Commonwealth v. Privette ( 2023 )

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SJC-13248
COMMONWEALTH vs. DAVID PRIVETTE.
Suffolk. September 9, 2022. - March 28, 2023.
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.
2
GAZIANO, J. On a rainy, early morning in August of 2018,
Boston police officers received a report of an armed robbery of
a gasoline station in the Clam Point area of the Dorchester
section of Boston at 3:35 A.M. The first radio report described
the suspect as a "Black male, late twenties, five foot seven,
blue hoodie, blue jeans, on foot towards [a pharmacy]." Later
dispatches added that the suspect had facial hair. Seven
minutes after the first dispatch, and one street away from the
location of the armed robbery, an officer stopped the defendant.
Contemporaneously, other officers responding to the call were
canvassing the area for potential suspects; one of the officers
continued to communicate via the police department radio channel
dedicated to use in the area. This officer arrived at the
location of the investigatory stop at the same time as the
officer who initiated the stop. After a patfrisk of the
defendant's person and his backpack by both officers revealed
$432 and a firearm, the defendant was arrested and indicted for
multiple firearms offenses. He filed a motion to suppress the
items seized as a result of the stop, on the ground that the
officer who initiated it lacked the requisite reasonable
suspicion. After an evidentiary hearing, a Superior Court judge
denied the motion, and the defendant sought interlocutory
review. The single justice allowed the appeal to proceed in the
3
Appeals Court, where the court affirmed the denial of the motion
to suppress. We then allowed the defendant's application for
further appellate review.
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 art. 14 of the Massachusetts Declaration of
Rights. To date, we have permitted the aggregation of
information known to one police officer to other officers for
consideration in the calculus of reasonable suspicion or
probable cause, even without evidence of communication among the
officers, so long as they were engaged in a cooperative effort.
See, e.g., Commonwealth v. Mendez, 476 Mass. 512, 519 n.8 (2017)
(trooper's knowledge that defendant was suspect in shooting was
imputed to other arresting officer, even absent evidence of
direct communication between officers), citing Commonwealth v.
Quinn, 68 Mass. App. Ct. 476, 480-481 (2007), quoting
Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) ("Where a
cooperative effort is involved, facts within the knowledge of
one police officer have been relied on to justify the conduct of
another"); Commonwealth v. Montoya, 464 Mass. 566, 576 (2013)
(imputing one officer's knowledge that individual just purchased
drugs to acting officer absent communication); Commonwealth v.
4
Roland R., 448 Mass. 278, 285 (2007) ("the knowledge of each
officer is treated as the common knowledge of all officers"
[citation omitted]).
We conclude that, with respect to the horizontal collective
knowledge doctrine, art. 14 requires more. To be consistent
with the requirements of art. 14, in order to aggregate
officers' knowledge, the officers must be involved in a joint
investigation, pursuing a mutual purpose and objective, and they
must be in close and continuous communication with each other
about that shared objective. While the officer who actually
effectuates the stop need not have personal knowledge of all of
the officers' pooled knowledge giving rise to reasonable
suspicion or probable cause, the officer must be aware of at
least some of the critical facts and must have been in
communication with others who have such knowledge.
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
5
certain details for later discussion. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015). Three Boston police
officers testified at the evidentiary hearing on the motion to
suppress: Officer Brian Doherty, Lieutenant Darrell Dwan,1 and
Officer Luis Lopez. The motion judge found each testifying
officer credible without qualification.
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
1 At the time of the robbery, Dwan held the rank of
sergeant.
2 Channel six is the dedicated police channel for the C-11
area and is transmitted to the entire district.
6
3:37 A.M. that no one was present on his part of Morrissey
Boulevard.3 Over the course of the next seven minutes, the
dispatcher transmitted two additional descriptions of the
suspect over channel six. A second transmission was broadcast
at 3:38 A.M. and described the suspect as being "a Black male,
twenty-eight, twenty-nine, medium build, five foot seven, five
foot eight, blue hoodie, blue jeans, with facial hair, silver
firearm." The final description was dispatched at 3:41 A.M.,
and described the suspect as a "Black male, twenty-eight,
twenty-nine, medium build, five foot seven, five foot eight,
blue hoodie, blue jeans, some facial hair."4
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
3 Dwan confirmed via channel six that no one was present on
Morrissey Boulevard. The recordings of the dispatches, which
were introduced in evidence, support this testimony.
4 Dwan testified that he heard updated descriptions of the
suspect and that he knew the suspect had facial hair.
7
without seeing anyone else outside; he was monitoring channel
six while driving. Seven minutes after the robbery, Doherty
came across the defendant on Ashland Street.
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.
8
Lopez also was on duty on the night of the robbery. In
response to the communications on channel six, Lopez drove
around the surrounding Clam Point neighborhood, focusing his
efforts on Victory Road and the area near the pharmacy. Nothing
in the record indicates that Lopez communicated with anyone
during his surveillance, nor that he was involved in the stop of
the defendant. After observing no one in the area, Lopez
transported the victim to the scene of the stop for a showup
identification. Following a positive identification by the
victim, the defendant was arrested.
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
5 The charges included armed robbery, G. L. c. 265, § 17;
possession of a firearm during the commission of a felony, G. L.
c. 265, § 18B; possession of a firearm as an armed career
criminal, G. L. c. 269, §§ 10 (a), 10G (b); possession of
ammunition without a firearm identification card, G. L. c. 269,
§ 10 (h); and carrying a loaded firearm, G. L. c. 269, § 10 (n).
9
robbery and within minutes of its occurrence." She also
considered the early morning hour, the fact that the defendant
was the only person observed in the area, and the fact that he
fit the general description that was broadcast on channel six.
The defendant filed an application for leave to pursue an
interlocutory appeal in the county court pursuant to Mass. R.
Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). The
single justice allowed the application and ordered the appeal to
proceed in the Appeals Court. The Appeals Court affirmed the
denial of the motion to suppress. See Commonwealth v. Privette,
100 Mass. App. Ct. 222, 222-223 (2021). In its calculus of
reasonable suspicion, the Appeals Court supplemented the motion
judge's findings by imputing to Doherty Dwan's knowledge that
the suspect had a beard and that Dwan saw no one walking in the
area of Morrissey Boulevard or Victory Road. Id. at 228. The
Appeals Court also imputed to Doherty Lopez's knowledge that no
one had been present in the area of Victory Road. Id. In
affirming the denial of the motion to suppress, the Appeals
Court held that the defendant's appearance, his proximity to the
scene, and the fact that he was the only person outside in the
surrounding area all supported a determination that there was
reasonable suspicion. Id. at 231-233. We granted the
defendant's application for further appellate review.
10
2. Discussion. 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. Article 14 provides that
"[e]very subject has a right to be secure from all unreasonable
searches, and seizures, of his person." To justify an
investigatory stop under art. 14, a police officer must have
reasonable suspicion that the person stopped has committed, is
committing, or is about to commit a crime. Commonwealth v.
Costa, 448 Mass. 510, 514 (2007). The reasonable suspicion
analysis examines "the totality of the facts on which the
seizure is based." Commonwealth v. Meneus, 476 Mass. 231, 235
(2017). Reasonable suspicion "must be based on specific and
articulable facts, and reasonable inferences therefrom, in light
of the officer's experience" (citation omitted). Commonwealth
11
v. Gomes, 453 Mass. 506, 511 (2009). See Terry v. Ohio, 392
U.S. 1, 21 (1968). Reasonable suspicion also must be more than
a hunch. Commonwealth v. Lyons, 409 Mass. 16, 19 (1990).
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
12
concluded that "[c]ertainly police officers called upon to aid
other officers in executing arrest warrants are entitled to
assume that the officers requesting aid offered the magistrate
the information requisite to support an independent judicial
assessment of probable cause." See id. The Court later held
that, in forming reasonable suspicion for an investigatory stop,
officers could rely on a police bulletin issued by another
police department, even though the acting officers were not
"themselves aware of the specific facts which led their
colleagues to seek their assistance." See United States v.
Hensley, 469 U.S. 221, 231 (1985).
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
13
officer to conduct a stop, frisk, search, or an arrest. Courts
review the validity of the intrusion based on the directing
officer's knowledge. See Massenburg, 654 F.3d at 493 ("the
collective-knowledge doctrine simply directs us to substitute
the knowledge of the instructing officer or officers for the
knowledge of the acting officer"). In this context, it is not
necessary for the acting officers to have personal knowledge of
the facts establishing reasonable suspicion or probable cause,
because the acting officers "are acting as the agents or proxies
of, or are relying on information provided by, the officers who
possess probable cause or reasonable suspicion." United States
v. Gorham, 317 F. Supp. 3d 459, 473 (D.D.C. 2018).
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
14
knowledge is one in which "the arresting officer does not have
the requisite knowledge and was not directed to so act").
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 (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.
15
The United States Courts of Appeals for the Second, Fourth,
and Tenth Circuits, and a plurality of the States6 to have
addressed the issue, have required evidence that the actual
facts underlying the analysis of reasonable suspicion or
probable cause be communicated to the acting officer prior to
the stop, frisk, search, or arrest. See, e.g., United States v.
Hussain, 835 F.3d 307, 316 n.8 (2d Cir. 2016).
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
6 See People v. Chalak, 48 Cal. App. 5th Supp. 14, 20
(2020); State v. Cooley, 457 A.2d 352, 353 (Del. 1983); Montes-
Valeton v. State, 216 So. 3d 475, 479 (Fla. 2017); State v.
Fischer, 230 Ga. App. 613, 614 (1998), overruled on other
grounds by Workman v. State, 235 Ga. App. 800, 803 (1998); State
v. Barnes, 58 Haw. 333, 336-337 (1977); State v. Amstutz, 169
Idaho 144, 148 (2021); People v. Creach, 69 Ill. App. 3d 874,
882 (1979); State v. M.J.M., 837 N.E.2d 223, 226 (Ind. Ct. App.
2005); State v. Miller, 49 Kan. App. 2d 491, 497 (2013); State
vs. Giannini, N.M. Ct. App., No. 34,199, slip op. at 5 (July 20,
2016); State v. Battle, 109 N.C. App. 367, 371 (1993); State v.
Rahier, 2014 ND 153, ¶ 15; State v. Ojezua, 2016-Ohio-2659, ¶¶
38-40 (App. Ct.); State v. Mickelson, 18 Or. App. 647, 650
(1974); State v. Mohr, 2013 S.D. 94, ¶ 18; State v. Echols, 382
S.W.3d 266, 278 (Tenn. 2012); McArthur v. Commonwealth, 72 Va.
App. 352, 365 (2020); Guandong v. State, 2022 WY 83, ¶¶ 19-20.
16
search or seizure whether the aggregation rule would make it
legal, or even how likely that is." Id. at 494. Jurisdictions
adopting this approach have explained that the deterrent effect
of the exclusionary rule would be greatly limited without a
requirement of communication; the absence of such a requirement
could create incentives for officers to conduct illegal searches
and seizures, knowing that there was no reasonable suspicion or
probable cause, on the slim chance that someone else on the team
had had the requisite information. See id. ("Perhaps an officer
who knows she lacks cause for a search will be more likely to
roll the dice and conduct the search anyway, in the hopes that
uncommunicated information existed"). See McArthur v.
Commonwealth, 72 Va. App. 352, 365 (2020) (citing similar
concerns that "the legality of a warrantless search would depend
solely on whether officers [were] able to gather information
held by other officers, after-the-fact, to create reasonable
suspicion or probable cause").
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,
17
jurisdictions that limit the horizontal collective knowledge
doctrine require communication of the pertinent information
prior to permitting it to be factored into the calculus of
reasonable suspicion or probable cause. See, e.g., Chavez, 534
F.3d at 1345, citing United States v. Shareef, 100 F.3d 1491,
1504 (10th Cir. 1996) ("In such situations, the court must
consider whether the individual officers have communicated the
information they possess individually, thereby pooling their
collective knowledge to meet the probable cause threshold");
State v. M.J.M., 837 N.E.2d 223, 226 (Ind. Ct. App. 2005) ("In
order to rely on collective knowledge, the knowledge sufficient
for reasonable suspicion must be conveyed to the investigating
officer before the stop is made").
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)
18
(declining to hold intrusion was unconstitutional "simply
because a member of the team having less knowledge than the
others moved too quickly and did what the more knowledgeable
members of the team would imminently and lawfully have done");
Smith v. State, 719 So. 2d 1018, 1023 (Fla. Dist. Ct. App. 1998)
("when the officer who does possess the probable cause is in a
close time-space proximity, evidence of a direct communications
link between the officers is not necessarily required"); Yong,
644 Pa. at 636 ("we hold the seizure is still constitutional
where the investigating officer with probable cause or
reasonable suspicion was working with the officer and would have
inevitably and imminently ordered that the seizure be
effectuated").
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,
19
1032, 1037 (9th Cir. 2007). See, e.g., State v. Breeding, 200
So. 3d 1193, 1200 (Ala. Crim. App. 2015), quoting United States
v. Esle, 743 F.2d 1465, 1476 (11th Cir. 1984), overruled on
other grounds by United States v. Blankenship, 382 F.3d 1110,
1122 n.23 (11th Cir. 2004) ("[I]t is a 'well-recognized
principle that, where a group of officers is conducting an
operation and there is at least minimal communication among
them, [the appropriate course is to] look to the collective
knowledge of the officers in determining probable cause'").
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
20
just the knowledge of the individual who physically effected the
arrest," so long as the "agents [were] in close communication
with one another." United States v. Blair, 524 F.3d 740, 752
(6th Cir. 2008), quoting United States v. Woods, 544 F.2d 242,
260 (6th Cir. 1976). Otherwise put, the requirement of
communication "serves to distinguish between officers
functioning as a 'search team,' and officers acting as
independent actors who merely happen to be investigating the
same subject" (citation omitted). United States v. Gillette,
245 F.3d 1032, 1034 (8th Cir.), cert. denied, 534 U.S. 982(2001).
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
21
officer in such a situation to communicate to the other officers
every fact that could be pertinent in a subsequent reasonable
suspicion analysis"); State v. Goff, 129 S.W.3d 857, 863 (Mo.
2004) (declining to require specific communication between
officers in order to aggregate information in making
determination of reasonable suspicion or probable cause). See
also Mendez, 476 Mass. at 519 n.8 (imputing uncommunicated
knowledge from one officer to another in calculus of reasonable
suspicion). These jurisdictions reason that no communication is
required because the officers are working together on the same
investigation; the officers thus have a "nexus to the
investigation," Goff, supra, are "involved in the [same]
investigation," United States v. Fiasconaro, 315 F.3d 28, 36
(1st Cir. 2002), or are acting as a "single organism," Shareef,
100 F.3d at 1504 n.6.
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 art. 14. The Commonwealth argues that we
need not reach the issue here, because Doherty had reasonable
suspicion without imputing the knowledge of Dwan and Lopez to
him.
22
We conclude that, to comport with art. 14, application of
the horizontal collective knowledge doctrine must be limited,
but not so much so that it disregards the practical reality of
effective law enforcement. See Beck v. Ohio, 379 U.S. 89, 91
(1964) ("The rule of probable cause is a practical, nontechnical
conception affording the best compromise that has been found for
accommodating . . . often opposing interests. Requiring more
would unduly hamper law enforcement. To allow less would be to
leave law-abiding citizens at the mercy of the officers' whim or
caprice" [citation omitted]).
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 art. 14, the officers must be involved in a joint
investigation, with a mutual purpose and objective, and must be
in close and continuous communication with each other about that
objective. See, e.g., United States v. Sandoval-Venegas, 292
F.3d 1101, 1105 (9th Cir. 2002). While the acting officer need
not have knowledge of all of the facts giving rise to reasonable
suspicion or probable cause, the officer must have knowledge of
at least some of the critical facts. See, e.g., United States
v. Bernard, 623 F.2d 551, 560-561 (9th Cir. 1979).
In order for their knowledge to be pooled such that "[i]n
effect all of them participated in the decision to make the
23
arrests," Bernard, 623 F.2d at 560, the officers must be
actively involved in the same investigation, with a shared and
mutual objective. See United States v. Nafzger, 974 F.2d 906,
914 (7th Cir. 1992) (all officers "were part of a coordinated
investigation" of defendant who was suspected of being involved
in organized crime ring). The officers must be "functioning as
a team," as opposed to working as "independent actors who merely
happen to be investigating the same subject" (citation omitted).
See Ramirez, 473 F.3d at 1033; Gillette, 245 F.3d at 1034.
"'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
24
satisfy the relevant standard." United States v. Whitley, 680
F.3d 1227, 1234 n.3 (10th Cir. 2012), quoting Chavez, 534 F.3d
at 1345.
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
25
shared with, or otherwise known to, that officer, and the
exchange of information among the group of officers must be such
that "the knowledge of one of them [is] the knowledge of all"
(citation omitted). Bernard, 623 F.2d at 561.
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
26
cobble together a justification for the stop. Indeed, in her
view, the officer making the stop would not have to have
knowledge of any of the facts establishing reasonable suspicion
to conduct the stop, nor would any other individual officer.
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
27
aware of some of the critical elements, the requirements of
art. 14 are satisfied.
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
28
the stop, and yet still in the reported path of flight; and he
might not have encountered the defendant before he was able to
reach nearby commercial areas from which the defendant might
have been able to perfect an escape.
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
29
evidence in the record indicating that Lopez communicated at all
with Doherty or over channel six prior to the stop of the
defendant. Thus, despite being involved in a joint effort, the
continuous communication requirement was not met, and Lopez's
knowledge of the absence of people in the area of Victory Road
therefore cannot be imputed to Doherty. See Commonwealth v.
Hawkins, 361 Mass. 384, 386-387 & n.3 (1972) (declining to
impute knowledge about stolen bonds to officers who seized
bonds, absent probable cause, where there was no evidence of
communication or cooperative effort). See, e.g., United States
v. Villasenor, 608 F.3d 467, 476-477 (9th Cir.), cert. denied,
562 U.S. 1020 (2010) (declining to aggregate knowledge of
immigration and customs enforcement agents and inspectors of
customs and border protection where "[t]he record [was] devoid
of any communication" amongst agents).
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.
30
We do not read the judge's findings so narrowly. The only
finding the judge made with respect to the description of facial
hair was in a footnote, in which the judge noted that "[t]here
was no mention in the original broadcast about facial hair
(emphasis added)." Thus, it is unclear whether the judge found
that Doherty heard the subsequent two broadcasts. Even if we
were to assume that this footnote was a finding that Doherty did
not hear the subsequent broadcasts detailing the additional
descriptions that mentioned facial hair, the record makes clear
that Dwan did hear them, and thus, we impute his knowledge to
Doherty.
"[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
31
that Dwan was actively engaged in communications with the
dispatcher who relayed the later descriptions. None of this
information is contrary to any of the judge's findings or
ultimate conclusions of law, and the judge did not reject any
part of Dwan's testimony as not credible. Accordingly, we can
conclude, consistent with the judge's findings, that Dwan was
aware that the suspect had been described as having facial hair.
See Jones-Pannell, 472 Mass. at 431.
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
32
of the horizontal knowledge doctrine. See id. This was not a
case where Dwan and Doherty were working in isolation and
"merely happen[ed] to be investigating the same subject." See
Gillette, 245 F.3d at 1034. Accordingly, Dwan's information
that the suspect had a beard, and that no one else was outside
on Morrissey Boulevard or Victory Road, may be imputed to
Doherty.
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
33
could fit a large number of people in the area where the stop
occurred. See Commonwealth v. Warren, 475 Mass. 530, 535 (2016)
(description of three Black males wearing dark clothing, with
one wearing red hoodie, absent description of any facial
features, hairstyles, height, weight, or other physical
characteristics, was insufficient to establish reasonable
suspicion); Commonwealth v. Cheek, 413 Mass. 492, 496 (1992)
("the description of the suspect as a '[B]lack male with a black
[three-quarter] length goose' could have fit a large number of
men who reside in the Grove Hall section of Roxbury").
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
7 The judge found that the dispatched description of the
suspect was for a male with dark jeans. The 911 call placed by
the victim, however, as well as the radio transmission and
Doherty's testimony at the hearing "make clear that the report
said that the jeans were blue." Privette, 100 Mass. App. Ct. at
223 n.3.
34
description of the suspect was not so generalized as to preclude
giving rise to reasonable suspicion.
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
8 Doherty initially testified that the defendant was wearing
blue jeans, but, on cross-examination, after having had his
recollection refreshed by the booking sheet, Doherty testified
that the defendant's jeans were black. Both the Commonwealth
and the defendant agree that the jeans he wore at the time of
the stop were black.
35
flight path, had little weight in calculus of reasonable
suspicion). We are not convinced.
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
36
robbery, the articulable facts combine to establish reasonable
suspicion that the defendant had committed the armed robbery.
Order denying motion to
suppress affirmed.
CYPHER, J. (concurring in part and dissenting in part). I
agree with the court that Officer Brian Doherty had sufficient
reasonable suspicion to stop the defendant as a suspect in the
armed robbery.1 I disagree, however, that the court should
1 I agree with the court and with Justice Wendlandt that
reasonable suspicion in this case is not dependent on the
collective knowledge doctrine (therefore, I would have declined
to reach the application of the doctrine to this case and
beyond). At around 3:36 A.M., Doherty received a radio
transmission indicating that there was an armed robbery of a
gasoline station on Morrissey Boulevard in the Dorchester
section of Boston, describing the suspect as "a Black male, late
twenties, medium build, five foot seven, blue hoodie, blue
jeans, on foot toward[]" a pharmacy. Doherty was listening to
the police department radio channel as he headed to the area and
heard Lieutenant (then Sergeant) Daryl Dwan report that he did
not see anyone on Morrissey Boulevard. Canvassing the nearby
Clam Point neighborhood, he drove through about nine additional
streets without seeing a single person. Approximately seven
minutes after the dispatch, Doherty saw the defendant on a
street close to the gasoline station and easily accessible by an
opening in a fence or by walking along several streets. The
defendant is a Black male, five feet, eleven inches tall, 220
pounds, and was thirty-two years old at the time, wearing a dark
sweater and jeans, and was the only person on the street at
approximately 3:30 A.M. Even without considering the
defendant's beard, there was reasonable suspicion to stop him.
Commonwealth v. Evelyn, 485 Mass. 691, 704-705 (2020) (defendant
one-half mile away from location of crime thirteen minutes after
it occurred supported reasonable suspicion). Contrast
Commonwealth v. Warren, 475 Mass. 530, 535-536 (2016) (no
reasonable suspicion where description was vague and did not
include "any information about facial features, hairstyles, skin
tone, height, weight, or other physical characteristics," but
recognizing "[p]roximity is accorded greater probative value
. . . when the distance is short and the timing is close").
Nonetheless, considering the record, it is very likely that
Doherty heard the dispatch including the description of facial
hair. The description of the suspect having facial hair was
broadcast on the department channel at around 3:38 A.M., two
2
dismantle the collective knowledge doctrine as it has been
discussed and appropriately applied in cases in this
Commonwealth for more than fifty years. I would uphold the
collective knowledge doctrine in situations where officers are
engaged in a cooperative effort. I would not dissect whether
officers are in sufficiently "close and continuous communication
with each other" about their "shared objective," nor would I
examine whether the acting officer is aware "of at least some of
the critical facts" in determining whether to aggregate their
knowledge. Ante at . I respectfully dissent.
I begin my analysis by considering the theoretical
framework in which search and seizure analysis typically has
been conducted, whether under the Fourth Amendment to the United
States Constitution or art. 14 of our Declaration of Rights.
Although the discussion of the utility of the collective
knowledge doctrine concerns each officer's subjective knowledge
minutes after the first description, and at least three minutes
before Doherty stopped the defendant. Although Doherty agreed
with defense counsel on cross-examination that the first
description was the only transmittal he heard before he stopped
the defendant, he testified on direct examination, without
prompting, that the call was for a man "with a beard," and
affirmed that description on cross-examination. The motion
judge made no finding addressing Doherty's knowledge of facial
hair. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015)
(appellate court may supplement motion judge's findings of fact
with uncontroverted record evidence where judge explicitly
credited witness's testimony and where facts do not detract from
judge's ultimate findings).
3
when working together with others, the reasons we do not
consider the intent or motive of individual officers apply
equally to knowledge and are instructive. See, e.g.,
Commonwealth v. Long, 485 Mass. 711, 724 n.9 (2020) (in
determining whether traffic stop was racially discriminatory,
judge may consider whether officer observed or followed vehicle
for extended period of time or whether officer would have been
able to note defendant's race).
"Fourth Amendment doctrine, given force and effect by the
exclusionary rule," is intended primarily to regulate the day-
to-day activities of police officers and should be expressed in
readily applicable terms for implementation by law enforcement.
Clancy, The Purpose of the Fourth Amendment and Crafting Rules
to Implement That Purpose, 48 U. Rich. L. Rev. 479, 505 (Jan.
2014), quoting New York v. Belton, 453 U.S. 454, 458 (1981).
"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 Fourth Amendment analysis for many years has been the
measurement of a police officer's intent by examining the
objective aspects of the encounter, as opposed to inquiry into
4
the officer's actual, subjective intent." T.K. Clancy, The
Fourth Amendment § 11.6.2.1, at 767 (3d ed. 2017). See Brigham
City v. Stuart, 547 U.S. 398, 404 (2006), quoting Scott v.
United States, 436 U.S. 128, 138 (1978) ("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'"
[emphasis added]); Indianapolis v. Edmond, 531 U.S. 32, 45
(2000) ("individual officer's subjective intentions are
irrelevant to the Fourth Amendment validity of a traffic stop
that is justified objectively by probable cause to believe a
traffic violation has occurred"); Bond v. United States, 529
U.S. 334, 338 n.2 (2000) ("The parties properly agree that the
subjective intent of the law enforcement officer is irrelevant
in determining whether that officer's actions violate the Fourth
Amendment"); Whren v. United States, 517 U.S. 806, 812-813
(1996) (decisions released by Court "foreclose any argument that
the constitutional reasonableness of traffic stops depends on
the actual motivations of the individual officers involved");
Newton, The Real-World Fourth Amendment, 43 Hastings Const. L.Q.
759, 770-771 (2016) ("As a general matter, courts assess whether
the Fourth Amendment was violated in a particular case by
applying an 'objective' standard. . . . [T]he 'subjective'
mental states of both the police officers and the persons they
5
interacted with are generally irrelevant to the Fourth Amendment
analysis"); Tomkovicz, Rehnquist's Fourth: A Portrait of the
Justice as a Law and Order Man, 82 Miss. L.J. 359, 404-405
(2013), quoting Graham v. Connor, 490 U.S. 386, 396-397 (1989)
(discussing Justice Rehnquist's approach to Fourth Amendment,
"[e]valuations of reasonableness called for 'objective'
inquiries that pay 'careful attention to the facts and
circumstances of each particular case'"). But see Dix,
Subjective "Intent" as a Component of Fourth Amendment
Reasonableness, 76 Miss. L.J. 373 (2006) (critical analysis of
objective standard); Kinports, Criminal Procedure in
Perspective, 98 J. Crim. L. & Criminology 71 (2007) (arguing
Court shifts from objective to subjective tests); Raigrodski,
Reasonableness and Objectivity: A Feminist Discourse of the
Fourth Amendment, 17 Tex. J. Women & L. 153 (2008) (discussing
partiality in "objective" determinations of reasonableness);
Kerr, The Questionable Objectivity of Fourth Amendment Law, 99
Tex. L. Rev. 447 (Feb. 2021) (challenging true objectivity in
Fourth Amendment doctrine as applied by Court). "[A]lthough the
framing-era sources did not always agree on the details of the
criteria for regulating searches and seizures, they were united
in seeking objective criteria to measure the propriety of
governmental actions." Clancy, The Framers' Intent: John
6
Adams, His Era, and the Fourth Amendment, 86 Ind. L.J. 979, 980
(2011).
"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
7
case. 2 W.R. LaFave, Search and Seizure § 3.2(b), at 46 (6th
ed. 2020).
"[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
8
legal justification for it"); Commonwealth v. Cruz, 459 Mass.
459, 462 n.7 (2011) ("The subjective intentions of police are
irrelevant so long as their actions were objectively
reasonable"). "Evaluating the validity of police conduct on the
basis of objective facts and circumstances, without
consideration of the subjective motivations underlying that
conduct, is justified in part based on the significant
evidentiary difficulties such an inquiry into police motives
would often entail." Buckley, supra at 867. Only recently have
we made an exception to the objective standard in search and
seizure cases in which a defendant alleged race as the reason
for a traffic stop based on a pretext; this exception is founded
not on art. 14 or the Fourth Amendment, but on our equal
protection jurisprudence set out in arts. 1 and 10 of the
Declaration of Rights and the Fourteenth Amendment to the United
States Constitution. Long, 485 Mass. at 715, 729.2 The analysis
2 See Long, 485 Mass. at 713 (establishing revised test for
defendants seeking to suppress evidence obtained as result of
racially motivated traffic stop); Commonwealth v. Lora, 451
Mass. 425, 426 (2008) (exclusionary rule applies to evidence
from traffic stop violative of equal protection where stop was
product of selective enforcement based on race). In inventory
and special needs searches and administrative inspections, the
Supreme Court has looked to subjective intent in analyzing the
validity of government action. See Brigham City, 547 U.S. at
405, quoting Edmond, 531 U.S. at 46 ("we have held in the
context of programmatic searches conducted without
individualized suspicion -- such as checkpoints to combat drunk
driving or drug trafficking -- that 'an inquiry into a
9
in such cases occasionally refers to an officer's intent,
motivation, or state of mind; and in some instances, the
officer's knowledge. See id. at 724-725 (listing factors judges
should consider in applying totality of circumstances test to
determine whether traffic stop was violative of equal
protection); Commonwealth v. White, 469 Mass. 96, 101-102 (2014)
(officer's examination of pills transformed search from
inventory into investigatory); Commonwealth v. Judge, 95 Mass.
App. Ct. 103, 108 (2019) (administrative and special needs
searches may not become pretext for investigative search). See
also Newton, The Real-World Fourth Amendment, supra at 771
("There are some rare exceptions to the general 'objective'
nature of legal analysis under the Fourth Amendment," such as
police roadblocks).
programmatic purpose' is sometimes appropriate"); Whren, 517
U.S. at 812 ("we [have] never held, outside the context of
inventory search or administrative inspection . . . that an
officer's motive invalidates objectively justifiable behavior
under the Fourth Amendment"); Florida v. Wells, 495 U.S. 1, 4
(1990) (inventory search may not be "ruse for a general
rummaging in order to discover incriminating evidence"). See
also Commonwealth v. Judge, 95 Mass. App. Ct. 103, 108 (2019),
quoting Commonwealth v. Carkhuff, 441 Mass. 122, 126 (2004)
("Administrative and special needs searches 'must be conducted
as part of a scheme that has as its purpose something "other
than the gathering of evidence for criminal prosecutions"'").
But see Commonwealth v. Feliz, 481 Mass. 689, 700 n.17 (2019),
S.C., 486 Mass. 510 (2020) ("We have yet to justify searches of
individuals on the basis of the special needs exception").
10
In other words, we always have examined the totality of the
circumstances to determine whether a search or seizure was
reasonable. The reason for conducting an objective analysis
includes the recognition that the Fourth Amendment, and art. 14,
regulate conduct rather than thoughts. See Ashcroft v. al-Kidd,
563 U.S. 731, 736 (2011). "[I]njecting subjectivity into Fourth
Amendment reasonableness would require officers to 'act on
necessary spurs of the moment with all the knowledge and acuity
of constitutional lawyers'" (citation omitted). Barmore,
Authoritarian Pretext and the Fourth Amendment, 51 Harv. C.R.-
C.L. L. Rev. 273, 297 (2016).
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
11
inquiry into subjective motivation therefore may entail broad-
ranging discovery and deposing of numerous persons, including an
official's professional colleagues," which may be "peculiarly
disruptive of effective government").
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
12
by what the arresting officer did or did not believe, but rather
by whether the available facts would 'warrant [an officer] of
reasonable caution in the belief' that the person arrested had
committed an offense. . . . [The reasonable suspicion] test, as
is the case with the legal standard for arrest, is purely
objective and thus there is no requirement that an actual
suspicion by the officer be shown" [citation omitted]); R.G.
Stearns, Massachusetts Criminal Law: A Prosecutor's Guide,
Threshold Inquiries (42d ed. 2023), quoting Commonwealth v.
Stoute, 422 Mass. 782, 790 (1996) ("facts must be assessed in
light of the collective knowledge of the officers involved" and
"[t]he test is an objective one, 'view[ing] the circumstances as
a whole'"). Application of the court's new rule shifts the
Fourth Amendment and art. 14 focus from the objective conduct of
the police to the subjective thought process of the first
officer to reach the suspect, and too closely examines the
precise frequency and content of communications between officers
cooperating in an investigation. I would keep the existing
doctrine in place, in which a judge need not consider the inner
workings of the minds of each individual officer at the relevant
time, but the collective knowledge of all officers working
together at the time of a stop, search, or arrest. Although I
think that communication between officers is a good indicator
that they are acting as a team, to inquire into the sufficiency
13
of the communications between collaborating officers in order to
aggregate their knowledge will prove difficult for judges trying
to apply the new rule, and for officers striving to integrate
the court's holding into their daily practices.
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
3 Several jurisdictions have upheld the horizontal
collective knowledge doctrine without requiring communication of
specific facts among officers so long as they are working
14
together. See United States v. Whitfield, 634 F.3d 741, 746 (3d
Cir. 2010) ("It would make little sense to decline to apply the
collective knowledge doctrine in a fast-paced, dynamic situation
such as we have before us, in which the officers worked together
as a unified and tight-knit team; indeed, it would be
impractical to expect an officer in such a situation to
communicate to the other officers every fact that could be
pertinent in a subsequent reasonable suspicion analysis");
United States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006)
(reasonable suspicion determined from "collective knowledge of
the officers"); United States v. Ledford, 218 F.3d 684, 689 (7th
Cir. 2000) ("Because the search was a joint endeavor, the court
may properly consider what . . . the other officers knew [in
addition to the officer who opened the trunk during the
search]. . . . Were it otherwise, the validity of such jointly
conducted searches might turn on the fortuity of which officer
happened to open a trunk or door, notwithstanding the fact that
he and his colleagues were acting in concert"). But see United
States v. Ellis, 499 F.3d 686, 690 (7th Cir. 2007) (refusing to
impute knowledge of one officer to another to validate decision
to enter home because they were not in communication regarding
suspect); United States v. Roberts, 410 F. Supp. 3d 1268, 1282
(N.D. Fla. 2019), quoting United States v. Willis, 759 F.2d
1486, 1494 (11th Cir. 1985) ("collective knowledge doctrine
applies to cases in which the government agents maintained 'at
least a minimal level of communication during their
investigation'"). See also In re M.E.B., 638 A.2d 1123, 1129-
1133 (D.C. 1993), cert. denied, 513 U.S. 883 (1994) (aggregating
uncommunicated information between officers, holding that this
result "recognizes that when faced with a fast moving sequence
of events involving a number of police officers, a citizen's
rights are protected if, at the time of the intrusion, the
information collectively known to the police is constitutionally
sufficient to justify that intrusion"); State v. Goff, 129
S.W.3d 857, 863-864 (Mo. 2004) ("collective information in the
possession of those with a nexus to the investigation can be
considered in determining whether reasonable suspicion existed,"
rejecting defendant's "argument that each officer is required to
repeat his or her information to the officer making the stop in
order to make the stop a constitutional one"); State v.
Fioravanti, 46 N.J. 109, 122 (1965), cert. denied, 384 U.S. 919(1966) ("Probable cause must be judged on the basis of
[officers'] composite information, and if that knowledge in its
totality shows probable cause, a police[ officer] who makes the
arrest upon an ensuing order to do so, acts upon probable
15
This reasoning closely tracks the reasoning of the Supreme
Court in United States v. Hensley, 469 U.S. 221, 231-232 (1985),
in which it expanded on the collective knowledge doctrine by
allowing reliance on a flyer or bulletin issued by another
officer or police department to support a stop so long as the
flyer or bulletin was issued on the basis of articulable facts
supporting a reasonable suspicion. In making this
determination, the Court recognized that the rule is a matter of
"common sense," noting "effective law enforcement cannot be
conducted unless police officers can act on directions and
information transmitted by one officer to another and that
officers, who must often act swiftly, cannot be expected to
cross-examine their fellow officers about the foundation for the
transmitted information." Id. at 231, quoting United States v.
Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976). Although in
Hensley, the Court was grappling with the vertical collective
knowledge doctrine, aggregating the knowledge of officers acting
cause"); People v. Gittens, 211 A.D.2d 242, 245-246 (N.Y. 1995)
(knowledge of officers "working in close temporal and spatial
proximity to one another" may be aggregated in reviewing
propriety of action taken); Woodward v. State, 668 S.W.2d 337,
344 (Tex. Crim. App. 1982), cert. denied, 469 U.S. 1181 (1985)
("when there has been some cooperation between law enforcement
agencies or between members of the same agency, the sum of the
information known to the cooperating agencies or officers at the
time of an arrest or search by any of the officers involved is
to be considered in determining whether there was sufficient
probable cause therefor").
16
together also recognizes the need for officers to act "swiftly"
and efficiently. Hensley, supra.
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
17
'scrutinize in isolation' each of the facts and circumstances
known to the officers." Gant, supra, quoting Commonwealth v.
Kennedy, 426 Mass. 703, 708 (1998). See Hall, supra at § 6.10
("Probable cause is viewed objectively by reviewing courts and
is not based on the officer's subjective belief. If the rule
were otherwise, the citizenry would have significantly diluted
Fourth Amendment protection depending on whether the officer
chose to obtain a warrant before the arrest or search based on
subjective good faith. Only objective facts can be effectively
reviewed"). The court's approach requires a judge hearing
testimony in a motion to suppress, or a reviewing court, to
determine the extent of cooperation and communication for every
police move. Contrast Commonwealth v. Montoya, 464 Mass. 566,
576 (2013) (imputing knowledge of one officer to another,
"regardless of whether" it was communicated immediately by
radio).4
4 The facts of the present case underscore the difficulty in
determining precisely what was communicated to each officer at
which point during the investigation. Determining whether each
officer heard the communication regarding the beard before they
approached the defendant brings the court into murky waters.
Indeed, the motion judge avoided making any such finding.
Although the court does not entirely discard the horizontal
collective knowledge doctrine, the new rule still falls subject
to this difficulty. In order to apply the doctrine, a judge
will have to determine whether the acting officer had "critical
information" supporting the intrusion and discern whether that
officer was in continuous close communication with the other
officers (with knowledge) specifically with respect to their
18
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
shared objective. Ante at . This requires the judge to
delve into the subjective thought process of not one, but
several different officers.
19
to the facts known by the first officer to approach a suspect or
to those known by an officer with whom he was in continuous,
close communications with, when that officer is working
collaboratively with additional officers, would depreciate the
objectivity of the analysis.5
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
5 I agree with the court that the inevitable discovery
exception is not an adequate substitute for the horizontal
collective knowledge doctrine. Where evidence is discovered in
a manner that would compel its exclusion at a criminal trial
against the defendant, it may be admissible if the Commonwealth
can show 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). "This is a
'demanding test.'" Hernandez, supra, quoting Commonwealth v.
Balicki, 436 Mass. 1, 16 (2002). In a situation where several
officers are working as a team in pursuit of a suspect, and one
officer catches the suspect, it would be near impossible for the
Commonwealth to prove that his apprehension by another of the
officers was practically certain. See Hurlburt v. State, 425
P.3d 189, 194-195 (Alaska Ct. App. 2018) (discussing aggregation
of knowledge of collaborating officers based on "inevitable
discovery" rationale only applies to "unusual facts").
20
doctrine in both the vertical and horizontal contexts, usually
without drawing a formal distinction between the two"). In
Commonwealth v. McDermott, 347 Mass. 246, 249-250 (1964), the
court discussed an arrest pursuant to a lawful warrant. The
warrant permitted the arrest of any individual at a particular
location "participating in any form of gaming," or any person
present if gaming materials were found. Id. at 247. The first
trooper on the scene saw the defendant registering bets. Id. at
249. When two police lieutenants arrived, the trooper told them
the defendant had "the stuff in his pockets." Id. at 248. As
the lieutenants questioned the defendant, the trooper observed
booking paraphernalia, notebooks, and personal belongings of the
defendant spread out on a counter. Id. The lieutenants, not
the trooper, subsequently arrested him. Id. The court held,
"It is without significance that [the trooper] was not [the] one
who made the arrest. The three officers were engaged in a
cooperative effort in the performance of their duty. The
knowledge of one was the knowledge of all." Id. at 249. See
Commonwealth v. Lanoue, 356 Mass. 337, 340 (1969) ("unnecessary
for the detaining officer to know all the information pertaining
to the incident" because knowledge of one is knowledge of all);
Commonwealth v. Ballou, 350 Mass. 751, 757 (1966), cert. denied,
385 U.S. 1031 (1967) ("elementary rule of composite knowledge of
21
police officers engaged in a cooperative effort, where the
knowledge of one may be the knowledge of all").
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
22
unconstitutional searches and seizures. Cf. Parsons v. United
States, 15 A.3d 276, 279, 281 (D.C. 2011) (trial court applied
collective knowledge doctrine improperly); Stearns, supra,
Searches Incident to Arrest ("While the 'fellow officer' rule
generally works to the advantage of police, it offers no
protection when the arresting officer acts at another officer's
deficient directions or stale or inaccurate information").
There is no need for the creation of the complex and perplexing
new rule that the court chooses to impose here.6 The court's
refusal in Hawkins to apply the collective knowledge doctrine
where officers were not engaged in a cooperative effort
6 It is worth noting that some of the cases relied on by the
court do not require such an extensive inquiry into the level of
communication between officers acting as a team, or the
sufficiency of the acting officer's knowledge of critical facts
on his or her own. See United States v. Ibarra, 493 F.3d 526,
530 (5th Cir. 2007) (requiring only "some degree of
communication" between arresting officer and officer who has
knowledge of all necessary facts); United States v. Gillette,
245 F.3d 1032, 1034 (8th Cir.), cert. denied, 534 U.S. 982(2001) (requiring "some degree of communication" to ensure
officers functioning as "search team"); State v. Breeding, 200
So. 3d 1193, 1200 (Ala. Crim. App. 2015), quoting United States
v. Esle, 743 F.2d 1465, 1476 (11th Cir. 1984) (look to
collective knowledge of officers where group of officers
conducting operation and "there is at least minimal
communication among them"). In Gillette, where one officer
obtained consent to search vehicles, and another acting officer
responded to a call for backup and immediately started searching
the vehicles without knowledge of the consent, the court held
that "there was the requisite degree of communication" between
the officers to render the acting officer a member of the team,
and to uphold the search. Id. at 1033-1034.
23
demonstrates that aggregating the knowledge of officers working
together complies with art. 14.
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
24
knowledge of the contents of the discarded envelope . . . . If
[Saunders] act[ed] alone, he could not have arrested the
defendant on the sole basis of the contents of the envelope
dropped by [the other man]"). Because "Saunders and Williams
were working in concert, and they were within an arm's reach of
each other as well as the suspects whom they were confronting,"
the court held that the knowledge of each officer could be
imputed to the other. Id. at 421-422, quoting W.R. LaFave,
Search and Seizure § 3.5 (c), at 633 (1978) ("They were 'in a
close time-space proximity to the questioned arrest [and]
search'").
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
25
defendant's eyes were bloodshot, there was a heavy odor of
alcohol coming from his breath, and he had difficulty speaking.
Id. Before Dawes arrived, he had spoken with witnesses who had
seen the defendant driving well over the speed limit just before
impact. Id. Although the Appeals Court concluded that the
information Coyle had on his own supported an inference of
intoxication, the knowledge of Coyle and Dawes could be
aggregated, recognizing that they "jointly participated in the
accident investigation." Id. at 975. "Probable cause to arrest
is determined upon an objective view of the facts." Id.
Applying the reasoning in Wooden, 13 Mass. App. Ct. at 421-422,
the court upheld the arrest. Rivet, supra.7
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
7It is unclear whether the officers' knowledge in Rivet
would be aggregated to meet the probable cause standard under
the court's new rule. Were Coyle and Dawes in sufficiently
close communications about their objective? What precise
information was communicated from one officer to another?
Despite the fact that both Coyle and Dawes were on the scene
together for at least ten minutes, it is not evident whether
their knowledge could be aggregated any longer. See Rivet, 30
Mass. App. Ct. at 974. Not only is this illogical, but it is
inconsistent with our objective approach to search and seizure
questions.
26
told by a court officer that his bag would be searched manually,
he stated that he did not want his bag searched and grabbed it,
turning to leave the building. Id. Officer Martinez, a police
officer assigned to the court house on that day, approached the
juvenile on the steps of the court house after being told what
had occurred. Id. The juvenile then ran from the court house,
as Martinez yelled for him to stop and broadcast his description
over the radio. Id.
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
27
stop, 'the knowledge of each officer is treated as the common
knowledge of all officers' and must be examined to determine
whether reasonable suspicion exists." Id., quoting Richardson
v. Boston, 53 Mass. App. Ct. 201, 206 (2001).8
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.
8 I respectfully disagree with Justice Wendlandt that
Roland R. depicts facts more closely tailored to the vertical
collective knowledge doctrine, which, as she deems it, is
synonymous with the "fellow officer" rule. Post at .
Contrast Gittens, 211 A.D.2d at 245 ("A number of cases from the
Federal courts and other State courts, as well as a leading
treatise, have applied the fellow officer rule, which allows, in
essence, the imputation of knowledge from one officer to
another, to cover any number of officers working together on a
joint assignment despite the lack of an express communication of
information or direction to take action"). As she implicitly
recognizes, there was no verbal command to the acting officers
to arrest the defendant. Post at (acting officer acted on
the "non-verbal instruction to assist his fellow officers").
See Roland R., 448 Mass. at 280. It is true that in Roland R.,
one officer held the requisite reasonable suspicion on his own.
Id. at 284. It is unclear whether the acting officers were
"directed" to stop the juvenile. See id. at 285 (not specifying
whether Conway or Terestre heard radio call with description, or
whether description included directive to stop juvenile). Even
if Roland R. did not implicate the horizontal collective
knowledge doctrine, it illustrates the circumstances that
demonstrate its application.
28
A stop should not be invalidated where there are sufficient
facts amounting to reasonable suspicion to stop a suspect simply
because the officer who is able to catch him or her was not
personally aware of all the information, and where that officer
is acting collaboratively with others who do have that
information, either in total or in part, but who did not have
the time to repeatedly communicate with the acting officer.
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
29
location, he ultimately was able to catch up to the car and stop
it. Id. Donahue observed shards of glass, a baseball bat
covered with shards of glass, and a fresh cut on the driver's
hand; he arrested both occupants of the car. Id.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
9Again, under the new rule, it is likely that this
information would not be aggregated. Was Donahue's radio
communication regarding passing cars enough to constitute
"continuous" communication between himself and Harvey and Graham
in order to aggregate their knowledge? The abstract nature of
this new rule will make it exceedingly difficult to apply.
30
windows" and conversing. Id. Saunders saw the driver of the
sedan pass something to the driver of the truck, and Saunders
radioed this information to Porter. Id. Porter approached the
truck and saw the driver inhaling a substance through a glass
tube, and Porter informed Saunders about this observation over
the radio. Id. Saunders then stopped the sedan and arrested
the defendant, who was the driver. Id. The court "impute[d]
. . . to Saunders the knowledge of the buyer's admission to
Porter that he had just purchased the drugs, regardless of
whether that admission was immediately communicated by police
radio." Id. at 576, citing Roland R., 448 Mass. at 285.
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
31
knowledge of one police officer have been relied on to justify
the conduct of another"); Commonwealth v. Chaisson, 358 Mass.
587, 590 (1971) ("The police were engaged in a cooperative
effort in radio-equipped cars. Hence the knowledge of one
officer is imputed to all officers"); Commonwealth v. Dyette, 87
Mass. App. Ct. 548, 555 n.10 (2015) ("The former municipal
police officer's knowledge of municipal trespass ordinances may
be imputed to his fellow officers"); Commonwealth v. Perez, 80
Mass. App. Ct. 271, 274 (2011) ("The knowledge of one officer is
part of 'the collective information' of other officers engaged
in the same cooperative effort" [citation omitted]);
Commonwealth v. Kotlyarevskiy, 59 Mass. App. Ct. 240, 243 (2003)
("Where, as here, the arresting officers are engaged in a
cooperative effort with other officers, probable cause is
evaluated on the basis of the collective information of all the
officers involved"); Commonwealth v. Peters, 48 Mass. App. Ct.
15, 18 (1999) ("These observations by [one officer],
communicated, and even if not, imputed to [the arresting
officer], reasonably led the officers to suspect that the
defendant had committed a crime" [emphasis added]); Commonwealth
v. Mendes, 46 Mass. App. Ct. 581, 589 (1999) ("The officers who
arrested the defendant were engaged in a cooperative effort with
the officers in the surveillance room on the ninth floor. We
therefore evaluate probable cause on the basis of the collective
32
information of all the officers"); Zirpolo, 37 Mass. App. Ct. at
311 (applying collective knowledge doctrine in vertical context
based on arrest by officer who heard radio communication
providing probable cause); Garcia, 34 Mass. App. Ct. at 393 n.8
("Probable cause can be based upon the collective knowledge of
the police officers engaged in a joint effort"); Commonwealth v.
Andrews, 34 Mass. App. Ct. 324, 327 (1993) ("collective
knowledge of" two officers sufficient to support investigative
stop where one officer had detailed description of suspect's
shirt and other officer, who did not have that description,
stopped defendant); Commonwealth v. Scott, 29 Mass. App. Ct.
1004, 1006 (1990) ("While Officer Surridge's personal knowledge
may not have risen to the level of probable cause, other
officers present at the scene, also engaged in the effort to
apprehend the suspect, possessed additional information.
Probable cause may be based on the collective knowledge of
police officers when they are engaged in a cooperative effort");
Commonwealth v. Marlborough, 21 Mass. App. Ct. 944, 945 (1985)
("We are not concerned with the completeness of the information
possessed by each of the officers who collaborated in the search
and arrest. We evaluate probable cause on the basis of the
collective information of all the officers"); Commonwealth v.
Carrington, 20 Mass. App. Ct. 525, 529 n.4 (1985) ("The
Brookline, Newton and Boston officers were engaged in a
33
cooperative effort in the investigation of this incident. When
an arrest is made in the course of such an investigation, the
knowledge of one police officer is attributable to all").
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
34
dishonestly by trying to pool information after a stop or an
arrest.10 Going even further, the court discusses concerns of
"reward[ing] police officers who were acting in bad faith,"
pointing to an example of an investigatory team finding
"sufficient probable cause or reasonable suspicion based on
information that had been learned after the stop." Ante at .
This would not occur when aggregating the knowledge of the
officers involved in a joint effort, because the knowledge of
the police at the time of the stop would be aggregated;
excluding any information learned after the stop or search. I
find it difficult to logically reach the court's conclusion.
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
10In Hawkins, 361 Mass. at 386, the court declined to apply
the collective knowledge doctrine because the arresting officers
were not engaged in a cooperative effort with those who had
knowledge that the recovered bonds were stolen. Even there, the
arresting officers "admitted they had no actual knowledge that
the bonds had been stolen until after investigating their
ownership," foreclosing the argument that they were acting in
"bad faith." Id. The court recognized that "[t]he officers
here undoubtedly proceeded upon an honest belief that they were
acting within the law." Id. at 387.
35
of the exclusionary rule is to deter future police misconduct by
barring, in a current prosecution, the admission of evidence
that the police have obtained in violation of rights protected
by the Federal and State Constitutions." Commonwealth v.
Santiago, 470 Mass. 574, 578 (2015). "The interest in deterring
unlawful police conduct, which is the foundation of the
exclusionary rule," is not implicated where an officer's conduct
is devoid of wrongdoing. Commonwealth v. Wilkerson, 436 Mass.
137, 142 (2002), quoting United States v. Janis, 428 U.S. 433,
454 (1976) (where "exclusionary rule does not result in
appreciable deterrence, then, clearly, its use . . . is
unwarranted").
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
36
purpose of [the exclusionary] rule would be served by denying to
justice the truth which this search disclosed").11
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
11Where officers are frequently uninformed of a judge's
decision or legal basis for granting a motion to suppress, the
"'deterrent safeguard' that is supposed to be provided by . . .
review of probable cause is imperfect." LaFave, supra at
§ 3.1(d), quoting Mapp v. Ohio, 367 U.S. 643 (1961).
"Obviously, police cannot be affirmatively influenced to change
their methods of law enforcement by the exclusion of evidence
when there is no communication to them of why the decision was
made." LaFave, supra, quoting LaFave & Remington, Controlling
the Police: The Judge's Role in Making and Reviewing Law
Enforcement Decisions, 63 Mich. L. Rev. 987, 1005 (1965). The
prosecutor is in the best position to communicate this to an
officer.
37
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
38
Dwan's and Officer Luis Lopez's knowledge and observations would
be imputed to Doherty. All three officers were working as part
of a joint effort to apprehend the perpetrator of the armed
robbery that had occurred minutes prior. Doherty was listening
to the department radio channel, the same station on which the
description including the beard was broadcast, on which he heard
Dwan's updates about his observations on Morrissey Boulevard.
After hearing that, Doherty decided to canvas the Clam Point
area to search for the suspect. As soon as details of the armed
robbery were broadcast via the radio channel, Dwan began
canvassing Morrissey Boulevard. When Lopez heard the broadcast
reporting the armed robbery, he began driving around the area of
Victory Road, which he believed to be a potential flight path of
the suspect. Eventually, Dwan noticed the defendant, and
approached him at the same time as Doherty. Dwan described the
seizure and search of the defendant's backpack as a "joint
endeavor."
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
39
collective knowledge doctrine as it should be applied, in my
view, further bolsters reasonable suspicion.
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.
WENDLANDT, J. (concurring). We are called in this case, as
the United States Supreme Court was called in Terry v. Ohio, 392
U.S. 1, 4 (1968), to address "serious questions concerning the
role of the Fourth Amendment [to the United States Constitution
and art. 14 of the Massachusetts Declaration of Rights] in the
confrontation on the street between a[n individual] and the
police[ officer] investigating suspicious circumstances." In
Terry, the Court carved "a narrowly drawn authority" to permit
an officer to conduct a limited stop and patfrisk of an
individual based on reasonable suspicion -- a showing less than
that required to establish probable cause for a warrant. Id. at
27. This 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. Id. at 10.
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
2
sanctity of the person, which may inflict great indignity and
arouse strong resentment, and it is not to be undertaken
lightly." Id. at 17. Nonetheless, the Court recognized the
need to provide a level of flexibility to police activities,
which entail "necessarily swift action predicated upon the on-
the-spot observations of the officer on the beat" (emphasis
added). Id. at 20.
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
3
we reject the so-called horizontal collective knowledge doctrine
in all its varied forms.
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
4
officers "in close and continuous communication" with a "shared
objective." Ante at . The court adopts this version of the
horizontal collective knowledge doctrine, reasoning that,
despite all the advances in communications and surveillance
technology since Terry was decided, officers who are working as
a team on a shared mission and who are in constant contact
apparently can communicate "critical" facts but cannot be
expected to communicate the minimal information required for
reasonable suspicion. The stop and patfrisk are justified after
the fact if the facts constituting reasonable suspicion, while
uncommunicated, were known to one or more of the officers on the
team –- in short, an officer on the beat can detain and pat
frisk you based on a hunch, in the hopes that afterward fellow
officers can fill in the missing gaps in the reasonable
suspicion calculus.
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
5
informants, or fellow officers. And the acting officer may draw
reasonable inferences and pull on his or her years of experience
in assessing the evolving situation.
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 art. 14 of our State Constitution.
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
6
stop passes constitutional muster will depend on whether the
directing officer had the information constituting reasonable
suspicion. See United States v. Hensley, 469 U.S. 221, 231
(1985), quoting United States v. Robinson, 536 F.2d 1298, 1299
(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"); Whiteley v. Warden, Wyo. State Penitentiary, 401
U.S. 560, 568 (1971) ("police officers called upon to aid other
officers in executing arrest warrants are entitled to assume
that the officers requesting aid offered the magistrate the
information requisite to support an independent judicial
assessment of probable cause").
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."
7
Massenburg, supra at 493. See 2 W.R. LaFave, Search and Seizure
§ 3.5(b), at 333 (6th ed. 2020) ("Thus, under the Whiteley rule
[or, as it is sometimes termed, the 'fellow officer' rule]
police are in a limited sense 'entitled to act' upon the
strength of a communication through official channels directing
or requesting than an arrest or search be made" [citations
omitted]).1
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
Fourth Amendment and art. 14. Even under the version of the
"second approach" to the horizontal collective knowledge
doctrine adopted by the court, it permits an officer to stop
(and presumably pat frisk) an individual without beforehand
1 In Commonwealth v. Roland R., 448 Mass. 278, 280 (2007),
for example, the acting officer stopped the juvenile after
seeing fellow officers chasing him at the direction of an
instructing officer, who had the requisite information
constituting reasonable suspicion. Although the court stated
that its conclusion rested on the horizontal collective
knowledge doctrine, id. at 285, the facts fall within the fellow
officer rule -- namely, that the acting officer acted upon
seeing the chase, a nonverbal instruction to assist his fellow
officers, who were chasing the juvenile at the order of the
directing officer who, in turn, had the requisite reasonable
suspicion. Id. at 280.
8
having information constituting reasonable suspicion and without
any commonsense reliance on a fellow officer's directions;
shockingly, it invites a judge to be complicit in the unraveling
of this fundamental constitutional right. See Terry, 392 U.S.
at 9, quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251
(1891) ("No right is held more sacred, or is more carefully
guarded, by the common law, than the right of every individual
to the possession and control of his own person, free from all
restraint or interference of others, unless by clear and
unquestionable authority of law").
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
9
suspicion standard, between the right to be free from
governmental restraint and the attendant serious intrusion on
the sanctity of the person, on the one hand, and the needs of
the law enforcement officer on the street to be able to quickly
react to the information being received and to draw reasonable
inferences from that information consistent with his or her
experience, on the other. Id. at 21-22.
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
10
suspect to flee. Ante at . Obviously, officers could employ
any and all methods of communication, including, for example,
those used to relay the "critical facts" constituting those
minimally required to rise to the level of reasonable suspicion.
But if the acting officer lacks information required for
reasonable suspicion, the officer's conduct falls below the
Supreme Court's carefully constructed constitutional floor -- it
is unguided by any constitutional norms. See United States v.
Ross, 456 U.S. 798, 824-825 (1982), quoting Mincey v. Arizona,
437 U.S. 385, 390 (1978) ("searches conducted outside the
judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment -- subject
only to a few specifically established and well-delineated
exceptions").
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
11
likely illegal," which is "directly contrary to the purposes of
longstanding Fourth Amendment jurisprudence"). In short, the
doctrine represents the feared "[a]nything less," which the
Supreme Court rightly predicted "would invite intrusions upon
constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches." Terry, 392 U.S. at 22.
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 Fourth Amendment jurisprudence,
would seriously erode the efficacy of the exclusionary rule's
deterrent purposes, and serves none of the legitimate ends of
law enforcement, we reject it"). See also United States v.
Hussain, 835 F.3d 307, 316 n.8 (2d Cir. 2016) ("Absent record
evidence that [the first officer] communicated his suspicion or
any relevant information to [the acting officer] before the
latter began to conduct the protective search, we will not
impute his knowledge or reasonable suspicion to [the acting
officer] under the doctrine of collective knowledge. . . . [W]e
decline to extend the collective knowledge doctrine to cases
where, as here, there is no evidence that an officer has
12
communicated his suspicions with the officer conducting the
search, even when the officers are working closely together at a
scene"); United States v. Whitley, 680 F.3d 1227, 1234 n.3 (10th
Cir. 2012), quoting United States v. Chavez, 534 F.3d 1338, 1345
(10th Cir. 2008), cert. denied, 555 U.S. 1121 (2009) (confirming
requirement that individual officers "have communicated the
information they possess individually" to arresting officer ex
ante); United States v. Shareef, 100 F.3d 1491, 1503-1505 (10th
Cir. 1996) (no constitutional basis for arrest where officers
did not actually communicate information constituting probable
cause to one another, either verbally or nonverbally, ex ante).
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.
13
In other words, the rules of evidence, which generally
limit a witness to testifying to information as to which he or
she has personal knowledge, and which traditionally govern
admissibility of evidence in our court rooms, do not limit the
scope of the information an officer on the beat may rely upon in
assessing the rapidly unfolding situation he or she encounters
on the street. See, e.g., Commonwealth v. Manha, 479 Mass. 44,
47-48 (2018) (reasonable suspicion to conduct Terry-type stop
and patfrisk based on reliable information from anonymous 911
caller but as to which acting officer lacked personal
knowledge); Commonwealth v. Mercado, 422 Mass. 367, 369 (1996)
(reasonable suspicion to conduct Terry-type stop based, in part,
on information conveyed in radio bulletin and by witness but as
to which officer lacked personal knowledge). See also United
States v. Blair, 524 F.3d 740, 751 (6th Cir. 2008) (noting
"unremarkable proposition that one officer may conduct a Terry[-
type] stop based on the information obtained from another
officer"). Because those evidentiary rules do not govern the
reasonable suspicion analysis, I see no need to adopt any
version of the horizontal collective knowledge doctrine on the
basis of their application. See Terry, 392 U.S. at 21-22(officer may rely on facts sufficient to "warrant a man of
reasonable caution in the belief" that crime had been, was
being, or was about to be committed).
14
Indeed, the Cartesian terminology, in my view, is entirely
unhelpful and has led to widespread confusion. See ante
at (describing "vertical" collective knowledge doctrine;
"first approach" to horizontal collective knowledge doctrine
requiring ex ante communication of facts constituting reasonable
suspicion to acting officer; exception to first approach;
"second approach" to horizontal collective knowledge doctrine;
"minority view" of horizontal collective knowledge doctrine; and
numerous other variations thereof).
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
15
police as an "organism" with unfettered access to a database of
inculpatory information that can be accessed post hoc to justify
an otherwise unconstitutional stop and patfrisk. See Shareef,
100 F.3d at 1504 & n.6. The court today cabins its version of
the horizontal collective knowledge doctrine, concluding that it
applies only in situations where officers are involved in a
joint investigation with a mutual purpose and objective and in
close and continuous communication with each other about that
objective, and the acting officer has knowledge "of at least
some of the critical facts." Ante at . But the court does
not explain why an officer who knows the "critical" facts cannot
be expected to know the facts constituting reasonable suspicion,
which itself is a low bar. See generally 4 LaFave, supra at
§ 9.5(b) at 672-691 (comparing reasonable suspicion and probable
cause). Although to a lesser extent than the unbridled adoption
of the "minority view" of the horizontal collective knowledge
doctrine might be, the adopted approach is the proverbial
camel's nose under the tent. It threatens individuals with
unconstitutional intrusions on their persons, inflicting great
indignity and arousing strong resentment, all the while
requiring judges to condone this behavior in connection with
their hindsight review.
3. Inevitable discovery exception. The court adopts its
version of the horizontal collective knowledge doctrine
16
apparently out of the concern that rejecting the horizontal
collective knowledge doctrine would "make[] little sense from a
practical standpoint" because it would "[b]as[e] the legitimacy
of the stop solely on what the officer who first approaches the
suspect knows." Ante at , quoting Cook, 277 F.3d at 86.
However, if the first officer acts too swiftly but a second
officer has reasonable suspicion, our existing inevitable
discovery doctrine permits the use of the evidence at trial as
an exception to the exclusionary rule. See United States v.
Ragsdale, 470 F.2d 24, 30 (5th Cir. 1972) (exclusionary rule
does not apply when search "would imminently and lawfully have
been made and [the evidence would have been] discovered at this
very time and place and by this team of officers" if acting
officer had waited); United States v. Gorham, 317 F. Supp. 3d
459, 474 (D.D.C. 2018), quoting 2 W.R. LaFave, Search and
Seizure § 3.5(c) (5th ed. Supp. Oct. 2017) ("Unlike in the
typical 'horizontal' collective knowledge case, Ragsdale does
not require a post hoc aggregation of information among
officers; rather, an officer with all the required information
was present and 'it is clear the search would imminently and
lawfully have been made'").
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,
17
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
18
undergirding the court's adoption of its version of the
horizontal collective knowledge doctrine.2
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
2 Of course, as the court notes, ante at , the inevitable
discovery doctrine may not apply where a second officer both has
been unable to communicate information to the acting officer and
is not at the scene of the stop and patfrisk. In such a
scenario, the acting officer lacks reasonable suspicion; we
ought not permit him or her to get by the meager constitutional
hurdle -- the one set by the Supreme Court in Terry as the
constitutionally mandated minimal standard -- with a little help
from his or her silent and distant friends.
19
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 had, at a minimum, heard the first transmitted
description of the suspect of the armed robbery as a Black man
in his late twenties, who was between five foot seven and five
foot eight, wearing jeans, and walking toward a pharmacy, and
then had seen that the defendant largely matched this
description. See Commonwealth v. Meneus, 476 Mass. 231, 236
(2017), quoting Commonwealth v. Lopes, 455 Mass. 147, 158 (2009)
("We have no hard and fast rule governing the required level of
particularity of a description; our constitutional analysis
ultimately is practical, balancing the risk that an innocent
person will be needlessly stopped with the risk that a guilty
person will be allowed to escape" [alterations omitted]).
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
20
various streets in the area for approximately four to six
minutes following the report of the crime. He was aware of
Dwan's report that Dwan was on Morrisey Boulevard and also had
not seen anyone. Thus, not only did the defendant fit the
general description of the suspect, but the defendant was the
only person near the scene of the crime within seven minutes of
its occurrence. See Evelyn, 485 Mass. at 704-705 (reasonable
suspicion without any description when "officers encountered the
defendant thirteen minutes after the shooting, one-half mile
distant from it" on "a cold night, and the officers had not seen
any other pedestrians on the nearby streets"). Compare Warren,
475 Mass. at 536 (no reasonable suspicion based on general
description for defendant found twenty-five minutes later,
approximately one mile from scene of crime), with Henley, 488
Mass. at 104 (reasonable suspicion based on general description
for defendant found five minutes later, two blocks from scene of
crime), and Depina, 456 Mass. at 246 (reasonable suspicion based
on general description when defendant, "approximately ten
minutes after the report of the shooting, was seen within three
blocks of the crime scene, and he was moving away from the area
of the shooting"). See also Warren, supra, citing Commonwealth
v. Doocey, 56 Mass. App. Ct. 550, 555 n.8 (2002) ("Proximity is
accorded greater probative value in the reasonable suspicion
calculus when the distance is short and the timing is close").
21
Finally, Doherty knew that the defendant was in the
reported flight path of the suspect and that that path included
a hole in the fence between the crime scene and the location
where he found the defendant. See Warren, 457 Mass. at 536-538,
citing Commonwealth v. Foster, 48 Mass. App. Ct. 671, 672-673,
676 (2000) (whether defendant is found in direction of flight
path relevant to reasonable suspicion).
Considering the totality of the circumstances,3 it was
reasonable for Doherty to stop the defendant. Accordingly, I
concur in the judgment.
3 Even if no one factor results in the necessary
individualized suspicion, considered in combination, several
factors "may allow the police to narrow the range of suspects to
[a] particular individual[]." Mercado, 422 Mass. at 371. See
id. (circumstances giving rise to reasonable suspicion must be
such as to "distinguish [the defendant] from other persons in
the vicinity").