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Pennsylvania Supreme Court Holds Consent to Search Does Not Include K-9 Sniff When No K-9 Present When Consent Given and Wait 40 Minutes for Its Arrival

by Dale Chappell

In a case of first impression, the Supreme Court of Pennsylvania held that a search in connection with a traffic stop that was performed 40 minutes after consent was given, because there was no K-9 unit on scene so police made the motorist wait until its arrival, exceeded the scope of the consent to search. 

The same way a search by human police officers is a “search” under the Fourth Amendment so too is a dog-sniff search by a K-9 unit. But they are not one and the same. When Pennsylvania police stopped Randy Valdivia on Interstate 80 for failure to use his turn signal and discovered that he had a prior drug conviction in Florida, they became suspicious of the Christmas packages in the backseat and asked if they could search his car. He consented. What he didn’t know, and what the troopers didn’t tell him was that they had also requested a K-9 unit to the scene.

About 40 minutes later, a K-9 unit arrived and searched Valdivia’s vehicle. The dog alerted to the Christmas packages, which contained about 20 pounds of marijuana. Charged with possession of the marijuana with intent to deliver, he was convicted at a bench trial after his motion to suppress the evidence was denied. 

On appeal, Valdivia argued that the K-9 search was not within the scope of his consent because a reasonable person wouldn’t have understood he was consenting to a search by a dog that was not on scene and that the 40-minute delay was too long. The Superior Court rejected this argument and affirmed his conviction. Valdivia appealed to the Pennsylvania Supreme Court. 

The scope of consent for police to search requires consideration of what a “reasonable person in the position of the defendant would have believed he or she was allowing,” the Court instructed. The Court then explained that “Pennsylvania law differs considerably from federal law” with respect to searches by trained narcotics dogs. The U.S. Supreme Court has 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….” United States v. Place, 462 U.S. 696 (1983). The Pennsylvania Supreme Court rejected that approach in Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987), warning that “a free society will not remain free if police may use this, or any other crime detection device, at random and without reason.”

The Johnston Court concluded that a search performed by a trained narcotics dog constitutes a search under Pennsylvania law. But the Court explained that they are “not akin” to searches performed by human officers, adding that a dog sniff is a “separate and distinct mechanism for drug detection.” It then adopted a rule allowing a canine 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 they “are lawfully present in the place where the canine sniff is conducted.” Johnston. 

Turning to the present case, the Court stated the question it must answer is “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.”

Because Valdivia gave consent for police on scene to conduct a search that he assumed would have been done immediately by human officer and not by a K-9 unit over 40 minutes away, the Court ruled that “a reasonable person in Valdivia’s position would not have understood his consent to encompass a search conducted by a drug sniffing dog.” Thus, the K-9 search exceeded the scope of the consent given by Valdivia, and the evidence discovered as a result of the search should have been suppressed, the Court concluded. 

Accordingly, the Pennsylvania Supreme Court reversed the Superior Court’s decision and remanded for further proceedings consistent with its opinion. See: Commonwealth v. Valdivia, 195 A.3d 855 (Pa. 2018). 

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Related legal case

Commonwealth v. Valdivia



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