UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 19-cr-230-LM Opinion No.

Michael Balser

ORDER

Defendant Michael Balser challenges the search of his car. He argues that

physical evidence from his car should be suppressed because the patrol officer who

conducted the stop did not have probable cause to seize his vehicle. The

government does not contest that the patrol officer lacked probable cause. The

government contends, however, that the patrol officer acted pursuant to a directive

from another officer who did have probable cause. The government argues that the

directing officer’s probable cause is imputed to the patrol officer under the

“collective knowledge” doctrine. The court agrees with the government. For the

reasons below, Balser’s motion to suppress, doc. no. 17, is denied.

BACKGROUND

At a suppression hearing on September 11, 2020, Nicholas Turner of the

Salem Police Department testified. After Turner’s testimony, the court granted

Balser’s request to continue the hearing to give Balser time to locate an additional witness. At day two of the suppression hearing on September 28, 2020, Stephen

DiChiara of the Salem Police Department testified.1

The following facts come from filings by both parties, attached exhibits, and

testimony during the two-day suppression hearing.

I. The DEA Investigation

In February 2019, the DEA wiretapped a phone used by a drug trafficking

organization. Based on information from the wiretap, the DEA identified 525 Essex

Street in Lawrence, Massachusetts as a drug distribution point for the organization.

The DEA also learned that Balser was a customer and drove a white Hyundai. The

target of the investigation changed telephone numbers shortly after the wiretap

began, but the DEA eventually determined the target’s new number and initiated a

second wiretap in March.2

The second wiretap revealed that the target contacted Balser on March 14 to

ask if he was “still coming tomorrow morning?” Balser confirmed he was and said,

“usual plus sample.” The target replied, “OK.” Balser and the target then

discussed the upcoming purchase. Balser asked whether the sample was “brown,”

and the target replied “yes, one brown and one ball good soft.” Balser asked, “how

1 At the time of his testimony, DiChiara was no longer a police officer.

2 The target changed telephone numbers seven to ten times during the

investigation. 2 much is a finger going for so that I can give a price.” Balser then followed up with

questions about the quality of the product.

Turner was one of the officers monitoring the wiretap. Although employed by

the Salem Police Department, he was assigned to the DEA task force and he quickly

identified this conversation as a potential drug transaction. Turner recognized the

exchange as a drug transaction because he knew that the drug trafficking

organization would occasionally provide their regular customers with samples, the

terms “brown” and “one ball good soft” likely referred to cocaine, heroin, or fentanyl,

and a “finger” is a ten-gram cylinder of drugs in powder form.

On the afternoon of March 15, Turner intercepted messages regarding

Balser’s arrival in Lawrence. Balser informed the target that he was 30 minutes

away from the city, and the target instructed him to go to 525 Essex Street. In

response to these messages, Turner instructed DEA agents in Lawrence to monitor

525 Essex street in anticipation of in incoming drug transaction. Turner testified

that he was familiar with this address because the DEA had previously conducted

surveillance, interdiction, and controlled purchases nearby.

Complying with Turner’s instructions, DEA agents observed a white Hyundai

Sonata with Vermont plates, a car registered to Balser, park near 525 Essex Street.

The agents observed a man leave the car and walk to 525 Essex Street carrying a

backpack. The agents relayed this information to Turner. Turner then intercepted

a text message from Balser to the target asking to get buzzed into the building. Six

minutes later, the agents in Lawrence observed the man exit the building, still with

3 the backpack, and return to the Hyundai. The car drove to Interstate 93 North, and

the DEA agents followed. The agents contacted Turner and requested that a

marked, uniformed police officer stop the vehicle.

II. The Stop

Turner called DiChiara to enlist his assistance in stopping Balser’s car. This

was not the first such call between the two officers. Turner was familiar with

DiChiara because they both worked for the Salem Police Department, and during

Turner’s assignment with the DEA he called DiChiara on multiple occasions where

the DEA needed a car stopped on Interstate 93.

Turner told DiChiara that there was a white four-door car with Vermont

license plates that the DEA needed DiChiara to stop because the car “had drugs in

it.” Turner told DiChiara that the car had been in Lawrence where the driver had

likely completed a drug transaction, that the car was headed north on Interstate 93,

and that Turner believed there were drugs inside the car. Turner did not reference

Balser’s text messages specifically, but he told DiChiara that this information was

based on a wiretap from an ongoing DEA investigation. Turner testified that

DiChiara already knew about the wiretap because they had previously spoken

about the ongoing investigation.

Turner asked DiChiara to find a motor vehicle violation before stopping the

car and told him to conduct a “wall-off stop,” noting that DiChiara should “try and

develop his own probable cause” to search or seek a search warrant. Turner asked

4 for a wall-off stop because he did not want DiChiara to reveal information about the

ongoing DEA investigation. Turner wanted to conceal the investigation because

targets will change phone numbers if they become suspicious of surveillance, as the

target in this case had already done.

DiChiara received Turner’s call while he was monitoring traffic on Interstate

93 in a marked cruiser. He saw Balser’s car at 3:15 p.m. traveling 65 to 70 miles per

hour. He stopped the car because “the vehicle was traveling too close to the vehicle

in front of it during Friday rush hour traffic.” During the traffic stop, DiChiara

believed that he had probable cause to seize the car based on four observations:

Balser had not taken the most direct route from Massachusetts to Vermont; he

appeared nervous; his cellphone repeatedly rang but he did not answer it; and a

small piece of cotton was on the driver’s side rear floorboard. DiChiara seized the

vehicle and transported it to the Salem police station. A K-9 sniffed the exterior of

the car and signaled that it smelled drugs through the open passenger window.

The following day, March 16, DiChiara successfully applied for a warrant to

search the vehicle for drugs and paraphernalia. The warrant request relied on the

alleged indirect route,3 Balser’s nervousness, the ringing cellphone, the piece of

cotton, and the K-9 alert. Police searched Balser’s car on March 20 and found

drugs.

3 Balser argues that Interstate 93 was the most direct route from Lawrence

to his destination in Vermont. 5 DiChiara’s original police report contains no information about his

conversation with Turner. DiChiara subsequently filed a supplemental police

report stating:

I was instructed to complete this supplement to indicate the stop was ‘walled off.’ I was notified by Turner that this vehicle was in Lawrence and believe it may have been there for other reasons than leisure. I did not at that time have any knowledge that the operator had picked up narcotics. However, one can reasonably believe it did have narcotics in it due to the fact it was from Vermont and was in Lawrence[, which] is known as a narcotics hub.

After using this supplemental to report to disclose his contact with Turner,

DiChiara noted that his seizure of Balser’s car after the traffic stop “took place due

to the issue[s] outlined[d] in my initial report.”

DISCUSSION

Balser moves to suppress all evidence obtained from the warrantless seizure

of his automobile on March 15.

The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. Amend. IV. Warrantless seizures are “per se unreasonable

under the Fourth Amendment” unless an exception applies. Minnesota v.

Dickerson,

(1993). The automobile exception to the warrant

requirement “provides that ‘police officers may seize and search an automobile prior

to obtaining a warrant where they have probable cause to believe that the

automobile contains contraband.’” United States v. Dion,

(1st

6 Cir. 2017) (citing United States v. Silva,

(1st Cir. 2014)). “Probable

cause exists when the facts and circumstances as to which police have reasonably

trustworthy information are sufficient to warrant a person of reasonable caution in

the belief that evidence of a crime will be found.”

(internal citations omitted);

see also Texas v. Brown,

(1983) (plurality opinion). The

government bears the burden of showing that warrantless seizures are justified by

an exception to the warrant requirement, such as the automobile exception. See

Coolidge v. New Hampshire,

(1971).

Here, the government argues that the post-traffic-stop seizure of Balser and

his car was justified because Turner had probable cause that the vehicle contained

illegal drugs, and that Turner’s probable cause is imputed to DiChiara under the

collective knowledge doctrine. The government concedes that DiChiara’s personal

observations (i.e., Balser’s supposed indirect route of travel, his nervous demeanor,

his ringing cellphone, and the piece of cotton on the car’s floorboard) are insufficient

to establish probable cause that Balser was transporting contraband. See Dion,

. This case therefore hinges on the applicability of the collective

knowledge doctrine.

I. Collective Knowledge Doctrine

Under the “collective knowledge” doctrine (also known as the “fellow officer

rule”), information known by one law enforcement officer in an investigation can be

imputed to other officers. See United States v. Meade,

(1st Cir.

7 1997). Collective knowledge applies to findings of probable cause. United States v.

Azor,

(1st Cir. 2017). When an officer with information amounting to

probable cause directs an officer who lacks that knowledge to make an arrest, courts

may impute the directing officer’s knowledge to the acting officer. Meade,

.

The First Circuit has applied the collective knowledge doctrine where officers

share information about a suspect with other officers who are jointly investigating

that suspect or agree to assist in the investigation of that suspect. See Azor, 881

F.3d at 4–6 (upholding imputation of probable cause from DEA agents who

contacted a state trooper and shared information about a suspect, which trooper

then contacted another trooper and asked him to pull over the suspect’s car on the

highway); United States v. Barnes,

, 62–63 (1st Cir. 2007) (upholding

imputation of knowledge about a suspect from one officer to another officer in the

same department); United States v. Cook,

, 86–87 (1st Cir. 2002)

(upholding imputation of knowledge among multiple officers who were present at

the scene of an investigatory stop and involved in effectuating the stop); United

States v. Paradis,

, 557–58 (1st Cir. 1986) (upholding imputation of

knowledge of DEA agents to the arresting officer who—by himself—did not have

probable cause to justify arrest).

In Cook and Meade, the First Circuit noted theoretical concerns about a

“broad rendition” of the collective knowledge doctrine. Cook,

; see

Meade, F.3d at 194. Both opinions recognized the danger of imputing the

8 knowledge of an entire law enforcement agency to specific officers involved in

executing a search and seizure. See Cook,

; Meade,

.

Multiple courts—including courts in the First Circuit—have raised concerns that

the doctrine could be used after-the-fact to “pool” individual pieces of probable cause

from other law enforcement sources where neither an investigating agency nor the

acting officer has independent probable cause. See United States v. Kennedy, No.

14-CR-10191-DPW,

, *3–*4 (D. Mass. July 30, 2015), aff’d,

(1st Cir. 2018) (noting that the First Circuit has “expressed significant

skepticism that information possessed by all individuals in a law enforcement

agency or participating in an investigation can be pooled to reach probable cause”);

United States v. Shareef,

(10th Cir. 1996) (finding a lack of

probable cause where several officers had bits of information that, if communicated,

would have added up to probable cause); State v. Cooley,

, 355–56

(Del. 1983); 2 Wayne R. LaFave, Search & Seizure § 3.5(b), n.61.

The Eleventh Circuit divides the collective knowledge doctrine into two

distinct analytical categories: “horizontal” and “vertical.” United States v. Chavez,

(11th Cir. 2008). Horizontal collective knowledge occurs where

“a number of individual law enforcement officers have pieces of the probable cause

puzzle, but no single officer possesses information sufficient for probable cause.”

. These situations present a difficult question as courts “must consider

whether the individual officers have communicated the information they possess

individually, thereby pooling their collective knowledge to meet the probable cause

9 threshold.”

As noted by the First Circuit, a horizontal collective knowledge

scenario presents a potentially problematic application of the doctrine. See Cook,

; Meade,

.

In a case involving vertical collective knowledge, “one officer has probable

cause and instructs another officer to act.” Chavez,

(emphasis

omitted). When addressing vertical collective knowledge, jurisdictions are split on

how much information, if any, the directing officer must communicate to the acting

officer. In the Sixth, Seventh, and Eighth Circuits, the doctrine applies only where

the directing officer shares some underlying facts with the acting officer. See

United States v. Blair,

, 751–52 (6th Cir. 2008); United States v. Ellis,

(7th Cir. 2007); United States v. Gillette,

(8th Cir. 2001). The Ninth Circuit does not require that any information be shared

between the officers. United States v. Ramirez,

, 136–37 (9th Cir.

2007) (“[T]he collective knowledge doctrine includes no requirement regarding the

content of the communication that one officer must make to another.”) Rather, the

Ninth Circuit applies the doctrine where the directing officer has probable cause

and issues an “order or request” to the acting officer. Ramirez,

.

The First Circuit has not taken an express position on the amount of

information, if any, that must be shared in a vertical collective knowledge case.

However, in Barnes, the First Circuit found it proper to impute knowledge from a

directing officer to an acting officer where the directing officer shared no underlying

information but instead simply instructed the acting officer to take action. Barnes,

10 506 F.3d at 62–63; see also Meade,

; Burns v. Loranger,

, 236 n.7 (1st Cir. 1990). In Barnes, the acting officer conducted a visual body

cavity search of the suspect. See

. The district court granted the

defendant’s motion to suppress because it found the acting officer lacked reasonable

suspicion to conduct that search.

. The First Circuit reversed, finding that

the district court failed to consider the applicability of the collective knowledge

doctrine.

. Specifically, the First Circuit found that the directing officer’s

knowledge was imputed to the acting officer when the directing officer instructed

him that the suspect “needed to be strip searched.”

The question to be decided

on remand was only whether the directing officer’s basis of knowledge (i.e., that the

suspect was likely to have drugs hidden in his buttocks) was reliable enough to

constitute reasonable suspicion. The First Circuit held that, if the information were

reliable, the directing officer’s reasonable suspicion would be imputed to the acting

officer.

The First Circuit’s approach in Barnes, and the Ninth Circuit’s approach in

Ramirez, are consistent with the United States Supreme Court’s landmark

decisions in Whiteley and Hensley. Whiteley v. Warden, Wyo. State Penitentiary,

, 563–64 (1971); United States v. Hensley,

(1985).

Although Whiteley and Hensley are not collective knowledge cases, they lay out the

commonsense principles animating the doctrine. In both of those cases, the Court

made clear that law enforcement officers are entitled to rely on another officer’s

request for assistance.

11 In Whiteley, for example, officers in one police department issued a radio

bulletin seeking the arrest of a suspect based on a warrant. Whiteley, 401 U.S. at

562–63 (1971). Relying on that bulletin, officers in another county’s police

department arrested the suspect.

Although the Court found that the initial

warrant lacked probable cause, the Court held that officers are entitled to rely on a

radio bulletin that instructs them to arrest a suspect on a warrant because officers

“called upon to aid other officers” are “entitled to assume that officers requesting

aid” have knowledge amounting to probable cause. Id. at 568.

Similarly, in Hensley, a police department issued a “wanted flyer” that stated

a suspect was wanted for investigation of a crime, described the suspect, and asked

other departments to pick up and hold him. Hensley,

. Officers at a

second department stopped Hensley based on the wanted flyer and found

contraband in plain view.

at 224–25. The Court held that the stop was

reasonable because the bulletin was based on the first department’s reasonable

suspicion, even though the flyer did not contain the specific facts leading to

reasonable suspicion.

.

After Hensley, the issue in stops where the acting officer relies on a flyer is

simply “whether the officers who issued the flyer possessed probable cause to make

the arrest,” not “whether those relying on the flyer were themselves aware of the

specific facts which led their colleagues to seek their assistance.”

(emphasis in original). The Court reasoned that this holding is a “matter of

common sense” because it “enables police in one jurisdiction to act promptly in

12 reliance on information from another jurisdiction.”

See also 2 Wayne R.

LaFave, Search & Seizure § 3.5(b) (explaining that the question in these collective

knowledge cases is “whether the law enforcement system as a whole has complied

with the requirements of the Fourth Amendment”).

Accordingly, the central question in a vertical collective knowledge case such

as this is whether the directing officer had probable cause to take the action that

the acting officer took on his behalf.4 Here, the relevant inquiries are: (1) whether

Turner had probable cause to seize Balser’s car; and (2) if so, whether Turner’s

directive to DiChiara was sufficient to impute his probable cause.

II. Turner Had Probable Cause

Here, Turner intercepted messages in which Balser asked about purchasing

drugs from the target of a drug trafficking investigation. Turner knew that Balser

inquired about the cost of a “finger” and asked whether a sample was “brown.”

Turner was informed by DEA agents in Lawrence that Balser visited the target’s

house while carrying a backpack. Turner knew the make, model, color, and license

plate number of Balser’s car, and knew his location and route of travel. Based on

information collected through the wiretap and by visual observation, Turner

4 Both the government and Balser argue in their post-hearing memos, doc.

nos. 32 and 33, about the appropriateness of pooling knowledge within an agency. But the present case is not a situation of pooling knowledge because the officers communicated directly with each other. Here, the issue is the vertical transfer of information between officers, not the horizontal pooling of information between officers in the same agency. 13 suspected that Balser was transporting drugs. The information that Turner knew

establishes probable cause that Balser’s car contained illegal drugs. See United

States v. Azor,

(1st Cir. 2017) (finding probable cause where police

learned of a drug transaction from a wiretap then corroborated the suspect’s

identity and travel itinerary); United States v. Verdugo,

(1st Cir.

2010) (finding probable cause based on intercepted incriminating phone calls which

were corroborated by surveillance).

III. Turner’s Probable Cause Is Imputed to DiChiara Through the Collective Knowledge Doctrine

As detailed above, Turner told DiChiara that Balser had been monitored via

a wiretap, that he had been near a suspected drug transaction in Lawrence, that his

car likely contained illegal drugs, and that his car “needed to be stopped.” In short,

Turner gave DiChiara a directive to stop and conveyed basic factual information

about Balser’s suspected criminal activity. Turner’s communication with DiChiara

is sufficient to satisfy the requirements of the collective knowledge doctrine in the

First Circuit; therefore, Turner’s probable cause is imputed to DiChiara. See

Meade,

. Indeed, the communication between the officers satisfies

the stricter standards utilized in the Sixth, Seventh, and Eighth Circuits. See

United States v. Blair,

, 751–52 (6th Cir. 2008); United States v. Ellis,

(7th Cir. 2007); United States v. Gillette,

(8th Cir. 2001).

14 Balser, however, urges the court to adopt DiChiara’s account of the

communication between the two officers and find that DiChiara did not have

sufficient communication with Turner to satisfy the collective knowledge doctrine.

During the suppression hearing, DiChiara testified that Turner gave him minimal

information about Balser’s car. DiChiara said that he was told only to look for a

white four-door sedan with Vermont license plates that was coming from an area

known for drug transactions. He testified that Turner did not direct him to stop the

car and did not relay information supporting probable cause. DiChiara said that

Turner did not share details about the underlying drug investigation, the wiretap,

or Balser’s suspected drug purchase.

The court finds DiChiara’s statements unreliable. First, DiChiara’s

credibility is undermined by his willingness to manufacture probable cause for the

seizure of Balser’s car beyond the initial traffic stop. DiChiara’s reasons for seizing

Balser’s car—Balser’s route of travel, his nervousness, the ringing cellphone, and

the piece of cotton in the car—are plainly insufficient to support the continued

seizure of the car. Second, DiChiara was not forthcoming in his police reports.

DiChiara seized Balser’s car because Turner told him that it likely contained drugs,

but DiChiara neglected to acknowledge any communication with Turner in his

initial report.5 It was not until supervisors instructed DiChiara to file a

supplemental report that DiChiara disclosed the material fact that he had received

5 DiChiara also failed to mention his communication with Turner in his

search warrant for the car. 15 outside information about Balser’s car. And even in his supplemental report

DiChiara continued to rely on his own manufactured suspicions, writing that his

investigation after the traffic stop “took place due to the issue[s] outlined[d] in my

initial report.” DiChiara may have been so focused on complying with Turner’s

instruction to “try and develop his own probable cause” that DiChiara failed to

disclose, either in his police report or in his testimony at the suppression hearing,

that Turner directed him to stop Balser’s car and told him that the vehicle likely

contained drugs.

In contrast, the court finds that Turner’s testimony is credible. His version of

events is internally consistent. Turner was investigating a drug conspiracy and he

knew DiChiara because they worked together in the Salem Police Department. It is

believable that he would call DiChiara for assistance because he had previously

asked DiChiara to stop vehicles, and it makes sense that Turner would have shared

underlying facts because they had previously spoken about the case. Turner’s

request for a wall-off stop also makes sense because he wanted to protect the

ongoing investigation. On the other hand, it makes no sense for Turner to have

neglected to instruct DiChiara to stop Balser’s car. Finally, Turner admitted that

he had spoken to DiChiara about the sealed wiretap prior to their March 15

conversation—a fact that he might prefer to conceal because of the confidential

nature of a wiretap. Turner nonetheless admitted that he had shared general

information about the wiretap with DiChiara because of DiChiara’s interest in drug

16 investigations. The fact that Turner elected to be candid about such a fact only

enhances his credibility with the court.

In summary, Balser’s Fourth Amendment rights were not violated because

DiChiara had probable cause to seize and search Balser’s car.

CONCLUSION

In this case, law enforcement complied with the requirements of the Fourth

Amendment. Turner’s probable cause was imputed to DiChiara through the

collective knowledge doctrine, and DiChiara therefore had probable cause to seize

and search defendant’s car. Balser’s motion to suppress, doc. no. 17, is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

December 21, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal

17