-: SJC 13248, Commonwealth, David Pervet.
-: Good morning.
Hi, (mumbles) please. -: Morning Counsel.
-: May it please the court.
My name is Anne Reseve and I represent David Pervert.
This case is an interlocutory appeal
from a denial of a motion to suppress,
and it primarily involves the collective knowledge doctrine.
But before I get to that,
I do want to first talk about how the evidence fails
to establish reasonable suspicion.
The question here
is whether based on a very detailed description
of a black male suspect,
there's reasonable suspicion
to support the stop of a black man in Dorchester
who's appearance varied from the description
in six major respects height,
the color of his shirt,
the type of shirt,
whether it had a hood or not,
the color of his pants,
the presence of an undescribed red plaid backpack
and the presence of an undescribed beard.
The amount of detail that this witness provided shows
that the witness had ample opportunity to view the suspect
and even saw the suspect
from behind as he fled from the scene.
Despite this, which means he would've seen
any backpack worn by the suspect.
Despite this ability to observe
and recall all these details.
Many of these details aside from race
and gender have some type of error.
These six discrepancies are simply too great
to sustain a finding of reasonable suspicion.
-: Can you compare this case to Commonwealth versus Evelyn,
as far as description general descriptions
and time and proximity analysis?
-: I think the major difference in Evelyn,
if I remember correctly is there was observations
that were consistent with the characteristics
of an armed gunman.
So there was something about the defendant's behavior
that indicated that he was armed.
There was very close proximity to the fatal shooting.
And I think there was,
the police were able to observe a gun sized object
in his pocket.
His hand was pressed against his body.
He turned away from the police.
So he exhibited sort of the bleeding
and that type of thing.
And I think in Evelyn,
it was still described as a close case.
So we don't have anything like that here we don't.
-: With time and space basically match Evelyn.
I think, right?
-: Yes and I in terms of proximity yes, but Evelyn.
-: In seven minutes versus however minutes.
-: Yes, I don't recall the exact time,
but I know that it was close in time
and temporal and geographic proximity.
Yes, absolutely.
-: Does it matter that it was about three
or four o'clock in the morning
and it was raining and nobody else was around?
-: I think that's certainly a factor.
The fact that it was raining,
I think maybe less so.
This is Boston,
this is not San Diego.
Rain is not the type of weather
that would send people scurrying home.
But certainly the fact
that he was the only person out is relevant,
but it's not dispositive.
And we know that from Warren and we know that from Martinez,
those are two cases where the defendant
was the only person out in a deserted area
and there still was not reasonable suspicion.
I think what we learned from those cases
is there must be some other sort of aggravating factor
or plus factor something about the weather being extreme.
Like for instance, in McCoy,
the weather there was a cold wet slushy night
full of wind and snow.
Obviously rain does not really rise to that level
or in the white case,
there was something unusual about the area
that made it very strange for pedestrians to be out.
In that case,
it was a deserted commercial zone
at 3:30 in the morning.
We don't have anything like that here.
The area here is a mix of residences
and public facing buildings
or businesses like there's the CVS pharmacy,
there's the Chinese restaurant.
There's a gas station, of course.
So there's nothing peculiar about the area
or about the weather that would make it so strange
to see a pedestrian out.
-: At 3:00 AM. -: At 3:00 AM.
-: Counsel, may I,
before we lose all the time
to reasonable suspicion in that analysis,
can we talk about the collective knowledge doctrine?
-: Yes.
-: And can you please tell me the difference between or how,
what you're understanding is a vertical collective knowledge
and horizontal collective knowledge?.
-: Thank you so much, yes.
So the original form of collective knowledge
is the vertical doctrine,
which is essentially a direct amputation rule.
So one officer has complete information.
They exercise that judgment over that information
and decide whether it amounts to reasonable suspicion
or probable cause.
In the horizontal way.
-: Wait, wait, wait, wait.
-: Sure.
-: So then what happens?
-: So then you when there is,
let's say there's an arrest based on a officer's order
to arrest and a second officer executes that order,
when you do the analysis to see if that's justified,
you look to the knowledge of the instructing officer.
-: Oh, so there does not have to be an authority relationship
between the two of them?
-: I don't believe so.
It's just, is there a directive or a request
or a bolo, for instance.
-: Does that stop the red car?
So one police officer gets the information
and says stop the red car,
-: Right. -: And they stop the red car.
-: They stop the red car.
And as long as the officer who radios,
Hey, stop the red car.
As long as that person has reasonable suspicion,
then the stop is proper.
So you just substitute the information known
by the directing or requesting officer
for the officer who executes.
-: No, in that instance,
you do no aggregation at all.
-: Correct.
-: Okay, so vertical has no aggregation?
-: Correct, that's absolutely right and I think.
-: So it's really not a collective knowledge.
-: I think it's better term like a fellow officer rule
and that's sort of how it's originally described
in some cases.
And I think that makes more sense.
Does that answer your question as to?
-: Yes it does.
But now can you describe. -: Yes.
-: The other one.
-: So the difference in the horizontal doctrine
is that the information is not centrally held by one person.
It is scattered between different officers.
So there's not one person who has sort of the totality
of the information and can exercise their judgment
and say this amounts to reasonable suspicion
or this amounts to probable cause.
And the problem with that becomes
it totally eviscerates the deterrence rationale.
If the purpose of the exclusionary rule of course,
is to defer,
to deter unreasonable searches and seizures.
The only way you can do that
is to operate on the decision maker.
-: Now, I'm confused because I know we look at the totality
of the circumstances and we have cases, right?
And other jurisdictions do too,
where they do do the aggregation.
And you're saying that we need
to only focus on the arresting officer or the executing,
the officer who executes the search warrant or makes a stop?
-: The decision making officer.
-: Decision making.
-: So whether that is the officer who makes the request,
or whether that officer is the officer on scene,
who's making an on the scene decision to do the search.
The only way to deterrence works
is to look at what is happening
within the decision maker's mind.
-: Right but, I understand that deterrence argument
in the exclusionary rule,
but what I'm thinking about right now
is that as we look at search
and seizure analysis and doctrine,
we always are looking
from an objective point of view in almost every case.
And so if we look at this from step back
and look at it objectively,
we look at all the facts and officer A,
officer B, office C all adds up.
But if we look at it,
then if we take your approach,
we'd have to look at the officers subjectively and say,
what did this officer subjectively know?
And what did that officer subjectively know?
And, or just,
what did this off one officer subjectively know?
We wouldn't, we would be moving away
from an objective analysis to a more subjective analysis.
And I wanna know what impact does
that have on other avenues of search and seizure law?
-: I don't think that it becomes subjective.
It's just that you narrow the analysis
to just what is in the,
what is the information that that decision maker has
and what would an objective police officer do
in that circumstance?
-: But you know what I'm confused about
is the logic behind both vertical
and horizontal is similar, isn't it?
-: Well, it's similar,
but where horizontal diverges is that
you don't have this one person making the decision
where you have a clear way to know beforehand
whether the search is proper or not.
When you get to the horizontal doctrine,
you flip the incentives,
rather than deterring unlawful searches.
You're actually not only are you failing to deter them,
you're actually creating an incentive
to do questionable searches
because then an officer could hope
that perhaps another colleague has more information.
-: How do we factor in the communication between officers?
Because we had.
So if the big issue is the beard, right?
So is your position that if Dwan had stopped this person?
It was the other guy's name was Doherty?
-: Doherty is the officer from the stop, yeah.
-: Okay, so suppose hypothetically Dwan,
had stopped him, okay?
-: Well. -: I know you argue
no reasonable suspicion.
-: Yes.
-: Does the beard factor in to reasonable suspicion
if Dwan had stopped him?
-: Only if the judge had found
that Dwan had knowledge of the beard
and we're missing that key finding here.
-: Well, this is a weird,
this is so strange record on Jones Parnell stuff.
And I read the appeals court decision of course,
because Doherty does testify to facial hair.
And then he doesn't. -: Right.
-: And then the judge makes a find in that it's ambiguous,
I guess, or actually doesn't says that it wasn't before him,
but finds incredible and then finds Dwan credible.
And then doesn't make a finding.
So I'm not know
where all this Jones Parnell stuff goes.
-: Right, it's a little bit complicated.
But I think the key here is,
our position is it was a binding factual finding
that the judge made when the judge deliberately excluded
the beard from her detailed findings
about the contents of the description.
The judge's whole task was to decide
what did the police know?
And did they know it?
And before the stop and was that enough to justify the stop.
And there's two reasons
why we know this is a binding factual finding.
One, it was forefronted by defense counsel at the hearing.
At the start of his argument he replayed that one broadcast,
the first broadcast that had the initial description.
And he said, Hey, Doherty, admitted.
-: And part of the CAD is the beard stuff later on.
-: Right, correct.
Right, so we had the 33630 transmission, right?
And then the beard comes in at like 338,
but Doherty admits on cross that the only information
he had prior to the stop was the 33630.
Defense counsel forefronts this at argument.
And when the Commonwealth makes their argument arguing
that the beard is in play,
defense counsel then stands up again and says,
the beard is not in play Doherty admitted,
he didn't hear that.
I'd like to file a supplemental memo on this.
And the judge says,
no, I've got this.
I have all the information I need.
So we know it was forefronted by defense counsel.
We know it was on the mind of the judge.
And then we know it was on the mind of the judge
when she wrote her findings,
because she drops footnote four,
which says the original description
does not have that period.
-: Go back to Justice Cypher's discussion on horizontal
and in vertical.
How does it play in that Doherty is on the same channel
as Dwan communicating with Dwan,
Doherty for whatever reason doesn't hear
the second broadcast,
I guess that's your argument.
And born out by the judge's findings.
-: Yes. -: But Dwan does
and they communicating back and forth.
It's still not okay to import the Dwan information
into the Doherty stop?
-: Right, so I think there's a couple hurdles here.
The first being that the judge never made a finding
that Dwan heard that.
And I think her finding
about the contents of the description,
which deliberately omit the beard foreclosed
that type of supplementation.
-: Step back there, thank you. -: Putting that aside.
Yes, there's still another obstacle,
which is that under article 14,
our position is it's impermissible to impute this knowledge,
that Doherty expressly disclaimed.
-: And what's the basis that the other states
have come up with
to disavow this horizontal collective knowledge doctrine.
-: So the, it boils down to deterrence.
The original vertical doctrine does not do any damage
to deterrence because you just substitute your analysis
for the directing officer.
-: Does that require communication?
-: There needs to be communication of the request.
-: To stop the car.
-: But not the underlying details.
So it needs to be stopped the car,
but it doesn't need to be stopped the car
because we did six control buys.
You don't need to.
And that's why it works.
There's an efficiency rationale to it.
It allows officers to just quickly say,
stop this car without getting into all the detail details.
-: So in this case,
if the people on scene had said,
stop the guy who's on Clam Point
to wherever the neighborhood was, it'd be okay?
-: Well, it would depend on what that person knew.
I'm not sure who the person would be in this example.
-: Says the respondent officer would go to the gas station
and the interview, the victim,
and they say,
Hey, stop anybody who's in the general area.
-: Well I think.
-: That that would be better for you?
That would be better.
-: No, I don't think that works
because you really need the combination
of two sets of factors here for reasonable suspicion.
You need knowledge of the description, right?
And then you also need the,
on the scene observations of the suspect,
to what extent does he match the description?
To what extent is he in this area?
Is he exhibiting characteristics of an gunman
like an Evelyn?
Is he fleeing?
Is he doing something that suggests
that he's connected to this crime?
So I think you need to have an officer on scene
that can bring both of those sort of categories together.
-: That doesn't square with the vertical.
-: Right. -: I don't think.
-: How's it more protective if in the vertical, you just,
the person is just executing as,
I think it was the imputed knowledge.
I forgot what you called it,
which is more descriptive the fellow officer rule, right?
How is that more protective?
-: Well, it would be more protective
because the motion to suppress would've been granted
in this case because whoever gave that directive,
didn't have reasonable suspicion.
-: I have one minor hypothetical
if you'll acknowledge me for a minute,
and that would be,
suppose you have one very experienced officer working
with a new trainee
and they both are working on the same case,
but only the only the experienced one
really knows all of the facts
and knows all of the details regarding probable cause
or reasonable suspicion.
But before he gets a chance to tell it to the new trainee,
the trainee encounters the guy in arrests him,
is that not right?
Is it, would that be totally suppressed?
-: It would because you again,
under the vertical doctrine,
which is what we're advocating for.
And I think what is required under article 14
to effectuate deterrents,
you need to look at the decision maker's information.
And if that decision to stop was made
without reasonable suspicion at that time,
then it was unlawful.
And that's something we need to defer to deter.
What we want to do is encourage officers
to communicate with each other.
I think the cost of exchanging that information
between an experienced officer
and the trainee is very minimal,
but the benefits are huge.
So I think that's what we want to encourage.
-: Has this court ever endorsed
the horizontal collective knowledge doctrine?
-: So, this court has never endorsed it by name,
but there are certainly cases like Roland R, for example,
where this court has employed it without naming it as such.
-: But we I'm sorry, go ahead.
-: So we have,
we've said that's okay without saying
this is called the horizontal?
-: Right, this court has impeded the not like in Roland R,
was a young man who fled
from a courthouse screening officers were chasing him.
Another officer joined in the chase
without having any idea what the purpose of the chase was
and eventually stopped him.
So under those circumstances,
this court said that was permissible.
And it's our position that under article 14,
that is not permissible.
-: So you're saying that would have to be,
we would have to overturn that?
-: I'm asking for a rule change.
Yes, that's correct. -: Okay.
And your argument
is that here horizontal collective knowledge was in play,
and that's the reason why this is not okay.
-: Correct, yes.
-: Because isn't it,
I mean, the appeals court is the one
that raised it in the first instance.
-: That's correct.
It was not raised at the trial court level.
It was raised by the appeals court
and there was supplemental briefing on it.
And because the appeals court is combining information
known by Doherty information allegedly known by Dwan,
which we, again, do not concede that,
that was found by the judge or proper to use.
But because you're talking about combining the knowledge
of two different officers
that results in the horizontal application.
-: Yes, but I mean, in the original decision,
that's not what the trial court,
I mean, what the motion judge relied on at all?
-: That's correct. -: Okay.
So what if we just went back
and looked at what the motion judge relied on?
-: Then there's not reasonable suspicion.
-: Based on what you said at the very beginning.
-: Exactly.
-: Because no beard.
-: Correct.
-: But if there was a beard.
-: You still think we, you win.
-: Right, because even if you can't supplement,
because it wasn't found by the judge
and the judge's findings forecloses,
because she deliberately omitted.
Even if you can supplement
you can't impute without violating.
-: I understood you say no beard,
but if there is a beard going back
to Justice Gaziano question
about if Dwan had stopped him,
if there was a beard,
what do you say then?
-: I think there's still
a lot of very troubling discrepancies in the description,
-: But it's hard for you.
-: I'm sorry?
-: But it's harder for you.
-: It's certainly a harder case, absolutely.
But again, without any behavior
by the defendant that suggests a connection with the crime,
I would submit there's still not reasonable suspicion.
-: Can I ask you one final thing?
Excuse me. -: Yes, please.
-: And that is Commonwealth
versus Ballou 350 mass, 751, 1966.
Are you familiar with that one?
-: I'm not, I apologize.
-: All right, that's a 1966 case that predates
the US Supreme Court on Whitley.
And they held that it was a captain
and it was another it detective.
And it was a pat frisk and they court, the SJC said,
there's no occasion to even rely on the elementary rule
of composite knowledge of the police officers
where the knowledge of one may be attributed
to the knowledge of all.
And they said in New Jersey case,
why isn't that explain that?
Isn't that a good enough rationale?
We've got that in (mumbles).
You're saying there's no rationale,
but expressed by SJC,
but I think there was.
And then they rely on the New Jersey case
for further explanation.
So I'm not sure that it's true that we haven't or not true,
but it, that, I think you can say,
we certainly have addressed this in the past.
-: I think it certainly has been applied as a broad,
horizontal version of the doctrine in the past.
I don't think that this court has contended
with whether that is permissible under article 14
because of the damage that,
that doctrine does to the deterrence rationale
and the fact that it creates a perverse incentive
for officers to search without knowing ahead of a time,
whether there's reasonable suspicion.
So that is what I'm asking the court to consider.
And I would ask the court if there are no other questions.
Oh, yes.
-: I actually do have a question.
-: Please.
-: So going back to the common knowledge
horizontally applied, what is the,
and I know this is not your position,
but what is the rationale articulated
by the other jurisdictions
for permitting horizontal common knowledge?
-: Well, to the extent that it is justified
and often it is not justified as just kind of taken on faith
that you can aggregate information,
but to the extent it's justified,
it's justified on the basis
that when officers are working closely together,
you can consider them essentially a single organism.
And so the knowledge of one belongs to all.
And again, the problem that I have with that is that,
that eviscerates the deterrent rationale
of the exclusionary rule.
So it's not.
-: Well how would it if eviscerate
the deterrence rationale though?
Because the police officer made very well think
as enough and just doesn't.
-: That's possible, but what it by the exclusionary rule
is all about setting the incentives, right?
The incentive is,
do not perform unreasonable searches and seizures,
because if you do it's going to be suppressed.
If you employ the horizontal rule,
you're flipping the incentive
and you're actually encouraging officers, go ahead,
make that questionable search
because maybe somebody else down the line
has more information that can justify after the fact
it's a way of potentially laundering probable cause
or reasonable suspicion when it wasn't.
-: And do you have cases that illustrate that.
-: The, I would say to the Massenburg case,
that's the case from the fourth circuit.
There's the fourth circuit is one of the three circuits
that find even under the fourth amendment
that the horizontal version of the doctrine.
-: The first circuit says it's okay?
-: That's correct, yes.
The first circuit says it's okay.
-: (mumbles) your indulge.
Can I just ask one maybe last question, at least for me.
If you could help me out on the deterrence,
I'm still trying to get my arms around this.
The deterrent value I assume,
as you argue is we look to see what Doherty did
because we want to look what was in his mind.
And we don't want post Hawk say,
what did Juan know?
What did Smith know?
What did Jones know?
And I get that for the deterrence value,
but how is that different from the vertical deterrence value
where I'm on patrol supervisor says stop that red Audi.
And I stopped the red Audi.
I don't know nothing about it. -: Right
-: I have no information whatsoever
and I'm just following orders.
How is that better for deterrence than I know some of it?
-: Right, so I think the difference there
is that as Whitely says,
officers are entitled to rely on the communications
from other officers
through the strength of those communications.
So if you're an officer and you receive this information,
you are entitled to assume
the officer giving me this instruction
has full information and I trust their judgment
so I can go execute it.
And if that turns out to be wrong, there's a remedy
because we look at what the instructing officer knew.
And if that instructing officer was incorrect,
then the evidence gets suppressed.
So there are guardrails there that just aren't present.
-: Yeah, so it's, I get it.
So we are only looking at one source.
-: Exactly.
-: And we can use our exclusionary rule
to say whether it's sufficient or not
as opposed to combining all these sources.
-: That's exactly right.
I think that's the central issue.
Is there one person who has the information to make the call
that allows the court to analyze that information,
to see if it's sufficient
or is it dispersed among many people?
So nobody knows beforehand whether there's sufficient.
-: But in this case,
had Dwan been in communication with Doherty
and Doherty had known about the beard
it's a different story.
-: It's a different story.
-: That that would be a different collective knowledge?
-: Exactly, that's right.
If there are no further questions.
-: Oh, I could keep going.
But I know we have time on us still.
-: I ll be happy to stay here
as long as you wanna hear from me.
-: No, keep got the gist.
-: We got the gist.
-: I would ask the court to reverse
the denial of the motion to suppress.
And I would ask the court to restore
the collective knowledge doctrine into its original form,
which is the only form that comports with article 14.
Thank you very much for your time.
-: Thank you. -: Thank you.
-: Okay, Attorney Sherman.
-: Good morning.
And may it please the court Catherine Sherman
on behalf of the Commonwealth asking this court
to affirm the motion judge's ruling.
As you just.
-: Can you just whether or not you think it was necessary
for to go to the horizontal collective knowledge doctrine
in order for the Commonwealth to win this?
-: No, the beard is superfluous
to the finding of reasonable suspicion.
This officer Doherty had reasonable suspicion
to stop this defendant regardless
of whether or not he knew the beard of the beard.
And that's because of the geographic
and to temporal proximity,
the defendant's sole presence
at 3:34 in the morning in the rain,
he was the only person present in commercial
or residential areas.
The fact that he met the general description
of the armed robber
and the fact that the police were investigating
and on (mumbles).
-: Don't you have a cheek problem
with the general description?
-: We do not have a cheek problem with the description.
The defendant matches the description
of the robber in many more significant ways
than the description.
-: I thought it was just gender and race?
-: Gender race, build, medium,
height, basically average range.
Age, he be late twenties versus early 30s.
-: I thought cheek was young black man in a down jacket
or the snorkel jacket whatever it was.
-: Yes. -: At the, during the day?
-: It was cheek was not during the day earlier.
It was that night.
-: I meant during the day the style jacket.
-: Yes. -: Whatever it was.
I think it was a snorkel.
-: It was a common jacket,
but cheek specifically says the officers possess
no additional physical description of the suspect
that would've distinguished him
from any other black male in the area,
such as height, weight, facial hair,
unique markings on his face or clothes
or other identifying characteristics
and what the not to put words into the court's mouth.
But the message seems to be that any,
that reasonable suspicion needs to be based on something
that would eliminate other people
and is not going to cast a wide net of people
that are properly in their neighborhood wearing
the most common attire in a Boston winter.
Here the circumstances are quite different,
both because the area being searched the time, the day,
the fact that he is the only person present
and Judge Cypher, I apologize.
Or do you have a question?
-: Oh no, I was just thing go ahead.
Kathryn: But isn't the beard a distinguishing factor,
meaning that if the first officer is looking for somebody
who leads this description,
but he's not aware of beard.
And then someone shows up with this long beard,
doesn't that take it,
take us into a different realm?
-: No, I argue that it wouldn't,
it would not eliminate
or in any way mitigate the other many ways
in which the defendant matches
the description of the robber.
-: But it just seems like the most distinguishing factor of,
and that seems
to be why the appeals court gravitates towards it.
-: The, I agree with the characterization
of why the appeals court inserted that issue
into the facts here.
However, the appeals court also specifically says,
that if Doherty had known of the beard,
that would've further supplemented his reasonable suspicion.
I'd suggest that the collective knowledge doctrine
in the exploration of this beard issue
is superfluous both to the appeals court's finding
of reasonable suspicion
and this courts re-evaluation.
Kathryn: (mumbles) superfluous
if it's such a distinguishing characteristic,
that's what I find troublesome.
I mean, whether the,
this met reasonable suspicion or not close,
but if the first officer is not looking for someone
with a beard and someone shows up with a long beard,
that seems to be an important (mumbles).
-: Justice Kathryn, I think that she's responding
to my initial question which is,
does she have to have the beard to win?
Kathryn: No, I get that,
but I'm just look at this as a different issue.
If Doherty thinks the guy doesn't have a beard
and he's stopped him.
But again, I posed the question.
-: And putting it into further greater context with the stop.
As the judge,
the motion judge mentions in her finding of facts.
This is a stop in the dark,
in a dark area.
The, and that Doherty is approaching the defendant saying
he matches the description,
including that he matches the description
of the facial hair,
but that's a sign note related to his testimony
on whether or not he contradicts himself,
but he is approaching this defendant saying
that he matches the description in most meaningful ways
is should this court find that he did,
he was not aware of the beard which raise a question why.
-: Counsel can I ask you,
so the defendant is within,
is it 700 feet of the armed robbery?
-: It would be 700 feet if he took the shortcut, that was.
-: Oh, 700 feet of the armed robbery through the shortcut
in the direction of the fleeing suspect,
generally matching the description cheek footnote to cheek
and also within seven minutes.
That's correct.
-: Right, and that's what you're saying
is enough reasonable suspicion.
-: That's correct.
-: Okay, can I ask you
to address the collective knowledge doctrine?
What would be the rationale
for allowing a horizontal collective knowledge doctrine
in Massachusetts under article 14, given that,
as I understand the rationale for the vertical collective
knowledge doctrine is to allow efficient law enforcement.
How does that further the underlying purposes
of collective knowledge?
-: I will answer your question in two parts,
first beginning with the fact
as I think the court's questions have really probed at,
the horizontal and vertical dichotomy is in applicable
to Massachusetts law in terms of the application
of the collective knowledge doctrine and in this court,
when it is rarely used,
does work within it's own limits.
The pattern over the last 60 years within this court
is that collective knowledge doctrine is imputed
between officers when they're involved
in a cooperative effort.
And there is a form of communication
between the officers and.
-: But the officer who's arresting in the horizontal case
actually objectively does not have reasonable suspicion.
He's not just relying on the reasonable suspicion
of another officer.
In fact, he objectively
does not have reasonable suspicion and X post.
We supply this organic or organism based knowledge
among disparate officers who may be working together,
but have never communicated to any single source
that there is enough reasonable suspicion,
which I think is your opposing counsel's argument
is that it creates a disincentive.
It creates actually an incentive
to arrest without reasonable suspicion on the off chance
that someone in the department has the other aspects of it.
In fact, not just someone,
but maybe three different officers.
-: And to respond to that,
but back to your original question at the same time,
the efficiency or the efficacy
of the law enforcement rationale
that is invoked behind the collective knowledge doctrine.
And I think this case is really a perfect example of that.
That Doherty and Dwan are arriving simultaneously
to stop this defendant.
They are approaching from two different sides
and should this court find that Dwan was the only officer
who knew of the beard,
had he stopped the defendant first,
had he been the one to take one step further,
quicker than Doherty
than he would've had reasonable suspicion
without imputing knowledge.
Doherty did the exact same thing,
which of course we believe he had reasonable suspicion,
but that is the balance between.
-: So let's get away from this.
-: Balance coming back from this.
-: Packs of this case case.
Let's say we have a cheek situation, right?
Black man and a goose down jacket,
three quarter length, right? `
And it's about midnight.
And there's a bunch of people who fit that description.
I arrest if the defendant, right?
'Cause I'm an officer
and cheek says that's not enough for reasonable suspicion.
It turns out that my fellow officer also knew
he was wearing a backpack and had a beard
that, then that gets you over the hump?
-: It would only be imputed through collective knowledge
through if those offers officers
had been engaged in a cooperative effort,
which requires more than just being officers
in the same force at the same time.
-: But we're all hearing the same call.
-: And there needs to be a means of communication
between the parties.
We don't have that.
-: But isn't that what we have here.
That's the problem that I'm having here
is that we keep overlaying that somehow the,
this set of facts was that this
was like a coordinated kind of investigation
and really wasn't, right?
I mean the Dwan
and Doherty just kind of happened to be on
one was on a detail.
And one just kind of happened to hear the broadcast
and go where the puck was going.
But the issue that I'm having with the argument
that the Commonwealth and I can't really glean,
whether you're saying
that this was truly a horizontal collective case or not.
But the, this typical case
that we see is the cases that Attorney Russell
and I dealt with all the time, right?
You have the street level drug buy,
you have the car go away
and you have somebody follow the car
who they think is the buyer
and the police stop the seller
and or pardon me the other way.
And the buyer says,
Hey, I bought some drugs from the person up the street,
and now they radio and say,
get the person up the street,
because now you've got a true collective
kind of vertical knowledge and say,
one person has it and says,
Hey, go and pull that car over.
That's not what we have here though.
So help me understand that.
Like, if you use Justice Whitely's example,
no one knows who this person is
other than he happens to be on the street
in the middle of the night in the rain
and Doherty arrests him.
He doesn't have any of the additional,
more specific characteristics.
He just arrests him.
And then we get to say that the Commonwealth gets
to back filling from the other folks
who weren't all working together in a coordinated effort
of some sort on some drug activity
or some other alleged unlawful activity.
They just happened to be responding to a call.
How does that square?
-: The collective knowledge doctrine would not be able
to be applied in a hypothetical where the officers
are not working together in a coordinated fashion.
And I know I was asked to stay away
from the facts of this case,
but if I may,
there actually is in evidence in the record
that they were cooperating together.
Doherty, testifies, that he knew where Dwan was coming from.
He knew that Dwan hadn't found anybody on the street
and the path that other officers were taking informed
his choice to go to this other neighborhood,
knowing that they weren't being searched for there.
So there is evidence of the cooperative nature
they're working on the same investigation and.
-: But they weren't communicating.
I thought you said they have to be able to communicate.
-: They were on this.
They were both on channel six.
-: They, but.
Okay, so you're saying just generally,
if everybody's on the same thing,
if everybody's hearing the same thing.
-: No, you're right, your honor.
I shouldn't have interrupted your question.
-: No, I'm just asking how were they,
how were Dwan and Doherty in communication with each other?
-: They did not have direct communication with each other.
And I thought that's how you said it would, it could work.
-: Yes, it could work.
And the reason that I'm freezing it that way
is because that is the pattern among the cases
from this court.
-: Which leads to the chief's question to opposing counsel.
We have recognized horizontal in the form
that counsel has asked.
And that's what we have to take a look at,
because that would be the change with,
to see whether we continue
to have horizontal collective knowledge, correct?
-: Yes, that's correct.
This court has recognized horizontal in very rare instances.
And I think a good example of when this court has refused
to apply horizontal collective knowledge doctrine is,
would be a good distinction to make to the circumstances
that defense counsel says may occur in.
It's an older case,
but Hawkins from 72, 3601 mass 384,
in that case collective knowledge doc did not apply.
When officers executing a drug search warrant
came across evidence of they were stolen bonds,
some sort of paper document in a paper envelope.
They saw that in the course
of their search warrant execution,
they did not know before the search warrant was executed.
They certainly weren't looking for bonds,
but others in their department were investigating
that same crime.
And they found that out after they had found the bonds.
-: Can I ask you other hypothetical?
-: Yes.
Kathryn: Say there's a third officer
who's listening to the broadcast,
but never shows up,
but actually heard the sex broadcast.
Would we (mumbles) that person's knowledge?
-: And if I may just repeat it
to make sure I heard it a third officer
who had heard all of the broadcast,
but did not appear on scene.
Kathryn: But never came to the scene.
Say Dwan, didn't hear the second broadcast.
And neither did Doherty,
but a third officer who was listening
and maybe even in the vicinity,
but he never shows up.
Would we impute that knowledge?
-: No, I don't believe that would qualify
as being involved in the cooperative effort.
-: Even if they,
if he were someone looking for the guy
never came around once he heard they'd arrested the person?
-: I mean, he's on channel six.
-: No, I do not believe that would qualify
as a cooperative effort.
-: So they have to show up at the scene
as well as be involved in a cooperative effort?
-: As a general answer,
I'd say, yes,
there needs to be more active engagement
than just being on the channel.
Kathryn: Right, okay.
-: So what are you saying?
Are you said that we use it here in Massachusetts.
The, we use it very,
in a very limited fashion.
What are the contours of the limitations?
What is it that you're saying?
We should continue to do?
-: That information that officers
are involved in a cooperative effort together
as the first limitation
and that the information is communicated to those officers.
-: Wait, so now.
-: Who are involved in the cooperative efforts?
-: If we did that we wouldn't have it in Roland R, would we?
-: In Roland R, the description
of the person being chased was communicated.
-: No, if you just take the basic facts of Roland,
and you have a group of officers
who don't hear any broadcast whatsoever,
but you see,
they see another group of officers
run out of a building chasing someone,
and it's pretty clear that you can infer
that they wanna stop that person.
This other group that has no idea why they're chasing them,
just sees that they're chasing someone.
So they just inferred.
This is somebody I need to help them stop.
Would wouldn't that cut against you,
if that were the case?
-: And I apologize,
I was answering the question,
I suppose, more in the hypothetical horizontal scenario,
what has been categorized as the vertical,
the basic more of a command situation
would not require those limitations.
These are the limitations that I'm suggesting
are what already exist in a more peer
to peer collective knowledge situation
versus the go get him type of collective knowledge.
-: The Roland R is like go get him case.
-: So that's a vertical case?
-: Yes. -: Okay.
-: Okay, I thought we said that there.
-: I thought we said Roland R was a horizontal case? But.
-: No, well that's I guess the question is, have we,
has this court ever endorsed horizontal?
-: Yes, that would be the facts are not overly flushed out
in this case.
It's an again, an older one.
CHAISSONA, C-H-A-I-S-S-O-N it's from 1971,
but there it's officers involved in a stakeout
that are all in radio communication.
And one another's observations are imputed to one another.
Similarly in.
Kathryn: We have a state Commonwealth
versus Mendez 476 mass, 512,
where we cite Quinn approvingly
and Quinns the appeal court case
that expressly adopts horizontal.
-: Yes, that's correct.
That was also a chase situation
where the reasonable suspicion
about the shooting is imputed among the officers involved
in the chase.
-: And in that case,
no one officer had the reasonable suspicion.
It was, you needed all of the officers disparate,
although collaborative knowledge
to establish reasonable suspicion.
-: I believe it was aggregated among officers
in terms of the officer who initiated the stop,
but did not or the.
-: We can check.
-: But I believe it was,
there was aggregation required in that case.
-: Counsel, the first circuit had a case from 2002 USB cook.
I don't know if you're familiar with that one.
'Cause I know it wasn't a primary issue below,
but there they upheld the collective knowledge doctrine
and they had specifically addressed this deterrence factor
and said that they did not think that,
well because investigative stops
are usually dynamic in a dynamic environment
with a potential for violence, joint stops rarely,
the officers rarely have an opportunity
to confer during the course of the stop
and to base the legitimacy of the stop solely
on what the first,
the officer who first makes contact
with the suspect knows
rather than on the collective knowledge doctrine,
they didn't think that would made practical sense.
It's not common sense.
It's not what happens out because police,
as we all know from television,
they look at each other and they point, right?
So they also said though that,
and I wanna get just addressed the deterrence issue
and know what you think
about the exclusionary rules application this instance,
they said that they did not think
that recognizing a more limited principle
that took only into account
the knowledge of the officers present at the scene
and directly involved is unlikely to,
they think that's unlikely
to encourage illegal police activity.
So they've specifically addressed the deterrence factor.
They don't see that this is a problem that will,
that if we keep the collective knowledge doctrine,
we're gonna have all this rampant abuse.
What's your experience with that in the research
that you've done on our Massachusetts cases,
do we have anything addressing that?
-: I didn't find anything directly addressing that,
but I do think the application is consistent with that
in terms of the collective knowledge doctrine,
when it is rarely invoked,
it is invoked in rapidly unfolding situations
in which there is an immediate danger
or an investigation of something
that does pose an immediate public safety risk.
And the pattern of that seems to be consistent
with that case in terms of there not being a long detailed
investigation where communication is easy
and ought to be a default,
or it's always meant to be a default,
but where communication is more naturally occurring
than in these rapidly unfolding situations
where such as here seven minutes
are passing between an armed robbery
and someone being found on the street who may pose a danger
to the public and the officers
who are engaged in that investigation together.
And I would generalize
to say that when knowledge is imputed by this court,
it is in what we are characterizing
as a horizontal situation.
It is usually details of a small nature,
not necessarily aggregating among many, many officers,
small details that must add together.
It's adding to this,
the acting officer,
the decision maker in additional detail
that makes clear that there was reasonable suspicion
or probable cause at the time of the decision.