Both the Philadelphia Police Department and the Pennsylvania State Police frequently use trained canines to detect drugs and combat drug trafficking. When the police find drugs based on the alert of a drug sniffing dog, there are often issues as to whether the police had the right to conduct the search in the first place. In some cases, it may be possible to challenge the search and seek suppression of the evidence if the police conducted the canine search without reasonable suspicion or probable cause. Pennsylvania and Federal law differ on the level of suspicion which police must have in order to conduct a K9 search. However, both federal and state law provide substantial protections to individuals from unlawful searches.
Pennsylvania Law on Drug Detection Dogs
The Pennsylvania Supreme Court has repeatedly recognized that a canine search constitutes a search under Article I, Section 8 of the Pennsylvania Constitution. Therefore, if police conduct a canine sniff without the required level of suspicion, the results of the search could be suppressed.
Canine Sniffs of the Person
Under Pennsylvania law, police are required to have different levels of suspicion depending on whether the search was of a person or a car. When the police want to use a drug sniffing dog to detect whether a person has drugs on them, the police are required to have probable cause for the search. In Commonwealth v. Martin, the Pennsylvania Supreme Court recognized that “an invasion of one’s person is, in the usual case, a more severe intrusion on one’s privacy interest than an invasion of one’s property.” While reasonable suspicion may justify a canine sniff of a place or a car, reasonable suspicion is too low of a standard for the search of a person.
When the sniff is of a person, the police must have probable cause to believe that a canine search will produce contraband or evidence of a crime. Probable cause means that it is more likely than not that some evidence or illegal contraband will be found. This means that if the police conduct a canine sniff without probable cause, the results of the search could be suppressed in court by filling a Motion to Suppress.
Canine Sniffs of a Car
When the police want to conduct a canine sniff of a car, they are only required to have reasonable suspicion. Reasonable suspicion is a lower standard than probable cause. Reasonable suspicion permits an officer to detain an individual in order to conduct an investigation if the officer reasonably suspects that the individual is engaging in criminal conduct. When evaluating whether an officer had reasonable suspicion, the court will look at the totality of the circumstances and whether the officer can provide specific, articulable facts as to why the officer believed the suspect was engaged in criminal activity. If the officer has reasonable suspicion of criminal activity, then the officer may conduct a K9 sniff.
Recently, the Pennsylvania Superior Court approved of a canine sniff in the case of Commonwealth v. Green. In Green, the Court found reasonable suspicion for an investigative detention and canine sniff based on the following factors:
- The defendant was overly nervous for a routine traffic stop,
- The vehicle belonged to an absent third party,
- The defendant stated he was returning from Philadelphia, and the Trooper believed Philadelphia to be a source location for narcotics trafficking,
- The Trooper had prior contacts with the defendant during which the Trooper found drugs, and
- The defendant had numerous arrests and convictions for both violent crimes and drug offenses
Federal Limits on Police Canine Sniffs
There are other limits on police canine sniffs in addition to the requirement that police have either reasonable suspicion or probable cause for the decision to employ a canine. For example, police must still have reasonable suspicion or probable cause for the initial stop of the defendant that leads to the subsequent search. If the police pull a car over without any evidence of a crime or traffic offense, the results of a search could be suppressed even if the police later developed reasonable suspicion or probable cause for the canine search. Suppression would be required because of the illegality of the initial stop.
Recently, in Rodriguez v. United States, the United States Supreme Court held that police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s protections against unreasonable seizures. In Rodriguez, police stopped a car for driving on the shoulder of the highway. When police spoke with the driver, Rodriguez, he told them that he had swerved to avoid a pothole. The officer obtained the Rodriguez' paperwork and asked him to come with him to the patrol car. Rodriguez asked if he had to do so, and the officer said no. The officer returned to the patrol car to run the paperwork. After doing so, he returned to Rodriguez’ car. The officer questioned the front seat passenger, took his paperwork, and conducted a records check on that person. The officer then wrote a written warning and returned to the car to give it to Rodriguez.
After giving Rodriguez the warning, the stop should have been over. Instead, the officer asked Rodriguez for permission to conduct a canine sniff. Rodriguez politely declined, and the officer detained him anyway while he waited for backup. Once backup arrived, the officer conducted a canine sniff, the dog alerted for drugs, and police then searched the car and found drugs. Approximately eight minutes elapsed between the time when the officer finished issuing the warning and when the officer conducted the canine sniff.
Under federal law, a canine sniff is not considered a search and does not require reasonable suspicion or probable cause. However, the United States Supreme Court found that the police did not have reasonable suspicion to detain Rodriguez for the additional eight minutes before they conducted the canine sniff. The Court concluded that police may not prolong an ordinary traffic stop in order to conduct a canine sniff without reasonable suspicion. Although police may decide whether to issue a traffic ticket and check the driver’s paperwork, the police may not detain the car for additional time without a basis for doing so. Therefore, the Court reversed the conviction and ordered that the drugs be suppressed.
The Effect of Canine “Alerts”
The courts have held that canine sniffs where the canine ‘”alerts” provide police with probable cause to conduct a full blown search of a person or vehicle. Under Pennsylvania and Federal law, police are not required to get a warrant prior to searching a vehicle. Instead, they are required only to have probable cause prior to conducting a search. Therefore, if a trained police dog alerts to the presence of drugs, police may search the car or person. However, as the case law illustrates, there are still significant limits on canine searches. The courts have held that the initial stop must still be justified by reasonable suspicion or probable cause and the Pennsylvania courts have found that police must have reasonable suspicion or probable cause for the search of a car or a person. If the police make an illegal stop, improperly extend a traffic stop, or conduct a canine sniff without the required level of suspicion, then the results of the search should be suppressed.
Philadelphia Criminal Defense Lawyers for Drug Cases
The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have successfully represented hundreds of clients in drug possession and drug trafficking cases. We are experienced and understanding defense attorneys who will use our high level of skill and expertise on your behalf. We have successfully litigated pre-trial motions and obtained pre-trial dismissals and acquittals at trial. If you are facing drug possession charges, call 267-225-2545 for a free criminal defense strategy session.