Summary
In Commonwealth v. Valdivia, 649 Pa. 186, 195 A.3d 855 (2018), we noted that the Commonwealth did not suggest that the police officers had probable cause to suspect the vehicle contained drugs and stated "there is no cause for discussion of the automobile exception to the warrant requirement as an alternative basis to support the search."
Summary of this case from Commonwealth v. AlexanderOpinion
No. 9 MAP 2017
10-17-2018
COMMONWEALTH of Pennsylvania, Appellee v. Randy Jesus VALDIVIA, Appellant
Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, Mark B. Sheppard, Esq., Montgomery, McCracken, Walker & Rhoads, L.L.P., for Defender Association and PACDL, Amicus Curiae. Wayne E. Bradburn Jr., Esq., Marc Andrew Decker, Esq., Decker Bradburn, Attorneys at Law, for Valdivia, Randy Jesus, Appellant. Bernard Flynn Cantorna, Esq., Lawrence Jonathan Goode, Esq., Philadelphia District Attorney's Office, Michael Matthew Osterberg, Esq., Commonwealth of Pennsylvania, Appellee.
Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, Mark B. Sheppard, Esq., Montgomery, McCracken, Walker & Rhoads, L.L.P., for Defender Association and PACDL, Amicus Curiae.
Wayne E. Bradburn Jr., Esq., Marc Andrew Decker, Esq., Decker Bradburn, Attorneys at Law, for Valdivia, Randy Jesus, Appellant.
Bernard Flynn Cantorna, Esq., Lawrence Jonathan Goode, Esq., Philadelphia District Attorney's Office, Michael Matthew Osterberg, Esq., Commonwealth of Pennsylvania, Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DONOHUE
This discretionary appeal addresses the scope of consent given by a motorist to law enforcement for the search of his vehicle. For the reasons that follow, we conclude that the consent given by Appellant, Randy Jesus Valdivia ("Valdivia"), to Pennsylvania State Police Troopers Jeremy Hoy and David Long to search his van did not extend to a canine search occurring approximately forty minutes later. A reasonable person in Valdivia's position would not have understood that he was consenting to such a search. We therefore reverse the decision of the Superior Court and remand the case for further proceedings consistent with this Opinion.
At approximately 4:30 p.m. on December 12, 2013, Troopers Hoy and Long were traveling together in a marked police cruiser on Interstate 80 in Centre County, Pennsylvania. They drove behind Valdivia, who was operating a white minivan with a Michigan plate. After about two miles, they observed Valdivia change lanes without using his turn signal and initiated a traffic stop on that basis. Trooper Lang stood at the rear of Valdivia's vehicle while Trooper Hoy approached on the passenger side of the van and requested Valdivia's license, registration and proof of insurance. Valdivia responded that he was about to run out of gas and gave the trooper his license, issued in the State of Florida, and a rental agreement for the vehicle. Trooper Hoy noted that Valdivia was nervous and his hand was shaking when he handed Trooper Hoy the documentation, something the trooper said he "look[s] for in every traffic stop." N.T., 8/8/2014, at 9.
See 75 Pa.C.S. § 3334(a) ("Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.").
When asked, Valdivia explained that he was traveling to Union City, New Jersey to visit family. He told Trooper Hoy that he had originally planned to fly there from Fort Lauderdale, Florida, but his plane was rerouted to Detroit, Michigan. He missed his connecting flight to New Jersey and decided to drive the rest of the way. Trooper Hoy observed two large boxes wrapped in Christmas paper in the back of the van. Based on Valdivia's story, the trooper found it odd that the gifts had no "markings from an airliner," and were "not banged up." Id. at 11. He testified to his familiarity with the tactic of wrapping boxes containing drugs in Christmas paper during the holiday season for camouflage.
Additionally, Trooper Hoy found it strange that the rental agreement showed that Valdivia had rented the vehicle in Ann Arbor, Michigan, which was approximately thirty miles away from the airport in Detroit. The rental agreement also indicated that it was a one-way rental, which the trooper stated he knew to be "common with ... criminals traveling across the country" trafficking drugs. Id. at 15. Further, through his training and experience, Trooper Hoy was aware that drug traffickers often used the I-80 corridor to travel from Detroit to New York and surrounding areas.
Trooper Hoy returned to his vehicle and, as he did in every traffic stop, ran a record check on Valdivia. While he waited for the report on Valdivia's prior record, Trooper Hoy contacted State Police K-9 Officer Aaron Tiracorda to conduct the search of the vehicle with his canine partner, Tom. Because Trooper Tiracorda was off duty at that time, he had to drive to the scene from his house, which was located approximately thirty miles away. When the record check returned, it revealed that Valdivia had previously been charged in Florida with possession with intent to deliver a controlled substance.
Trooper Hoy testified that he did not call Trooper Tiracorda to come to the scene until after he obtained Valdivia's consent to search the vehicle. N.T., 8/8/2014, at 54. The suppression court found, however, consistent with Trooper Long's testimony, that Trooper Hoy called for the K-9 unit before obtaining Valdivia's consent. Suppression Court Opinion, 9/9/2014, Findings of Fact ¶ 12; see also N.T., 8/8/2014, at 79 (Trooper Long testifying that calling for a K-9 unit before obtaining consent to search was "normal procedure" because "once we believe that we have reasonable suspicion, then we contact the K-9 for time purposes," and explaining that there has been the need to "call[ ] a K-9 off on many occasions.").
Troopers Hoy and Long approached Valdivia's vehicle together and asked him to step out of the car. Trooper Hoy explained the written warning Valdivia was receiving for failing to use his turn signal when changing lanes. After returning his documentation, Trooper Hoy asked Valdivia if he would answer a few more questions. Although Valdivia again stated that he needed to go get gas in his van, he agreed to answer additional questions. Trooper Hoy asked Valdivia why he did not fly directly from Fort Lauderdale to either New York City or Newark, New Jersey. In response, Valdivia altered his original story, stating instead that he flew to Detroit to visit a friend (a linebacker for the Detroit Lions). Valdivia indicated that he had arrived in Detroit around 11:00 p.m. on December 11 and then left the next morning around 9:00 a.m. to rent the vehicle and drive to New Jersey. Trooper Hoy asked about the location of the rental agency, and Valdivia explained that when he arrived at Detroit's airport, all of the rental companies were closed, and so he went to Ann Arbor the next morning to rent the vehicle.
Upon hearing this new version of events, Trooper Hoy asked for Valdivia's consent to search the vehicle. Valdivia gave his verbal consent, and thereafter signed a written consent presented to him by Trooper Long. Although it was Trooper Hoy's "standard practice" to "keep the individual informed of what's happening [during] a traffic stop," he could not say that he specifically informed Valdivia either that a canine (and not a human) would be conducting the search or that he would have to wait until Trooper Tiracorda arrived with Tom for the search to occur. Id. at 55-56.
The Commonwealth did not admit the written consent form into evidence. The only information from the written consent form that was testified to at the suppression hearing was that Valdivia "checked the box" indicating that the car he was driving was a rental vehicle, he signed the form and placed his address at the bottom, and that the form states that an individual does not have to give consent to search. N.T., 8/8/2014, at 18, 81-82.
It was a cold evening, and Valdivia accepted the troopers' offer for him to sit in the back of the police cruiser while he waited. Trooper Tiracorda and Tom arrived approximately forty minutes later, at 5:40 p.m. Prior thereto, neither Trooper Hoy nor Trooper Long conducted a search of Valdivia's vehicle. Upon the arrival of Tom and Trooper Tiracorda, the troopers removed the two Christmas packages and a suitcase from the back of the van. Tom alerted on one of the two boxes, and subsequently indicated on the same box. After Trooper Tiracorda relayed this information to the other troopers, they opened both boxes and found clear, vacuum-sealed packages containing individually wrapped bags of suspected marijuana. The trooper seized the boxes, as well as a mobile smartphone and tablet, and arrested Valdivia. The total weight of the suspected contraband was approximately twenty pounds. Subsequent testing confirmed that it was marijuana.
According to Trooper Tiracorda's testimony at the suppression hearing, "Alert behavior is ... a change in posture, an increased respiration when the dog first encounters the odor he's trained to detect. The indication is a trained behavior that pinpoints the source of the odor." N.T., 8/8/2014, at 94.
The Commonwealth charged Valdivia with possession of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. Valdivia filed a timely omnibus pretrial motion seeking, inter alia, suppression of all evidence obtained as a result of the search of his vehicle. Of relevance to this appeal, Valdivia alleged that his consent was not voluntarily given, and that even if it was voluntary, the canine sniff and the lengthy delay exceeded the scope of any purported consent he gave. He argued that all evidence obtained from his vehicle must be suppressed pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
35 P.S. § 780-113(a)(16), (30), (32).
Following a hearing on the motion before the Honorable Thomas King Kistler, at which the above-referenced testimony was presented, the court denied suppression. The suppression court found that Valdivia had voluntarily given his consent to search and that it was not the product of police coercion. The suppression court further found that the use of a canine sniff was within the scope of his consent because Valdivia "never indicated he was limiting his search so as not to include a consent for a K-9 Unit, nor did he make any attempt to revoke consent when he saw the K-9 Unit arrive." Suppression Court Opinion, 9/9/2014, at 9. Because Valdivia was engaged in the transport of illegal drugs, the suppression court found that he should have been aware that a canine sniff was within "the realm of possibilities." Id.
Valdivia also requested a finding that the mandatory minimum sentencing statute, 18 Pa.C.S. § 7508, was unconstitutional pursuant to Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that any fact that increases a mandatory minimum sentence is an element of an offense that must be found by the factfinder beyond a reasonable doubt). The suppression court granted this aspect of Valdivia's motion. The Commonwealth challenged this conclusion in a post-sentence motion, which the trial court denied. It then appealed the decision to the Superior Court, but subsequently withdrew and discontinued its appeal following this Court decision in Commonwealth v. Hopkins , 632 Pa. 36, 117 A.3d 247 (2015) (finding a substantially similarly worded sentencing statute unconstitutional in its entirety in light of Alleyne ).
Judge Kistler held a stipulated bench trial on October 27, 2014, at which the parties agreed to the submission of the criminal complaint, the lab report confirming the substance recovered to be marijuana and recording the weight thereof, and the transcripts of the preliminary hearing and the suppression hearing. The court convicted Valdivia of the crimes charged and on January 23, 2015 sentenced him to 11½ to 23 months of incarceration followed by 30 days of probation.
Valdivia timely appealed to the Superior Court, challenging, in relevant part, the finding by the suppression court that his consent was voluntarily given, contending that the investigative detention that occurred following the completion of the purpose of the original traffic stop was unlawful and that the circumstances surrounding his detention were coercive. He further asserted that even if valid, the canine sniff was not within the scope of his consent because a reasonable person would not have understood that he was consenting to a search by a dog and that the lengthy delay before the search was conducted vitiated his consent.
In a published opinion authored by the Honorable Patricia H. Jenkins, the Superior Court affirmed. See Commonwealth v. Valdivia , 145 A.3d 1156 (Pa. Super. 2016). Addressing the voluntariness of Valdivia's consent, the intermediate appellate court found "a mixture of coercive and non-coercive factors at the time of Trooper Hoy's request." Id. at 1166. Although finding the question to be "close," the Superior Court held that "the non-coercive elements outweigh[ed] the coercive elements" and that Valdivia's consent was voluntarily given. Id.
The coercive factors included: "(1) Trooper Hoy never told Valdivia he was free to leave ..., (2) Trooper Hoy ordered Valdivia to exit his car to receive the traffic warning ..., (3) there was more than one trooper at the scene of the stop ..., and (4) Trooper Hoy never verbally advised Valdivia that he was free to refuse consent[.]" Valdivia , 145 A.3d at 1166. The non-coercive factors found by the Superior Court included: "(1) Trooper Hoy gave back Valdivia's documentation, (2) there is no evidence of police abuses, aggressive tactics, coercive language, coercive tone of voice, physical contact, or the use of physical restraints at any time during the detention ..., and (3) Valdivia read and signed a consent form which advised that he did not have to consent." Id. The Superior Court found that prior precedent treated this last factor (his knowledge of the right to refuse consent) "as a strong sign of voluntariness." Id. (citing Commonwealth v. Reid , 571 Pa. 1, 811 A.2d 530 (2002) ; Commonwealth v. Bell , 871 A.2d 267 (Pa. Super. 2005) (en banc) ).
Regarding the scope of Valdivia's consent, the Superior Court concluded that a reasonable person would have understood that his consent included a dog sniff. Id. "Nothing about a canine sniff strikes us as more intrusive than a vehicle search by humans, so when an individual consents to an official search of his vehicle, it is natural to assume that his consent includes both human and canine searches." Id. According to the Superior Court, "The most logical way – and perhaps the only way – for a defendant to place canine sniffs beyond the scope of consent is to tell the officer that canine searches are off limits." Id. Because Valdivia never proactively informed the troopers that he did not consent to the use of a dog to conduct the search, the intermediate appellate court found that the canine sniff was within the scope of his consent. Id. at 1166-67.
Valdivia filed a petition for allowance of appeal to this Court, which we granted to review the following question:
Whether, in a case of first impression, the Superior Court erred in holding that a reasonable person would have understood that their consent to a roadside search of their vehicle would encompass a canine sniff of all of the packages contained inside the vehicle, and that said consent was knowing, intelligent, and voluntary where the police officers withheld pertinent information about the forthcoming search from [Valdivia], including that the canine search would not start any sooner than an hour from when [Valdivia]'s consent was given?
Commonwealth v. Valdivia , 641 Pa. 3, 165 A.3d 869 (2017) (per curiam).
Appellate review of a suppression decision is limited to the suppression record, considering the evidence presented by the Commonwealth as the prevailing party and any uncontradicted evidence presented by the defense. Commonwealth v. Johnson , 639 Pa. 196, 160 A.3d 127, 138, 139 n.12 (2017), cert. denied sub nom. Johnson v. Pennsylvania , ––– U.S. ––––, 138 S.Ct. 508, 199 L.Ed.2d 393 (2017). This Court is bound by the facts as found by the suppression court so long as they are supported by the record, but our review of its legal conclusions is de novo. Id. at 138.
Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals, their homes, their papers, and their effects and possessions from "unreasonable searches and seizures." U.S. Const. amend. IV ; Pa. Const. art. I, § 8. For a search to be lawful, police must first obtain a warrant, supported by probable cause, from a neutral and detached magistrate. Commonwealth v. Loughnane , ––– Pa. ––––, 173 A.3d 733, 741 (2017) ; Johnson , 160 A.3d at 140. "A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies." Commonwealth v. Strickler , 563 Pa. 47, 757 A.2d 884, 888 (2000).
One of the limited exceptions to the warrant requirement is a consensual search. Id. "[W]e have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." Florida v. Jimeno , 500 U.S. 248, 250–51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Although a warrantless, but consensual, search is constitutionally permissible, obtaining consent is an "investigative tool" utilized by law enforcement. Strickler , 757 A.2d at 892. It allows police to do what otherwise would be impermissible without a warrant. See Commonwealth v. Cleckley , 558 Pa. 517, 738 A.2d 427, 429 (1999). As a consent search is in derogation of the Fourth Amendment, there are carefully demarked limitations as to what constitutes a valid consent search.
First, consent must be voluntarily given during a lawful police interaction. For a finding of voluntariness, the Commonwealth must establish that the consent given by the defendant "is the product of an essentially free and unconstrained choice – not the result of duress or coercion, express or implied, or a will overborne – under the totality of the circumstances." Commonwealth v. Smith , 621 Pa. 218, 77 A.3d 562, 573 (2013) (citing Strickler , 757 A.2d at 901 ); see also Schneckloth v. Bustamonte , 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
In the courts below, Valdivia challenged the legality of the detention that occurred following the completion of the purpose of the traffic stop, asserting that police lacked reasonable suspicion to continue to detain him. Valdivia did not seek allowance of appeal of this question before this Court, so we do not discuss it further. For purposes of the appeal before us, we presume that any consent to search was given by Valdivia during a lawful investigatory detention.
If consent is given voluntarily, the ensuing search must be conducted within the scope of that consent. The standard for measuring the scope of an individual's consent is one of "objective reasonableness." Jimeno , 500 U.S. at 251, 111 S.Ct. 1801 ; Commonwealth v. Reid , 571 Pa. 1, 811 A.2d 530, 549 (2002). We do not ascertain the scope of consent from the individual's subjective belief or the officer's understanding based on his or her training and experience, but based on "what ... the typical reasonable person would have understood by the exchange between the officer and the suspect." Jimeno , 500 U.S. at 251, 111 S.Ct. 1801 ; Reid , 811 A.2d at 549.
Reid was decided under the Fourth Amendment to the United States Constitution. See Reid , 811 A.2d at 549. It is well settled that the Pennsylvania Constitution can (and in many instances does) provide greater protection of individual rights than its federal counterpart. See, e.g., Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010) ("Article I, § 8 of the Pennsylvania Constitution, though similarly phrased, generally provides greater protection than that provided by the Fourth Amendment, because the core of its exclusionary rule is grounded in the protection of privacy while the federal exclusionary rule is grounded in deterring police misconduct."). Valdivia, however, makes no argument that the Pennsylvania Constitution provides greater protection to its citizens than does the United States Constitution when measuring the scope of consent. In fact, in his brief before this Court, he relies upon Jimeno and Reid as setting forth the test for determining the scope of consent. Therefore, for purposes of this appeal, we review this case on the premise that the test is the same under Pennsylvania and federal law.
I. Voluntariness of Consent
Valdivia asserts that the consent he gave to the troopers to search his vehicle was involuntary because it was the result of police "misrepresentation" and "stealth" – a veritable "bait and switch." Valdivia's Brief at 17, 20. He contends that his consent was premised upon his reasonable belief that two human officers would immediately conduct a hand search of his car, but that police intentionally deceived him when Trooper Hoy "secretly contacted the canine handler" to conduct the search of Valdivia's vehicle. Id. at 17, 22-23. According to Valdivia, police then "purposely enlarged the time needed for the traffic stop by ordering [ ] Valdivia to exit his vehicle for the ostensible purpose of explaining the written warning," so as to give the K-9 unit time to arrive at the scene. Id. at 22. This conduct, he asserts, "rise[s] to the level of implied coercion," in that his consent was obtained "through stealth, deceit and misrepresentation when [the troopers] purposely withheld basic information about the search they intended to conduct ... which rendered his consent involuntary under the totality of the circumstances." Id. at 24.We find it unnecessary to conduct a studied application of the law as it relates to the facts as alleged by Valdivia because our review of the record finds no support for the overt and intentional misrepresentation by police that Valdivia claims occurred. Although the troopers failed to communicate information at the time Valdivia gave his consent (which, as discussed infra, directly impacts the scope of Valdivia's consent), there was no evidence that the troopers acted stealthily, secretly or deceitfully, and the suppression court did not so find. There is also nothing in the record to suggest that Trooper Hoy removed Valdivia from his vehicle to prolong the initial traffic stop to give the K-9 unit time to arrive. Trooper Hoy testified that it is his "standard practice" to remove individuals from their cars during traffic stops and that he does this for every traffic violation. N.T., 8/8/2014, at 48. Valdivia did not present any evidence to contradict this testimony.
Based on the standard by which we review suppression claims, we do not find any support for Valdivia's assertions of stealth, deceit and misrepresentation by police to obtain his consent. As this is the sole basis for Valdivia's assertion that his consent was not voluntarily given, we find this claim to be meritless.
II. Scope of Consent
Even if his consent was valid, Valdivia asserts that the search conducted exceeded the scope of his consent. He argues that under the circumstances, a reasonable person would not have considered the consent given by Valdivia to encompass a delayed search by a drug sniffing dog. Id. at 25-29. Valdivia states that under the circumstances present at the time he gave consent, a reasonable person would have envisioned only that the troopers would have "conducted a brief hand-search of [his] vehicle immediately after obtaining his consent." Id. at 27. Valdivia reasons that Pennsylvania law treats a canine sniff as separate and different from a search conducted by a human. Id. at 30 (citing Commonwealth v. Johnston , 515 Pa. 454, 530 A.2d 74 (1987) ; Commonwealth v. Rogers , 578 Pa. 127, 849 A.2d 1185, (2004) ; Commonwealth v. Martin , 534 Pa. 136, 626 A.2d 556 (1993) ).
Defender Association of Philadelphia and Pennsylvania Association of Criminal Defense Lawyers filed an amicus brief in support of Valdivia's argument that the search conducted exceeded the scope of his consent. Amici also assert that the removal of the boxes from the vehicle for the canine to conduct the search thereof constituted a seizure that required probable cause. Amici Brief at 25-28. This issue was neither raised nor briefed by Valdivia, and thus is not properly before this Court in this appeal. See Commonwealth v. Cotto , 562 Pa. 32, 753 A.2d 217, 224 n.6 (2000) ("An amicus curiae is not a party and cannot raise issues that have not been preserved by the parties."); Pa.R.A.P. 513, Note.
Further, Valdivia insists that a reasonable person would anticipate that the search to which he consented would be conducted immediately. Valdivia's Brief at 31 (citing Reid , 811 A.2d at 556 (Saylor, J., concurring) ). Valdivia contends that the troopers failed to inform him of the protraction of the stop and did not "do anything to advance the search" in the forty minutes it took for Trooper Tiracorda and Tom to arrive. Id. at 33. Under the totality of the circumstances, Valdivia states, the lengthy delay expanded the search beyond the scope of what a reasonable person would have understood when agreeing to allow the troopers to search his vehicle. Id. at 33-34.
Valdivia states that his failure to revoke his consent is not dispositive, particularly in light of the "numerous coercive elements present throughout the entire duration of the initial traffic stop and subsequent detention[.]" Id. at 34. He contends that his failure to object cannot be the basis for allowing the expansion of the scope of the search that occurred in this case, where he had no basis upon which to object until after police had already expanded the scope of the search. Id. at 34. According to Valdivia, the "reasonable person standard" is at odds with the Superior Court's conclusion that the burden was on Valdivia to object or limit the scope of the search. Id. at 35. In his view, placing the burden on the citizen to object to a search that exceeds the scope of the consent given "would effectively eliminate the ‘reasonable person’ standard" because it would not matter what a person would have understood the search to include under the circumstances. Id. An individual would have to object to limit a more expansive search than initially contemplated, e.g., "opening locked containers, destroying parts of a car, or summoning a trained dog to the scene[.]" Id.
The Commonwealth responds first by contending that Valdivia knew that a canine was going to be used to conduct the search and that there would be some delay because Trooper Hoy testified that it was his "standard practice ... to so inform a consenting suspect." Commonwealth's Brief at 8. The Commonwealth asserts that the suppression court failed to make a finding of fact on this question, and thus, pursuant to our standard of review, we must accept that Trooper Hoy followed this practice in the case at bar because it was presented as evidence by the prevailing party. Id. at 8-9.
Further, the Commonwealth argues that because a dog sniff is unquestionably a "search," it was necessarily encompassed by Valdivia's consent to a search of his vehicle. Id. at 10-11. Similar to the analysis conducted by the Superior Court, the Commonwealth states that because Valdivia did not restrict the type of search that could be conducted, protest when he saw the K-9 unit arrive, or revoke his consent at any time, the use of the dog to conduct the search was within the scope of his consent – a conclusion, it states, that aligns with this Court's decision in Reid. Id. at 13.
The Commonwealth also asserts that the delay of forty minutes was objectively reasonable under the circumstances because the K-9 unit was off duty and had to travel to the scene of the search. Id. at 15-16. It notes that in Reid , a majority of this Court found that a search of the defendant's vehicle conducted three days after he gave consent was valid. Id. at 15. The Commonwealth further speculates that the use of a canine to conduct the search here was likely comparable to the duration of a human search, as a human search would have required a more intrusive examination of the vehicle. Id. at 17.
We begin by addressing the Commonwealth's contention that we must find that Trooper Hoy informed Valdivia that a K-9 unit was coming to the scene. The Commonwealth is correct that evidence of a person's habit or routine practice is admissible as evidence that he or she acted in conformance therewith on the occasion in question. Pa.R.E. 406. The evidence presented by the Commonwealth on this point, however, was internally contradictory – Trooper Hoy testified at the suppression hearing that he informed Valdivia after obtaining his consent that he was going to call a K-9 unit to the scene, but after being confronted with his preliminary hearing testimony, at which he testified that he did not so inform Valdivia, he changed his testimony, stating instead that he did not know whether he told Valdivia that he had called for a canine to conduct the search. N.T., 8/8/2014, at 54-56; see also N.T., 12/18/2013, at 24. Trooper Hoy could say only that it was his "standard practice ... to, you know, keep the individual informed of what's happening on a traffic stop." N.T., 8/8/2014, at 55-56. He did not specifically testify that it was his habit or practice to inform individuals that a canine, instead of a person, would be conducting a vehicle search, or that the vehicle search would be delayed for the better part of an hour.
Moreover, in its written opinion, the suppression court's discussion of the claimed illegality of the canine sniff is consistent with a finding that Trooper Hoy did not inform Valdivia that he had called for a dog to conduct the search. The suppression court based its decision to deny suppression on Valdivia's failure to limit the search to exclude a dog sniff and his failure to revoke his consent when the K-9 unit arrived at the scene. Suppression Court Opinion, 9/9/2014, at 9. The court did not discuss the possibility that the canine search was within the scope of Valdivia's consent based on his actual knowledge that a dog was coming to conduct the search. Thus, although the suppression court did not enter a specific factual finding on this point, its discussion of this issue reflects its conclusion that Trooper Hoy did not inform Valdivia that he had called for a dog to conduct the search of his vehicle.
As stated above, we are bound by the factual findings made by the suppression court that are supported by the record. Johnson , 160 A.3d at 138. Because the record supports a finding that Trooper Hoy did not inform Valdivia that he had called a K-9 unit to conduct the search, and it was on this factual premise that the suppression court decided the issue, we conclude that we are bound to proceed on the basis that Valdivia was not informed that a K-9 unit had been called to conduct a search.
We now turn to the question of whether Valdivia, without actual knowledge that Trooper Hoy called a K-9 unit to the scene, gave consent to Troopers Hoy and Long to a search of his vehicle that extended to a dog sniff search. As we have discussed, a determination of the scope of consent given for police to conduct a search requires consideration of what a reasonable person in the position of the defendant would have believed he or she was allowing, based on the exchange that occurred between police and the individual. The scope of a search, in turn, "is limited by the terms of its authorization." Reid , 811 A.2d at 548-49 (citing Walter v. United States , 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) ). "To be justified by consent, the scope of the search actually made should be no broader than the scope of consent given." Scope, Warrantless Search Law Deskbook § 16:6 (2017).
The Commonwealth does not claim, nor does the record support a finding, that the troopers had probable cause to suspect that the vehicle contained drugs. As such, there is no cause for discussion of the automobile exception to the warrant requirement as an alternative basis to support the search. See Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102 (2014) (adopting the federal automobile exception, which permits police to conduct a warrantless search of a vehicle if police have probable cause to believe the vehicle contains evidence of criminal activity).
When it comes to the use by law enforcement of a trained narcotics dog to conduct a search, Pennsylvania law differs considerably from federal law. In United States v. Place , 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the United States Supreme Court held that a canine sniff of an item to which the police have a lawful right of access is not considered a search under the Fourth Amendment to the United States Constitution. Id. at 707, 103 S.Ct. 2637. See also Illinois v. Caballes , 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ("the use of a well-trained narcotics-detection dog—one that ‘does not expose noncontraband items that otherwise would remain hidden from public view,’—during a lawful traffic stop, generally does not implicate legitimate privacy interests") (internal citation to Place omitted).
This Court rejected the federal approach to dog sniffs in Commonwealth v. Johnston , which involved a warrantless canine search of the exterior of a storage locker. Although finding that a search conducted by a canine was generally less intrusive than a human search, we concluded that "a free society will not remain free if police may use this, or any other crime detection device, at random and without reason." Johnston , 530 A.2d at 79. We thus adopted a "middle ground applicable to the investigations conducted by police handlers of narcotics detection dogs," permitting the use by police of a canine to conduct a search if "the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test," and that "police are lawfully present in the place where the canine sniff is conducted." Id.
In addition to holding that a search by a trained narcotics dog is itself a search, the Court in Johnston recognized that such a search is distinct from a search conducted by a human officer. See id. (differentiating a police search from a search involving the use of a dog). We again recognized this difference in Commonwealth v. Rogers , a case questioning the constitutionality of a warrantless, nonconsensual dog sniff of a vehicle. Of relevance to the case at bar, we observed that while "canine sniffs are searches .... they are not akin to searches conducted by human law enforcement officers ," and generally require a lesser degree of suspicion. Rogers , 849 A.2d at 1192 (emphasis added). But see, cf. Martin , 626 A.2d at 560 (holding that the use of a drug detection dog to sniff a person requires that police both be "lawfully in place at the time of the search [and] have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime").
We disagree with the Superior Court (and the concurring and dissenting Justices) that the level of intrusion involved with a canine sniff, as compared to a human search, has any relevance to the question before us. See Valdivia , 145 A.3d at 1166 ; Concurring and Dissenting Op. (Todd, J.) at 873–74; Concurring and Dissenting Op. (Mundy, J.) at 880. Instead, we must decide whether a reasonable person under the circumstances would have understood Valdivia's general consent given to two human officers to include a search conducted by a later produced narcotics detection dog. As our discussion of the precedent above makes clear, these are two categorically different searches. A dog sniff constitutes a separate and distinct mechanism for drug detection than a search conducted by a human officer. Less intrusive or not, a dog search is not a search by a human officer.
The case law relied upon by Justice Todd is irrelevant to the circumstances before us. See Concurring and Dissenting Op. (Todd, J.) at 874 n.4. Regardless of whether a search by a dog is less intrusive, the point here is, as noted, that a search by a dog is not a search by a person.
Here, Valdivia gave his consent for two human officers to conduct a search of his vehicle. As Trooper Hoy testified at the suppression hearing, after asking Valdivia questions about his travel plans, he simply "asked for consent to search the vehicle," and that "Valdivia agreed to allow us to search the vehicle." N.T., 8/8/2014, at 17 (emphasis added). There was no canine officer or handler present at the time, nor did the circumstances surrounding the interaction between Valdivia and the troopers suggest that a canine unit was going to be used to conduct the search. Under these circumstances, we cannot conclude that a reasonable person in Valdivia's position would have understood that his consent to allow two human officers to search his vehicle would somehow operate to permit the search to be conducted by a canine trained in drug detection.
Contrary to the reasoning advanced by the suppression court, that Valdivia was in fact transporting drugs does not mean he should have presumed that police were aware of this fact, let alone that a dog would be called to the scene to conduct the search. See Suppression Court Opinion, 9/9/2014, at 9. The test to be applied is that of a reasonable person, an objective standard. See Jimeno , 500 U.S. at 251, 111 S.Ct. 1801 ; Reid , 811 A.2d at 549.
Further, based on the facts of the case and the exchange between Valdivia and the troopers, the length of time that passed between Valdivia's consent to search and the occurrence of the search was beyond that which a reasonable person would have expected and understood. There was no evidence presented at the suppression hearing to explain why the troopers could not have conducted an immediate search of Valdivia's vehicle.
While the Commonwealth is correct that we found a search in Commonwealth v. Reid , conducted three days after police obtained Reid's consent, to be within the scope of his consent, this case is readily distinguishable from Reid . Reid involved a double homicide that occurred at the victims' home. The victims were Reid's estranged wife and her teenaged daughter. While police were conducting an investigation of the crime scene, Reid came to the house and voluntarily agreed to accompany police to the barracks to speak with them. Reid , 811 A.2d at 542. He provided an alibi for the prior evening, said he had not been near the victims' home and denied that he owned a gun. Aware that police were looking for evidence connecting him to the murders, Reid then voluntarily consented to an analysis of his jacket, boots and hat as well as a search of his truck and motel room. Id. at 542-53. After giving his consent, he accompanied the troopers to his truck, and they conducted a roadside search. Several items were seized from the truck, including a pair of brown gloves, a knife and a machete, none of which were introduced at Reid's trial.
Thereafter, Reid was arrested for violating a protection from abuse order based on contacts he had with his estranged wife and his truck was impounded in a police storage facility. Three days later, and without first obtaining a warrant, police conducted another search of his truck and seized a pair of gloves with a pattern similar to, but not the same as, an impression that was found on a PVC pipe outside of the victims' home. Id. at 549.
Reid was charged with the murders two months later. Prior to trial he challenged, inter alia, the second search of his truck as being beyond the scope of his consent. The trial court denied his motion, and he was convicted of the murders and related charges. Following the imposition of the death penalty, he appealed to this Court. A majority of the Reid Court held that the second search was within the scope of his consent. Id. The Court found that Reid "did not at any point revoke his consent to allow the police to search his truck" and the search was conducted "within a relatively short time span after [he] provided his consent." Id. Alternatively, the Court found that any error admitting the evidence recovered from the truck was harmless. Id. at 549 n.37.
Unlike in Reid , the delayed vehicle search in the case at bar was an initial search that occurred during a traffic stop while the van was still in Valdivia's possession and under his control. Police had not seized his vehicle, nor did they have probable cause to do so. See Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102, 138 (2014) (holding that the warrantless seizure of a vehicle requires that the police have probable cause); see supra , note 11. The continued detention of Valdivia and his vehicle was solely the result of Valdivia's consent to search his van. Police stopped Valdivia mid-travel, between exits on an interstate highway on a cold December night. Under these circumstances, we agree with the position espoused by Chief Justice Saylor in his Reid concurrence: a "typical reasonable person" would have expected that his consent to search his vehicle was given for an immediate search. Reid , 811 A.2d at 556 (Saylor, J., concurring) (citing LaFave, A Treatise on the Fourth Amendment § 8.1(c) ).
Nor does Reid require a finding that the failure to revoke consent "indicate[s that] the search actually performed was within the scope of consent," as the Commonwealth contends. See Commonwealth's Brief at 10. As stated above, Reid is inapposite to the case at bar, as it involved a second search of a vehicle that was in police custody during an ongoing murder investigation in which Reid knew he was a suspect. Indeed, in Reid , police promptly conducted the first search of Reid's vehicle in his presence following the grant of consent. See Reid , 811 A.2d at 549.
The case at bar, on the other hand, involves an initial search during a traffic stop with Valdivia present. Valdivia gave his consent to search the vehicle to the two police officers who conducted the traffic stop. Based on the facts present in this case, Valdivia's failure to object to the delayed search by the canine officer or to revoke his consent has no bearing on the outcome of this case. While an individual may place limits on the scope of any consent given, or revoke consent altogether, the failure to do so does not modify the consent to the search that was given, nor does it give police carte blanche to conduct a search of limitless scope and duration.
The scope of a search is controlled by the scope of consent given, which, in turn, is determined pursuant to a reasonable person standard under the circumstances at the time the exchange between the officer and the suspect occurs. The burden is on law enforcement officials to conduct a search within those parameters. An individual is not required to police the police; absent another exception to the warrant requirement, when a search exceeds the scope of an individual's given consent, the search is illegal regardless of whether the individual objected or revoked his or her consent. See generally 68 Am. Jur. 2d Searches and Seizures § 271 ("A general consent to a search on its own does not give an officer unfettered search authority. Even when an individual gives a general consent without express limitations, the scope of a permissible search has limits: it is constrained by the bounds of reasonableness and what the reasonable person would expect.") (footnotes collecting cases omitted).
In her concurring and dissenting opinion, Justice Todd cites Jimeno and Reid in support of the proposition that a determination of the scope of a person's consent requires consideration of "the totality of all of the circumstances." See Concurring and Dissenting Op. (Todd, J.) at 871. Nowhere in either Jimeno or Reid , however, is "totality of the circumstances" language used. Instead, as stated throughout this Opinion, the scope of consent is based on what a reasonable person would have understood by the exchange that occurred between the officer and the suspect. See Jimeno , 500 U.S. at 250-51, 111 S.Ct. 1801 ; Reid , 811 A.2d at 549. While there certainly could be more than one "exchange" that occurs between an officer and an individual during a single encounter, case law does not support a finding that an officer's unilateral decision to conduct a wholly different type of search than a reasonable person would have understood his consent to allow is nonetheless within the scope of the given consent simply because the suspect failed to object. Justice Todd's claim is unfounded that we are somehow reformulating the law by limiting the scope of the search to what was reasonably understood at the time consent was given. See, e.g., Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.").
Justice Todd further cites to federal circuit court cases where the suspect's failure to object was considered by the court in determining whether the area searched was within the scope of consent, an issue that we are not addressing in this case. See Concurring and Dissenting Op. (Todd, J.) at 876–77. They do not stand for the proposition that would be required here, i.e., that the failure to object brings an otherwise uncontemplated type of search within the scope of consent. In fact, in all of the circuit court cases relied upon in her concurring and dissenting opinion, the search was conducted in the manner consented to by the suspect. As stated, the question in those cases dealt with whether the area searched was within the scope of consent, not whether the type of search that occurred was, in fact, consented to. Thus, these cases do not support a finding that Valdivia's failure to object under the circumstances of this case rendered the canine search conducted within the scope of his consent.
Valdivia consented to the search of his vehicle. The contraband, however, was discovered in wrapped packages that were removed from the vehicle to conduct the canine search. Valdivia did not provide targeted advocacy in his brief before this Court concerning the propriety of the search of the closed containers found within his vehicle, and instead presented his arguments regarding the search of the packages only within his claims that the scope of his consent did not extend to a delayed search by a canine. Given our agreement with Valdivia that a search by a dog was not encompassed within the scope of his consent, we do not reach the narrower question of whether a general consent to search a vehicle encompasses a search of closed containers within the vehicle.
Justice Todd also cites in her concurring and dissenting opinion to Commonwealth v. Smith , 621 Pa. 218, 77 A.3d 562 (2013). This case, however, has nothing to do with the suspect's failure to object. Instead, it questioned whether a reasonable person would have understood that consenting to a blood draw and testing (which Smith unquestionably did) following a motor vehicle accident meant "the potentiality of the results being used for criminal, investigative, or prosecutorial purposes." Id. at 573.
Under the circumstances of this nighttime roadside vehicle stop when Valdivia's consent was sought and received, a reasonable person would have expected the two police officers at the scene to conduct an immediate hand search of the vehicle. Conversely, our objective review of the exchange between Valdivia and Trooper Hoy, as well as the surrounding circumstances, leads us to conclude that a reasonable person in Valdivia's position would not have understood his consent to encompass a search conducted by a drug sniffing dog that would occur forty minutes after he gave his consent. Valdivia gave a general consent to two human police officers to search his car. The search that occurred exceeded the scope of that consent. Therefore, the evidence obtained as a result of the search should have been suppressed. On this basis, we reverse the decision of the Superior Court and remand the case for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Dougherty and Wecht join the opinion.
Justice Todd files a concurring and dissenting opinion in which Justice Baer joins.
Justice Mundy files a concurring and dissenting opinion in which Justice Baer joins.
At issue in this appeal is whether Appellant Randy Jesus Valdivia's oral and written consent to allow police to search his vehicle, which ultimately led to the discovery of 20 pounds of marijuana valued at $160,000, was voluntary; whether the scope of Appellant's consent properly included a canine sniff; and whether the execution of such a search 40 minutes after his consent was given rendered it invalid. For the reasons that follow, considering the circumstances surrounding the consent and search, and viewing the evidence in the light most favorable to the Commonwealth, as we must, I agree with the majority that Appellant's consent was voluntary, but dissent regarding its conclusion that a canine search was outside the scope of Appellant's consent. Moreover, I would also conclude that, in these circumstances, the canine sniff, conducted within 40 minutes of Appellant's agreeing to a search of his vehicle, was within the scope of his consent.
Pursuant to the protections embodied in the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution, before the state may conduct a search, a warrant that is supported by probable cause is required. U.S. Const, amend IV ; Pa. Const., art. I, § 8 ; Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; Commonwealth v. Reid , 571 Pa. 1, 811 A.2d 530, 544 (2002). While the necessity of a search warrant is the bedrock means of protecting the privacy interests of our citizens in their persons, homes, and property, a warrant is not required when an individual, with proper authority, voluntarily consents to a search. Reid , 811 A.2d at 544. Thus, a valid consent acts as an exception to the warrant requirement. Commonwealth v. Cleckley , 558 Pa. 517, 738 A.2d 427, 429 (1999).
The practice of law enforcement seeking consent to facilitate a search is perfectly acceptable. Indeed, as explained by the United States Supreme Court, such agreements diminish inferences of coercion:
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.
United States v. Drayton , 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Moreover, it puts in the hands of the citizen not only the power to allow — or not allow — a search, but it permits the individual to define the contours of the search. See Luna, Sovereignty and Suspicion , 48 Duke L.J. 789, 841 (1999) ("If an individual consents to a search or seizure, she is exercising primary authority. The right to exclude necessarily implies the right to include, and as long as the final determination is made by the person whose body or home is being searched, sovereignty remains with the individual."). Thus, while there is a "pertinent psychological dynamic based upon the relative positions of authority as between the officer and a citizen-subject, and an immediately-preceding exercise of the officer's authority," Commonwealth v. Strickler , 563 Pa. 47, 757 A.2d 884, 898 (2000), and while a citizen's consent to a warrantless search by police is indeed a significant act, sacrificing constitutionally-enshrined protections, ultimately, the individual, not the state, is in control of the process — its inception, its contours, and its termination — and the state must scrupulously honor any refusal of, limitation on, or revocation of, such a consent.
While a search by consent is acceptable, such consent is of momentous import, and so certain protections must be ensured before a consensual search will be deemed to be valid. As noted by the majority, to pass constitutional muster, the consent must be sought during a lawful interaction with police; the consent must be voluntary; and the search must be within the scope of the consent. Reid , 811 A.2d at 544, 548. Specifically, the prosecution must initially establish that the consent was given during a legal police interaction, or, if given during an illegal seizure, that it was not a result of the illegal seizure. Id. at 544. Moreover, the consent must be voluntary. Id. Voluntariness of consent is determined under the totality of the circumstances surrounding the consent. Id. at 548. Further, in establishing a voluntary consent, the Commonwealth is not required to prove knowledge of the right to refuse a consent search. Cleckley , 738 A.2d at 432-33.
While, in the courts below, Appellant contested the legality of the seizure, he does not do so on appeal to our Court. Thus, we accept for purposes of this appeal that the consent search was conducted during a lawful police interaction. Furthermore, while somewhat intermingling his arguments, Appellant maintains that he did not voluntarily consent to the search. I join the majority's conclusion that there is no support for Appellant's assertion that his consent was not voluntarily given. Majority Opinion at 862–64.
The primary focus of this appeal, however, is on the scope of Appellant's consent. For a valid consent search, the scope of the search must be limited to that agreed to by the consenting party. Id. ("When an official search is properly authorized, the scope of the search is limited by the terms of its authorization."). Reid , 811 A.2d at 544, 548. The "fundamental point is that the consenting party, either expressly or by implication, may place conditions upon the consent involving such matters as the time, duration, physical scope, or purpose of the search being consented to." 4 Wayne R. LaFave, Search and Seizure, § 8.1, 9 (5th ed. 2017). More specifically, the standard for determining the scope of a valid consent "is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent." Reid , 811 A.2d at 549 ; Florida v. Jimeno , 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Significantly, any conclusion reached regarding the proper scope of a consent is determined by consideration of the totality of the circumstances. Reid , 811 A.2d at 548-49 ; Jimeno , 500 U.S. at 249, 111 S.Ct. 1801. More specifically, as discussed in more detail below, the totality of all the circumstances include both those at the initial time of the consent, as well as any subsequent exchange which informs the permissible scope of the consent.
Furthermore, the consent at issue in this appeal involves a canine search of a vehicle. The United States Supreme Court has determined that a canine "sniff" is not a search pursuant to the Fourth Amendment to the United States Constitution. United States v. Place , 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Yet, our Commonwealth's Constitution, in certain areas, provides our citizens greater rights than under the federal charter. See, e.g., Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 894 (1991) ("the federal constitution establishes certain minimum levels which are ‘equally applicable to the [analogous] state constitutional provision.’ However, each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution." (citations omitted) ). Indeed, it has now been well established for over 30 years that canine sniffs constitute searches under Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Johnston , 515 Pa. 454, 530 A.2d 74, 79 (1987) ; see also Commonwealth v. Rogers , 578 Pa. 127, 849 A.2d 1185, 1190 (2004) ; Commonwealth v. Martin , 534 Pa. 136, 626 A.2d 556, 559 (1993).
Appellant, however, as explained by the majority, does not suggest that Article I, Section 8 of the Pennsylvania Constitution provides greater protections for Pennsylvania citizens in the area of consent searches (beyond the foundation that a canine sniff constitutes a search for purposes of state constitutional law). Moreover, our case law in this area has relied exclusively on federal Fourth Amendment decisions. See , e.g. , Strickler , 757 A.2d at 902. Thus, arguendo , the law of consent is the same under both our federal and state charters.
The majority asserts that the scope of consent inquiry does not consider the totality of the circumstances, but, rather, is limited to "the circumstances at the time the exchange between the officer and the suspect occurs," or seemingly, to more than one "exchange." Majority Opinion at 868–69. Respectfully, and contrary to the majority's protestations, Jimeno and Reid support my view. See Jimeno , 500 U.S. at 249, 111 S.Ct. 1801 ("The Fourth Amendment is satisfied when, under the circumstances , it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile.") (emphasis added) ); Reid , 811 A.2d at 549 (determining scope of consent "based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent" by examining various post-consent conduct after exchange with officer, and reasoning that defendant "did not make any indication to the troopers either during or after the search that he wanted them to stop searching the truck;" and "[g]iven that [defendant] did not at any point revoke his consent to allow the police to search his truck and that Trooper Scott searched the truck within a relatively short time span after [defendant] provided his consent, we conclude that Trooper Scott's search was within the scope of [defendant's] consent.").
Further, a myriad of decisions rendered under the Fourth Amendment support the same. See , e.g. , United States v. Stierhoff , 549 F.3d 19, 23 (1st Cir. 2008) ("Typically, courts look beyond the formal wording of the consent itself to the totality of the circumstances that inform the meaning of those words in a given situation"); Reedy v. Evanson , 615 F.3d 197, 225 (3rd Cir. 2010) ("Consent is ‘determined from the totality of the circumstances ...[and] we must examine the circumstances surrounding [the] consent’ "); United States v. Garcia , 604 F.3d 186, 190 (5th Cir. 2010) ("General consent to search a vehicle does not, however, give an officer carte blanche over the vehicle.... A search must still be reasonable, given the totality of the circumstances"); United States v. Adams , 583 F.3d 457, 465 (6th Cir. 2009) ("In its suppression ruling, the district court properly recognized that [occupant's] consent to search the motel room ‘does [not] necessarily include everything in it[, a]nd that guests to a motel room still may have a privacy interest in things they brought with them, depending on the totality of the circumstances.’ "); United States v. Thurman , 889 F.3d 356, 368 (7th Cir. 2018) ("Whether a search extends beyond the scope of consent ‘is a question of fact to be determined from the totality of all the circumstances.’ "); United States v. Beckmann , 786 F.3d 672, 678 (8th Cir. 2015) (in determining scope of consent, "[r]easonableness is measured in objective terms based on the totality of the circumstances"); United States v. Mines , 883 F.2d 801, 803 (9th Cir. 1989) ("This court has held that the question of whether a search exceeds the scope of a suspect's consent is a factual one, to be determined on the basis of the totality of the circumstances"); United States v. Price , 925 F.2d 1268, 1272 (10th Cir. 1991) ("a court should consider the totality of the circumstances to determine the scope of consent"); United States v. Blake , 888 F.2d 795, 798 (11th Cir. 1989) ("whether there were any limitations placed on the consent given and whether the search conformed to those limitations is to be determined by the totality of the circumstances"); See also infra at pp. 876–78.
Finally, applying the proper standard and scope of review in suppression matters is, in my view, critical to this matter. As thoroughly explicated by Justice Baer in In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1079-80 (2013), the role of the appellate court is "to determine whether the record supports the suppression court's factual findings, and whether the suppression court's findings are free from legal error.... Scope of review ... may be divided into two components: the subject matter of the review, and the extent of the record that the appellate court consults when conducting that review. As for the subject matter, our scope of review is limited to the factual findings and legal conclusions of the suppression court." Id. Regarding the record, "we are limited to considering only the evidence of the prevailing party, and so much of the evidence of the non-prevailing party as remains uncontradicted when read in the context of the record as a whole." Id. Thus, here, we consider the evidence in the light most favorable to the Commonwealth and any uncontradicted evidence of record.
With this legal background in hand, Appellant seemingly forwards two arguments why the consent search was invalid. First, he maintains that a reasonable person would not consider a canine sniff to be part of a generalized consent to search — that he envisioned only a hand search of his vehicle — thus, the use of a canine to search his vehicle was beyond his consent. Second, he claims that, in any event, the 40 minutes he waited for the canine unit to arrive was beyond that to which a reasonable person should be subjected, and, thus, such a delayed search was beyond the scope of his consent and, therefore, invalid. I address these assertions seriatim.
Whether a canine search is one a reasonable person would expect to be part of a general consent to search has been the subject of debate and varied conclusions by a number of courts. As early as 1976, the Ninth Circuit Court of Appeals noted that canines had "long been used" by police, and that the ability to detect contraband led to the training of and use of dogs to search for drugs. United States v. Solis , 536 F.2d 880, 882 (9th Cir. 1976) ; United States v. Fulero , 498 F.2d 748, 749 (D.C. Cir. 1974) (per curiam ) (marijuana-sniffing canine used regularly since early 1970s). Moreover, our Court has concluded that dog sniffs are minimally intrusive relative to other modes of search. See Johnston , 530 A.2d at 79-80 ("[A] canine sniff-search is inherently less intrusive upon an individual's privacy than other searches such as wiretapping or rummaging through one's luggage; it is unlikely to intrude except marginally upon innocent persons."); Rogers , 849 A.2d at 1199 (Saylor, J., concurring) ("canine sniffs are less intrusive than full-blown searches"); United States v. Place , 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (opining that a dog sniff "does not require opening the luggage" and does not "expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage;" rather, it "discloses only the presence or absence of narcotics," protecting the suspect from "the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods").
While canine searches may be minimally intrusive, and of long vintage, courts have come to different conclusions regarding whether a reasonable person would expect the use of a dog as part of a general consent search. Compare , e.g. , State v. Becerra , 239 Ariz. 90, 366 P.3d 567, 571 (Ariz. Ct. App. 2016) ("The reasonable person in the United States would not be surprised or find any novelty in a law enforcement officer's use of a K-9, just as her or she might use a flashlight, to search a vehicle for drug contraband."), and United States v. Coney , 456 F.3d 850, 858-59 (8th Cir. 2006) (canine search upheld even though no reference to drug-detection dog), with State v. McLeod , 664 So.2d 983, 984-85 (Dist. Ct. App. Fla. 1995) (finding consent did not encompass the use of a dog and that nothing in the surrounding circumstances suggested that it did), and United States v. Gonzalez-Basulto , 898 F.2d 1011, 1013 (5th Cir. 1990) (finding search did not exceed the scope of defendant's consent, as he knew before arriving at checkpoint that police were using drug-sniffing dogs to examine vehicles and dogs were present on the scene before defendant gave his consent); and United States v. Woods , 445 F.Supp.2d 1328, 1332-33 (M.D. Ala. 2006) (rejecting proposition that general consent included search by canine unit, but concluding that defendant spoke with dog-handler shortly after giving consent to search, and, thus, was aware of dog's presence and purpose). Our Superior Court in this matter came to the former conclusion, explaining that "[n]othing about a canine sniff strikes us as more intrusive than a vehicle search by humans, so when an individual consents to an official search of his vehicle, it is natural to assume that his consent includes both human and canine searches." Commonwealth v. Valdivia , 145 A.3d 1156, 1166 (Pa. Super. 2016).
The majority's assertion that the intrusiveness of the search is irrelevant to the determination of the proper scope of the consent to search, Majority Opinion at 866–67 & n.12, is contrary to foundational case law which confirms that an objective evaluation of what a reasonable person would have understood the scope of the search to be involves the degree of intrusiveness. Indeed, it is only logical that, because police are constrained by the bounds of reasonableness, the degree of intrusiveness is a factor in determining the scope of consent under a totality of the circumstances test. See, e.g., Jimeno , 500 U.S. at 251-52, 111 S.Ct. 1801 ("It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag"); United States v. Alverez , 235 F.3d 1086, 1089 (8th Cir. 2000) (cutting of spare tire likely exceeded scope of consensual search in absence of probable cause); United States v. Osage , 235 F.3d 518, 520-21 (10th Cir. 2000) (explaining that court had previously hinted that a search could be "so invasive or destructive" as to go beyond the scope of the search consented to, and finding that consent to search bag did not permit opening of sealed cans, thereby rendering them useless and incapable of performing their function); United States v. Blake , 888 F.2d 795, 800 (11th Cir. 1989) (finding consent by defendants allowing police "to search their ‘persons’ could not, under the circumstances, be construed as authorization for the officers to touch their genitals in the middle of a public area in the Fort Lauderdale Airport," and, thus, upheld trial court's conclusion that "a general understanding of a request to search one's ‘person’ under the circumstances of this case simply did not lend itself to an interpretation that the officers were requesting to conduct a search as intrusive as the ones conducted here").
However, I do not believe it necessary for our Court to answer this broader, and more divisive, question as a general proposition. We must determine what was reasonably understood by the police and Appellant to be the scope of this search, in light of the totality of all the circumstances, viewed in the light most favorable to the Commonwealth as the prevailing party below. Considered in this context, based upon the circumstances in the evidentiary record, in my view, the use of a dog by the police was within the scope of the search to which Appellant consented.
First, Appellant gave an oral generalized consent to search and signed a written "Waiver of Rights and Consent to Search" form. N.T. Omnibus Pretrial Motion Hearing, 8/8/14, at 17. Appellant never indicated that he was limiting his consent or the scope of the search so as to exclude a canine search. After giving a general consent to search, both orally and in writing, the officers offered that, as it was a cold evening, Appellant could wait in the trooper's vehicle. Id. at 19. Appellant accepted the offer and sat in the police cruiser with one of the troopers. The officers, however, did not perform a hand search of the vehicle immediately, or for the ensuing 40 minutes, and Appellant remained in the police cruiser with a trooper for this period of time. At no point did Appellant inquire as to the reason for the delay. The uncontested testimony established that Appellant's line of sight from his seat in the police cruiser allowed him to see the K-9 unit arrive, as well as the dog "working around the vehicle and up front of the vehicle." Id. at 65. Yet, Appellant did not attempt to clarify his consent when he saw the K-9 unit arrive, nor did he inquire about the canine sniff, or seek to terminate the search, even though the canine search of the vehicle and packages were performed in his sight. Id. at 64-65, 82.
The "Waiver of Rights and Consent to Search" form ("Waiver and Consent Form") was used by the Commonwealth during its questioning of Appellant at the suppression hearing, but was not entered into evidence by the Commonwealth. However, the form was included by Appellant as part of the Reproduced Record as it was an exhibit to the Commonwealth's Brief to the Superior Court. R.R. 170a. As a general rule, "matters not part of the record will not be considered on appeal." Commonwealth v. Killen , 545 Pa. 127, 680 A.2d 851, 852 n.5 (1996) (noting with disapproval appellant's including of witnesses' statements favorable to him in the reproduced record, since they were not part of the original record, citing Pa.R.A.P. 2152 (reproduced record shall only contain parts of the original record) ). Yet, here, Appellant included the form in the reproduced record, even though not favorable to him, and the Commonwealth did not object to such inclusion. The parties do not contest the existence and signing of the Waiver and Consent Form.
In my view, that Appellant consented, both orally and in writing, to a general search of his vehicle; that he made no inquiry regarding the lack of a hand search of his vehicle after his consent and for 40 minutes thereafter; that he sat in the police cruiser with an officer without making any comment or inquiry; and that he made no attempt to clarify his consent during the 40-minute period of police inaction (even with a trooper seated nearby), strongly suggests Appellant envisioned the consent to entail more than just a hand search. Moreover, Appellant's silence when he saw the K-9 unit arrive, and further silence when police commenced the search of the vehicle with a dog, are significant indications that such a search did not exceed the scope of his consent, and that he believed the breadth of his consented-to search included a canine sniff.
I view the majority's approach to determining the scope of consent as unfounded. As noted above, assessing the scope of consent standard is an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent, under the totality of all of the circumstances. Reid , 811 A.2d at 548, 549 ; Jimeno , 500 U.S. at 249, 111 S.Ct. 1801.Rather than considering the totality of the circumstances surrounding the exchange between the police and Appellant, the majority looks only to "the circumstances at the time the exchange between the officer and the suspect occurs." See Majority Opinion at 868. Thus, the majority narrows the examination, and, by doing so, the majority overlooks the failure to object or revoke consent as informing the inquiry, as, evidently, in the majority's view, such circumstances have no bearing on determining the scope of consent. See id. ("[W]hen a search exceeds the scope of an individual's given consent, the search is illegal regardless of whether the individual objected or revoked his or her consent."). While a defendant may not have an affirmative duty to terminate a search if it exceeds his or her envisioned scope, it is beyond peradventure that a defendant's inaction is a factor to be considered in determining the scope of a consented-to search. The majority's sub silento reformulation of the established construct is manifestly contrary to federal and Pennsylvania jurisprudence, as well as scholarship. Indeed, federal and Pennsylvania case law is legion that one's acquiescence or silence after consent is a legitimate factor in considering the scope of an individual's consent.
Specifically, our Court has been clear that actions (or inaction) after the verbalization of consent are relevant factors in determining whether a search is impermissibly broad. See Commonwealth v. Smith , 621 Pa. 218, 77 A.3d 562, 573 (2013) (that defendant "willingly went to the hospital and participated in the blood draw" indicated consent was not exceeded); Reid , 811 A.2d at 549 (that defendant "did not make any indication to the troopers either during or after the search that he wanted them to stop searching the truck," and that defendant "did not at any point revoke his consent to allow the police to search his truck and that Trooper Scott searched the truck within a relatively short time span after [defendant] provided his consent, we conclude that Trooper Scott's search was within the scope of [defendant's] consent").
I find the majority's attempt to limit the Reid Court's consideration of Reid's failure to revoke his consent to the facts to be unpersuasive. Indeed, Reid — like Smith , and virtually every federal circuit addressing the issue — is entirely consistent with Fourth Amendment jurisprudence, and the majority cites to no authority to the contrary.
Federal case law is uniform in this totality of the circumstances approach, as every United States Circuit Court of Appeals has employed such inquiry. See, e.g. , United States v. Stierhoff , 549 F.3d 19, 24 (1st Cir. 2008) ("We add that the defendant's present statement of his subjective belief that the search would be strictly limited to his computer lacks even a patina of plausibility. He observed the search in progress and voiced no objection to either the ransacking of his room or the opening of his unlocked briefcase."); United States v. Villegas , 928 F.2d 512, 518 (2nd Cir. 1991) (noting, in determining scope of consent, that permission to search the entire item and its contents was never withdrawn); United States v. Comegys , 504 Fed. Appx. 137, 143 (3rd Cir. 2012) (in examining scope of consent, court considered that defendants did not limit their consent or attempt to withdraw consent at any time during the stop); United States v. Jones , 356 F.3d 529, 534 (4th Cir. 2004) ("a suspect's failure to object (or withdraw his consent) when an officer exceeds limits allegedly set by the suspect is a strong indicator that the search was within the proper bounds of the consent search"); United States v. Mendoza-Gonzalez, 318 F.3d 663, 670 (5th Cir. 2003) ("A failure to object to the breadth of the search is properly considered an indication that the search was within the scope of the initial consent." (internal quotation marks omitted) ); United States v. Lucas , 640 F.3d 168, 178 (6th Cir. 2011) (finding computer was within scope of consent to search where defendant confirmed to officer that computer was not password-protected and he did not object in any way to the search of the electronic files contained therein); United States v. Torres , 32 F.3d 225, 231 (7th Cir. 1994) (where defendant authorized entry and search of the motor vehicle and trailer, did not allege his box or trailer was damaged, and he did not timely object to the search of the container, court held police search did not exceed scope of defendant's consent); United States v. Siwek , 453 F.3d 1079, 1085 (8th Cir. 2006) (in determining whether length of search exceeded scope of consent, court noted that, during time of search, defendant made no effort to withdraw or limit the scope of his consent and did not protest in any manner the continuation of the search; with respect to argument that consent was withdrawn, court considered that, during encounter, defendant conversed with officer, could see the officer performing the search, and never objected to search of any part of truck); United States v. Cruz-Castro , 378 Fed. Appx. 632, 635 (9th Cir. 2010) (failure to object to the continuation of a vehicle search after giving general consent to search "is properly considered as an indication that the search was within the scope of the initial consent." (quoting United States v. Cannon , 29 F.3d 472, 477 (9th Cir. 1994) ); United States v. McRae , 81 F.3d 1528, 1538 (10th Cir. 1996) (in determining scope of consent, court considered that "at no time did [defendant] object to the search as conducted. As we have recognized, ‘[f]ailure to object to the continuation of the search under these circumstances may be considered an indication that the search was within the scope of the consent.’ " (citations omitted) ); United States v. Telcy , 362 Fed. Appx. 83, 86 (11th Cir. 2010) (concluding reasonable to believe that defendant's consent encompassed a safe in his bedroom where he failed to object to a search of the safe, and he told police where to find the key). Moreover, scholarship confirms the same. See generally 4 LaFave, Search and Seizure § 8.1(c), 23 (5th ed.) (offering that failure to object when search allegedly exceeded consent indicates search was actually within scope of consent).
The majority's attempt to distinguish this unanimity among the federal court of appeals with respect to a totality of the circumstances inquiry is, in my view, unconvincing. First, while the majority asserts these decisions are inapt because they involve whether "the area searched" was within a scope of consent rather than the "type of search" being within that scope, Majority Opinion at 869, it does not explain why consent for the one would be judged differently than for the other. Moreover, the simple point demonstrated by these decisions is that, in determining the contours of consent — whether the area or type of search — a full examination of all of the surrounding circumstances is undertaken — that is, the inquiry is not limited to the majority's "time of consent" approach, an approach which is, in my view, unjustifiably restrictive.
This principle of considering all the circumstances surrounding the exchange between the citizen and police is consistent with the underlying premise that the scope of a search is within the sole authority of the citizen who can limit it as he or she deems proper, and, indeed, can terminate the search at any time, and the police must scrupulously honor the scope of, or termination of, that consented-to search. Indeed, the majority's approach would countenance a defendant, who is in a clear position to object and observes a violation of the scope of the search in plain sight, to sit idly by and only later complain.Based upon these critical circumstances, viewed in the light most favorable to the Commonwealth as the prevailing party below, I believe that Appellant has failed to establish that the canine sniff exceeded the scope of his consent.
Further, in my view, the 40-minute delay in performing the canine search was not beyond the scope of Appellant's consent. First, I would eschew a formulaic approach to whether the duration of a search is beyond one's consent. Again, whether a search exceeds the duration of the consent turns on what a reasonable person would have understood the duration to be under the circumstances. Consistent therewith, I note that the traffic stop and subsequent consented-to search took place in a largely rural region in the center of the state near Bellefonte, Pennsylvania. The K-9 unit involved in the search was 30 miles away. N.T. Omnibus Pretrial Motion Hearing, 8/8/14, at 87. While this search was conducted on Interstate 80, a canine unit is not always readily available, and, where a K-9 unit is not initially involved in a stop, it will take some time for such a unit to be summoned and arrive. In my view, a wait of 40 minutes is not, in and of itself, objectively unreasonable, and case law supports such a conclusion. See United States v. Carbajal-Iriarte , 586 F.3d 795, 799 (10th Cir. 2009) (delay of 69 minutes did not exceed scope of consent); Gray v. State , 441 A.2d 209, 221 (Del. 1981) (individual's consent to search certain items, including watch, remained valid even though consent was given 20 hours before items actually searched); State v. Williams , 67 N.C.App. 519, 313 S.E.2d 236, 237-38 (1984) (approving search of automobile 23 hours after consent given); State v. Grega , 168 Vt. 363, 721 A.2d 445, 452-53 (1998) (individual's consent to search condominium had not expired even though given two days prior to final police search); Reid , 811 A.2d at 549 (three days considered "within a relatively short time span after [defendant] provided his consent").
Reid is admittedly not directly on point in this regard as Reid was placed in custody after giving his initial consent to search and an initial roadside search of the vehicle was conducted, but, thereafter, his truck was towed to a storage facility, and was searched a second time by police several days later. While the majority points to then-Justice, now Chief Justice, Saylor's concurrence, offering that, to be within the proper scope of consent, a search must be conducted "forthwith and that only a single search will be made," Reid , 811 A.2d at 556, I would conclude "forthwith" could encompass a delay of 40 minutes. Again, the duration of the search must be evaluated under all the circumstances.
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Second, the circumstances sub judice indicate that Appellant gave a general consent both orally and in writing to search his vehicle, that he did not limit his consent to any specific time period, and that he waited in a heated police cruiser for 40 minutes, with a trooper, before any search commenced. While the officers standing inactive during this time were in plain sight of Appellant, he made no inquiry, objection, or revocation of his consent regarding the delay. Even upon the arrival of the K-9 unit in his plain view, Appellant remained mute as the search commenced and thereafter. Appellant's claim that a 40-minute wait after he consented to a search was intrusive and rendered the search beyond the scope of his consent is undermined by the above facts. It is important to remember that, while any search may result in a disruption of travel plans, inconvenience, and intrusion, here, Appellant consented to the search — consent which could have been clarified or revoked at any time. Based upon these particular circumstances, again, viewed, as we must, in the light most favorable to the Commonwealth as the prevailing party below, in my view, Appellant has failed to establish that the 40-minute delay exceeded the scope of his consented-to search.
Accordingly, I conclude Appellant's consent was voluntary; the scope of his consent included a canine sniff; and the delay to perform such search was within the scope of his consent.
Justice Baer joins this concurring and dissenting opinion.
I join Justice Todd's concurring and dissenting opinion in full. Because the Majority opinion incorrectly focuses on Valdivia's subjective knowledge, engages in fact finding, and creates a new category for consent in canine searches, I dissent.
The focus in this case is whether consent to search a vehicle includes consent to a canine sniff of packages in the vehicle. As noted by the Majority, "the standard for measuring the scope of an individual's consent is one of ‘objective reasonableness[,]’ " and "[w]e do not ascertain the scope of consent from the individual's subjective belief[.]" Majority Op. at 862 (citations omitted). Nevertheless, the Majority focuses on the subjective knowledge of Valdivia, repeatedly faulting Trooper Hoy for failing to inform Valdivia that the search would be conducted by a canine and not a human, a rule promulgated for the first time by the Majority. See id. at 859, 865. The Majority's entire analysis hinges on Trooper Hoy's failure to inform Valdivia of the canine sniff thus placing it outside the scope of consent. However, the suppression court made no such finding of fact. As the Majority concedes, "the suppression court did not enter a specific factual finding on this point." Id. at 864. "We are bound by the suppression court's factual findings so long as they are supported by the record." Commonwealth v. Yandamuri , 639 Pa. 100, 159 A.3d 503, 516 (2017). There is no finding of fact that Valdivia was not informed by Trooper Hoy that the officers intended to conduct a canine sniff. The Majority attempts to bootstrap its fact finding by suggesting the trial court's "discussion of the issue reflects its conclusion that Trooper Hoy did not inform Valdivia that he had called for a dog to conduct the search of his vehicle." Majority Op. at 865. However, in its conclusions of law the suppression court stated, "[t]estimony at the hearing was conflicting as to whether or not Trooper Hoy indicated to the Defendant that he would be calling a K-9 Unit to conduct a search. Trooper Hoy testified that it was his standard practice to do so, but could not recall if he did on this specific instance." Suppression Ct. Op. at 9. This is contrary to the conclusion of the suppression court, and is a factual finding by the Majority.
Further, the Majority cites to a line of cases that determined a canine sniff is a search under Article I Section 8 of the Pennsylvania Constitution, as opposed to a less intrusive encounter, and characterizes those cases as creating a distinction between human and canine searches. See Majority Op. at 866–67 (citing Commonwealth v. Johnston , 515 Pa. 454, 530 A.2d 74 (1987) ; Commonwealth v. Rogers , 578 Pa. 127, 849 A.2d 1185 (2004) ). These cases dealt with the legality of a warrantless canine sniff and whether or not the intrusion was a search. The Majority quotes Rogers and states, "[o]f relevance to the case at bar, we observed that while ‘canine sniffs are searches ... they are not akin to searches conducted by human law enforcement officers ,’ and generally require a lesser degree of suspicion." Majority Op. at 866–67 (emphasis in original) (citing Rogers , 849 A.2d at 1192 ). The Majority then concludes "the level of intrusion involved with a canine sniff, as compared to a human search" has no "relevance to the question before us." Majority Op. at 867. Respectfully, I disagree.The aforementioned precedent cannot be used to create two categories of searches, human and canine, while simultaneously dismissing the legal holdings that a canine sniff is less intrusive than a human search. I agree with the Superior Court's conclusion that "[n]othing about a canine sniff strikes us as more intrusive than a vehicle search by humans, so when an individual consents to an official search of his vehicle, it is natural to assume that his consent includes both human and canine searches." Commonwealth v. Valdivia , 145 A.3d 1156, 1166 (Pa. Super. 2016).
Accordingly, as there is no legal basis for requiring police officers to obtain separate consent for a human search and a canine search, I dissent.
Justice Baer joins this concurring and dissenting opinion.