PA: Request for consent to search by two officers with no dog present was not consent to a dog sniff

Defendant’s consent to two officers to conduct a search of his car didn’t extend to a dog sniff, too, because there wasn’t a dog there at the time, and that would be the common understanding. Commonwealth v. Valdivia, 2018 Pa. LEXIS 5467 (Oct. 17, 2018) (Todd & Mundy concurring and dissenting):

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.

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 hearing to explain why the troopers could not have conducted an immediate search of Valdivia’s vehicle.

. . .

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 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).