277 F.3d 82, 86 (1st Cir. 2002). At the same time, the doctrine of horizontal collective knowledge “does not allow officers to make arrests without probable cause simply because some other officer, somewhere, has probable cause to arrest.” See Ochoa, 131 Ariz. at 177. Although all the information giving rise to reasonable suspicion or probable cause need not be explicitly communicated to the acting officer, some of the “critical information” supporting the constitutional justification must be
This approach duly balances the right of individuals to be free from unreasonable searches and seizures with the practical needs of officers jointly conducting investigations that are unfolding from moment to moment. See Commonwealth v. Feliz, 486 Mass. 510, 515 (2020), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 56 (2004) (“There is no ready test for reasonableness except by balancing the need to search or seize against the invasion that the search or seizure entails“). See also Cook, 277 F.3d at 86 (“common sense and practical considerations must guide judgments about the reasonableness of searches and seizures“). It provides flexibility in “dynamic environment[s] marked by the potential for violence,” where officers may have no opportunity to communicate each piece of relevant information during the course of the stop, see id., while nonetheless necessitating general communication amongst officers in order for a stop to pass constitutional muster.
The approach suggested by Justice Cypher, by contrast, would allow post hoc rationalizations by scouring all of the information any number of officers had gathered on a particular subject, over an unlimited time frame and in any location, to
The approach suggested by Justice Wendlandt, on the other hand, would require officers who have been in hot pursuit of a fleeing suspect, communicating over police radio broadcasts, to stop and confer with each other about the facts known to each of them before deciding whether they had sufficient information to stop the suspect, who would be unlikely to stand and wait for this conference to end before continuing to flee. We discern no reason why police using electronic communication while in pursuit should be held to this heightened standard. See Hensley, 469 U.S. at 231, quoting United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976) (“effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and . . . officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information“). Where each officer has communicated his or her knowledge to the others during the course of the pursuit, this shared knowledge is sufficient to establish reasonable suspicion, and the officer conducting the stop is
Contrary to Justice Wendlandt‘s assertions, our approach would not permit an officer on patrol to stop an individual at random and then attempt to create a post hoc justification based on other officers’ knowledge from some previous investigation. The officers all must be involved in a joint, ongoing investigation, and in close communication as they pursue the suspect. Although Justice Wendlandt views the stop here as “rest[ing] on the hope that, post hoc, a judge will cobble together information known to other officers on the team” about which the acting officer is “entirely ignorant and has no basis to believe is known to a fellow officer,” post at , in actuality, the officer who had heard the information about the suspect having a beard was standing at the elbow of the officer who initiated the stop, just as Justice Wendlandt states would be acceptable under the inevitable discovery exception to the exclusionary rule. See post at . Use of the inevitable discovery exception would not, however, address all circumstances that officers might encounter in the course of a developing, real-time pursuit. Here, for instance, had Dwan turned onto another road perpendicular to Morrissey Boulevard and within blocks of the scene of the crime, he would have been heading in a completely different direction from the location of
The approach we adopt balances the right of the suspect to be free from unreasonable searches, with the need of law enforcement and the public to stop someone who is fleeing the scene after having committed a violent crime before further violence is visited upon the public. See Terry, 392 U.S. at 27. As Justice Wendlandt asserts, post at , quoting Terry, supra at 10, Terry‘s “strictly circumscribed permission was designed to give the officer on the scene ‘an escalating set of flexible responses, graduated in relation to the amount of information’ possessed by the officer, during the ‘rapidly unfolding and often dangerous situations’ the officer faces, especially in the nation‘s cities.” Her approach, however, distorts this balance.
Accordingly, here, we conclude that Dwan‘s knowledge may be considered in the calculus of reasonable suspicion pursuant to the horizontal collective knowledge doctrine, but we decline to impute Lopez‘s knowledge to Doherty. The defendant maintains that Lopez‘s knowledge may not be imputed to Doherty because there is no evidence that Lopez communicated the results of his search. We agree with the defendant that Lopez‘s knowledge may not be imputed, but for a different reason: there is no
The defendant also argues that the motion judge did not find the predicate facts that would permit any application of the horizontal collective knowledge doctrine here. Specifically, the defendant maintains that, by omitting mention of the beard from her analysis of reasonable suspicion, the judge actually made a contrary finding that neither Doherty nor Dwan had had knowledge of the subsequent dispatches that reported that the suspect had facial hair. The defendant contends that the judge‘s omission itself was a finding.
“[A]n appellate court may supplement a motion judge‘s subsidiary findings with evidence from the record that ‘is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness‘s testimony.‘” Jones-Pannell, 472 Mass. at 431, quoting Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). Any supplemental facts taken from the record “may not contradict the motion judge‘s findings.” Commonwealth v. Garner, 490 Mass. 90, 94 (2022), citing Isaiah I., supra. Nor does “a general statement crediting witness testimony mean[] that every statement the witness makes on the stand is automatically a fact found by the motion judge.” Garner, supra.
Here, the audio recordings from the dispatch, which were introduced at the hearing, as well as Dwan‘s testimony, confirm
Given this, Dwan‘s knowledge may be imputed to Doherty through the horizontal collective knowledge doctrine. Dwan and Doherty were actively working on apprehending the suspect involved in the armed robbery; indeed, they arrived at the scene of the stop contemporaneously. The two officers jointly conducted a patfrisk of the defendant‘s person and backpack. This is more than sufficient to be considered a joint investigation for a shared, mutual objective. See Sandoval-Venegas, 292 F.3d at 1104 (upholding arrest that was “the culmination of the efforts of two detectives who were working together, in close communication and consultation, and who were both present at the arrest“). Additionally, Dwan continuously provided updates over channel six about the status of his investigation, which Doherty testified to having monitored. That Dwan was in continued, close communication with channel six, and with Doherty upon arrival, further supports application
iii. Over-all calculus of reasonable suspicion.
The defendant argues that, even taking account of all the circumstances, Doherty lacked reasonable suspicion at the time of the investigatory stop, and his motion to suppress should have been allowed. We do not agree.
The similarity of the physical description of the suspect to the defendant, the temporal and physical proximity of the defendant to the scene of the robbery, and the context of the stop gave rise to reasonable suspicion, with or without the information that the suspect had facial hair. See Commonwealth v. Henley, 488 Mass. 95, 103 (2021) (“Although, standing alone, any one of these factors might not have been sufficient to justify the stop, when viewed as a whole, . . . they gave rise to reasonable suspicion“).
We have cautioned that a match between a defendant‘s appearance and a general description alone does not amount to reasonable suspicion, particularly if that general description
At the time of the stop here, however, Doherty knew that the suspect had been described as a Black male, twenty-eight or twenty-nine years old, with a medium build, and five feet, seven inches to five feet eight inches tall. He also knew that the suspect had been described as having facial hair, wearing blue jeans7 and a blue hoodie, and carrying a silver firearm. The defendant generally matched the description of the suspect, in terms of age, height, skin tone, build, and facial hair. Thus, the correspondence between the defendant‘s appearance and the
Undoubtedly, the defendant‘s appearance did not match the description of the suspect in every particular. The defendant was wearing a green sweater, black jeans,8 and a red plaid backpack. In context, the absence of the red backpack in the broadcast description is of little significance. Backpacks, like sunglasses, hats, or a mask, are easily worn, taken off, changed, or discarded. See Commonwealth v. Staley, 98 Mass. App. Ct. 189, 192 (2020).
In addition, as stated, the physical similarities between the defendant‘s appearance and the description of the suspect were supplemented by the defendant‘s geographic proximity to the location of the robbery within minutes of it having taken place. The defendant appears to suggest that his proximity to the scene weighs against a finding of reasonable suspicion, because had he been the robber, he would have traveled farther from the scene in the seven minutes that had elapsed since the robbery. See Warren, 475 Mass. at 536-537 (stop of defendant one mile from scene, twenty-five minutes later, where there was no reported
Here, there was a reported path of flight, and the defendant was found seven minutes after the initial dispatch on a street directly behind the gasoline station that had been robbed. The defendant‘s location was consistent with the reported flight path, which was in the direction of the pharmacy on Morrissey Boulevard. Both the timing and the location of the stop in relation to the armed robbery thus weigh in favor of a finding of reasonable suspicion. See Warren, 475 Mass. at 536 (“Proximity is accorded greater probative value in the reasonable suspicion calculus when the distance is short and the timing is close“). Indeed, given the other circumstances present here, the physical description of the defendant‘s height, build, age, skin tone, clothing, and firearm was sufficient to establish reasonable suspicion even without any mention that the suspect had facial hair.
The defendant argues that being the only person in the area at that hour of the morning is not dispositive. We agree that, taken alone, his location at the time of the stop would be insufficient to warrant a finding of reasonable suspicion. But, given that he was the only person in the vicinity of the robbery at 3:43 A.M., in the rain, within seven minutes of the reported
Order denying motion to suppress affirmed.
I begin my analysis by considering the theoretical framework in which search and seizure analysis typically has been conducted, whether under the
”
“A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.”
Clancy, supra, quoting Belton, supra.
Keeping that purpose in mind, “one of the main principles of
“Reasonableness and the balancing of interests under the Fourth Amendment is an objective inquiry.” 1 J.W. Hall, Search and Seizure § 2.14 (5th ed. Supp. Oct. 2013). This inquiry is fact bound, and “is measured in objective terms by examining the totality of the circumstances.” Id., quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996). “[T]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving.” Kentucky v. King, 563 U.S. 452, 466 (2011), quoting Graham, 490 U.S. at 396-397. The subjective intent of the officers is generally irrelevant; “the only real questions are what do the objective facts show and is this objectively reasonable?” Hall, supra. See 68 Am. Jur. 2d Searches and Seizures § 13 (2020) (“An action is reasonable under the Fourth Amendment regardless of the individual officer‘s state of mind as long as the circumstances, viewed objectively, justify the action; the officer‘s subjective motivation is irrelevant“). Even where an officer declared at the hearing on a motion to suppress that the officer did not believe he or she had sufficient facts to amount to probable cause, that personal opinion is not fatal to the Commonwealth‘s
“[T]he mere subjective conclusions of a police officer concerning the existence of probable cause is not binding on this court which must independently scrutinize the objective facts to determine the existence of probable cause. . . . Moreover, since the courts have never hesitated to overrule an officer‘s determination of probable cause when none exists, consistency suggests that a court may also find probable cause in spite of an officer‘s judgment that none exists.”
LaFave, supra, quoting United States ex rel. Senk v. Brierley, 381 F. Supp. 447, 463 (M.D. Pa. 1974). See Re, Fourth Amendment Fairness, 116 Mich. L. Rev. 1409, 1460 (June 2018) (“[P]olice can act reasonably without being motivated by the considerations that make their conduct reasonable. . . . [Where there are reasonable grounds to act,] requiring that the officer correctly glean the proper basis for her actions would not afford innocent persons any greater protection, and insistence on police perfection would create windfalls for wrongdoers. This default indifference to police motivation aligns with the case law, which focuses on objectively available reasons for action“).
Correspondingly, in Massachusetts, “[s]ubjective intentions play no role” in the reasonable suspicion analysis. J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 4-3[b] (2022 ed.). See Commonwealth v. Buckley, 478 Mass. 861, 865-866 (2018) (“under the authorization test, a stop is reasonable under art. 14 as long as there is a
Additionally, analyzing the intent behind an officer‘s actions “could cause unacceptable variation in the Fourth Amendment‘s application” where its focus on objectivity is meant to promote “evenhanded, uniform enforcement of the law.” Barmore, supra at 298, quoting Ashcroft, 563 U.S. at 736. As a practical matter, determining the nature of subjective motives underlying an individual officer‘s action is difficult. See Brigham City, 547 U.S. at 405 (“It . . . does not matter here -- even if their subjective motives could be so neatly unraveled -- whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence“); Harlow v. Fitzgerald, 457 U.S. 800, 816-817 (1982) (in discussing qualified immunity, “[j]udicial
For the same reasons, when several officers are working together, it will be difficult to decipher the precise knowledge that each individual officer had at various points in the investigation, whether the acting officer had knowledge of “some of the critical facts,” and whether the communications between the officers were sufficiently close and continuous and touched on the “objective” of the police with respect to the investigation. Ante at . Taking into consideration the knowledge of all the officers involved in a police action is consistent with an objective analysis of the totality of the circumstances. See Coleman, Beyond the Four Corners: Objective Good Faith Analysis or Subjective Erosion of Fourth Amendment Protections?, 54 Mercer L. Rev. 1719, 1724 (2003) (“the objective standard is framed by the officer‘s knowledge and understanding of the requirements of the Fourth Amendment. . . . Objective good faith, then, rests on a foundation of Fourth Amendment compliance, not individualized, subjective knowledge of facts known only to the officer“); LaFave, supra at § 9.5(a), at 660-661 (“Certainly it is clear beyond question that the ‘reasonable belief’ required for arrest is not to be determined
In United States v. Cook, 277 F.3d 82, 86 (1st Cir. 2002), the United States Court of Appeals for the First Circuit discussed the reasoning supporting the aggregation of knowledge among officers who are collaborating in a joint effort and held that the knowledge of each officer should be imputed to all officers jointly involved in an investigative stop. “As the Supreme Court has repeatedly noted, common sense and practical considerations must guide judgments about the reasonableness of searches and seizures.” Id. Imputing the knowledge of all the officers working together is practical where “[i]nvestigative stops generally occur in a dynamic environment marked by the potential for violence“; it would make little sense to base the legitimacy of the stop solely on the knowledge of the first officer to reach the suspect. Id. This takes into account the reality of many investigative stops conducted by multiple officers: “rarely will [officers] have an opportunity to confer during the course of the stop.” Id.3
In Massachusetts, as in other jurisdictions, when analyzing probable cause, we look to the entire set of facts and circumstances within the knowledge of the police. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). In discussing the collective knowledge doctrine, the Appeals Court has referred to Santaliz and the consideration of the “whole silent movie” as important to the probable cause determination. Commonwealth v. Gant, 51 Mass. App. Ct. 314, 318 (2001) (aggregating observations of two separate officers to get to probable cause because “[b]oth officers were engaged in a cooperative effort in the investigation of this incident so that we may consider the complete picture“); Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 393 n.8 (1993) (noting collective knowledge doctrine and probable cause standard). “A reviewing court may consider the ‘whole silent movie,’ [Santaliz, supra at 242,] disclosed to the eyes of an experienced . . . investigator rather than
Similarly, when ascertaining whether reasonable suspicion was sufficient, we have objectively examined the totality of the specific, articulable facts presented. Commonwealth v. Meneus, 476 Mass. 231, 235 (2017). “The subjective intentions of police are irrelevant so long as their actions were objectively reasonable.” Cruz, 459 Mass. at 462 n.7. It is of no matter whether an officer is acting in “good faith.” Commonwealth v. Grandison, 433 Mass. 135, 139 (2001). See Commonwealth v. Gentile, 466 Mass. 817, 822 (2014). “Reasonable suspicion is measured by the ‘totality of the circumstances’ and from the collective knowledge of the officers involved in the stop.” K. Wallentine, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders 7 (2d ed. 2020), quoting United States v. Sokolow, 490 U.S. 1, 2 (1989).
With these principles in mind, aggregating the knowledge of officers working together in a cooperative effort in determining whether probable cause or reasonable suspicion was sufficient at the time of a stop or arrest conforms with our practice of analyzing a situation objectively, without regard to the subjective thought process of each separate officer involved. To confine the reasonable suspicion or probable cause analysis
Contrary to the defendant‘s assertion that Massachusetts dramatically has expanded and “strayed from its original efficiency rationale,” Massachusetts applied the collective knowledge doctrine before the Supreme Court discussed the doctrine in Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971). See Stearns, supra, Searches Incident to Arrest (“Massachusetts cases apply the collective knowledge
The court also has recognized certain circumstances in which the collective knowledge doctrine may not be applied. In Commonwealth v. Hawkins, 361 Mass. 384, 385 (1972), officers searched the defendant‘s apartment pursuant to a warrant authorizing a search for drugs. The officers did not find any drugs but did find an envelope containing United States savings bonds with names and addresses that did not match that of the defendant. Id. Another officer looked up the telephone number of one of the persons whose name and address was indicated on the bonds, and after a telephone conversation with the victim, the defendant was arrested. Id. Before the officer made the telephone call, the officers did not know that the bonds were stolen. Previously, the victim had reported the stolen bonds at a police station; none of the searching officers was aware of that report. Id. at 385-386. The court held that the collective knowledge doctrine could not be applied to aggregate the knowledge of the officers because “the police were not aware of the theft reported to station 9 nor were they engaged in a cooperative effort with officers in connection with the stolen bonds who did have this knowledge.” Id. at 387.
Where officers are not engaged in a cooperative effort, the court shall not apply the doctrine, thus limiting the danger of
For over fifty years, Massachusetts courts consistently have applied this doctrine in a horizontal manner where appropriate. In Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 418 (1982), three police officers -- Saunders, Williams, and Callanan -- were patrolling when the defendant and another man drew their attention. Saunders saw that the other man had something in his hand that he was showing to the defendant. Id. When the men noticed the unmarked cruiser in which the officers were riding, they hurriedly moved down the street. Id. Saunders saw the man drop a manila envelope. Id. Williams saw the defendant had something clenched in his hand and appeared to be putting something in his pocket. Id.
The officers got out of the car, and Saunders opened the manila envelope, finding white powder in several wrapped packages. Wooden, 13 Mass. App. Ct. at 418. Saunders placed both the defendant and the other man under arrest. Id. Searching the defendant after his arrest, Williams found packets of cocaine and marijuana in the defendant‘s pockets. Id. at 418-419. The court recognized that Saunders personally did not know that the defendant was clenching his hand and putting something into his pockets. Id. at 421 (“[I]f Williams had been acting alone, he could not have arrested either [party] without
In Commonwealth v. Rivet, 30 Mass. App. Ct. 973, 975 (1991), the Appeals Court rejected an argument made by the defendant that knowledge of the officers should not be aggregated because they did not communicate the known information to one another. Officers Coyle and Dawes both responded to a crash scene, and both determined that there was probable cause to arrest the defendant for operating a motor vehicle while under the influence of intoxicating liquor. Id. at 974. Coyle arrived first and spoke with the defendant, who told him that he had drunk one beer; during their conversation, Coyle noticed that the defendant‘s eyes were glassy and arrested him. Id. When Dawes arrived, approximately ten to fifteen minutes before the defendant‘s arrest, he noticed that the
More recently, in Commonwealth v. Roland R., 448 Mass. 278, 285 (2007), the court applied the collective knowledge doctrine to a set of facts highlighting its importance. The juvenile, entering a court house, placed his bag through an X-ray machine and walked through a metal detector. Id. at 280. When he was
Officer Conway, who was looking out a window on the second floor of the court house, observed Martinez chasing the juvenile. Roland R., 448 Mass. at 280. Conway joined in the chase of the juvenile, along with five to ten other officers, without knowing why the juvenile was being pursued. Id. After several minutes of chasing the juvenile, Conway caught up with him and handcuffed him. Sergeant Detective Terestre, who also was unaware of the reason for the pursuit, gave the juvenile Miranda warnings and asked him why he was running. Id. The juvenile responded that he was running due to the contents of the bag, and on a search of the bag, Terestre found numerous plastic bags of marijuana. Id. The juvenile was arrested. Id.
“[T]he fact that the officers pursuing the juvenile were not personally aware of the circumstances leading to the chase is irrelevant.” Roland R., 448 Mass. at 285. “In determining whether police officers have reasonable suspicion for making a
Roland R. illustrates the value and the practicality of aggregating the knowledge of officers involved in a joint effort. Frequently, officers must act quickly in an emergency situation. Where multiple officers are on foot chasing a suspect, they often do not have the luxury of communicating the details of their knowledge leading up to the chase, or “continuously” communicating regarding their shared objective.
Continuing to apply the doctrine, in Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480 (2007), the Appeals Court imputed the knowledge of one officer to another where they were acting in a cooperative effort to investigate a break-in at a gasoline station in the early hours of the morning. Officers Harvey and Graham were the first to arrive at the gasoline station. Id. at 477. Harvey observed that the front door was “smashed,” and Graham radioed that there had been a break-in. Id. Both officers saw two fresh sets of footprints in the snow leading both toward and away from the gasoline station, which led to fresh tire tracks heading toward a nearby highway. Id. Harvey communicated this information over the radio. Id. Officer Donahue, who was advised of the break-in but did not hear the report of fresh tire tracks, drove south on the highway and then doubled back, seeing a car heading away from the gasoline station toward a rotary. Id. at 478. After radioing to the other officers and confirming that no cars passed their
The Appeals Court imputed the knowledge of Harvey regarding the fresh tire tracks and footprints to Donahue. Quinn, 68 Mass. App. Ct. at 480. “The officers were engaged in a cooperative effort to investigate the break-in at the gasoline station, so ‘it is unnecessary for the detaining officer to know all the information pertaining to the incident. . . . [T]he knowledge of one [police officer] . . . [is] the knowledge of all.‘” Id. at 480-481, quoting Commonwealth v. Zirpolo, 37 Mass. App. Ct. 307, 311 (1994).9
Additionally, in Montoya, 464 Mass. at 576, the court imputed the knowledge of one officer to another in holding that police had probable cause to arrest the defendant. Troopers Porter and Saunders were conducting surveillance in the parking lot of a grocery store in separate, unmarked cars. Id. at 569. Porter saw a pickup truck and sedan parked with the drivers’ windows facing each other and the drivers “hanging out of the
Beyond the cases discussed supra, there are numerous other Massachusetts opinions in which this court or the Appeals Court either mentioned the collective knowledge doctrine or applied it in a reasonable suspicion or probable cause context, without relying on the content or extent of the communications between the officers involved or the sufficiency of the “critical” facts known to the acting officer. See Commonwealth v. Gullick, 386 Mass. 278, 283 (1982), S.C., 462 Mass. 1011 (2012) (“Troopers Johnson, Ellis, and Mackin were engaged in a cooperative effort in the investigation of this incident. We therefore evaluate probable cause on the basis of the collective information of all the officers“); Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) (“Where a cooperative effort is involved, facts within the
Here, the court limits the application of the collective knowledge doctrine in order to prevent officers from making an arrest “without probable cause simply because some other officer, somewhere, has probable cause to arrest.” Ante at , quoting State v. Ochoa, 131 Ariz. 175, 177 (Ariz. Ct. App. 1981). The court‘s discussion of the concerns of jurisdictions that have required communication of the facts underlying reasonable suspicion and probable cause do not support the new rule enunciated here. See ante at . The court cites United States v. Massenburg, 654 F.3d 480, 494 (4th Cir. 2011), where the United States Court of Appeals for the Fourth Circuit stated that the absence of a communication requirement could “create an incentive for officers to conduct searches and seizures they believe are likely illegal,” merely “in the hopes that uncommunicated information existed.” See ante at . But the court fails to explain how aggregating the knowledge of officers working in a cooperative effort without regard to the extent or content of their communications or the acting officer‘s precise knowledge of critical facts, which we have done for over one-half century, would encourage this behavior. The court does not point to one case in which we have held that officers acted
I am mindful that Massachusetts has not adopted the “good faith” exception to the exclusionary rule for purposes of art. 14; instead, we focus on whether violations are “substantial and prejudicial.” Commonwealth v. Hernandez, 456 Mass. 528, 533 (2010). Nonetheless, the principles underlying the exception illustrate why the new rule, as set out by the court, likely will have little to no deterrent effect. “The primary purpose
The typical officer is acting in good faith, quickly, and in concert with his fellow officers. Requiring the officer to pause to assess the state of his knowledge in such circumstances or to assess the level and content of his communication with his fellow officers is an unrealistic, ineffective, and onerous burden. Moreover, where exclusion has no deterrent effect, “admission of the evidence is unlikely to encourage violations of the Fourth Amendment.” Janis, 428 U.S. at 458 n.35. See United States v. Ragsdale, 470 F.2d 24, 31 (5th Cir. 1972) (“Unless we were to presume the unlikely possibility that an officer would be encouraged to conduct an unlawful search on the faint hope that his partner possessed probable cause, no proper
Even accepting that the new rule deters some police misconduct, “it is apparent as a matter of logic that there is little if any deterrence when the rule is invoked to suppress evidence obtained by an officer acting in the reasonable belief that his conduct did not violate” constitutional protections. Illinois v. Gates, 462 U.S. 213, 260 (1983) (White, J., concurring).
“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.”
United States v. Peltier, 422 U.S. 531, 539 (1975), quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974). See, e.g., Brown v. Illinois, 422 U.S. 590, 610 (1975) (Powell, J., concurring) (“police normally will not make an illegal arrest in the hope of eventually obtaining such a truly volunteered statement“). Maintaining the collective knowledge doctrine as we have historically applied it will not encourage officers to act without the requisite suspicion, where, as here, the acting officer reasonably believes that he has sufficient information to stop a suspect. For these reasons, the court is incorrect that my approach would invite “post hoc rationalizations.” Ante at .
The court‘s decision today overturns years of consistent and settled case law within Massachusetts. Contrast Commonwealth v. Rossetti, 489 Mass. 589, 609 (2022) (“Where our . . . jurisprudence does not currently reveal any settled or consistent legal principles surrounding [the issue], we view our decision today as departing only minimally from the principle of stare decisis“). Because I think our steadfast application of the collective knowledge doctrine to officers engaged in a collaborative investigation is consistent with the protections of art. 14, I would not do so.
Putting aside my agreement with the court that there was reasonable suspicion to stop the defendant without resorting to the collective knowledge doctrine, applying the doctrine as it has been applied historically, Lieutenant (then Sergeant) Daryl
As the court concedes, ante at , the three officers were engaged in a joint effort, sparked by communications on the department radio channel, to discover the suspect. Thus, “‘the knowledge of each officer is treated as the common knowledge of all officers’ and must be examined to determine whether reasonable suspicion exists.” Roland R., 448 Mass. at 285, quoting Richardson, 53 Mass. App. Ct. at 206. Applying the
Inserting a requirement that the officers be in “close and continuous” communications with each other about a joint objective and that the acting officer must have knowledge of at least some of the critical facts eviscerates the horizontal collective knowledge doctrine as it has been applied by Massachusetts courts for over one-half century and replaces it with a convoluted test that is problematic in its application. Because I think that our jurisprudence regarding the collective knowledge doctrine is supported by the general objectivity with which we approach search and seizure law under art. 14, and by practical considerations, I would not upend it.
I concur with the court‘s finding of reasonable suspicion, but I respectfully dissent from the decision of the court regarding the retreat from the collective knowledge doctrine.
In detailing this narrow ground for a stop, the Court emphatically rejected the notion that the stop did not implicate core constitutional concerns; “[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person” in a constitutional sense. Id. at 16. A stop and subsequent patfrisk of an individual “is a serious intrusion upon the
Balancing the nature of the invasion and the needs of law enforcement officers to act upon the information they are receiving in real time, the Court set forth the following objective test to permit a warrantless stop: whether “the facts available to the officer at the moment of the seizure . . . [would] ‘warrant a [person] of reasonable caution in the belief‘” that a crime had been, was being, or was about to be committed (emphasis added). Id. at 21-22. In defining the reasonable suspicion test, the Court noted that “[a]nything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches” (emphasis added); and it remarked that a test based on good faith alone would subject the people to the discretion of the police, largely causing the constitutional protections to “evaporate.” Id. at 22. The genesis of this narrow police authorization and the balance upon which it rests counsel that
The court today charts a different path, and there is some good news and some bad. First, the good news: the court rejects what it terms the “minority view” of the “horizontal collective knowledge doctrine.” Ante at . Under this legal regime, the officer on the beat who detains you, pats you down, and invades your personal autonomy by sliding hands up, down and across your body in an ostensible search for weapons is not considered to be acting as an individual human being. Instead, the officer is part of “the” police -- a conceptual collective “organism” apparently composed of a database of inculpatory information about which the individual officer is entirely ignorant at the time he or she stops and frisks you. The officer‘s conduct is justified if somewhere in the dark recesses of “the” police databank there exists information that can be cobbled together post hoc to form the bare minimal showing required for reasonable suspicion. The court rightly rejects this police encounter of the third kind, and that is good news.
Now, the bad news: the court adopts what it terms the “second approach” of the “horizontal collective knowledge” doctrine. Ante at . Under this new order, the individual officer is not part of a faceless, amorphous collective. Instead, he or she is part of a “team” -- a finite set of
In assessing the merits of the court‘s approach, it is important to remember that reasonable suspicion is, by design, not a high hurdle; it is something less than probable cause. It can be based on information as to which the acting officer has personal knowledge -- information based on the officer‘s own observations gathered through the use of his or her own senses. It can also be grounded in information acquired from third parties or other sources of reliable information, whether from 911 calls, police dispatchers, police bulletins, confidential
Holding a law enforcement officer to this bare minimal standard even when he or she is working jointly with others before permitting the officer to intrude on the sanctity of the person does not ignore, as the court surmises, the “practical reality of effective law enforcement.” Ante at . Indeed, it was the recognition of the realities of fast-paced, on the street encounters that was the genesis of the reasonable suspicion standard -- a standard that represents the Court‘s careful calibration between the nature of the invasion of the rights of the individual, on the one hand, and the undeniable needs of law enforcement to urgently respond to suspected criminal activity and potentially dangerous situations, on the other. The Court in Terry set a constitutional floor -- a baseline that we certainly should not (and in my view cannot) abandon under the auspices of
1. Fellow officer rule.
Notably, this case does not concern the fellow officer rule, what the court terms the “vertical” collective knowledge doctrine. Under this rule, the acting officer may assist a fellow officer by executing a Terry-type stop in reliance that the directing officer had a constitutional basis for the stop; in such a case, whether the
The fellow officer rule is “a matter of common sense: the rule minimizes the volume of information concerning suspects that must be transmitted to other jurisdictions or officers and enables police to act promptly in reliance on information from another jurisdiction or officer” (alterations omitted). United States v. Massenburg, 654 F.3d 480, 494 (4th Cir. 2011), quoting Hensley, 469 U.S. at 231. Thus, the fellow officer rule “simply directs us to substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer.”
2. Horizontal collective knowledge doctrine.
Unlike the fellow officer rule, which is a commonsense response to the oftentimes quickly unfolding events officers encounter and allows the acting officer to rely on the verbal (or nonverbal, see note 1, supra) directions relayed by fellow officers, the horizontal collective knowledge doctrine is anathema to the
The doctrine rests on the hope that, post hoc, a judge will cobble together information known to other officers on the team -- information as to which the acting officer is entirely ignorant and has no basis to believe is known to a fellow officer -- to constitute the minimal requirement of reasonable suspicion for the stop. It is divorced entirely from the urgency that birthed the limited nature of the Terry-type stop and frisk –- namely, that the officer at the scene, the one facing the exigencies attendant thereto, needs to be able to rely on the rapidly unfolding information known to him or her as well as the “reasonable inferences which [the officer] is entitled to draw from the facts in light of his [or her] experience.” Terry, 392 U.S. at 27. And it jettisons the careful balance struck by the Court in defining the reasonable
The few cases that provide a rationale for adopting the horizontal collective knowledge doctrine sacrifice this careful balance apparently on the same assumption driving the court‘s decision today -- namely, that officers working as a team in close and continuous communication can communicate some “critical facts,” but cannot be expected communicate the minimal information constituting reasonable suspicion during the course of the fast-paced, dynamically evolving events on the ground. See, e.g., United States v. Cook, 277 F.3d 82, 86 (1st Cir. 2002) (“Investigative stops generally occur in a dynamic environment marked by the potential for violence. Officers who jointly make such stops rarely will have an opportunity to confer during the course of the stop“). Contrary to this distorted view of the balance struck by the Supreme Court in Terry, adherence to the reasonable suspicion standard would not require officers in hot pursuit of a suspect to “stop and confer” or to convene a “conference” while permitting the
Perversely, because the acting officer is totally ignorant as to whether information constituting reasonable suspicion exists, the horizontal collective knowledge doctrine provides incentive to the acting officer to roll the dice and stop an individual knowing that reasonable suspicion is absent, on the off chance that other information unbeknownst to him or her might supply the gaps missing in the reasonable suspicion calculus. See Massenburg, 654 F.3d at 494 (horizontal collective knowledge doctrine “would only create an incentive for officers to conduct search and seizures they believe are
Like the United States Courts of Appeals for the Second, Fourth, and Tenth Circuits, I can find nothing to commend the doctrine and accordingly reject it. See Massenburg, 654 F.3d at 494-495 (“Though we have studied our sister circuits’ cases adopting an aggregation rule, we can find no convincing defense of it. . . . Because we believe the aggregation rule runs contrary to the Supreme Court‘s
To be sure, like the court here, ante at , two of these Federal courts -- the Second and Tenth Circuits -- themselves use the “collective knowledge” language such as “imputed” or “aggregated” information in describing their approach; it is an unfortunate misuse of the terminology. Instead, the courts in these jurisdictions conclude that the acting officer may rely on information communicated to him or her by other officers or sources and that he or she need not have personally observed the information; but the acting officer must have had this information, whether from his or her direct observations or from what had been communicated to him or her, ex ante, before the stop and patfrisk were initiated. See Hussain, 835 F.3d at 316 n.8; Chavez, 534 F.3d at 1345.
The rule should be, and under Terry must be, this: one officer, whether it is the officer who directs the acting officer to stop the suspect (i.e., the fellow officer rule, see discussion and note 1, supra) or the acting officer him- or herself, must have the information constituting reasonable suspicion -- whether it is information as to which the officer has personal knowledge or information he or she has been told -- before the stop and patfrisk are conducted. This is the constitutional balance struck by Terry and its progeny between the rights of the individual to be free from unreasonable searches and seizures and the need to accommodate the law enforcement realities of the quickly unfolding events on the ground.
Laudably, the court rejects the more extreme version of the horizontal collective knowledge doctrine, which treats the
3. Inevitable discovery exception.
The court adopts its version of the horizontal collective knowledge doctrine
Under this long-standing doctrine:
“if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police,
there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct.”
Nix v. Williams, 467 U.S. 431, 447 (1984). See id. at 448-449 (declining to apply exclusionary rule when “volunteer search party would ultimately or inevitably have discovered the victim‘s body“). The doctrine provides that evidence that would otherwise have been excluded is admissible nonetheless if the Commonwealth demonstrates by a preponderance of the evidence “that discovery of the evidence by lawful means was certain as a practical matter, ‘the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression.‘” Commonwealth v. Hernandez, 473 Mass. 379, 386 (2015), quoting Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997) (no exclusion of handgun found in course of unlawful search of trunk because there would have been reasonable suspicion after subsequent showup identification). Thus, our long-standing jurisprudence based on the inevitable discovery doctrine provides a commonsense approach to assuage the fear
4. Reasonable suspicion.
Despite the foregoing, I concur in the judgment because Officer Brian Doherty had the requisite reasonable suspicion; I do so, however, without imputing any of Lieutenant (then Sergeant) Daryl Dwan‘s uncommunicated information. In other words, Doherty, even without the information concerning the suspect‘s facial hair, had reasonable suspicion to stop the defendant.
Briefly, at the time Doherty stopped the defendant, he knew that an armed robbery had been committed a little after 3:30 A.M. The grave nature of the crime and the imminent danger presented by the suspect on the loose in the neighborhood properly may be considered in the reasonable suspicion calculus. See Commonwealth v. Henley, 488 Mass. 95, 104 (2021), quoting Commonwealth v. Depina, 456 Mass. 238, 247 (2010) (“The gravity of the crime and the present danger of the circumstances may be considered in the reasonable suspicion calculus“); Commonwealth v. Evelyn, 485 Mass. 691, 705 (2020) (“circumstances indicated a potential ongoing risk to public safety and therefore weighed in favor of reasonable suspicion“).
Doherty also saw the defendant in close temporal and geographic proximity to the scene of the armed robbery, which had occurred just seven minutes prior to him encountering the defendant. See Commonwealth v. Warren, 475 Mass. 530, 536 (2016) (“proximity of the stop to the time and location of the crime is a relevant factor in the reasonable suspicion analysis“).
It was dark and raining, and Doherty did not see anyone else in the area surrounding the crime scene as he canvassed
Considering the totality of the circumstances,3 it was reasonable for Doherty to stop the defendant. Accordingly, I concur in the judgment.