PA Supreme Court: Consent to Search Car Does Not Necessarily Include Consent to K9 Search

Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Valdivia, holding that a motorist’s consent to a police search of his car does not automatically include the consent to detain the motorist for 40 minutes and then conduct a canine search. Instead, the scope of the search by the police should have been limited to that for which a reasonable person expected he or she had provided consent.

The facts of Valdivia

In Valdivia, Pennsylvania State Police Troopers were on patrol in a marked police cruiser on Interstate 80 in Centre county, PA. At some point, they drove behind the defendant, who was driving a white minivan with Michigan plates. After two miles, they saw the van change lanes without using a turn signal. They decided to pull the defendant over. The defendant complied and pulled over to the side of the road.

The troopers both approached the vehicle. One of the troopers asked for the defendant’s license, registration, and proof of insurance. The defendant responded that he was about to run out of gas, but he provided the trooper with his Florida driver’s license and a rental agreement for the van. As troopers so often do, the trooper testified that the defendant seemed nervous and that his hands were shaking when he provided the documentation.

The troopers then began asking the defendant about his travel plans. He explained that he was on his way to New Jersey to visit family and provided an elaborate story about how he ended up renting a minivan instead of flying from Florida. From outside of the van, the trooper was able to see two large boxes wrapped in Christmas paper in the back of the van. The trooper found it odd that the gifts had no markings from an airline and that they were not banged up. He also later testified that drug traffickers often wrap up containers of drugs in Christmas paper during the holidays. The trooper also had concerns about the fact that the van had been rented thirty miles away from the airport for a one-way trip. He then ran the defendant’s record and found that he had priors for possession with the intent to deliver.

The troopers contacted a State Police K9 officer who was not currently on duty and asked him to come to the scene. While they waited for him, they told the defendant to get out of the van. They explained that they were going to provide him with a written warning for failing to use his turn signal when changing lanes. After returning his documentation, the trooper asked the defendant if he would answer a few more questions. The defendant said that he needed to get gas, but he would answer a few more questions. The troopers then continued to grill him about his travel plans and the paperwork for the van. The defendant’s story changed a little bit, the troopers became increasingly suspicious, and they then asked for consent to search the van. The defendant gave verbal consent first and then signed a written consent form, two things which you should virtually never do. The troopers had not told the defendant that a K9 officer was on the way.

Because it was cold, the troopers generously asked the defendant if he would like to wait in the back of the patrol car while they searched the minivan. The troopers then waited for the K9 officer; they did not start searching the minivan in the meantime. When the K9 arrived, the troopers removed the Christmas boxes from the minivan and had the K9 sniff them. The K9 “alerted",” suggesting that they were drugs in one of the boxes. The troopers opened the boxes and found lots of marijuana. They seized the marijuana, a mobile smartphone, and a tablet, and they arrested the defendant. Prosecutors charged him with possession of a controlled substance, possession with the intent to deliver, and possession of drug paraphernalia.

The Motion to Suppress - Were there limits to the consent to search?

The defendant filed a motion to suppress the marijuana, arguing that although he had consented to a normal search of the minivan, he had not agreed to wait for 40 minutes and then allow a K9 search. The trial court denied the motion. It found that the defendant voluntarily consented to the search and that it was not the product of police coercion. Further, it found that the defendant consented to the K9 search because he had not placed any limits on the scope of the search when he authorized the troopers to search his car. The court reasoned that because he was engaged in the transportation of drugs, he should have realized that troopers may use a dog for the search. The defendant then proceeded by way of bench trial, was found guilty of all charges, and sentenced to 11.5 to 23 months in jail followed by 30 days of probation.

The defendant appealed to the Superior Court. The Superior Court agreed with the trial court and affirmed the trial court’s decision. The Superior Court found it to be a close case, but ultimately ruled against the defendant. The Superior Court concluded that there is nothing about a K9 search which differentiates it from a human search when it comes to the issue of consent to search. The defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Court accepted the case.

Consent to search does not automatically include consent to a K9 sniff

The Pennsylvania Supreme Court reversed the suppression court’s decision. It found that the consent to search provided by the defendant did not automatically include the consent to wait 40 minutes and then be subjected to a K9 sniff. In Pennsylvania, police typically need a search warrant or probable cause in order to search a motor vehicle. However, one exception to the probable cause requirement is that police may conduct a search without any level of reasonable suspicion or probable cause when the defendant agrees to it. Notably, New Jersey has a different rule in which police must have reasonable suspicion in order to request consent to search.

When is consent to search valid?

Although police need not have any level of suspicion in order to legally conduct a consensual search, there are some limitations with which they must comply even during a consent search. For example, they must have obtained the consent voluntarily. If the police obtained the consent by threatening to shoot the defendant, then that would probably not be voluntary consent. Additionally, the search must be limited to the scope provided by the suspect. This means that if the suspect agrees to a search of one room but not another, police cannot search that other room without obtaining a warrant or unless some other exception applies. When there is some ambiguity to the valid scope of the search, the scope is determined by what would be objectively reasonable. This means the court does not look to what the defendant actually intended or what the officer understood, but instead what a reasonable person would have understood by the exchange between the officer and the person.

Given the scope limitations on consent searches, the issue became whether the defendant should have reasonably expected that police would detain him for nearly an hour and then conduct a K9 search. The Supreme Court ultimately found that he should not have reasonably expected such police behavior. Courts have long held that a K9 search is different from a regular search, and the police did not mention to the defendant that they had a K9 on the way or that he would have to wait for such an extended period of time. The defendant gave two human officers permission to search his car. There was no K9 or K9 handler present at the time, and nothing about the interaction suggested that one was on his or her way. Under these circumstances, a reasonable person would not have anticipated a K9 search of the boxes. Accordingly, the troopers exceeded the scope of the defendant’s consent, and the trial court should have granted the Motion to Suppress.

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