Pennsylvania on Dog Sniffs: Reasonable Articulable Suspicion Needed

In Pennsylvania the courts hold a search by a dog to actually be a search. However, only reasonable articulable suspicion is needed to sniff a car:
Commonwealth v. Rogers

Appellant next contends that even if the stop was supported by reasonable suspicion, the canine search of his vehicle was illegal pursuant to Article I, § 8 of the Pennsylvania Constitution. Appellant asserts that probable cause is required before a canine sniff of an automobile may be conducted, and that standard was not met here.

In addressing the constitutionality of the canine sniffs in the matter sub judice, we begin with the premise that pursuant to the constitution of this Commonwealth, a canine sniff is a search. Commonwealth v. Johnston, 530 A.2d 74, 79 (Pa. 1987). Yet, this type of search is not treated like other searches as it “is inherently less intrusive upon an individual's privacy than other searches . . . .” Id. We have noted that “this particular surveillance technique amounts to a relatively minor intrusion upon privacy, much less than is involved, say, in the physical entry and ransacking of a house in an effort to find a quantity of narcotics.” Id. Thus, we held that there need not be probable cause to conduct a canine search of a place; rather, the police need merely have reasonable suspicion for believing that narcotics would be found in the place subject to the canine sniff. Id.

This calculus shifted, however, when we were confronted with an instance in which the subject of the search was not a place but rather was a person. See Commonwealth v. Martin, 626 A.2d 556 (Pa. 1993). In Martin, we were unwilling to allow a canine sniff of a person to be conducted upon a mere showing of reasonable suspicion. We stated that “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.” Martin, 626 A.2d at 560. We emphasized that the “principal object [of the constitutional provisions against unreasonable searches and seizures] is the protection of privacy rather than property . . . .” Id. (citations and internal quotation marks omitted). Thus, we held that while reasonable suspicion was sufficient to conduct a canine sniff of a place, that was too low a level of suspicion when a person, rather than a place, is to be subjected to a canine sniff. When the sniff is of a person, the Martin court required that “the police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime.” Id.

With the Johnston and Martin standards in mind, we turn to examining whether Rosie’s sniffing of the exterior and interior of Appellant’s car passes constitutional muster. We first consider her sniffing of the exterior of the car, which lead to a positive alert at the driver’s side door, as this occurred first in time. We agree with the Superior Court that Rosie’s sniffing the exterior of Appellant’s vehicle need be supported merely by reasonable suspicion. Id. 818-20. Unlike the expectation of privacy in one’s person, which in Martin we noted to be particularly high, one’s expectation of privacy in the exterior of a vehicle is more modest. While many in our society have a great fondness for their vehicles, it is too great a leap of logic to conclude that the automobile is entitled to the same sanctity as a person’s body. Furthermore, the exterior of a vehicle is exposed to the public, and is not considered an intimate space. Thus, considering the relatively minor privacy interest in the exterior of the vehicle and the minimal intrusion occasioned by a canine sniff, we conclude that mere reasonable suspicion, rather than probable cause, was required prior to Rosie sniffing the exterior of his vehicle. As Trooper Banovsky had reasonable suspicion prior to Rosie responding to the scene, see supra, then Rosie’s sniff of the exterior of the vehicle passes constitutional muster.

Could this be an influential case pointing in a direction the Federal Supreme Court might want to follow?

Pointer via 4th Amendment.com. I'll leave it to you to go read his rip on the fact that having Tide in a car leads to reasonable articulable suspicion.