Petition for Writ of Certiorari — Alwasi Yong, Petitioner v. Pennsylvania

No.

In the Supreme Court of the United States

ALWASI YONG, PETITIONER

v.

COMMONWEALTH OF PENNSYLVANIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

PETITION FOR A WRIT OF CERTIORARI

DANIEL J. O’RIORDAN

1515 Market Street

Suite 1200

Philadelphia, PA

19102

(215) 696-0367

JOHN P. ELWOOD

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

MARK T. STANCIL

MATTHEW M. MADDEN

ROBBINS, RUSSELL,

ENGLERT, ORSECK,

DANIEL R. ORTIZ

UNTEREINER & SAUBER UNIVERSITY OF VIRGINIA

LLP

SCHOOL OF LAW

1801 K Street, N.W.

SUPREME COURT

Washington, DC 20006

LITIGATION CLINIC

(202) 775-4500

580 Massie Road

Charlottesville, VA 22903

QUESTION PRESENTED

Courts examine “the facts known to the arresting

officer at the time of the arrest” in assessing probable

cause or reasonable suspicion under the Fourth

Amendment. Devenpeck v. Alford, 543 U.S. 146, 152

(2004). Nonetheless, an officer may lawfully act in

reliance on an order issued by another officer who had

the requisite personal knowledge. United States v.

Hensley, 469 U.S. 221 (1985); Whiteley v. Warden, 401

U.S. 560 (1971).

The question presented is:

Whether, in the absence of such an order, an officer

who lacks probable cause or reasonable suspicion may

conduct an arrest, search, or frisk, so long as a court

later determines that another officer who happened to

be present at the scene had the requisite personal

knowledge, even if that officer did not communicate it

to the acting officer.

(I)

II

TABLE OF CONTENTS

Page

Question Presented...................................................... I

Appendix Contents ................................................... III

Table Of Authorities ................................................. IV

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional Provisions Involved ............................ 1

Introduction ................................................................ 1

Statement .................................................................... 3

Reasons For Granting The Petition ......................... 12

I.

The Decision Below Exacerbates An

Entrenched Circuit Split ................................... 12

A. At Least Four State Supreme Courts And

Two Federal Circuits Allow Knowledge To

Be Imputed Between Officers Even Absent

Communication ................................................ 13

B. Still Other Courts Require Only “Some”

Unspecified “Degree Of Communication”

Between Officers .............................................. 17

C. At Least Two Federal Circuits And Several

State High Courts Refuse To Allow

Imputation Between Officers Absent

Communication Of That Information Or An

Instruction To Act ............................................ 19

II.

The Decision Below Is Wrong .......................... 25

III. This Case Presents an Ideal Vehicle for

Resolving an Issue of Unquestionable

Importance ......................................................... 31

Conclusion ................................................................. 33

III

APPENDIX CONTENTS

Page

A. Opinion of the Supreme Court of Pennsylvania . 1a

B. Opinion of the Pennsylvania Superior Court .... 36a

C. Transcript of suppression hearing..................... 61a

IV

TABLE OF AUTHORITIES

Cases:

Page(s)

Adams v. Williams,

407 U.S. 143 (1972) .............................................. 25

Arizona v. Gant,

556 U.S. 332 (2009) ........................................ 28, 29

Beck v. Ohio,

379 U.S. 89 (1964) ................................................ 28

Brinegar v. United States,

338 U.S. 160 (1949) ................................................ 3

Byrd v. United States,

No. 16-1371 (May 14, 2018) ................................. 28

Camara v. Municipal Court of City and

County of San Francisco,

387 U.S. 523 (1967) ................................................ 3

Carroll v. United States,

267 U.S. 132 (1925) ...................................... 2, 3, 26

Commonwealth v. Kenney,

297 A.2d 794 (Pa. 1972) ......................................... 5

Davis v. United States,

564 U.S. 229 (2011) ........................................ 20, 27

Devenpeck v. Alford,

543 U.S. 146 (2004) ............................... I, 1, 2, 3, 25

Dunaway v. New York,

442 U.S. 200 (1979) .............................................. 29

Elkins v. United States,

364 U.S. 206 (1960) ........................................ 31, 32

Haywood v. United States,

584 A.2d 552 (D.C. 1990) ............................... 24, 26

V

Cases—Continued:

Page(s)

Heien v. North Carolina,

135 S. Ct. 530 (2014) ............................................ 25

Herring v. United States,

555 U.S. 135 (2009) ........................................ 28, 29

Illinois v. Andreas,

463 U.S. 765 (1983) .............................................. 26

In re L.J.,

79 A.3d 1073 (Pa. 2013) ..................................... 8, 9

Maryland v. Pringle,

540 U.S. 366, 371 (2003) .................................. 3, 25

Montes-Valeton v. State,

216 So. 3d 475 (Fla. 2017) .................... 2, 19, 22, 23

New York v. Belton,

453 U.S. 454 (1981) .............................................. 29

Nix v. Williams,

467 U.S. 431 (1984). ............................................. 28

People v. Mitchell,

585 N.Y.S.2d 759 (N.Y. App. Div. 1992) ...... passim

State v. Bell,

948 S.W.2d 557 (Ark. 1997) ........................... 14, 15

State v. Cooley,

457 A.2d 352 (Del. 1983) ............................ 2, 19, 23

State v. Iven,

335 P.3d 264 (Okla. 2014) .................................... 24

State v. Miller,

510 N.W.2d 638 (N.D. 1994) .......................... 12, 24

State v. Peterson,

696 P.2d 387 (Kan. 1985) ............................... 14, 15

VI

Cases—Continued:

Page(s)

State v. Tywayne H.,

933 P.2d 251 (N.M. Ct. App. 1997) ...................... 24

State v. Weber,

139 So.3d 519 (La. 2014) ................................ 14, 18

Terry v. Ohio,

392 U.S. 1 (1968) .................................... 1, 4, 19, 30

United States v. Cortez,

449 U.S. 411 (1981) ................................................ 4

United States v. Ellis,

499 F.3d 686 (7th Cir. 2007) ................ 2, 19, 21, 22

United States v. Gillette,

245 F.3d 1032 (8th Cir. 2001) ........................ 17, 18

United States v. Hensley,

469 U.S. 221 (1985) ...................................... passim

United States v. Lee,

962 F.2d 430 (5th Cir. 1992) ................................ 18

United States v. Massenburg,

654 F.3d 480 (4th Cir. 2011) ........................ passim

United States v. McCarthy,

77 F.3d 522 (1st Cir. 1996) ..................................... 5

United States v. O’Connell,

841 F.2d 1408 (8th Cir. 1998) .............................. 13

United States v. Ragsdale,

470 F.2d 24 (5th Cir. 1972) .................. 2, 11, 15, 16

United States v. Ramirez,

473 F.3d 1026 (9th Cir. 2007) .......................... 2, 18

United States v. Shareef,

100 F.3d 1491 (10th Cir. 1996) ............ 2, 12, 16, 17

VII

Cases—Continued:

Page(s)

United States v. Watson,

423 U.S. 411 (1976) ................................................ 3

Utah v. Talbot,

246 P.3d 112 (Ut. 2010) ........................................ 18

Whiteley v. Warden,

401 U.S. 560 (1971) ...................................... passim

Wong Sun v. United States,

371 U.S. 471 (1963) .............................................. 28

Ybarra v. Illinois,

444 U.S. 85 (1979) .................................................. 1

Statutes:

28 U.S.C. § 1257(a) ...................................................... 1

Other Authorities:

Derik T. Fettig, Who Knew What When? A

Critical Analysis of the Expanding

Collective Knowledge Doctrine,

82 UMKC L. REV. 663 (2014) ......................... 13, 18

Unified Judicial System of Pennsylvania,

“Justice David N. Wecht,”

https://goo.gl/kzMGyS .......................................... 10

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania,

App., infra, 1a-35a, is reported at 177 A.3d 876. The

opinion of the Superior Court of Pennsylvania, App.,

infra, 36a-60a, is reported at 120 A.3d 299.

JURISDICTION

The judgment of the Supreme Court of Pennsylvania was entered on January 18, 2018. On April 9,

2018, Justice Alito extended the time in which to file a

petition for writ of certiorari to and including May 18,

2018. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution provides in relevant part:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause * * *.

INTRODUCTION

“[A] search or seizure of a person must be supported

by probable cause particularized with respect to that

person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Police may also perform an investigatory stop and frisk

based on reasonable suspicion that a weapon is present. See Terry v. Ohio, 392 U.S. 1, 20 (1968). In making such determinations, police may rely on “the facts

known to the arresting officer at the time of the arrest,” Devenpeck v. Alford, 543 U.S. 146, 152 (2004), or

on information and instructions communicated by

other officers. See Whiteley v. Warden, 401 U.S. 560,

(1)

2

568 (1971); Carroll v. United States, 267 U.S. 132, 161

(1925).

However, state and federal courts are deeply divided about whether a valid search and seizure can be

based on facts not known to the officer who performed

the search—but rather, on facts known only by some

other officer on the scene. Some courts, including the

Fourth and Seventh Circuits and the high courts of

Delaware and Florida, maintain that probable cause

depends on the knowledge of the officer actually conducting the search or seizure. See, e.g., United States

v. Massenburg, 654 F.3d 480 (4th Cir. 2011); United

States v. Ellis, 499 F.3d 686 (7th Cir. 2007); MontesValeton v. State, 216 So. 3d 475 (Fla. 2017); State v.

Cooley, 457 A.2d 352 (Del. 1983); see also People v.

Mitchell, 585 N.Y.S.2d 759 (N.Y. App. Div. 1992).

Other courts disagree, including the Fifth and Tenth

Circuits and the Supreme Court of Pennsylvania in

this case. Those courts hold that probable cause or

reasonable suspicion can be based on facts concededly

unknown to the acting officer, but known to some other

officer present at the scene. See App., infra, 29a-30a;

United States v. Shareef, 100 F.3d 1491, 1504 (10th

Cir. 1996); United States v. Ragsdale, 470 F.2d 24, 30

(5th Cir. 1972). This notion is commonly referred to as

the “collective knowledge doctrine” or the “fellow officer rule.” See United States v. Ramirez, 473 F.3d

1026, 1032 n.4 (9th Cir. 2007).

The decision of the Supreme Court of Pennsylvania

cannot stand. It conflicts with the bedrock rule that

police action must be upheld based on “the facts known

to the * * * officer at the time” of the search or seizure.

Devenpeck, 543 U.S. at 152. The decision here would

3

“encourag[e] police without the requisite level of suspicion” to take actions known to be invalid, “in the

hopes that his or her fellow officers possess such level

of suspicion.” App., infra, 34a (Donohue, J., dissenting). By converting search and seizure determinations

from a weighing of known facts into a game of chance

about what a court might later conclude other officers

knew (but never bothered to communicate), the decision invites “arbitrary invasions by government officials”—the very evil the Fourth Amendment is intended to prevent. See Camara v. Municipal Court of

City and County of San Francisco, 387 U.S. 523, 528

(1967). The decision raises the real risk that imputed

knowledge “could swallow” conventional Fourth

Amendment analysis. App., infra, 34a (Donohue, J.,

dissenting). This Court’s review is urgently warranted.

STATEMENT

1. Under the Fourth Amendment, police officers ordinarily cannot conduct an arrest or search without

probable cause to believe that the subject committed a

crime (or, in the case of a search, that evidence of a

crime will be found). United States v. Watson, 423 U.S.

411, 417 (1976); Brinegar v. United States, 338 U.S.

160, 174 (1949). “Whether probable cause exists depends upon the reasonable conclusion to be drawn

from the facts known to the arresting officer at the

time of the arrest.” Devenpeck, 543 U.S. at 152 (citing

Maryland v. Pringle, 540 U.S. 366, 371 (2003)). An arresting officer may also rely “on facts communicated to him by others.” Carroll, 267 U.S. at 161.

This Court has also condoned certain limited kinds

of searches and seizures based on a lesser showing.

4

For example, an investigatory stop and frisk can be

based on reasonable suspicion that an individual may

be carrying a weapon that could threaten the officer’s

safety. Terry, 392 U.S. at 20. But such a search must

be “narrowly drawn” to the purpose of finding weapons

and performed only if the officer “has reason to believe

that he is dealing with an armed and dangerous individual.” Id. at 27 (emphasis added). The belief must

be “particularized and objective.” United States v. Cortez, 449 U.S. 411, 417-418 (1981).

Whiteley v. Warden, 401 U.S. 560 (1971), addressed

when police may rely on orders from other officers in

making an arrest. There, one officer arrested a suspect in reliance on information contained in a police

bulletin broadcast by officers in another jurisdiction.

This Court acknowledged that “police officers called

upon to aid other officers in executing search 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.” But the Court also emphasized that if the

requesting officer did not himself have probable cause,

“an otherwise illegal arrest cannot be insulated from

challenge by the decision of the instigating officer to

rely on fellow officers to make the arrest.” Id. at 568569. Because the police bulletin in Whiteley relied on

a complaint that did not establish probable cause—

and because the arresting officer himself lacked any

“factual data tending to corroborate” probable cause—

this Court held that the arrest was unconstitutional

and evidence recovered therein should have been suppressed. Ibid.

United States v. Hensley, 469 U.S. 221 (1985), applied Whiteley in the context of investigatory stops. In

5

Hensley, officers stopped a suspect “in reliance on a

flyer issued by another [police] department indicating

that the [defendant] [wa]s wanted for investigation of

a felony.” The flyer did not communicate, however,

“the specific and articulable facts which led the first

department to suspect [his] involvement in a completed crime.” Hensley, 469 U.S. at 229-230. This

Court explained that under Whiteley, the admissibility

of evidence gained during an investigatory stop turns

“on whether the officers who issued the flyer possessed

[reasonable suspicion],” not “whether those relying on

the flyer were themselves aware of the specific facts

which led their colleagues to seek their assistance.” Id.

at 231.

Lower courts have consistently applied Whiteley

and Hensley to situations where one officer directs another to make an arrest or investigatory stop. The focus of such inquiries is whether the officer who issued

the directive had information sufficient to justify it.

See, e.g., United States v. McCarthy, 77 F.3d 522, 533

(1st Cir. 1996); Commonwealth v. Kenney, 297 A.2d

794, 796 (Pa. 1972). Courts have sharply divided, however, about how Whiteley and Hensley apply in the absence of communication between officers.

2. In September 2011, police officer Joseph McCook

conducted surveillance of suspected drug activity

along a block in Philadelphia’s Fairhill neighborhood.

App., infra, 2a. McCook saw a confidential informant

hand money to petitioner, Alwasi Yong. Ibid. Petitioner handed the money to another man, who went

inside a nearby house, returned with a small object

(later determined to be marijuana), and handed it to

the informant. Ibid. Police returned and conducted

surveillance again the next day. Officer McCook did

6

not join them, and no officers saw petitioner there that

day. Id. at 3a. McCook returned for the third day of

surveillance, during which an undercover officer purchased an item later confirmed to be marijuana. Ibid.

Although another officer saw petitioner in the area, petitioner did not take part in the transaction. Ibid.

Officers finished their surveillance around 1:15 pm

on the third day. App., infra, 3a-4a. McCook then

“met up with the other officers to get ready to execute

[and] to brief them on the execution of the search warrant” issued for the house. Id. at 4a. The suppression

record contains no testimony or other evidence about

what McCook said to the other officers at this briefing,

or which officers were present. Ten minutes later, at

approximately 1:25 pm, officers returned to the house

to execute the search warrant. Ibid.

A group of “approximately six to eight” officers entered the house, with McCook toward the rear. App.,

infra, 4a. Officer Gerald Gibson entered the living

room area, where he found petitioner. Ibid. Just as

McCook was entering the living room, Gibson arrested

and handcuffed petitioner. Ibid.; see also id. at 67a,

72a-73a (suppression hearing). Gibson searched petitioner and found a .38 caliber revolver in his waistband. Id. at 4a.

3. Petitioner moved to suppress the evidence collected from Gibson’s search, arguing that no officer on

the scene had probable cause to search him, including

Gibson. App., infra, 5a-6a, 74a-78a. Petitioner argued

that the fact that McCook witnessed him accepting

money once (before immediately turning it over to

someone else) two days earlier was insufficient to raise

concern that Yong could be armed or dangerous. Id. at

7

74a-75a. Petitioner also noted that no officer had testified to seeing a bulge or anything else to raise suspicion that petitioner might be armed. Ibid. Moreover,

petitioner argued that Gibson was not present during

any of the surveillance that could have suggested petitioner’s involvement with any criminal activity, id. at

78a, and there was no evidence anyone had communicated such information to Gibson, id. at 5a-6a.

The trial court denied petitioner’s motion to suppress. App., infra, 79a-80a. The court acknowledged

that the Commonwealth had not actually introduced

the warrant into evidence. Nonetheless, the court “assume[d] that [the warrant] noted that there were people who were involved on [the three surveillance days]

[and that petitioner was] there on [the first and third

days].” Id. at 76a. The court then held that the search

warrant, which was issued based on McCook’s surveillance, established probable cause for McCook to search

petitioner incident to its execution. Id. at 79a. The

trial court further held that “the knowledge of one [officer] is imputed to all on that scene that day, all the

ones who are executing the search warrant.” Id. at

76a. The fact that Gibson was not present during the

surveillance was irrelevant, in the trial court’s view,

because “what is in the mind of the [officer who observed the earlier transaction involving petitioner] is

imputed to that of all those who served the warrant.”

Id. at 79a.

A jury convicted petitioner of carrying a firearm

without a license and conspiracy to commit possession

of a controlled substance with intent to distribute. In

a separate proceeding, the trial court found petitioner

guilty of persons not to possess a firearm. Petitioner

8

was sentenced to an aggregate term of 5-10 years’ imprisonment. App., infra, 7a & n.9.

4. The Superior Court unanimously reversed.

App., infra, 36a-60a. As relevant here, and in a

lengthy opinion written by then-Judge David Wecht,

the court held that Gibson’s search violated the Fourth

Amendment and the resulting evidence should have

been suppressed. Id. at 36a; see also id. at 40a-41a

(Yong argued on appeal that arresting officer Gibson

lacked probable cause or reasonable suspicion, but did

not dispute that McCook had probable cause). Looking

only to the evidence introduced during the suppression

hearing, as state law requires, see id. at 42a (citing In

re L.J., 79 A.3d 1073, 1085 (Pa. 2013)), the court concluded that:

there is nothing in the suppression record to suggest that: (1) Officer McCook ordered or directed

Officer Gibson to arrest [petitioner]; or (2) Officer

Gibson received information justifying [petitioner]’s arrest; or (3) Officer Gibson received information, which, coupled with facts that he personally observed, provided probable cause to arrest

[petitioner].

Id. at 48a. The Superior Court emphasized the absence of communication between McCook and Gibson:

“Officer McCook did not testify that he informed Officer Gibson of [petitioner]’s role in the narcotics transaction on [the first day of surveillance], nor did Officer

McCook testify that he instructed Officer Gibson to arrest and/or search [petitioner].” Id. at 39a. For that

reason, the court concluded that Gibson, “acting of his

9

own accord,” made a warrantless arrest that was not

supported by probable cause. Id. at 48a.1

The court concluded that Whiteley and its progeny

did not validate the search. When an officer “instructs

or requests another officer to make an arrest,” the

court reasoned, the arresting officer “shares in” the

other officer’s knowledge. App., infra, 46a. The court

declined to “[e]xtend[]” the collective knowledge doctrine in the “absence of a directive or instruction to arrest issued by an officer” who possessed probable

cause. Doing so, the court concluded, would ill serve

the legitimate law enforcement interests underlying

the collective knowledge doctrine—namely, enabling

officers in different jurisdictions to rely on information

provided by other officers to make arrests. Id. at 50a51a.

Judge Anne Lazarus filed a concurring opinion to

emphasize that, because no officer requested or authorized Gibson to arrest petitioner, the collective

knowledge doctrine was wholly inapplicable. App., infra, 59a-60a. Finding nothing in the record to suggest

that Gibson himself had probable cause, Judge Lazarus agreed that the evidence should have been suppressed. Id. at 60a.

5. The Supreme Court of Pennsylvania granted

discretionary review and reversed by a four-to-two

1 The Superior Court noted, but did not find, that testimony presented for the first time at trial might have indicated that

McCook communicated with Gibson regarding petitioner. But

the Superior Court emphasized that evidence was not relevant to

the determination because, as a matter of Pennsylvania law, its

“scope of review in suppression matters is limited to the suppression hearing record, and excludes any evidence elicited at trial.”

App., infra, 54a-55a (citing In re L.J., 79 A.3d at 1085).

10

margin.2 The majority began by noting the “circuit

split[] in [the] adoption” of the collective knowledge

doctrine outside the narrow context of one officer directing another to make an arrest. App., infra, 21a.

The court recognized widespread disagreement about

whether the knowledge of a single officer with probable cause may be imputed to another officer where

there is undisputed evidence that they were acting

as a team, but there is no evidence the knowledgeholding officer gave a command to the officer who

lacked probable cause or conveyed the information

which gave rise to probable cause.

Id. at 24a-25a. The majority recognized that “under

any approach that permits aggregation of unspoken

information * * *, there remain serious concerns for

protecting citizens from unconstitutional intrusions.”

Id. at 25a. Such a rule, the majority acknowledged,

“would create an incentive for officers to conduct

searches and seizures they believe are likely illegal” by

immunizing searches even when an officer “know[s]

that she lacks cause” because of the happenstance that

a court later concludes that “her fellow officers h[e]ld

enough uncommunicated information to justify the

search.” Id. at 26a-27a (quoting United States v. Massenburg, 654 F.3d 480, 494 (4th Cir. 2011)).

The majority nevertheless upheld the search.

While conceding that “the arresting officer d[id] not

have the requisite knowledge,” App., infra, 30a, the

2 Justice Wecht, who authored the Superior Court opinion directing suppression, joined the Supreme Court of Pennsylvania

in 2016. See Unified Judicial System of Pennsylvania, “Justice

David N. Wecht,” https://goo.gl/kzMGyS. He recused himself

from that Court’s consideration of this case.

11

majority found it sufficient that “Officer McCook had

probable cause to arrest [petitioner].” Id. at 27a. According to the majority, “it would be hyper-technical to

insist on bifurcating the knowledge of Officers McCook

and Gibson * * * where the officers were working together and it is apparent the challenged conduct would

have inevitably been undertaken if Officer Gibson had

not acted too swiftly.” Id. at 29a (citing United States

v. Ragsdale, 470 F.2d 24, 30 (5th Cir. 1972)).

Justice Donohue, joined by Justice Todd, dissented.

The dissent echoed the intermediate appellate court’s

concern that the majority’s approach unjustifiably expanded an “exception to the traditional requirement

that the arresting officer have probable cause to arrest

an individual.” App., infra, 31a. The dissent found

this expansion particularly troubling in a situation (as

here) involving “no communication whatsoever” (id. at

34a) and which “serves none of the legitimate law enforcement purposes” behind the doctrine, id. at 33a

(quoting Hensley, 469 U.S. at 231). The dissent emphasized that the decision “threatens citizens” with

the very “unconstitutional intrusions” the majority

opinion warned about, because under it, “an arrest

made by an officer without the requisite knowledge

passes constitutional muster simply because * * * a

hindsight evaluation reveals that [an] officer with

knowledge was in some respects ‘available’ to direct”

the arrest or search. Id. at 33a-34a. Because “[t]he

exception announced by the Majority could swallow

probable cause requirements,” the dissenters “would

[have] affirm[ed] on the basis of the rationale expressed in the opinion authored by then-judge, nowJustice Wecht.” Id. at 34a-35a.

12

REASONS FOR GRANTING THE PETITION

I. The Decision Below Exacerbates An Entrenched Circuit Split

In holding that knowledge can be imputed from one

officer to an arresting officer who concededly “does not

have the requisite knowledge and was not directed to

so act,” the Supreme Court of Pennsylvania deepened

an acknowledged split among the federal circuits and

state high courts. App., infra, 30a. Indeed, that court

expressly recognized that disagreement and confusion

about the issue “has led to circuit splits.” Id. at 21a.

Courts and commentators alike have noted this division of authority. As the Tenth Circuit observed,

some federal courts of appeals “have allowed the

knowledge of officers working closely together on a

scene to be mutually imputed without requiring proof

of actual communication,” while others “reject the idea

of imputing knowledge, even among officers working

closely together.” United States v. Shareef, 100 F.3d

1491, 1504 (10th Cir. 1996). Similarly, the Fourth Circuit recently noted its disagreement with other circuits

on this issue, explaining that while “[s]ome of our sister courts have authorized ‘horizontal’ aggregation of

uncommunicated information[,]” it would not adopt

such an “expansive aggregation rule.” United States v.

Massenburg, 654 F.3d 480, 494 (4th Cir. 2011); accord

State v. Miller, 510 N.W.2d 638, 643 (N.D. 1994)

(“[s]ome courts have imputed knowledge between officers in the absence of a directive where the officers were

working closely together[,]” while others refuse to impute knowledge without “communication of either the

information itself or a direction to arrest”) (citing

United States v. O’Connell, 841 F.2d 1408, 1418-1419

13

(8th Cir. 1998) and quoting People v. Mitchell, 585

N.Y.S.2d 759, 761 (N.Y. App. Div. 1992)).

Similarly, one leading academic article recognized

a “circuit split over the expanded scope of the [collective knowledge] doctrine.” Derik T. Fettig, Who Knew

What When? A Critical Analysis of the Expanding Collective Knowledge Doctrine, 82 UMKC L. REV. 663, 678,

703 (2014). As that article reports, some circuits “aggregate information from several officers to establish

probable cause or reasonable suspicion and impute

that knowledge to the officer who effectuates the

search or seizure, sometimes without any communication between the officers,” while others allow imputation only in “cases where an officer with probable cause

or reasonable suspicion * * * directs another officer to

take action.” Id. at 666. The article concludes that

while “the Supreme Court has not settled the ongoing

split,” “its intervention is needed.” Id. at 678.

A. At Least Four State Supreme Courts And

Two Federal Circuits Allow Knowledge To

Be Imputed Between Officers Even Absent

Communication

The Supreme Court of Pennsylvania rejected a requirement of actual communication between officers,

and held that an arresting officer need not have any

information supporting a stop or search so long as a

court later concludes that another officer on the

scene—perhaps unknown to anyone else—possessed

the requisite knowledge.

The court’s approach is hardly unique. Louisiana’s

Supreme Court similarly holds that knowledge can be

imputed between officers “even in the absence of any

affirmative evidence the actual communication took

14

place.” State v. Weber, 139 So.3d 519, 522 (La. 2014)

(per curiam). In Weber, an officer without probable

cause authorized a blood draw from an unconscious individual suspected of driving while intoxicated and

causing an accident. Id. at 520-521. The searching

officer’s colleague knew that the defendant owned and

drove the truck that caused the accident, and therefore

had knowledge that would have furnished probable

cause to support the blood draw. Id. at 521. But there

was no evidence the officer with probable cause communicated that information to the searching officer.

Ibid. Despite the lack of communication, the Louisiana Supreme Court upheld the search simply because

the two officers were working as a team. Id. at 521522.

Similarly, when an arresting officer lacks probable

cause, courts in Arkansas and Kansas aggregate information “within law enforcement’s knowledge” in determining whether an arrest is justified, rather than requiring that the arresting officer individually have

probable cause. State v. Bell, 948 S.W.2d 557, 561

(Ark. 1997); State v. Peterson, 696 P.2d 387, 393 (Kan.

1985). In Bell, an arresting officer interviewed a suspect as part of a murder investigation. Id. at 559. Despite doubts about whether the arresting officer had

probable cause, the Arkansas Supreme Court held

that courts should look not only to the arresting officer’s knowledge, but also to “[t]he essential facts that

were available to law enforcement[.]” Id. at 561. The

Bell decision prompted a sharp dissent arguing that

the majority had departed from existing precedent, under which “an arrest made by an officer who personally

lacks probable cause to arrest is invalid unless the ar-

15

resting officer is specifically instructed to make an arrest by officers who possess probable cause to arrest.”

Id. at 567 (Newbern, J., dissenting) (emphasis omitted).

Similarly, Kansas courts hold that “the knowledge

of one officer is the knowledge of all in determining the

probable cause for an arrest[.]” Peterson, 696 P.2d at

392-393. Kansas courts look to officers’ aggregate

knowledge, treating as irrelevant which officers had

probable cause, and what information each officer specifically possessed. “The correct test[,]” in the Kansas

Supreme Court’s view, “is whether a warrant if sought

could have been obtained by the arresting officer.” Id.

at 393. That court reasoned that an arresting officer

would have relied on his colleagues’ knowledge if he

had sought to obtain a warrant. Ibid.

The Pennsylvania decision here drew heavily on

United States v. Ragsdale, where the Fifth Circuit upheld a search despite the searching officer’s lack of

probable cause. The Fifth Circuit held that “it would

be hypertechnical to insist on bifurcating the

knowledge of the” searching officer and his colleague.

470 F.2d 24, 30 (5th Cir. 1972). Instead, the panel effectively “h[e]ld that, when a police officer who is a

member of a team conducts a warrantless search * * *

with no personal knowledge capable of generating

probable cause, his search is reasonable if his partner

did possess sufficient knowledge[,]” even when “that

knowledge was never communicated to the searcher.”

Id. at 32 (Rives, J., specially concurring). In Ragsdale,

Officers Jones and Mullens stopped Ragsdale for a

speeding offense. Id. at 25 (Clark, J., for the panel).

The officers asked Ragsdale to exit the vehicle, and

Jones (but not Mullens) saw a pistol on the floor of the

16

car. Id. at 26. While walking Ragsdale back to the

police cruiser, Jones passed Mullens, and whispered

that there was a gun in the car. Ibid. Mullens concededly did not hear Jones’s whisper. Id. at 26, 33. Officer

Mullens nevertheless proceeded to search Ragsdale’s

car. Id. at 26.

The Fifth Circuit found it “wholly improbable” that

Mullens heard Jones, and thus did “not base [its] holding in anywise on the supposition that Mullens may

have heard Jones’[s] whisper.” 470 F.2d at 27. The

Fifth Circuit also acknowledged that Mullens did not

have probable cause “individually.” Ibid. But the

court upheld the search, reasoning that if Mullens had

not acted, Officer Jones “would surely have commanded it,” or would have conducted the search himself. Id. at 30. One member of the panel wrote separately, expressing concern that the Fifth Circuit’s rule

would allow warrantless searches without any communication from the officer possessing probable cause,

creating an “unnecessary deviation from the exclusionary rule.” Id. at 32 (Rives, J., specially concurring).

Judge Rives explained that “[t]he mandate of the exclusionary rule is not directed to the collective intellect

of an amorphous government entity, but to the individual searching officer.” Ibid.

The Tenth Circuit takes a similar position, phrased

in terms of a rebuttable presumption of communication. In that circuit, even without any evidence of communication, courts will presume any officer who had

probable cause communicated it to the searching or arresting officer. United States v. Shareef, 100 F.3d

1491, 1504 (10th Cir. 1996). On the facts of Shareef,

the Tenth Circuit held its presumption to be rebutted,

because “the district court [there] found that in fact the

17

information had not been shared.” Ibid. The Tenth

Circuit nonetheless concluded that communication is

not a requirement. “Even in the absence of communication among officers,” the Tenth Circuit indicated

willingness to uphold a search where “officers are

working closely together at the scene[.]” Ibid.

B. Still Other Courts Require Only “Some”

Unspecified “Degree Of Communication”

Between Officers

Contributing to the disarray in the lower courts,

several jurisdictions permit imputation of knowledge

so long as there is some minimal degree of communication. In United States v. Gillette, 245 F.3d 1032 (8th

Cir. 2001), for example, two officers went to a house

where drug activity was allegedly occurring. Id. at

1033. The officers obtained consent to enter the house,

where they saw items associated with methamphetamine manufacturing. Ibid. One officer then asked for

consent to search the defendant’s truck. Ibid. The

homeowners did not own the truck, but they consented

without disclaiming ownership. Ibid. A third officer

arrived on the scene and, without conferring with the

others, immediately searched the defendant’s truck

and found components of a methamphetamine lab. Id.

at 1033-1034. There was no evidence that the homeowners’ consent to search the truck had been communicated to the searching officer. Id. at 1034. Despite

the absence of any evidence that the key information

had been transmitted to the searching officer, the

Eighth Circuit upheld the search because there was

“some degree of communication between” the officers.

Ibid. In the Eighth Circuit’s view, “[t]he requirement

that there be a degree of communication serves to distinguish between officers functioning as a ‘search

18

team’ and officers acting as independent actors who

merely happen to be investigating the same subject.”

Ibid. (citations omitted).

As a practical matter, courts requiring “some degree of communication” do not explain how much communication is required, and have upheld searches

based on effectively de minimis communication of facts

unrelated to probable cause. See Fettig, 82 UMKC L.

REV. at 677. Such courts “include[] no requirement regarding the content of the communication[.]” United

States v. Ramirez, 473 F.3d 1026, 1037 (9th Cir. 2007).

While some courts do not explain the reason for requiring ‘some degree of communication,’ see, e.g., United

States v. Lee, 962 F.2d 430, 435-436 (5th Cir. 1992),

others make clear that the standard is undemanding.

As the Eighth and Ninth Circuits, as well as the high

courts in Utah and Louisiana have explained, a degree

of communication simply shows that officers were

working together as a team, which, in their view, is

sufficient to warrant imputation. Ramirez, 473 F.3d

at 1032-1033 (9th Cir.); Gillette, 245 F.3d at 1034 (8th

Cir.); Weber, 139 So.3d at 522 (La.); Utah v. Talbot, 246

P.3d 112, 117 (Ut. 2010). Thus, “[t]he communication

requirement adopted by the Ninth and other circuits

is minimal in every sense of the word.” Fettig, 82

UMKC L. REV. at 677. As a result, the “some degree of

communication” test produces the same practical outcome as courts that do not require communication at

all.

19

C. At Least Two Federal Circuits And Several

State High Courts Refuse To Allow Imputation Between Officers Absent Communication Of That Information Or An Instruction To Act

In sharp contrast, at least two federal circuits and

several state high courts have rejected imputation of

uncommunicated information in the specific context of

officers working together in close proximity. E.g.,

United States v. Massenburg, 654 F.3d 480 (4th Cir.

2011); United States v. Ellis, 499 F.3d 686 (7th Cir.

2007); Montes-Valeton v. State, 216 So. 3d 475 (Fla.

2017); State v. Cooley, 457 A.2d 352 (Del. 1983); see

also People v. Mitchell, 585 N.Y.S.2d 759 (N.Y. App.

Div. 1992).

The Fourth Circuit holds that the Fourth Amendment forbids imputation of knowledge between officers

at a scene absent communication of that information.

See Massenburg, 654 F.3d at 493 (“[T]he collectiveknowledge doctrine * * * does not permit us to aggregate bits and pieces of information from among myriad

officers, nor does it apply outside the context of communicated alerts or instructions.”). In Massenburg,

the court reversed the district court’s denial of a motion to suppress evidence obtained during a Terry

frisk. Id. at 484-485, 496. Officers Gaines and Fries

had stopped Massenburg and three other men in a

high-crime area near where an anonymous tipster had

reported hearing shots fired. Id. at 482-483. Fries conducted a consensual pat-down of one man while Gaines

asked Massenburg if he would consent to a pat-down.

Id. at 483. When Massenburg refused to consent but

displayed “mild nervousness,” Gaines frisked him. Id.

at 483, 491. Before the frisk, the other officer (Fries)

20

had observed a small bulge in Massenburg’s pocket but

did not communicate that information to Gaines. Id.

at 483.

The Fourth Circuit refused to impute Fries’

knowledge of a bulge to Gaines, instead considering

only what was known to the arresting officer when he

conducted the frisk. The court explained that the collective knowledge doctrine developed in the context of

police directives to arrest or stop a suspect to further

the narrow and commonsensical goal of “minimiz[ing]

the volume of information concerning suspects that

must be transmitted to other jurisdictions [or officers]

and enabl[ing] police . . . to act promptly in reliance on

information from another jurisdiction [or officer].” Id.

at 494 (quoting United States v. Hensley, 469 U.S. 221,

231 (1985)). Allowing imputation of uncommunicated

information between officers at a scene was a “far more

expansive rule” that would “serve[] no such ends.” Id.

at 493, 494.

Though the court had “studied [its] sister circuits’

cases adopting [such] an aggregation rule, [it could]

find no convincing defense of it.” Massenburg, 654

F.3d at 494-495. Noting that “the exclusionary rule’s

‘sole purpose * * * is to deter future Fourth Amendment violations,’ ” id. at 494 (quoting Davis v. United

States, 564 U.S. 229, 236-237 (2011)), the Fourth Circuit concluded that deterrence requires “look[ing] to

each individual officer’s decision-making process as

she considers executing a search or effecting a seizure.” Id. at 495. The more expansive rule adopted

by other courts, the Fourth Circuit concluded, “would

perversely reward officers acting in bad faith” and

“would only create an incentive for officers to conduct

searches and seizures they believe are likely illegal,”

21

making such a rule “directly contrary to the purposes

of longstanding Fourth Amendment jurisprudence.”

Id. at 494 (emphasis in original). The Fourth Circuit

also noted the troubling implications of allowing imputation absent communication: “If the Fourth Amendment is satisfied when, unbeknownst to the officer conducting a search, a fellow officer on the scene has the

information necessary to justify it, why should the

analysis change when the other officer is not on the

scene?” Id. at 495.

The Seventh Circuit has likewise refused to impute

uncommunicated information among officers working

together at a scene. See United States v. Ellis, 499

F.3d 686, 690 (7th Cir. 2007) (“[T]he error in the district court was imputing the knowledge of the officers

at the front door to [the arresting officer] at the side

door.”). In Ellis, the court considered officer Lopez’s

warrantless entry into the side door of a home tied to

suspected drug activity, at a time when two other officers (McNeil and Chu) were conducting a “knock and

talk” at the front door. Id. 687-688. Lopez stood at the

side door, and could hear McNeil and Chu talking but

could not understand what was being said. Id. at 690.

The defendant spoke to McNeil and Chu through the

front door and denied them entry in a manner those

officers deemed suspicious. Lopez, at the side door,

heard someone running up and down the stairs inside

the home. Id. at 688. Lopez then decided to break

down the side door. Ibid.

Even though Chu came to help Lopez break down

the door, the Seventh Circuit refused to impute Chu

and McNeil’s knowledge to Lopez, since “[t]here [was]

no evidence that [they] communicated [their

knowledge] to Lopez before Lopez entered the home.”

22

Id. at 690. The Seventh Circuit instead limited the

Fourth Amendment analysis to what Lopez himself

knew when he decided to break down the side door.

Ibid. The court held that Lopez did not have probable

cause, nor was the entry justified by exigent circumstances. Therefore, the court reversed the denial of the

suppression motion. Id. at 692. The Seventh Circuit

acknowledged this Court’s precedents allowing officers

to rely on the personal knowledge of other officers, but

concluded that these cases were limited to situations

where “an officer who is aware of such facts relay[s]

them to the other officer.” Id. at 690 (citing United

States v. Hensley, 469 U.S. 221, 232-233 (1985)).

Several state high courts have also held that the

Fourth Amendment forbids imputation of uncommunicated knowledge between officers at a scene. In

Montes-Valeton v. State, the Florida Supreme Court

held that “the fellow officer rule does not allow an officer to assume probable cause for an arrest or a search

and seizure from uncommunicated information known

solely by other officers.” 216 So. 3d 475, 479 (Fla.

2017). That case involved an officer (Tejera) who arrived at the scene of a car accident and found the

driver was disoriented and had alcohol on his breath.

Id. at 477. Tejera “delegated the role of lead traffic

crash investigator to Trooper Molina and thereby engaged in general communications with” Molina, but

there was no evidence Tejera communicated his

knowledge about the driver’s intoxication to Molina.

Ibid. Molina then ordered the driver’s blood drawn.

The Florida Supreme Court held that because Molina

personally lacked probable cause (because he did not

smell alcohol on the driver’s breath or observe intoxication), the blood draw was invalid. Id. at 477, 479.

23

The court specifically rejected the government’s argument that “general communications” between Tejera

and Molina were sufficient to impute knowledge between the officers, holding that imputation requires

communication of the presence of probable cause or

specific facts supporting probable cause. Id. at 479.

The Supreme Court of Delaware similarly refuses

to impute uncommunicated knowledge between officers at a scene. In Cooley, one officer (Shamany) arrived at the scene of a car accident and found the defendant incoherent and observed alcohol on his breath.

457 A.2d at 353. Another officer (McDerby) later arrived and directed a third officer (Thompson) to arrest

Cooley. Ibid. The Court held that “[i]n light of the absence of communication between Shamany and

McDerby, it follows that McDerby acted without probable cause[.]” Id. at 356. While under Whiteley,

Thompson could permissibly “act in the belief that

[McDerby’s] judgment” was correct, McDerby himself

still needed to have probable cause for the arrest to be

valid. Id. at 355 (citing Whiteley v. Warden, 401 U.S.

560 (1971)). The court squarely rejected the government’s suggestion that “what all of the officers on the

scene knew as a group was enough to establish probable cause.” Ibid. Because there was “no finding that

Shamany directed McDerby to order Cooley’s arrest”

or otherwise communicated his knowledge, the Court

held that “McDerby acted without probable cause in

ordering Cooley’s arrest.” Id. at 355, 356. The Court

affirmed the suppression of evidence obtained as a result. Id. at 357.

Likewise, New York courts have disallowed imputation of uncommunicated knowledge. In Mitchell, two

24

officers (Kokeas and Higgins) approached the defendant and saw him toss something to the ground. One

(Kokeas) recovered the object and recognized that it

contained drugs; the other (Higgins) pursued and arrested the defendant. The court held that one officer’s

discovery of drugs could not be imputed to the other:

“[I]nasmuch as Higgins not only testified that he did

not know what Kokeas had picked up from the ground,

but never testified that he relied on, or even heard,

Kokeas’ request that defendant stop, Kokeas’

knowledge of what defendant had discarded cannot be

imputed to Higgins.” 585 N.Y.S.2d at 760-761. The

court thus held that Higgins lacked reasonable suspicion and that evidence derived from the defendant’s

arrest must be suppressed. Id. at 761-762. Numerous

other courts take the same approach.3 E.g., State v.

Iven, 335 P.3d 264, 269 (Okla. 2014) (“[the] collective

knowledge doctrine requires a court to determine

whether the individual officers communicated the information that they possessed individually”); State v.

Miller, 510 N.W.2d 638, 643 (N.D. 1994) (“[I]nformation held by other officers but not communicated to

the acting officer is not imputed to the acting officer.”);

Haywood v. United States, 584 A.2d 552, 557 (D.C.

1990) (“[W]here probable cause for arrest is predicated

in part on the personal observations of the arresting

officer, the court may not rely on facts which were

available to other officers at the scene unless that information was communicated to the arresting officer.”).

3 Other jurisdictions frequently cite Mitchell as a leading statement of the principles prohibiting imputation of uncommunicated

information. E.g., State v. Miller, 510 N.W.2d 638, 643 (N.D.

1994); State v. Tywayne H., 933 P.2d 251, 257 (N.M. Ct. App.

1997).

25

II. The Decision Below Is Wrong

Under a faithful application of this Court’s precedent, the Fourth Amendment prohibits imputing

knowledge absent communication between officers.

That conclusion follows from this Court’s decisions, the

broader purposes of the Fourth Amendment and the

exclusionary rule, and the perverse incentives a contrary rule would create for police officers.

The general rule governing probable cause is clear

and longstanding: “Whether probable cause exists depends upon the reasonable conclusion to be drawn

from the facts known to the arresting officer at the time

of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152

(2004) (emphasis added) (citing Maryland v. Pringle,

540 U.S. 366, 371 (2003)). Accord Adams v. Williams,

407 U.S. 143, 148 (1972). Similarly, “[r]easonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the

relevant law.” Heien v. North Carolina, 135 S. Ct. 530,

536 (2014).

In dicta, Whiteley recognized a limited exception to

this rule that allowed an arresting officer to assume

that officers “requesting aid” in arresting a suspect “offered the magistrate the information requisite to support an independent judicial assessment of probable

cause.” 401 U.S. at 568. At the same time, however,

this Court emphasized that “an otherwise illegal arrest cannot be insulated from challenge by the decision

of the instigating officer to rely on fellow officers to

make the arrest.” Ibid. And because the requesting

officers in Whiteley in fact lacked probable cause, this

Court had no occasion to authorize the imputation of

information. Ibid.

26

Hensley subsequently held that an officer could rely

on a flyer issued by another police department requesting that a suspect be stopped. “[I]f a flyer or bulletin has been issued on the basis of articulable facts

supporting a reasonable suspicion that the wanted

person has committed an offense, then reliance on the

flyer [by another officer] justifies a stop.” 469 U.S. at

232. This approach, the Court explained, would “minimiz[e] the volume of information concerning suspects

that must be transmitted to other jurisdictions and enabl[e] police in one jurisdiction to act promptly in reliance on information from another jurisdiction.” Id. at

231.4

In the 30 years since Hensley, however, this Court

has never applied the collective knowledge doctrine beyond the narrow contours of that case. And the courts

that have expanded the doctrine have offered “no convincing defense of [its expansion].” Massenburg, 654

4 In dicta, this Court has stated in a footnote that “[w]here law

enforcement authorities are cooperating in an investigation * * *

the knowledge of one is presumed shared by all.” Illinois v. Andreas, 463 U.S. 765, 771-772 n.5 (1983) (citations omitted). But

in Andreas, “[t]here would be no question that Drug Enforcement

Agents, posing as delivery men, knew that the container they

brought to respondent’s residence (a container which they had

previously lawfully entered at the airport) contained a controlled

substance.” Haywood v. United States, 584 A.2d 552, 557 n.8

(D.C. 1990). Indeed, the searching officer there likely had personal knowledge that the container held drugs, because during a

previous lawful search of the container, he conducted a field test

and identified the substance as marijuana. Andreas, 463 U.S. at

767. At minimum, the officer had “hearsay” “kn[o]w[ledge] of its

contents.” Id. at 768. In other words, in Andreas, “the ‘presumption of knowledge’ * * * was so obvious as to be a fact,” well within

the bounds allowed by Carroll and Whiteley. Haywood, 584 A.2d

at 557 n.8. This Court in Hensley did not cite or discuss Andreas.

27

F.3d at 495. Hensley and Whiteley are best understood

as a limited exception to the general rule requiring

that the arresting officer have personal knowledge of

the facts supporting a search or seizure.

Nothing in Whiteley or Hensley supports expanding

the collective knowledge doctrine in the manner the

Pennsylvania court contemplated here, which allows a

broad range of after-the-fact imputation, absent communication. Whiteley’s single paragraph addressing

collective knowledge spoke only to situations (unlike

here) where one officer is “called upon to aid” in an arrest. 401 U.S. at 568.

Hensley’s rationale of facilitating interdepartmental cooperation is inapplicable where two officers

are on a single team or physically present at the same

scene. In those situations, there is no inherent difficulty in communicating. And even if there were,

Whiteley itself contemplates communication as a critical predicate for imputation: there must be at least a

“call[] * * * to aid” in an arrest, 401 U.S. at 568, or some

equivalent communication. To allow imputation without any communication, as the Pennsylvania court did

here, is a radical expansion of this Court’s precedent,

far afield from the narrow applications of collective

knowledge at issue in Whiteley and Hensley.

Interpreting the collective knowledge doctrine to

require a communication also properly serves the

Fourth Amendment’s purpose of deterring police misconduct. This Court has “said time and again that

the sole purpose of the exclusionary rule is to deter

misconduct by law enforcement.” Davis v. United

States, 564 U.S. 229, 246 (2011). Where an officer conducts an arrest while knowing that he lacks knowledge

28

amounting to probable cause, and is not relying on an

order or information communicated by another officer,

that is culpable misconduct. See Wong Sun v. United

States, 371 U.S. 471, 482 (1963) (admitting evidence

obtained by officer “act[ing] in his own, unchecked discretion upon information too vague * * * to [constitute]

probable cause” would be contrary to “fundamental

[Fourth Amendment] policy”); Byrd v. United States,

No. 16-1371 (May 14, 2018), slip op. 6 (this Court

“view[s] with disfavor practices that permit ‘police officers unbridled discretion to rummage at will among

a person’s private effects’ ” (quoting Arizona v. Gant,

556 U.S. 332, 345 (2009)). An arrest made without

probable cause is also “sufficiently deliberate that exclusion can meaningfully deter it.” Herring v. United

States, 555 U.S. 135, 144 (2009). For these reasons,

this Court has long suppressed evidence obtained in

searches incident to such arrests. E.g., Beck v. Ohio,

379 U.S. 89 (1964). These reasons dictate the same

result in cases where (as here) probable cause existed

but the arresting officer did not know this and, as such,

“should have believed [the arrest was] illegal.” Massenburg, 654 F.3d at 493.5

Allowing imputation in the limited situations discussed in Whiteley and Hensley likewise accords with

5 The Pennsylvania court’s reliance on what Officer McCook

“would have inevitably and imminently ordered,” App., infra, 30a,

bears superficial resemblance to the doctrine of inevitable discovery. See Nix v. Williams, 467 U.S. 431, 441 (1984). But the two

are entirely distinct. The inevitable discovery doctrine is an exception to the exclusionary rule where evidence was collected in

violation of the Fourth Amendment. The Pennsylvania decision,

by contrast, bears on the predicate question of whether a search

was lawful.

29

Fourth Amendment purposes because it would serve

no deterrent function to suppress evidence in those situations.6 If an officer relies on an order or information

communicated by another officer to arrest a suspect,

there is no deliberate, culpable misconduct because

such reliance is objectively reasonable. Cf. Herring,

555 U.S. at 146 (exclusion is not justified where police

conduct is “objectively reasonable”).

Further, a categorical rule against imputing uncommunicated knowledge advances the Fourth

Amendment’s goal of providing clear guidance to officers and citizens. See Dunaway v. New York, 442 U.S.

200, 213-214 (1979) (“A single, familiar standard is essential to guide police officers, who have only limited

time and expertise to reflect on and balance the social

and individual interests involved in the specific circumstances they confront.”); New York v. Belton, 453

U.S. 454, 459-460 (1981) (abrogated on other grounds

by Gant, 556 U.S. 332) (“When a person cannot know

how a court will apply a settled principle to a recurring

factual situation, that person cannot know the scope of

his constitutional protection, nor can a policeman

know the scope of his authority.”). It is much simpler

for individual officers to consider only what they know

or have been told, without speculating about what others might have known. From the perspective of law

enforcement agencies, a simpler rule is easier to teach.

And for the public, a categorical rule rejecting imputation of uncommunicated knowledge between officers

6 Whiteley assumed that the officers requesting aid would possess probable cause. 401 U.S. at 568. Requesting aid to arrest a

suspect without probable cause is itself deterrable police misconduct, so Whiteley’s holding requiring exclusion is also consistent

with Fourth Amendment purposes.

30

demystifies the Fourth Amendment by creating clear,

easily understandable ground rules.

By contrast, the decision below frustrates the underlying purposes of the Fourth Amendment and exclusionary rule by encouraging, rather than deterring,

police misconduct. The requirement that a court limit

its analysis to the facts known to the arresting officer

is necessary because “[a]nything less would invite intrusions upon constitutionally guaranteed rights

based on nothing more substantial than inarticulate

hunches, a result this Court has consistently refused

to sanction.” Terry v. Ohio, 392 U.S. 1, 22 (1968).

“Where officers working closely together have not communicated pertinent information, the acting officer

weighs the costs and benefits of performing the search

in total ignorance of the existence of that information—it is not known to her, so it cannot enter into

the calculus.” Massenburg, 654 F.3d at 495. As such,

the rule adopted here invites officers to arrest a suspect in bad faith without probable cause, in the hope

that another officer’s uncommunicated knowledge

might retroactively cure their misconduct. See id. at

494 (“[An] aggregation rule would perversely reward

officers acting in bad faith according to the result of an

after-the-fact aggregation inquiry * * *.”) (emphasis

added). It would shield from Fourth Amendment scrutiny those circumstances where “no officer believed

any other officer had pertinent information,” and thus

where “the acting officer undertook a search or seizure

she should have believed to be illegal.” Id. at 493.

31

III. This Case Presents an Ideal Vehicle for

Resolving an Issue of Unquestionable

Importance

1. The question presented here is of exceptional importance to the administration of criminal justice nationwide. In imputing knowledge between police officers even in the absence of communication, the rule

adopted by the Supreme Court of Pennsylvania encourages officers to make arrests known to be unlawful

at the time, on the hope that facts might exist that

could later redeem their unconstitutional action. The

issue merits this Court’s attention for numerous reasons.

First, the issue arises with great frequency. Federal and state courts have addressed the “collective

knowledge doctrine” (or its cognates) in more than a

thousand decisions over the past decade alone. Cases

explicitly addressing Fourth Amendment claims and

the exclusionary rule, moreover, represent only a tiny

fraction of actual interactions between police and criminal suspects, where police conduct is governed and

shaped by Fourth Amendment doctrines. Cf. Elkins v.

United States, 364 U.S. 206, 217-218 (1960) (noting

that cases applying the exclusionary rule are minority

of searches by police, and that the exclusionary rule is

the only means of protecting against unlawful but

fruitless searches which do not generally result in litigation).

Further, for the exclusionary rule to function as a

meaningful deterrent, police officers must be able to

determine at the time they choose to perform a search

or seizure whether their action is lawful. Where a po-

32

lice officer would otherwise gain nothing from searching without cause, Pennsylvania’s rule introduces the

possibility that a baseless search might later be validated. This possibility encourages searching first and

justifying later—the very incentive the exclusionary

rule is meant to eliminate. See Elkins, 364 U.S. at 217

(“[The exclusionary rule’s] purpose is to deter—to compel respect for the constitutional guaranty in the only

effectively available way—by removing the incentive

to disregard it.”). Worse still, this incentive may be

disproportionately strong when suspicions against a

particular suspect are weak: when the suppression of

evidence is not likely to hamper an existing investigation, police stand only to gain by taking their chances.

It also risks immunizing all police conduct. If the reasonableness of police action were gauged not just by

facts known to the officers who acted, but by all information known to everyone present, it would tend to excuse all police action.

2. This case presents an ideal vehicle to resolve

these issues. The imputation issue is the only question

presented, and it is dispositive. The decision of the Supreme Court of Pennsylvania rests wholly on federal

constitutional law, and there is no clear statement of

an adequate and independent state-law ground to support the judgment below. The issue was properly preserved at every stage. The Superior Court and Supreme Court’s opinions discuss the issue fully, and the

latter has a well-developed dissent. Finally, the factual record is concise and (for present purposes) undisputed, and crisply tees up the legal issue. Both the

Superior Court and the Supreme Court agree that

while Officer McCook would have had probable cause

to arrest Mr. Yong, Officer Gibson did not, and that

33

there is no relevant evidence that Officer McCook communicated his knowledge to Officer Gibson or ordered

Gibson to arrest petitioner. App., infra, 2a, 24a-25a,

42a, 48a.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DANIEL J. O’RIORDAN

1515 Market Street

Suite 1200

Philadelphia, PA 19102

(215) 696-0367

MARK T. STANCIL

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ROBBINS, RUSSELL,

ENGLERT, ORSECK,

UNTEREINER & SAUBER

LLP

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MAY 2018

JOHN P. ELWOOD

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