Search & Seizure; Scope of Consent

Commonwealth v. Valdivia, 145 A.3d 1156 (Pa. Super. 2016), 9 MAP 2017


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 Petitioner, including that the canine search would not start any sooner than an hour from when Petitioner’s consent was given?


Randy Valdivia was sentenced to 11 ½–23 months’ imprisonment followed by 30 days’ probation for possession with intent to deliver a controlled substance, possession of a controlled substance and possession of drug paraphernalia following the trial court’s denial of his motion to suppress all evidence seized from his motor vehicle during a traffic stop following a written traffic warning.

The traffic stop at issue was initiated when Troopers observed Valdivia’s vehicle quickly move from the left lane to the right lane without using a turn signal. The record check revealed that Valdivia had been previously charged in Florida with possession with intent to deliver, and a State Police K-9 Unit was contacted to respond to the scene. Trooper Hoy asked Valdivia to exit the vehicle and if he could ask some follow-up questions about his travel plans. Valdivia gave inconsistent explanations for his plans and Trooper Hoy testified that he observed various other suspicious details related to the traffic stop, including tactics commonly employed by drug smugglers.  Trooper Hoy asked Valdivia for consent to search his vehicle, and Valdivia agreed. The Superior Court summarized the facts surrounding the consent and search as follows:

Trooper Long filled out a consent to search form, and Valdivia signed the form after reading it. N.T., 8/8/14, at 17-18, 81-82. The consent form itself was not admitted into evidence, Id. at 2, but Trooper Long testified that the form stated that Valdivia did not have to consent to the search. Id. at 81–82. Valdivia never revoked his consent or said: “No, stop searching.” Id. at 82.

Trooper Hoy testified that after Valdivia gave verbal consent to search his vehicle, he told Valdivia that he would call a K-9 unit to assist in the search. N.T., 8/8/14, at 54. Later in his testimony, however, Trooper Hoy testified that he could not remember whether he told Valdivia that he would call for a K-9 unit. Id. at 55–56.

Trooper Tiracorda, his K-9 partner, Tom, and several other state police officers arrived at the scene in marked police cruisers. FF, ¶ 20. Trooper Hoy and the other officers searched the vehicle while Valdivia sat in the back seat of the patrol cruiser upon an offer by the Troopers due to the cold weather. FF, ¶ 21.

The troopers removed the Christmas packages from the back of the vehicle and placed them on the ground in an area safe enough for Tom to perform a canine sniff. FF, ¶ 22. There is no evidence that Valdivia objected to the canine sniff. Tom alerted to the larger of the two packages on the first “fast pass” by stopping in front of the package, changing his posture, and increasing his respiration. Tom alerted to the package again on the second systematic search. FF, ¶ 23. The troopers opened the packages and found 21 clear, vacuum-sealed bags, each containing forty smaller bags of what appeared to be marijuana. FF, ¶ 24. Valdivia was placed under arrest.

Slip Op., at 6-7.

On appeal, the Superior Court considered:

Whether the trial court erred in denying [ ] Valdivia’s motions to suppress all evidence and fruit of the poisonous tree since any purported consent to search given by [ ] Valdivia was not knowingly, intelligently, or voluntarily given and any purported consent to search was the product of an unconstitutional search?

Whether the trial court erred in denying [ ] Valdivia’s motion to suppress evidence and all fruit of the poisonous tree since the canine sniff was illegal and not supported by reasonable suspicion, and where the use of trained drug-sniffing dogs was outside the scope of any purported consent?

Id. at 2.

Valdivia argued that even if he consented to the search of his vehicle, the canine sniff of his vehicle exceeded the scope of his consent.

The court applied the standard for measuring the scope of a person’s consent based on an “objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent” to find that a reasonable person would have understood that consent to a search of the vehicle would encompass canine sniffs of packages found in the vehicle. Id. at 18. The court reasoned that a canine sniff was no more intrusive than a human search of the vehicle. While the Trooper’s testimony was unclear as to whether he informed Valdivia that the K-9 unit was called, the court noted that Valdivia never indicated he was limiting his consent, nor did he make any attempt to revoke consent when he saw the K-9 unit arrive, leading the court to hold that the canine sniff did not exceed the scope of Valdivia’s consent.

For more information, contact Kevin McKeon and Dennis Whitaker.