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"
How later courts described this case
- 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"
- explaining that, “although privacy may relate both to property and to one’s person, 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”
- holding, inter alia, that Article I, Section 8 authorizes canine sniff search of person only when police have probable cause to believe that such search will produce contraband or evidence of crime
- observing that “the State has a compelling interest to suppress illicit drug traffic”
Written by the judges who cited it.
The opinion
CAPPY, Justice,
concurring.
I concur and join in the opinion of the majority, but write separately to specifically address my view on the main issue contained therein.
The pivotal issue which must be resolved is whether Article 1, Section 8 of the Pennsylvania Constitution authorizes a canine sniff search of a person based only upon reasonable suspicion that a crime is in progress. In other words, should we extend the premise of Commonwealth v. Johnston, 515 Pa. *146 454 , 530 A.2d 74 (1987), which sanctioned canine sniff searches of places based upon reasonable suspicion, to searches of the person? It is axiomatic that a “canine sniff’ is a search in Pennsylvania. Johnston 515 Pa. at 464-66 , 530 A.2d at 79 .
Mr. Justice Papadakos, in his dissent, asserts that a satchel is an object and not a person and sees Johnston as controlling. However, in my view, the conclusion reached by Mr. Justice Papadakos conveniently dismisses the fact that, in the case sub judice, the satchel was being carried by the appellant up until the point where the police approached with guns drawn and ordered that the satchel be placed on the ground, at which point the satchel became detached from the person and subject to a sniff search under Johnston . Thus, if the location to which the police force a person to place an object is to be determinative, would not the same be true of a purse, a breast pocket wallet, or a coat being carried by the suspect? The fact that the police intervened based only upon reasonable suspicion must be given great consideration when resolving issues of constitutional proportion.
Mr. Justice Montemuro, in his dissent, asserts that the majority by requiring probable cause for a canine sniff of a person, places an “unwarranted restraint upon law enforcement.” (Dissenting Opinion, Montemuro, J. at p. 564). . In contrast, I view the majority opinion as creating an option for the police and a potential layer of protection from search for the innocent citizen. Obviously, if the government has probable cause on which to act initially, it may do so under the normal rules existing. On the other hand, where there is probable cause initially, the police may want to be even more sure of their conclusion, which is by definition “probable,” by adding to the factual basis with the results of a canine sniff. Probable cause is not set in stone, it is a set of circumstances which create an inference that a thing more “probably” may be found in a given location. The choice of adding facts which may further a finding of probable cause is clearly for the government to make and even though a redundancy may occur, it potentially offers the police a stronger set of facts on which to act while at the same time offering the innocent *147 citizen an additional layer of protection from intrusive government action. As this is the intent of the majority, I am in accord. 1
In my view, it is the nature of the governmental intrusion on which we must focus. We must begin with the fundamental premise that Article 1, Section 8 requires that a citizen be free of unreasonable search and seizure unless there is probable cause to believe that criminal activity is afoot. A limited exception to that basic and fundamental premise was carved out in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In Terry a balance was struck between the governmental interest and the limited intrusion upon the citizen. A “Terry” stop is justified due to the brief nature of the encounter, the minimal intrusion upon the individual and the need for swift police action in a manner consistent with protecting the officer’s safety.
The rationale supporting the limited stop and frisk exception outlined in Terry was carefully considered by the Court in Johnston . The Court found that the exigencies which support a “Terry” stop were not present in Johnston . The Court then went on to strike a balance between the minimal intrusion to the citizen caused by permitting a canine sniff search of a place when compared to the government’s need to combat the flow of illicit drugs throughout society, and concluded that on the facts of that particular case, the sniff search was permissible upon reasonable suspicion.
I would agree that a sniff search of a place is less offensive and minimally intrusive to the person when compared to the governmental interest at stake. However, sooner or later, the question of when the exception becomes the rule must be *148 addressed. For me, it is here where we must draw the line in the sand.
In my view, Article 1, Section 8 of the Pennsylvania Constitution should assure citizens within the confines of our borders that, absent probable cause to believe criminal activity is afoot, they are safe from the probing noses of canine carnivores, trained or otherwise. To reason that absent probable cause, a dog, cat, or any other animal sniffing a person or the personal belongings which that citizen is carrying, is anything other than an insufferable intrusion, is in my view, unacceptable. Although the so called “war on drugs” is of grave importance to every citizen, we should not sacrifice in its name every vestige of human dignity and privacy so preciously preserved by our founding fathers.
In the case sub judice, it is agreed by all parties that the police lacked probable cause to search or to arrest. Acting on “reasonable suspicion” that a crime was in progress, the police approached the appellant with guns drawn and ordered that he place the personal belongings which he was carrying onto the ground in order to subject it to a canine sniff search. I see that as no different than ordering a man or woman to place his or her purse, wallet or coat on the ground for sniffing. I agree with the majority that the governmental interest involved does not outweigh the citizens interest to be free from search and seizures unless based upon probable cause, when it involves the search of the person or the personal belongings which that -person is carrying. More importantly, to me a canine sniff search of that person, absent probable cause, is per se unreasonable.
Much has been compromised in the name of the war on drugs. But let it ring clear that in Pennsylvania, no matter how well intended or compelling the government interest in ridding ourselves of the illicit drug trade, our unwavering belief in the sanctity and integrity of personal privacy constrains us to conclude that no citizen should be subjected to a governmental intrusion of this nature, absent probable cause.
For these reasons, I join the opinion of the majority.
. Where the police believed they had probable cause initially, a canine sniff search may support their original conclusion. But it may also undermine it if the results are negative. Such a negative response might then impact upon the initial probable cause determination, although a negative response might on some occasions be discounted on the basis of the imperfect nose of “man's best friend.” Certainly a negative sniff might have some effect upon a magistrate later reviewing the request for a warrant upon the entire set of facts. However, whatever the ultimate result, clearly it is the government’s choice as to whether to utilize this option.