Who Knew What When? A Critical Analysis of the Expanding Collective Knowledge Doctrine
42 Pages Posted: 13 Sep 2014
Date Written: September 9, 2014
Abstract
This Article challenges the assumption long held by commentators and courts that the collective knowledge doctrine, sometimes called the fellow officer rule, is a common sense approach to probable cause determinations. An expansion of the doctrine by some courts to include aggregation of probable cause information among several officers, and a resulting split among the circuits, shows how its application has strayed from its original efficiency rationale. In addition, an unintended consequence of the doctrine is its use by federal agencies to shield local law enforcement officials from the existence of larger investigations, which creates a perverse incentive to withhold information among law enforcement officers and agencies. Building on the current literature, this Article argues that an ongoing circuit split over the scope of the doctrine should be resolved in favor of limiting its reach, much in the same way the Supreme Court limited the search of automobiles incident to arrest in Arizona v. Gant.
Moving beyond the doctrinal split, this Article engages in a normative analysis of the collective knowledge doctrine and considers the effects of abandoning it entirely. The normative benefits of eliminating the collective knowledge doctrine include reducing the problems of hindsight bias and confirmation bias in the judicial ex post probable cause determination.
Precluding the government from relying on collective knowledge to establish probable cause will also promote better communication within and among law enforcement agencies — which is especially important given the increase in multijurisdictional investigations in drug and terrorism cases — with at least the potential of aiding probable cause determinations by law enforcement officers.
On a practical level, eliminating the doctrine will impose some additional burdens on the government in the investigative phase of cases, but it is not clear that the lack of the doctrine would hamper law enforcement objectives in most cases. And even if the costs to law enforcement objectives ultimately preclude elimination of the doctrine, knowledge of the costs of its application should inform its ultimate scope.
Keywords: criminal procedure, probable cause, collective knowledge, Fourth Amendment
JEL Classification: K14, K42
Suggested Citation: Suggested Citation