                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-2889
                                  ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the Western
Robert Gillette,                       * District of Missouri.
                                       *
             Appellant.                *
                                  ___________

                             Submitted: January 9, 2001

                                 Filed: April 16, 2001
                                  ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP,1
      District Judge.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Robert Gillette appeals his conviction for conspiring to manufacture
methamphetamine, see 21 U.S.C. § 841(a)(1), § 846, contending that the trial court2
should have suppressed a methamphetamine lab that police seized from the bed of his

      1
      The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
pickup truck and Mr. Gillette's subsequent statements regarding his knowledge of the
lab. We affirm.

                                          I.
       Mr. Gillette was charged with conspiracy as a result of an investigation that
occurred at the home of Jeffrey Croft. Acting upon an anonymous tip of drug activity
at Mr. Croft's home, Deputy Craig Lambert and Detective Dan Kriteman went to the
Croft home to investigate. Upon arrival, the officers noted several vehicles parked
outside the Croft home, including Mr. Gillette's F-150 pickup. The officers then
informed Mr. Croft of the purpose of their visit, and asked everyone in the house to
step outside. In all, there were approximately seven adults and two children in the
house at the time, including Mr. Gillette and his wife. After hearing noises coming
from the house, Deputy Lambert asked Mr. Croft for permission to enter the house.
Mr. Croft agreed, and while Deputy Lambert was inside the house, he saw acetone and
gas masks, items associated with the manufacture of methamphetamine.

       Detective Kriteman, meanwhile, prepared a form that requested permission from
Mr. and Mrs. Croft to search the residence, several outbuildings, some junked cars, and
the F-150 pickup. Mr. and Mrs. Croft signed the form and did not disclaim ownership
of the pickup. Detective Kriteman testified during the suppression hearing that he
believed that the truck belonged to the Crofts, but he also testified that his plan was to
ascertain the ownership of each vehicle on the premises before searching that vehicle.
While Detective Kriteman was searching the house, however, Deputy Darrell Smithson,
in response to a call for backup, arrived on the scene and began to search the vehicles.
During his search, Deputy Smithson discovered components of a methamphetamine lab
inside trash bags in the bed of Mr. Gillette's truck. This evidence, as well as
Mr. Gillette's admission to Deputy Lambert that he knew that the lab was in his truck,
served as the primary proof of his involvement in the conspiracy.




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                                           II.
       Mr. Gillette maintains that the methamphetamine lab should have been
suppressed because Deputy Smithson did not have a valid basis for his search of the
pickup. Following a hearing, a magistrate refused to suppress the evidence, finding that
Deputy Smithson relied on the third-party consent given by the Crofts; the trial court
accepted the magistrate's recommendation. While the factual findings underlying the
denial of a motion to suppress are reviewed for clear error, we review de novo the
ultimate question of whether a fourth amendment violation has occurred. See United
States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000).

       Had Detective Kriteman himself searched Mr. Gillette's pickup, we think that the
search would have clearly been valid. Although the Crofts did not have actual authority
to consent to a search of the pickup, the search would have been valid if a reasonable
officer would have been justified in believing that the Crofts had authority to consent
to the search. See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990); see also United
States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997). We think that Detective
Kriteman would have been justified in believing that the Crofts had such authority,
because Mr. Gillette's pickup was parked next to the farmhouse, closer to the house
than any other vehicle, and the Crofts did not deny ownership of the pickup when it
was listed on the consent form. Under these circumstances, we think a belief that the
Crofts owned the pickup would have been reasonable, thus validating a search by
Detective Kriteman.

      The search that actually occurred in this case, however, was conducted not by
Detective Kriteman but by Deputy Smithson. There is no evidence that Deputy
Smithson was informed of the consent that the Crofts gave; the inference from the
record, in fact, is that Deputy Smithson simply arrived on the scene and immediately
began to search vehicles. A question before us, therefore, is whether we may impute
Detective Kriteman's knowledge of the consent form to Deputy Smithson: If we may,


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Deputy Smithson would be treated as having the same knowledge as Detective
Kriteman, thus validating his search for the reasons that we explained earlier.

       Where officers work together on an investigation, we have used the so-called
"collective knowledge" theory, United States v. Gonzales, 220 F.3d 922, 925 (8th Cir.
2000), to impute the knowledge of one officer to other officers to uphold an otherwise
invalid search or seizure. Under this rationale, the validity of a search "may be based
on the collective knowledge of all of the law enforcement officers involved in an
investigation if ... some degree of communication exists between them," id. See also
United States v. Morales, 238 F.3d 952, 953 (8th Cir. 2001), and United States v.
Twiss, 127 F.3d 771, 774 (8th Cir. 1997). The requirement that there be a degree of
communication serves to distinguish between officers functioning as a "search team,"
United States v. O'Connell, 841 F.2d 1408, 1419 (8th Cir. 1988), cert. denied, 487
U.S. 1210 (1988), 488 U.S. 1011 (1989), and officers acting as independent actors who
merely happen to be investigating the same subject.

       In this case, since Deputy Smithson was called to the scene to assist in an
investigation that was ongoing, we believe that there was the requisite degree of
communication between him and the officers on the scene to make him a member of
their team and thus to impute to him the knowledge that the team had acquired.
Because Deputy Smithson was not an independent actor, he was privy to the consent
to search the pickup truck that Mr. Croft gave to Deputy Kriteman and the fruits of that
search were therefore legally acquired. The district court thus correctly denied Mr.
Gillette's motion to suppress the methamphetamine lab.

                                            III.
       Because the lab was legally seized, Mr. Gillette's argument that his admission
that he owned the lab was "fruit of the poisonous tree," Wong Sun v. United States, 371
U.S. 471, 488 (1963), must fail. Mr. Gillette was given his Miranda warnings, see
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), before he made his admission,

                                          -4-
moreover, and there is no showing that his statement was in any way involuntary, so
there is no legal basis upon which the contents of the statement may be suppressed.
The trial court therefore correctly denied Mr. Gillette's motion to suppress his
admission.

                                         IV.
      For the foregoing reasons, the judgment of the trial court is affirmed.

ALSOP, District Judge, dissenting.

      I agree with the majority’s recitation of the facts and with their conclusion that
Detective Kriteman reasonably could have searched Mr. Gillette’s vehicle based on the
Crofts’ third-party consent. However, the search in question was not conducted by
Detective Kriteman but instead by Deputy Smithson. I cannot agree that the “collective
knowledge” theory may be stretched so far as to impute knowledge of the third-party
consent to Deputy Smithson. Because I see no other ground on which to affirm the
conviction, I respectfully dissent.

        This Court has recognized for some time that all the facts necessary to establish
probable cause for a warrantless search need not be within the personal knowledge of
the officer performing the search. See, e.g., White v. United States, 448 F.2d 250, 254
(8th Cir. 1971) (holding that probable cause is evaluated based on the information
collectively available to officers involved in an investigation). The purpose of this rule
is to allow law enforcement officers to work as a team without requiring each member
of the team to know every fact pertinent to the team’s actions. United States v.
Stratton, 453 F.2d 36, 37 (8th Cir. 1972). Although our cases applying this rule often
refer to the “collective knowledge” of the officers, the term “collective knowledge” is
misleading because as a practical matter individual officers cannot know anything
collectively. Individual officers, on the other hand, can act collectively, and the real
issue in our collective knowledge cases is whether a particular search or seizure is

                                           -5-
reasonable within the meaning of the Fourth Amendment in light of any collective
action in which two or more officers were engaging.

       Collective action involves the exchange of information and instructions, and in
most instances the collective knowledge theory simply allows one officer to accept
facts or directives communicated by another officer at face value and to take
appropriate action based on that communication. See, e.g., United States v. Gonzales,
220 F.3d 922, 924-25 (8th Cir. 2000) (holding that probable cause for an investigatory
stop and warrantless arrest may be based in part on information communicated to the
investigating officer); United States v. Twiss, 127 F.3d 771, 774 (8th Cir. 1997)
(holding that an officer may order a warrantless search based only on information
communicated from another officer). In order to ensure that the officers are acting
collectively and not independently, “some degree of communication” regarding the
pertinent subject matter must exist between the officers. United States v. Horne, 4 F.3d
579, 585 (8th Cir. 1993).

       A small number of cases have relaxed the communication requirement when the
officers involved were “working closely together” during the execution of a search
warrant. United States v. O’Connell, 841 F.2d 1408, 1419 (8th Cir. 1988). In such
cases, “we presume the officers have shared relevant knowledge which informs the
decision to seize evidence or to detain a particular person, even if the acting officer is
unable to completely and correctly articulate the grounds for his suspicion at the time
of the search.” Id. See also United States v. Wright, 641 F.2d 602, 606 (8th Cir. 1981)
(upholding a seizure by one officer outside the scope of a search warrant because
another officer involved in the search was aware of facts establishing probable cause).
The rationale underlying this application of the collective knowledge theory is difficult
to discern, although this Court recently emphasized that such an application is justified
only if the evidence at issue was seized “in the presence of” the officer with knowledge
of facts sufficient to establish probable cause. United States v. Blom, 242 F.3d 799,
808-09 (8th Cir. 2001). The emphasis on physical presence during the search suggests

                                           -6-
that shared knowledge should be presumed only when two or more officers are working
collectively in close proximity and it is reasonable to assume that the officers could
have communicated the pertinent information during the course of their collective
action.

       The search of Mr. Gillette’s vehicle cannot be squared with either of these lines
of authority. The record shows, and the majority acknowledges, that Deputy Smithson
came to the Croft residence without having previous knowledge of the investigation,
merely in response to a request for backup. He began to search vehicles without
receiving any instructions or information from any officer with knowledge of facts
sufficient to justify a search. In addition, Detective Kriteman, who was in charge of the
search, testified that he only “vaguely remembered” Deputy Smithson being on the
scene and that Deputy Smithson’s actions were not in accord with the search plan other
officers were implementing. Another officer testified that Deputy Smithson “had taken
it upon himself” to begin the search. Deputy Smithson was not called to testify. The
mere fact that Deputy Smithson responded to a request for backup does not establish
that he was engaging in collective action in any meaningful sense. The evidence
instead compels the conclusion that Deputy Smithson acted entirely on his own and
made an unreasonable warrantless search. The obvious drug-related activity of the
defendant does not justify excusing this patent violation of the Fourth Amendment.

       For those reasons, I would hold that the evidence seized from Mr. Gillette’s
vehicle was inadmissible as illegally obtained and that the inculpatory statements Mr.
Gillette made immediately after the search also were tainted by the Fourth Amendment
violation and therefore inadmissible under the rule of Wong Sun v. United States, 371
U.S. 471, 486 (1963). The government offered no other evidence in support of the
conspiracy charge, and I accordingly would reverse the conviction.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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