Commonwealth v. Valdivia, R., Aplt.

[J-81-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 9 MAP 2017
:
Appellee : Appeal from the Order of the Superior
: Court at No. 319 MDA 2015 dated
: August 19, 2016 Affirming the Judgment
v. : of Sentence of the Centre County Court
: of Common Pleas, Criminal Division, at
: No. CP-14-CR-2234-2013 dated
RANDY JESUS VALDIVIA, : January 23, 2015
:
Appellant : ARGUED: November 28, 2017
OPINION
JUSTICE DONOHUE DECIDED: October 17, 2018
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.1 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.
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
1 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.”).
[J-81-2017] - 2
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.2 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.
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
2 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.”).
[J-81-2017] - 3
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.3 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.
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
3 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.
[J-81-2017] - 4
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.4 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.
The Commonwealth charged Valdivia with possession of a controlled substance,
possession of a controlled substance with intent to deliver, and possession of drug
paraphernalia.5 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.
4 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.
5 35 P.S. § 780-113(a)(16), (30), (32).
[J-81-2017] - 5
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.6
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.
6 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
(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, 117
A.3d 247 (Pa. 2015) (finding a substantially similarly worded sentencing statute
unconstitutional in its entirety in light of Alleyne).
[J-81-2017] - 6
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.”7 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.
7 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, 811 A.2d 530 (Pa. 2002); Commonwealth v. Bell, 871 A.2d 267
(Pa. Super. 2005) (en banc)).
[J-81-2017] - 7
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, 165 A.3d 869 (Pa. 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,
160 A.3d 127, 138, 139 n.12 (Pa. 2017), cert. denied sub nom. Johnson v.
[J-81-2017] - 8
Pennsylvania, 138 S. Ct. 508 (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, 173 A.3d 733, 741 (Pa. 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, 757 A.2d 884, 888 (Pa. 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 (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, 738 A.2d 427, 429
(Pa. 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.
[J-81-2017] - 9
First, consent must be voluntarily given during a lawful police interaction.8 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, 77 A.3d 562, 573 (Pa. 2013) (citing
Strickler, 757 A.2d at 901); see also Schneckloth v. Bustamonte, 412 U.S. 219, 248
(1973).
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; Commonwealth v. Reid,
811 A.2d 530, 549 (Pa. 2002).9 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
8 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.
9 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, 996 A.2d 473, 476 (Pa. 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.
[J-81-2017] - 10
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; Reid, 811 A.2d at 549.
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),
[J-81-2017] - 11
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.10 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-
10 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, 753 A.2d 217, 224 n.6 (Pa. 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.
[J-81-2017] - 12
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, 530 A.2d
74 (Pa. 1987); Commonwealth v. Rogers, 849 A.2d 1185, (Pa. 2004); Commonwealth v.
Martin, 626 A.2d 556 (Pa. 1993)).
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
[J-81-2017] - 13
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
[J-81-2017] - 14
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
[J-81-2017] - 15
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.11 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
11 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, 91 A.3d 102
(Pa. 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).
[J-81-2017] - 16
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 (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).
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 (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.
See also Illinois v. Caballes, 543 U.S. 405 (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.” Johnson, 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
[J-81-2017] - 17
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 7-8; Concurring and Dissenting Op.
(Mundy, J.) at 3. 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
[J-81-2017] - 18
than a search conducted by a human officer. Less intrusive or not, a dog search is not
a search by a human officer.12
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.13
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
12 The case law relied upon by Justice Todd is irrelevant to the circumstances before
us. See Concurring and Dissenting Op. (Todd, J.) at 8 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.
13 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; Reid, 811
A.2d at 549.
[J-81-2017] - 19
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.
[J-81-2017] - 20
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, 91 A.3d 102, 138 (Pa. 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)).
[J-81-2017] - 21
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
[J-81-2017] - 22
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 4. 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; 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
(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
[J-81-2017] - 23
was within the scope of consent, an issue that we are not addressing in this case.14
See Concurring and Dissenting Op. (Todd, J.) at 11-13. 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. 15 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.
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,
14 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.
15 Justice Todd also cites in her concurring and dissenting opinion to Commonwealth v.
Smith, 77 A.3d 562 (Pa. 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.
[J-81-2017] - 24
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.
[J-81-2017] - 25