Merritt v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: March 20, 2020
• Docket: 2:17-cv-04540
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Leslie A. Merritt, Jr., No. CV-17-04540-PHX-DGC

10 Plaintiff, ORDER

11 v.

12 State of Arizona, et al.,

13 Defendants. 14 15 The Court denied Defendant’s motion in limine to preclude Plaintiff from 16 introducing evidence about information known by civilian employees of DPS, including 17 crime lab employee Christopher Kalkowski, under the “collective knowledge” doctrine. 18 Docs. 300, 321. The Court also denied Defendant’s motion in limine to preclude Plaintiff 19 from introducing evidence after Plaintiff was bound over by the Commissioner at his initial 20 appearance on September 19, 2015. Docs. 301, 318. Two additional issues were raised at 21 a hearing on the motions: (1) whether evidence arising after the indictment date – but 22 reflecting what was known on the date of arrest – should be admissible to prove lack of 23 probable cause to arrest, and (2) whether Kalkowski is a person with specialized training 24 whose knowledge can be imputed to DPS officers under the collective knowledge doctrine. 25 Doc. 322. The parties provided supplemental briefing on those issues. Docs. 341, 370. 26 This order addresses the second issue – the scope of the collective knowledge 27 doctrine. The Court will address the admissibility of evidence arising after the indictment 28 in a separate order that also addresses the pending motions in limine. 1 Courts have applied the collective knowledge doctrine in at least two situations. The 2 first “is where law enforcement agents are working together in an investigation but have 3 not explicitly communicated the facts each has independently learned.” United States v. 4 Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007). The knowledge of the various participants 5 in the investigation may be aggregated for purposes of determining the existence of 6 probable cause. Id. at 1032-33. The second situation is “where an officer (or team of 7 officers), with direct personal knowledge of all the facts necessary to give rise to reasonable 8 suspicion or probable cause, directs or requests that another officer, not previously 9 involved in the investigation, conduct a stop, search, or arrest.” Id. at 1033 (emphasis in 10 original). The knowledge of those involved in the investigation may be considered in 11 determining whether the arrest was supported by probable cause even though the officer 12 who actually made the arrest did not personally possess the knowledge. Id. at 1034-35. 13 This case involves the first situation. DPS officers conducted an investigation of 14 Plaintiff, aided by Kalkowski and others, and made the arrest of Plaintiff. Plaintiff 15 contends that the knowledge of all participants in the investigation should be considered 16 by the jury in determining whether his arrest was supported by probable cause. This is not 17 the second situation – where an arresting officer was directed by others to make an arrest 18 based on knowledge known only to the others. 19 Citing United States v. Colon, 250 F.3d 130 (2d Cir. 2001), Defendant asserts that 20 Kalkowski’s knowledge may not be imputed to the investigating DPS officers because 21 Kalkowski lacks training in probable cause. Doc. 341 at 2. But Colon addressed the second 22 situation: “an arrest or search is permissible where the actual arresting or searching officer 23 lacks the specific information to form the basis for probable cause or reasonable suspicion 24 but sufficient information to justify the arrest or search was known by other law 25 enforcement officials initiating or involved with the investigation.” 250 F.3d at 135. The 26 Second Circuit found that application of the collective knowledge doctrine in that situation 27 “requires that at some point along the line, some law enforcement official . . . involved 28 must possess sufficient information to permit the conclusion that a search or arrest is 1 justified.” Id. at 136. The court held that the Terry stop of the defendant, made by officers 2 at the suggestion of a 911 operator who received an anonymous call, was not reasonable 3 where the record “contain[ed] nothing from which to conclude that the [911] operator 4 taking the call was capable of determining whether reasonable suspicion for the stop and 5 frisk existed.” Id. at 137. In other words, in the second situation, where an arrest or stop 6 is made at the request or direction of others, the others must have the training and 7 knowledge to determine that probable cause or reasonable suspicion exists. The decision 8 to arrest or stop cannot be made by a 911 operator with no such training. 9 Colon did not address application of the collective knowledge doctrine in the first 10 situation. Indeed, it expressly declined to do so. See id. at 136 n.3. 11 In the first situation – where many are working on an investigation and collectively 12 develop sufficient information to constitute probable cause to arrest – the Ninth Circuit has 13 held that the knowledge of a civilian employee may be imputed to law enforcement 14 officers. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003) 15 (“When relaying Harvey’s report to the Highway Patrol, the MDOT dispatcher informed 16 the Highway Patrol dispatcher that ‘one of our guys’ called in the report and that the driver 17 was ‘evidently driving quite erratically.’ Although the Highway Patrol dispatcher distilled 18 and paraphrased this information in passing it on to Officer Schock, the dispatcher’s 19 knowledge is properly considered as part of our analysis of reasonable suspicion.”) 20 (emphasis added); see also United States v. Russell, 436 F.3d 1086, 1091 n.3 (9th Cir. 21 2006) (“Russell attempts to rely on the collective knowledge doctrine, which extends to 22 the knowledge of the police dispatchers.”) (citing Fernandez-Castillo, 324 F.3d at 1118); 23 United States v. Wehrle, No. CR406-333, 2007 WL 521882, at *3 (S.D. Ga. Feb. 14, 2007) 24 (rejecting Colon’s requirement of training in probable cause or reasonable suspicion and 25 noting that “the majority of circuits that have addressed the issue have held” that 26 “information possessed by a 911 operator/dispatcher is considered part of the collective 27 knowledge of officers responding to a scene”) (citing Fernandez-Castillo, 324 F.3d 28 at 1118). 1 The Court concludes that Defendant’s reliance on Colon is misplaced and that || Kalkowski’s knowledge may be imputed to DPS officers under relevant Ninth Circuit authority. See Fernandez-Castillo, 324 F.3d at 1118; United States v. Villasenor, 608 F.3d 4|| 467, 475 (9th Cir. 2010) (the collective knowledge doctrine applies where personnel are || working together in an investigation and there has been at least some communication 6|| among them) (citing Ramirez, 473 F.3d at 1032-33).! 7 IT IS SO ORDERED. 8 Dated this 20th day of March, 2020. 9 10 . ul d peed 6, Car phtl 12 David G. Campbell 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27) — 28 _ | Defendant asserts that courts generally have not applied the collective Knowledge doctrine to negate probable cause, but develops no argument on this point. Doc. 341 at 7.