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Pennsylvania Supremes: Modified “Vertical” Approach to Collective Knowledge Doctrine

by Richard Resch

In January 2018, the Pennsylvania Supreme Court refined the contours of the collective knowledge doctrine as it exists in the Commonwealth. The doctrine relates to the warrantless seizure of a person by an officer acting as part of a group in a coordinated investigation. The Court adopted a modified vertical approach to the doctrine rather than opt for the expansive horizontal approach for which the Commonwealth had argued.

On September 21, 2011, Philadelphia Police Officer Joseph McCook and his partner observed Alwasi Yong participate in a controlled drug buy with their confidential informant (“CI”) in front of a residence at 3202 North Fairhill Street. A couple of days later, a group of approximately eight officers executed a search warrant at the residence. McCook was positioned at the back of the group. Yong was standing in the living room when they entered. Officer Gibson immediately seized Yong, patted him down, and recovered a handgun from his waistband. A search of the property resulted in the discovery of 100 plastic bags of marijuana. There was no indication that McCook ever advised Gibson of Yong’s participation in the controlled drug buy days earlier.

Yong was charged with numerous drug and weapon offenses. He subsequently filed an omnibus motion to suppress all physical evidence recovered as a result of his seizure and arrest. He argued that his mere presence at a location subject to a search warrant was insufficient to justify a protective pat-down or Terry frisk, and he argued that Officer Gibson lacked probable cause to arrest him.

At the suppression hearing, McCook testified he observed Yong participate in a controlled drug buy with a CI days before the search warrant was executed. Yong’s lawyer argued that there was no evidence that Gibson was aware of Yong’s involvement in the drug buy when he seized, searched, and arrested him. Yong’s lawyer also pressed the arguments contained in the motion to suppress. The court denied the motion, concluding that “what is in the mind of the observer [McCook] is imputed to that of all those who served the warrant.” That is, the court imputed McCook’s knowledge to Gibson (and every other member of the group) without any actual communication of such information by McCook.

A jury convicted Yong on drug and weapon charges and was sentenced to a prison term of 5 to10 years. He filed a timely appeal, arguing the trial court erred in denying his motion to suppress. He renewed his position that Gibson had neither probable cause to arrest him nor reasonable suspicion to conduct a Terry frisk. He conceded that McCook’s first-hand knowledge provided him with sufficient probable cause to arrest him.

The appellate court reversed the trial court’s denial of Yong’s motion to suppress, declining to adopt the horizontal approach to the collective knowledge doctrine. The court explained the two general approaches to the collective knowledge doctrine as follows: The horizontal approach holds that in a close group of officers working as a team, any member’s knowledge of facts sufficient to make an arrest is imputed to the entire group and that a directive or information sharing by the member possessing the knowledge is not necessary. In contrast, the vertical approach generally sanctions an arrest involving an officer with sufficient knowledge for probable cause instructing a fellow officer without the requisite knowledge to act.

The State appealed and pushed for the adoption of the horizontal approach by the Pennsylvania Supreme Court.

The Supreme Court began its discussion by noting it sanctioned the use of the vertical approach in Commonwealth v. Kenney, 297 A.2d 794 (Penn. 1972). According to the Court, that approach in evaluating whether a warrantless seizure comports with Fourth Amendment standards is the best compromise in reaching a middle ground between allowing police “some flexibility in enforcing the law and adhering to a rigid probable cause standard to protect citizens from unreasonable intrusion.” 

The Court then discussed the horizontal approach at length, describing it as controversial and representing a broad expansion of the collective knowledge doctrine. It observed that the horizontal approach treats all officers comprising the group as a single organism with any member’s knowledge imputed to the others regardless of whether it is actually ever communicated.

After reviewing the rationale and application of the horizontal approach, the Court rejected the State’s invitation to adopt it. The Court announced, “We cannot acquiesce to the Commonwealth’s request to broadly interpret the collective knowledge doctrine and adopt an unrestricted horizontal application.” The very purpose of the exclusionary rule is to deter illegal searches and seizures. Thus, the Court determined “we will not endorse an approach that has the potential of encouraging police without the requisite level of suspicion to infringe on a person’s freedom of movement in the hopes that his or her fellow officers possess such level of suspicion.”

The facts in this case warrant the introduction of a modified vertical approach, the Court concluded. It reasoned that it would be “hyper-technical to insist on bifurcating the knowledge of Officers McCook and Gibson” and suppressing the evidence simply because Gibson happened to reach Yong before McCook, who unquestionably had probable cause to arrest him.

In situations where the arresting officer does not have the requisite knowledge and was not directed to act by an officer who has such knowledge, the Court announced “we hold the seizure is still constitutional where the investigating officer with probable cause or reasonable suspicion was working with the officer and would have inevitably and imminently ordered that the seizure be effectuated.” That was clearly the scenario in this case.

The Court instructed that not all fact patterns fit neatly within a purely vertical or horizontal framework. For those that do, however, the Court reaffirmed that “Pennsylvania adheres to the vertical approach of the collective knowledge doctrine.” With respect to those that do not, the Court concluded “we find this modified approach best balances the important interests of ensuring police efficacy and efficiency with protecting citizens’ rights to be free from unconstitutional intrusions.”

In applying the newly announced modified vertical approach to the present case, the Pennsylvania Supreme Court determined that “Yong’s Fourth Amendment rights were not violated.” Accordingly, the Court reversed the appellate court’s judgment. See: Commonwealth v. Yong, 2018 Pa. LEXIS 379 (2018). 

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