Case o' The Week: "Collective knowledge" works for the Borg -- and Cops, Too, Says Ninth in Ramirez

In Star Trek's Next Generation series, the Borg are the Federation's nemesis: a huge, hive mind with a collective conscious. Turns out, that's true for cops too. In United States v. Ramirez, Judge O'Scannlain tolerates a search where a narcotics sergeant had facts relating to probable cause, but didn't relate any of those facts to a completely unrelated traffic cop who actually did the stop. United States v. Ramirez, __ F.3d __, Slip. Op. at 533 (9th Cir. Jan. 17, 2007), opinion available here. (Resistance is futile . . . . )

This is a dangerous Fourth Amendment opinion expanding the collective knowledge doctrine in the Ninth Circuit; it is worth a close read.

Players: Hard-fought appeal by CD Cal AFPDs Craig Harbaugh, (now Defender) Sean Kennedy, and Brad Levenson.

Facts: Glendale Police Sgt. Meier learned that there was a sophisticated, electronically-controlled hidden compartment in a Mountaineer SUV. Id. at 538. The SUV was surveilled until it met up with a Silverado. Id. at 539. Men got out of the Silverado, met with Ramirez and co-defendant Beltran, and placed a heavily-weighted gym back in the back of the Mountaineer. Id. at 539. The Silverado men returned to their car with a manila envelope or box. Id. Sgt. Meier requested a traffic stop of the Mountaineer over police radio. The SUV was then stopped by another officer for straddling a lane line, and Beltran was (improperly) arrested for driving on a Mexican license. Id. at 540. The traffic cop who stopped the Mountaineer wasn’t told the facts known by Sgt. Meier; facts which established probable cause. A search of the car produced eight kilos of cocaine. Id. at 540.

Issue(s): “In this criminal appeal we must decide whether the ‘collective knowledge’ doctrine justifies a warrantless stop of an automobile by one officer at the request of another officer within the same police department.” Id. at 538.

Held: “We are satisfied that the collective knowledge doctrine includes no requirement regarding the content of the communication that one officer must make to another. Where one officer knows facts constituting reasonable suspicion or probable cause (sufficient to justify action under an exception to the warrant requirement), and he communicates an appropriate order or request, another officer may conduct a warrantless stop, search, or arrest without violating the Fourth Amendment. Accordingly, appellant’s convictions are AFFIRMED.” Id. at 554-55.

Of Note: This O’Scannlain opinion systematically broadens the collective knowledge exception to the Fourth Amendment – it is a decision we’ll curse in future Fourth Amendment cases. The defense urged two limitations on the collective knowledge doctrine: that the officers at least be working on the case together, and that there be some minimal communication about the knowledge known. Id. at 544. O’Scannlain rejects each of those limits. Here, it doesn’t matter that Sgt. Meier was a narcotic officer and the officer who stopped the car was a completely unrelated traffic cop. Id. at 554. It doesn’t matter that the Sgt. Meier didn’t even tell the traffic cop the real purpose of the investigation, much less the facts giving probable cause for the real stop. Id. at 552-54. Ramirez, combined with Whren, (the Supreme Court decision tolerating pretext stops) creates this troubling scenario: a distant supervising officer with information directs a dupe, drone officer to detain citizens for reasons that the beat cop needn’t know. Another nail crowded into the Fourth’s beat-up coffin.

How to Use: Judge Kozinski, at least, worries that this case could go too far. See id. at 555 (Kozinski, J., concurring). He writes separately to emphasize that “This is not a case where the investigating officers ordered a fellow officer to conduct a traffic stop because they lacked probable cause for a narcotics stop. Sergeant Meier had probable cause to order a narcotics stop, and that’s exactly what he did.” Id. In other words – and this is an important limitation – the collective knowledge doctrine can’t be used to salvage a stop, when there is no knowledge. Here, Sgt. Meier had sufficient facts to establish P.C. before the traffic cop conducted the pretext stop. That’s a key limitation of the Ramirez decision.

For Further Reading: Has the “collective knowledge” doctrine become completely unmoored from any of the common-sense restraints one would expect in Fourth Amendment law? Yep, says Simon Stern, in a very interesting upcoming law review article: Constructive Knowledge, Probable Cause, and Administrative Decision-Making, forthcoming in the Notre Dame Law Review (2007), article available here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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