Commonwealth v. Martin

626 A.2d 556, 534 Pa. 136, 1993 Pa. LEXIS 142

• Court: Supreme Court of Pennsylvania
• Decided: June 8, 1993
• Docket: 10 E.D. Appeal Docket 1992
• Status: Published

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

The questions raised by this case are whether police acted lawfully in utilizing a trained dog to sniff appellant Martin’s satchel for the presence of illegal drugs; and whether police were required, after the dog had alerted to the presence of drugs, to secure a search warrant before they could open the satchel and examine its contents.

On June 27, 1989 five members of the Montgomery County narcotics enforcement team were having lunch in a restaurant in King of Prussia, Pennsylvania. At approximately 1:55 p.m., two men entered the restaurant and were seated. One of them carried a black satchel with an antenna protruding. The men sat at the table briefly, then moved two or three feet to another table, where, without prior greeting or conversation, they joined two other men who were already seated at the second table. One of the men already seated was appellant Martin. The men talked, one of them looked under the table, and one of them went to the telephone area, where he was observed talking on the telephone.

While one of the four men was on the telephone, two women were seated at the first table, near the men. The men stopped talking, got up, and moved to another table in a remote unoccupied section of the restaurant. At approximately 2:10 p.m., drinks were served and the man with the black satchel placed it on the table and pushed it across to Martin while looking around in what police characterized as a suspicious manner. Martin, who also was looking around “furtively,” took the satchel and placed it on his lap. Martin’s hands were not visible to the detectives, but he looked down at the satchel and his arm movements suggested that he might have placed them in the satchel. Martin then placed the satchel on the table and pushed it back to the first man. The men then raised their glasses as if making a toast. The detectives believed at this point that a drug deal was in progress and that the toast was the consummation of the deal.

The detectives communicated their suspicions to the Upper Marion Police and requested that additional officers be positioned outside the restaurant and out of sight. They also requested that their trained drug detection dog be transported to a location near the restaurant.

Police noticed that one of the suspects was wearing a beeper. At approximately 2:30 p.m., two of the suspected drug dealers, not Martin, exited the restaurant and approached a black Ford that was parked in the lot. One of the men opened the trunk and the other retrieved a small brown gym bag from the trunk. The two shook hands and the one who had retrieved the bag entered a taxi and left. The man who had opened the trunk returned to the restaurant, where he rejoined Martin and the other man.

Other police units stopped the taxi within several miles of the restaurant. They did not place the occupant under arrest, but merely stated that they had questions about what the occupant had been doing at the restaurant. The man answered that he was visiting from Michigan, that he had met a friend at the restaurant, and that he was now on his way to the airport to return to Michigan. After being advised of his rights, the occupant of the taxi consented to a search of his person and belongings. The search revealed a small amount of marijuana. The police radioed this information to the detectives at the restaurant and placed the man who had been searched under arrest.

At approximately 2:55 p.m., the three men remaining in the restaurant left their table, exited the restaurant, and approached the same Ford automobile parked in the lot. Each man carried a satchel. As the men prepared to enter the vehicle, detectives approached, guns drawn but at their sides, and indicated that they wanted to know what had occurred in the restaurant. Martin was directed to place his brown satchel on the ground. One of the detectives then directed the trained dog to perform a sniff search of Martin’s brown satchel. The dog indicated to its handler that the satchel contained drugs. Thereupon, one of the detectives opened the satchel and found a small quantity of marijuana, an address book, and $70,500 in consecutively numbered $100 bills. Martin was then arrested.

The dog then sniffed the car and alerted to the trunk area. Subsequent search of the trunk revealed thirty-eight pounds of marijuana in bricks. The remaining two men were then placed under arrest.

Martin was brought to trial on February 1, 1990, before the Court of Common Pleas of Montgomery County, sitting without a jury, and was convicted of criminal attempt and conspiracy to commit violations of the narcotics law. Post trial motions were denied, sentence was imposed, and a timely appeal was taken to Superior Court. Superior Court affirmed, 411 Pa.Super. 667, 593 A.2d 913 and we granted allowance of appeal for the purpose of examining the constitutionality of the search of Martin’s satchel.

The trial court reasoned that the canine sniff was supported by “reasonable suspicion” that a crime was in progress, and thus, met the requirements of Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987). The court also held that the search of the bag was lawful because the cumulative observations of the detectives in the restaurant and the canine alert established probable cause to believe that drugs would be found in the satchel. The search was properly conducted without a warrant, according to the trial court, because it was conducted incident to a lawful arrest and exigent circumstances existed.

Superior Court also believed that the police possessed a reasonable suspicion of criminal activity. The suspicion was based on the men moving to different tables, furtive looks, passing the satchel, the celebratory toast, and the arrest of the man in the taxi, who had a small amount of marijuana. On the basis of this reasonable suspicion, according to Superior Court, Martin was properly subject to an investigatory detention, and since his satchel may have contained drugs or a weapon, it was proper to direct Martin to place the satchel on the ground and to conduct the canine sniff search of the satchel. Superior Court then concluded that the dog’s alert to the satchel coupled with the suspicious behavior of the men constituted probable cause to search the satchel. Exigent circumstances existed in that Martin and his companions would have left the scene if police had been required to obtain a search warrant. Hence, police, according to Superior Court, were permitted to open the satchel.

In Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987), we held that use of a trained dog to sniff for the presence of drugs was, under Article 1, Section 8 of the Pennsylvania Constitution, a search. The search in Johnston concerned a storage locker, a place, and we specifically indicated:

We are not called upon to decide in this case whether the same rules we have established today apply to a canine search of a person instead of a place....

515 Pa. at 467 n. 5, 530 A.2d at 80 n. 5. The rules set down in Johnston were that in order for police to conduct a canine search of a place, they must be able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and they must be lawfully present in the place where the canine sniff is conducted. The first question in this case is whether these rules also apply to a canine search of a person.

Article I, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Although the federal courts do not consider a canine sniff search a “search” for Fourth Amendment purposes, see United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we held in Johnston that a canine sniff is a search under Article I, Section 8 of the Pennsylvania Constitution, but because it involves a minimal intrusion and is directed to a compelling state interest in eradicating illegal trafficking in drugs, the sniff search may be carried out on the basis of an articulated “reasonable suspicion,” not probable cause. We saw this as a constitutional middle ground between requiring probable cause to believe that a crime has been or is being committed or that contraband or evidence of a crime will be discovered, and requiring nothing at all before police would be permitted to conduct a sniff search.

This middle ground approach was acceptable in Johnston because police intrusion was minimal, because the intrusion was directed solely at contraband drugs, and because much of the law enforcement utility of drug detection dogs would be lost if full-blown warrant procedures were required. Id. 515 Pa. at 465, 530 A.2d at 79. In this case, however, the search is that of a person, not a place, and accordingly, we believe that different interests are implicated. We agree with the United States Supreme Court that “the ‘principal’ object of the [Fourth] Amendment is the protection of privacy rather than property....” Soldal v. Cook County, — U.S. -, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), citing Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Further, although privacy may relate both to property and to one’s person, an invasion of one’s person is, in the usual case, more severe intrusion on one’s privacy interest than an invasion of one’s property.¹

Because the search in this case involved Martin’s person, we believe that in addition to being lawfully in place at the time of the search, the police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime. Reasonable suspicion of criminal activity will not suffice. Moreover, because the intrusion concerns the person, we also hold that once the police have probable cause and a sniff search has been conducted pursuant to that probable cause, before any search, beyond that permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) may be conducted (patting down outer garments to check for weapons upon reasonable suspicion that the suspect may be armed),² the police must secure a search warrant and they may detain the suspect for a reasonable time while the warrant is sought.³

We are mindful that government has a compelling interest in eliminating the flow of illegal drugs into our society, and we do not seek to frustrate the effort to rid society of this scourge. But all things are not permissible even in the pursuit of a compelling state interest. The Constitution does not cease to exist merely because the government’s interest is compelling. A police state does not arise whenever crime gets out of hand. In fact, all today’s holding requires is what police should themselves insist on: probable cause to believe that a crime has been committed or contraband is to be found before there is a police intrusion, beyond that permitted by Johnston and Terry, into one’s person. As we stated in Johnston, a free society cannot remain free if police may use drug detection dogs or any other crime detection device without restraint. The restraint which we today impose on the use of drug detection dog searches of persons is modest enough, in light of our constitutional mandate.

Applying these requirements to this case, the search fails constitutional muster. First, although it may be that there was reasonable suspicion of criminal activity on the facts of this case,'⁴ there was no probable cause. But even assuming probable cause, which would validate the sniff search, police did not secure a warrant to conduct the actual search of the satchel. It was error, therefore, to admit into evidence that which was seized as a result of the illegal search.

Reversed and remanded for a new trial.

CAPPY, J., joins the majority opinion and files a concurring opinion. PAPADAKOS, J., files a dissenting opinion. MONTEMURO, J., files a dissenting opinion which is joined by LARSEN and PAPADAKOS, JJ.

1 . We do not mean to dimmish in any manner the protection which the Fourth Amendment and the Pennsylvania Constitution offer possessory interests in property, which interests may be offended by governmental seizures of property even in cases in which the privacy interest is not implicated, see Soldal, but we do wish to emphasize the importance of a citizen's right to be secure against unreasonable governmental invasions of his person.

2 . In United States v. Place, 462 U.S. 696, 714-15, 103 S.Ct. 2637, 2648-49, 77 L.Ed.2d 110, 125-26 (1983), Mr. Justice Brennan (concurring in the result) writes of Terry:

It is clear that Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate. As I stated in Florida v. Royer, "[t]he scope of a Teriy-type ‘investigative’ stop and an attendant search must be extremely limited or the Terry exception would ‘swallow the general rule that Fourth Amendment seizures [and searches] are "reasonable” only if based on probable cause....

Terry and the cases that followed it authorize a brief "investigative” stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is “to determine [the individual's] identity or to maintain the status quo momentarily while obtaining more information.... Anything more than a brief stop must be based on consent or probable cause.” ... During the course of this stop, “the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questiops put to him.... It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between incidental seizures of personal effects and seizures of property independent of the seizure of the person.

(Citations omitted).

3 . Of course, the suspect may consent to a search, in which case there would be no need for a warrant.

We are aware of the view that allowing the search without a warrant would be less intrusive than seizing the person of the suspect while a magistrate decides whether the search should be conducted at all. It is our view, however, that in the event the suspect wishes to resist the search by refusing to consent, the propriety of a search is best determined by a magistrate. In the words of Mr. Justice Jackson, "when the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1947).

4 . The trial court, which found that the detectives had reasonable grounds for the search, stated:

There can be no doubt the satchel Emery carried into the restaurant played a critical role in the detectives’ observations. It was the passing of that satchel back and forth across a table in a surreptitious manner and its concealment underneath the table, after which a toast was made, which formed the foundation of the detectives' reasonable suspicions that drug activity was in progress. Significantly, the satchel was passed to Defendant who appeared to be doing something with it in his lap, although the detectives could not determine exactly what that was.

Slip Op. at 20.

Although this summary of the facts upon which the detectives relied is accurate, neither the facts of this case nor suspicion generally constitutes probable cause to believe that a crime is being committed.