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Canine Sniffs as the New Search Workaround for Autos in Pennsylvania

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Canine sniff's are the new search 'workaround' in Pennsylvania auto stop cases.

By Attorney Elisabeth K.H. Pasqualini, Drug Defense Lawyer, Harrisburg, PA

Under the Fourth Amendment, a canine sniff is not a search.  In Commonwealth v. Johnston, the Pennsylvania Supreme Court held that the use of a trained dog to sniff for the presence of drugs was a search under the Pennsylvania Constitution.  The rules set forth in Johnston require that in order for police to conduct a canine search of a place,  (1) they must be able to articulate reasonable grounds for believing that drugs may be present in the place they week to search; and (2) the police must be lawfully present in the place in which the canine sniff is conducted. 

In Commonwealth v. Martin, the Court addressed a question left open in the Johnston opinion: whether the rules enunciated in Johnston apply to a canine search of a person?  Because the Martin case involved a person rather than a place, and hence the search was more than minimally intrusive, the Court held that, in addition to being lawfully in place at the time of the search, the police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime.  In addition, once the police have probable cause and a sniff search has been conducted pursuant to that probable cause, before any search, beyond that permitted by Terry v. Ohio, may be conducted, the police must secure a search warrant and they may detain the suspect for a reasonable time while the warrant is sought.

Applying the standards announced in Johnson and Martin to the canine sniff of the exterior and interior of a vehicle, the Court held in Commonwealth v. Rogers that when a police officer has reasonable suspicion prior to a narcotics dog's being brought to the scene, a dog sniff of the exterior of a vehicle need only be supported by reasonable suspicion, in view of the relatively minor privacy interest in the exterior of a vehicle and the minimal intrusion of the canine sniff.

In Rogers, once the dog indicated the presence of narcotics after sniffing the vehicle's exterior, the officer's reasonable suspicion ripened into probable cause to search the interior of the vehicle.  Whether probable cause is required for the canine sniff of the interior of a vehicle when the officer has reasonable suspicion, but there has been no exterior dog sniff indicating the presence of narcotics, remains an open question.

A drug dog's response (or failure to respond) is but one element in the totality of the circumstances considered by an issuing authority in determining probable cause.  Thus, when a trained drug detection dog failed to alert to the presence of cocaine in a suspect's luggage, that failure did not in and of itself undermine the probable cause to search the luggage, when multiple tips and the suspect's own conduct suggested that he was transporting drugs. But see the case of Rodriguez v. United States.  (Prolonged roadside detentions awaiting drug dog are unconstitutional).

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