                                  [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
