J-A07009-16, J-A07010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                       Appellee

                 v.

JOHN GANT AND JEREMIAH DARYLE
GANT

                       Appellant               No. 596 WDA 2015


             Appeal from the Order Entered March 10, 2015
           In the Court of Common Pleas of Somerset County
          Criminal Division at No(s): CP-56-CR-0000020-2014
                                      CP-56-CR-0000021-2014


COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                       Appellee

                  v.

JOHN GANT,
                   Appellant
________________________________

COMMONWEALTH OF PENNSYLVANIA

                       Appellee

                 v.

JEREMIAH DARYLE GRANT

                       Appellant

                                               No. 603 WDA 2015
J-A07009-16, J-A07010-16


                 Appeal from the Order Entered March 10, 2015
               In the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000020-2014
                                          CP-56-CR-0000021-2014

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JULY 22, 2016

        The Commonwealth appeals at 596 WDA 2015 from an order

suppressing evidence seized from a vehicle pursuant to a search warrant

following a videotaped traffic stop on the Pennsylvania Turnpike on October

21, 2013. For the following reasons, we affirm.1

        On October 21, 2013, John and Jeremiah Gant were charged with

possession with intent to deliver a controlled substance, possession of a

controlled substance, criminal conspiracy and providing false identification to

a law enforcement officer.2 Each defendant filed a motion to suppress, and

on December 10, 2014, the trial court held a hearing on the motions. On

March 10, 2015, the court entered a memorandum and order granting the

motions to suppress.        The Commonwealth filed a timely notice of appeal,

____________________________________________


1
  Appellees, Jeremiah and John Gant, filed a cross-appeal at 603 WDA 2016
in which they raised various grounds for upholding the suppression order.
Only aggrieved parties are entitled to appeal. Pa.R.A.P. 501. The Gants are
not aggrieved parties because the trial court granted their motion to
suppress.    Commonwealth v. Dellisanti, 831 A.2d 1159, 1163 n.7
(Pa.Super.2003), reversed on other grounds, 876 A.2d 366 (Pa.2005)
(“one is not an aggrieved party when one prevails …”). Accordingly, we will
quash the Gants’ cross-appeal. Id. (quashing Commonwealth’s appeal
because it prevailed in proceedings below).
2
    35 P.S. § 780-113(a)(30) & (16), 18 Pa.C.S. §§ 903, 4914, respectively.



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and both the Commonwealth and the trial court complied with Pa.R.A.P.

1925.

        The Commonwealth raises the following issues in its appeal:

        1. Whether the lower court erred in finding that the officer in this
        matter did not possess the requisite reasonable suspicion to
        justify an investigative detention of the [Gants]?

        2. Whether the lower court erred in not finding that the officer in
        this matter had reasonable suspicion to conduct a canine search
        of the [Gants’] vehicle?

Brief For Commonwealth, at 4.

        When reviewing an order granting a motion to suppress,

        we are required to determine whether the record supports the
        suppression court's factual findings and whether the legal
        conclusions drawn by the suppression court from those findings
        are accurate. In conducting our review, we may only examine
        the evidence introduced by appellee along with any evidence
        introduced by the Commonwealth which remains uncontradicted.
        Our scope of review over the suppression court's factual findings
        is limited in that if these findings are supported by the record we
        are bound by them. Our scope of review over the suppression
        court's legal conclusions, however, is plenary.

Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super.2008).                      In

addition, “this court may uphold the decision of a lower court if it can be

sustained for any reason, even if the reasons given by the lower court to

support its decision are erroneous.” In Re Estate of Klink, 743 A.2d 482,

485 (Pa.Super.1999).

        The trial court made the following findings of fact:

        On or about October 21, 2013, [the Gants] were traveling
        eastbound on the Pennsylvania Turnpike in a tan colored
        Chevrolet Cruze bearing Georgia Vehicle Registration: PPY1252.

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     At approximately 9:15 a.m., Pennsylvania State Police Trooper
     John P. Isoldi (hereinafter, the ‘Trooper’ or ‘Trooper Isoldi’)
     departed the Pennsylvania State Police Barracks and entered
     onto the Pennsylvania Turnpike at or near milepost 114. Soon
     after entering onto the Pennsylvania Turnpike, the Trooper
     began following [the Gants]. After following the vehicle for
     approximately one-half of a mile, the Trooper was able to
     ascertain the vehicle's speed by utilizing his speedometer. Upon
     determining that the vehicle was traveling 71 miles per hour on
     a freeway where there was a posted 65 miles-per-hour speed
     limit, a violation of 75 Pa.C.S. § 3362, the Trooper effectuated a
     traffic stop near milepost 118. Trooper Isoldi approached the
     vehicle from the passenger's side, away from traffic, and
     requested information from [the Gants]. Defendant Jeremiah
     Gant, the driver, provided to the Trooper a Maryland driver's
     license and paperwork which documented ownership of the
     vehicle and proof of insurance. The Trooper was soon able to
     determine that Jeremiah Gant's driver's license was in fact
     suspended,[2] and the vehicle was registered to and owned by a
     third party, Connie Gant.         Defendant John Gant, the lone
     passenger, provided to the Trooper the false name of ‘Byron
     Warren,’ with a date of birth of ‘9/24/1964.’ Trooper Isoldi
     attempted a search for the name ‘Byron Warren,’ which yielded
     no results. Trooper Isoldi then requested that Jeremiah Gant exit
     the vehicle, at which time the Trooper escorted him to the front
     of the patrol car, directly in front of the patrol car's mobile video
     recording unit (hereinafter, the ‘MVR’). The Trooper handed
     Jeremiah Gant a written warning for the traffic violation,
     returned his information, and advised him that he was free to
     leave the scene.[3] Before Jeremiah Gant could enter the vehicle
     to depart the scene, Trooper Isoldi once again made contact with
     him. In fact, Jeremiah Gant was unable to take more than three
     steps and had not yet reached the rear of the vehicle before the
     Trooper re-engaged him for further questioning. The Trooper
     asked Jeremiah Gant if he knew the name of the passenger, to
     which Jeremiah Gant responded that he ‘just call[s] him Uncle
     Bry.’ The Trooper then asked for consent to search the vehicle
     for identification belonging to the passenger, as well as
     suspected contraband. Jeremiah Gant denied consent to search
     the vehicle. After being denied consent, Trooper Isoldi called for
     a canine unit to come to the scene for assistance.
           [2]
              The Trooper was, at some point, able to determine that
           Jeremiah Gant had prior drug convictions. Exactly when

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           the Trooper was able to ascertain this information is not
           clear from the record.
           [3]
              Although the Trooper advised Jeremiah Gant that he was
           free to leave, the Trooper testified at the suppression
           hearing that [the Gants] were never actually free to leave
           the scene because neither of [the Gants] had a valid
           driver’s license. In fact, the Trooper testified that he
           advised Jeremiah Gant that he was free to leave because
           ‘case law dictates that I have to advise the operator[] [he
           is] free to leave and [he has] to feel free to leave prior to
           me again contacting that individual to ask for consent to
           search the vehicle.’ …

     Soon after the Trooper called for assistance, Trooper Mike Volk
     arrived at the scene, followed by Canine Trooper Brett Kahler
     (hereinafter, ‘Trooper Kahler’ or ‘Kahler’) and his canine, Kubko
     (hereinafter, ‘Kubko’ or the ‘Canine’). Upon his arrival, Trooper
     Kahler approached the vehicle from the passenger side and
     placed his head inside the vehicle via the open passenger's side
     window. It appears that Trooper Kahler visually inspected the
     interior of the vehicle, with his head remaining inside the vehicle
     for approximately four seconds. Trooper Kahler then retrieved
     Kubko and proceeded to walk to the front of the vehicle, where
     the pair waited for approximately twenty seconds before
     beginning the exterior sniff search. To begin the sniff search,
     Trooper Kahler and Kubko quickly jogged around the exterior of
     the vehicle, ending their initial run-around at the front of the
     vehicle. Kahler and Kubko then began a slower walk around the
     vehicle, during which Trooper Kahler pointed to various locations
     on the vehicle. The Canine appeared to sniff at or near every
     location Trooper Kahler pointed towards. After approximately
     twelve seconds of searching, Trooper Kahler and Kubko reached
     the passenger side of the vehicle, directly in line with the open
     window. After a few quick sniffs, Kubko jumped onto the side of
     the vehicle, and placed his paws on the door and his head
     through the open window. With his head inside the vehicle, it
     appears that Kubko sniffed the interior of the vehicle for a few
     seconds. For the next twenty seconds, Kubko continued to jump
     onto the vehicle and place his head and paws inside the vehicle.
     It was at this point that Kubko pulled his front paws off of the
     vehicle and sat on his haunches. Kubko remained in a seated
     position for approximately three seconds, during which time
     Trooper Kahler made several motions with his right arm. Then,

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J-A07009-16, J-A07010-16


       without any discernable warning, Kubko launched himself
       through the open window and into the vehicle. Trooper Kahler
       immediately released Kubko's leash and allowed him to run
       throughout the vehicle. The Canine remained inside for
       approximately one minute before Kahler was able to coax him
       out of the vehicle. At this point, according to his testimony,
       Trooper Isoldi believed that the canine sniff search had ended.

       As a result of the canine sniff search, [the Gants] and the vehicle
       were detained and transported to the Pennsylvania State Police
       Turnpike Barracks, Somerset. Trooper Isoldi applied for a search
       warrant in order to search the vehicle for identification and
       narcotics, and said warrant was granted. A search of the vehicle
       revealed numerous controlled substances in varying quantities.

Memorandum, at 2-4 (footnotes omitted).

       Multiple additional details deserve mention.3 First, Trooper Isoldi, the

only witness at the suppression hearing, testified that both men in the car

were “breathing heavily [and] shaking.”          N.T., 12/10/14, at 13.      When

Trooper Isoldi asked the passenger in the car for identification, he claimed

that “he … lost his ID somewhere in Ohio over the weekend.”           Id.     The

trooper testified that the passenger gave his name as Byron Warren with a

birth date of September 24, 1964, all the while “hesitating and stumbling

over his words. Appeared to me he was guessing.” Id. Later, after Trooper

Isoldi summoned the canine unit, but before the unit arrived, the passenger

admitted that “he was in fact lying about his name. He was concerned he


____________________________________________


3
   We may take these details into account because the Gants did not
introduce any contradictory evidence on these points. Henry, 943 A.2d at
969.



                                           -6-
J-A07009-16, J-A07010-16


may or may not have had a warrant. And he advised me that he had had

previous violations of the Drug Device and Cosmetic Act.” Id. at 15.

        Second, we find significant the videotape of the traffic stop that the

trial court admitted into evidence during the suppression hearing.              The

videotape did not have an audio soundtrack, so it did not record what

anyone said during the traffic stop.           The videotape showed Kubko circling

the vehicle with his handler, Trooper Kahler, while sniffing the exterior. On

the passenger side of the vehicle, Kubko twice stood up on his hind legs and

pushed his head inside the car interior, all while Trooper Kahler appeared to

make encouraging gestures.          Kubko then sat down on his haunches in an

“alert” position.    Moments later, as Trooper Kahler continued to gesture,

Kubko jumped through an open passenger side window into the vehicle and

circled the passenger compartment.4

        Third, while Trooper Isoldi is not trained as a canine officer, he

testified that he “helps and assists with the training of canines.”            N.T.,

12/10/14, at 18.         He has worked with canine officers in hundreds of

narcotics cases, and he has made over 350 arrests in undercover and

highway interdiction cases.         Id. at 18-19.      Trooper Isoldi testified that

through his years of experience, he understands when a dog alerts to drugs:



____________________________________________


4
    Trooper Kahler did not testify at the suppression hearing.



                                           -7-
J-A07009-16, J-A07010-16


“They’ll sit down, they’ll stare, they go on point, which means they stop …

just like a bird dog when you’re pheasant hunting.” Id. at 20.

      Fourth, Trooper Isoldi’s search warrant application did not mention

that Kubko placed his head in the interior of the vehicle during the canine

sniff and jumped into the vehicle at his handler’s direction. All that Trooper

Isoldi averred with regard to the canine sniff was: “Trooper … [Kahler], PSP

Canine Drug Detection Handler[,] conducted an exterior search of the

vehicle and related to me that his K-9 dog Kubko indicated positively to an

odor of a controlled substance coming from the interior of the vehicle.”

Suppression Hearing, Commonwealth Exhibit A (search warrant and affidavit

of probable cause).

      At the conclusion of the suppression hearing, the trial court ordered

the parties to brief their respective positions.        The Gants’ opening

memorandum argued, inter alia, that the search warrant was defective

because Kubko sniffed the interior of the vehicle before alerting.         The

Commonwealth ignored this point in its response. The Commonwealth simply

characterized Kubko’s search as an “exterior canine sniff” and asserted:

“[T]he video clearly shows [Trooper] Kahler and Kubko going around the

vehicle and the dog alerting at the right front passenger’s side of the vehicle

by sitting down and refusing to move.” Commonwealth’s Brief In Opposition

To Defendants’ Omnibus Motion To Suppress, at 8-9.




                                     -8-
J-A07009-16, J-A07010-16


      The trial court concluded that Trooper Isoldi lacked reasonable

suspicion to detain the Gants further after issuing Jeremiah Gant a traffic

warning.    We conclude that suppression was proper, but for different

reasons.    See In Re Estate of Strahsmeier, 54 A.3d 359, 364 n.17

(Pa.Super.2012) (Superior Court may affirm for any reason and is not

constrained to affirm on grounds relied upon by trial court).

      We agree with the Commonwealth’s first argument on appeal that

Trooper Isoldi had reasonable suspicion to detain the Gants for further

investigation after issuing Jeremiah Gant a traffic warning. We have defined

“reasonable suspicion” as follows:

      [T]he officer must articulate specific observations which, in
      conjunction with reasonable inferences derived from these
      observations, led him reasonably to conclude, in light of his
      experience, that criminal activity was afoot … In order to
      determine whether the police officer had reasonable suspicion,
      the totality of the circumstances must be considered. In making
      this determination, we must give due weight … to the specific
      reasonable inferences [the police officer] is entitled to draw from
      the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination
      of only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Commonwealth v. Smith, 917 A.2d 848, 852 (Pa.Super.2007) (citations

omitted).   Reasonable suspicion is less demanding than probable cause,

which is “a fair probability that contraband or evidence of a crime will be

found in a particular place.”   Commonwealth v. Johnson, 42 A.3d 1017,

1031 (Pa.2012).


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J-A07009-16, J-A07010-16


      During a traffic stop, the officer “may ask the detainee a moderate

number of questions to determine his identity and to try to obtain

information confirming or dispelling the officer’s suspicions.” Berkemer v.

McCarthy, 468 U.S. 420, 439 (1984). “[I]f there is a legitimate stop for a

traffic violation … additional suspicion may arise before the initial stop’s

purpose has been fulfilled; then, detention may be permissible to investigate

the new suspicions.”   Commonwealth v. Chase, 960 A.2d 108, 115 n.5

(Pa.2008).

      Trooper Isoldi stopped the Gants’ vehicle on the Pennsylvania Turnpike

for a valid reason: the Gants’ vehicle was speeding. While processing the

speeding violation, Trooper Isoldi observed several details which indicated

that criminal activity was afoot.    Both vehicle occupants were breathing

heavily and shaking.      Jeremiah Gant gave Trooper Isoldi a suspended

Maryland driver’s license.   The car was registered to a Georgia resident who

had the same last name (Gant) but who was not in the car. Jeremiah Gant

told Trooper Isoldi that he did not know the passenger’s name and simply

called him “Uncle Bry”.      The passenger in turn claimed that he lost his

identification “somewhere in Ohio.” He identified himself as “Byron Warren”

with a birth date of September 24, 1964 but displayed so much uncertainty

that Trooper Isoldi believed that he was guessing.    A computer search for

Byron Warren yielded no results.         These factors provided reasonable

suspicion to detain the Gants and continue an investigation into possible


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criminal wrongdoing. See, e.g., Commonwealth v. Jones, 874 A.2d 108,

117 (Pa.Super.2005) (totality of circumstances, including defendant's

nervousness and stalling, group's prior inconsistent statements, unverifiable

information on defendant's identification card, and police officer's experience

and drug interdiction training, furnished reasonable suspicion of criminal

activity and justified investigative detention following routine traffic stop).

Indeed, these factors entitled Trooper Isoldi to continue detaining the Gants

even after telling Jeremiah Gant that he was free to leave. Commonwealth

v. Kemp, 961 A.2d 1247, 1262 (Pa.Super.2008) (facts gathered during valid

traffic stop may be utilized to justify investigatory detention occurring after

police officer has indicated that defendant is free to leave).

      We turn to the Commonwealth’s second argument on appeal: “The

trial court erred in not finding that Trooper Isoldi had reasonable suspicion to

conduct a canine search.”        We agree that Trooper Isoldi had reasonable

suspicion to conduct a canine sniff of the vehicle’s exterior, but we reach a

different conclusion with regard to Kubko’s sniffs of the vehicle’s interior.

      The use of trained dogs to sniff for the presence of drugs constitutes a

search   under   Article   I,   section    8   of   the   Pennsylvania   Constitution.

Commonwealth v. Johnston, 530 A.2d 74, 78 (Pa.1987).                           Before

conducting a canine sniff of a person, the police must have probable cause

to believe that the sniff will produce contraband or evidence of crime.

Commonwealth v. Martin, 626 A.2d 556, 560 (Pa.1993).                      Conversely,


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police officers only need reasonable suspicion to conduct a canine sniff of a

place, such as the exterior of a vehicle. Commonwealth v. Rogers, 849

A.2d 1185, 1191 (Pa.2004).

      Here, Trooper Isoldi had reasonable suspicion to conduct an exterior

sniff. As discussed above, at the time the trooper issued the traffic warning,

he had reasonable suspicion that criminal wrongdoing was afoot. Moreover,

after the traffic warning, but before the canine sniff began, John Gant

admitted to the trooper that he had a record of drug-related violations, and

that there might be a warrant for his arrest.    Collectively, these facts are

analogous to the evidence that furnished reasonable suspicion for an exterior

canine sniff in Rogers.     Id., 849 A.2d at 1191 (officer had reasonable

suspicion to conduct canine sniff of vehicle exterior for drugs, where trooper

lawfully stopped vehicle for traffic violations, defendant was in extreme state

of nervousness, paperwork for vehicle was incomplete and conflicting,

defendant acknowledged that address on paperwork was fictitious, trooper

observed open boxes of laundry detergent and fabric softener sheets in

vehicle along with packaging tape, and trooper knew from his experience in

investigating narcotics offenses that those laundry supplies were commonly

packaged with certain drugs to mask their odor so as to avoid detection

during transport).

      We turn to the more difficult question of whether Kubko’s interior

sniffs were constitutional. While circling the vehicle, Kubko stood up on his


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hind legs two times and sniffed the interior of the vehicle through open

windows, all while Trooper Kahler appeared to make encouraging gestures.

Only after these sniffs did Kubko alert and then jump into the vehicle. Was

reasonable suspicion or probable cause necessary for Kubko’s interior sniffs?

      Rogers, the only Pennsylvania appellate decision we can find on the

subject of interior canine sniffs, came close to answering this question but

ultimately stopped short. The canine in Rogers, like Kubko here, jumped

into the vehicle’s interior during a canine sniff. The defendant argued that

probable cause did not exist for a canine sniff of the interior. Our Supreme

Court observed that while canine sniffs are searches, “they are not akin to

searches conducted by human law enforcement officers and need not in all

instances be supported by probable cause.”         Id. at 1192.     The Court

continued that “assum[ing] arguendo” that probable cause was necessary

for an interior sniff, the evidence supported probable cause because “the

police had reasonable suspicion before Rosie responded to the scene,” and

“after [the dog] arrived, … while she was outside the automobile, she alerted

to the driver's side door[,] [indicating] to the officers that she had detected

narcotics.”   Id.   Thus, “reasonable suspicion of contraband in the vehicle

ripen[ed] into probable cause.” Id.

      In a concurring opinion, Justice Castille, joined by two other justices,

said the following:

      Turning to the [interior] sniff—Rosie [the canine]’s jumping into
      the car and sniffing the interior—there is no illegality again, not

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      because of the nature of the canine sniff, but because, by the
      time this occurred, Rosie had already positively alerted to the
      presence of narcotics while outside the driver’s side door. This
      fact, which confirmed Trooper Banovsky’s existing reasonable
      suspicion of a drug offense, gave rise to probable cause. See
      United States v. Sukiz–Grado, 22 F.3d 1006, 1009 (10th
      Cir.1994) (probable cause existed for entry of trained canine
      where dog alerted to presence of drugs when conducting canine
      sniff of exterior of vehicle). Under Pennsylvania’s version of the
      automobile exception to the search warrant requirement, given
      the mobility of the vehicle and the spontaneous arising of
      probable cause, police would have been justified in conducting
      an immediate search of the interior of the car … Since the police
      themselves could have searched the car at this point, Rosie’s
      entry into the car, and her confirmatory alert following a
      minimally intrusive sniff, was not unlawful.

      In my view, the calculus would alter significantly if police had
      released Rosie into the car solely upon reasonable suspicion,
      notwithstanding that canine sniffs are less intrusive than full-
      blown searches. See Almeida–Sanchez v. United States, 413
      U.S. 266, 269–70, 93 S.Ct. 2535, 2537–38, 37 L.Ed.2d 596
      (1973) (‘the Carroll doctrine [Carroll v. United States, 267
      U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which established
      the first exception to the warrant requirement for automobile
      searches] does not declare a field day for the police in searching
      automobiles. Automobile or no automobile, there must be
      probable cause for the search.’). But that is not what happened
      here.

Id. at 1199 (emphasis added).

      Although Rogers cautions that probable cause is not a prerequisite for

every interior canine sniff, we conclude that, at least in this case, probable

cause was necessary for Kubko’s interior sniffs.      Human police officers

clearly must have probable cause to search motor vehicle interiors without a

warrant. Commonwealth v. Gary, 91 A.3d 102, 124, 138 (Pa.2014). It

would dramatically erode this rule and circumvent the probable cause


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requirement if canines could sniff vehicle interiors on the basis of reasonable

suspicion.

       For several reasons, we conclude that the Commonwealth failed to

demonstrate probable cause for Kubko’s interior sniffs. To begin with, the

Commonwealth waived its right to argue that probable cause existed for

Kubko’s interior sniffs.      The Gants argued in the trial court that probable

cause was necessary for the interior sniffs, Gants’ Joint Brief In Support Of

Omnibus Pretrial Motion, at 13-14. Not only did the Commonwealth ignore

this argument in its response, but it ignored clear evidence that Kubko

sniffed   the    vehicle    interior    twice   before   alerting.   Instead,   the

Commonwealth asserted misleadingly that Kubko performed an exterior sniff

and then alerted.        Commonwealth’s Brief In Opposition To Defendants’

Omnibus Motion To Suppress, at 8-9. By disregarding the Gants’ probable

cause argument below, the Commonwealth cannot claim probable cause

here.5    Pa.R.A.P. 302(a) (“issues not raised in the lower court are waived

and cannot be raised for the first time on appeal”).

       Even if the Commonwealth had preserved the right to argue probable

cause, it would not have prevailed on this issue. We have held above that at

the time Kubko began his exterior sniff, there was reasonable suspicion to
____________________________________________


5
  Compounding this waiver is the Commonwealth’s failure to argue probable
cause in its appellate brief. Its argument about Kubko’s search is one-half
page long with boilerplate citations about the reasonable suspicion doctrine.
Brief For Commonwealth, at 13.



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J-A07009-16, J-A07010-16


believe that criminal activity was afoot. But this did not rise to the level of

probable cause to search for drugs; there simply was not enough evidence

for a reasonable person to believe that drugs were in the vehicle. Whereas

probable cause arose in Rogers because the canine alerted during an

exterior sniff, Kubko alerted only after sniffing the vehicle interior. Kubko’s

pre-alert interior sniffs thus tainted its alert, its leap into the car, and its

sniff around the passenger compartment.

       Conceivably, the Commonwealth might have helped its cause by

presenting the canine handler, Trooper Kahler, as a witness during the

suppression hearing. Assuming that Trooper Kahler qualified as an expert in

canine handling, he might have been able to testify that Kubko did not

obtain any useful information during his pre-alert interior sniffs and alerted

solely on the basis of sniffing the exterior.         But Trooper Kahler did not

testify, so there is nothing to rebut the inference arising from the videotape

that Kubko alerted on the basis of the improper interior sniffs.6

       The absence of probable cause for Kubko’s pre-alert interior sniffs

vitiated Trooper Isoldi’s search warrant.          He would not have obtained a

search warrant without alleging in his affidavit of probable cause that
____________________________________________


6
  Furthermore, it does not appear that Kubko decided on its own initiative to
stand on its hind legs and sniff the interior. Instead, it appears that Kubko
did this because of Trooper Kahler’s encouraging gestures. Once again,
Trooper Kahler’s absence from the suppression hearing seems to have
harmed the Commonwealth’s case, for he might have given a different
explanation for Kubko’s actions.



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“Trooper [Kahler] … conducted an exterior search of the vehicle and related

to me that his K-9 dog Kubko indicated positively to an odor of a controlled

substance coming from the interior of the vehicle.” It is clear, however, that

Kubko’s alert was the product of interior, rather than exterior, sniffs.

Because of this material defect in the warrant, we must affirm the trial

court’s order granting the Gants’ motion to suppress.

      Order affirmed; case remanded for further proceedings consistent with

this memorandum; jurisdiction relinquished.

      Judge Bowes joins in the memorandum.

      Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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