Commonwealth v. Sanchez

716 A.2d 1221, 552 Pa. 570, 1998 Pa. LEXIS 1467

• Court: Supreme Court of Pennsylvania
• Decided: July 21, 1998
• Docket: 131, 132, 133 M.D. Appeal Docket 1996
• Status: Published

Opinions

OPINION OF THE COURT

CASTILLE, Justice.

In this case of first impression this Court is asked to determine whether Pennsylvania law or California law should be used to evaluate the propriety of a canine sniff search conducted in California which provided probable cause for a search warrant in Pennsylvania. For the following reasons, we affirm the order of the Superior Court and hold that the legality of the canine sniff conducted in California must be evaluated under California law.

The relevant facts are as follows: On August 26, 1993, an agent from the Bureau of Alcohol, Tobacco and Firearms (ATF) was on assigned duty at a Federal Express location in Bakersfield, California investigating drug trafficking from the facility when he observed a man and woman pay $77 in cash in order to ship a package to Pennsylvania. The agent noted the license plate on the couple’s automobile as they departed. The agent then inspected the package in question, which weighed thirty-seven pounds, and observed that it was addressed to Sr. Angel Sanchez at a specific address in Shilling-ton, Pennsylvania. The return address was listed as Ceramics, Inc., with a local address and telephone number.

The ATF agent called directory assistance and learned that there was no listing for Ceramics, Inc. in the Bakersfield area. He further referenced several telephone directories and determined that the address given for Ceramics, Inc. did not exist. The agent then called the telephone number listed on the return slip. When what seemed to be a young Hispanic female answered the phone, the agent heard young children crying in the background, and hung up without speaking. The agent then ran a check of the license plate with the California Department of Motor Vehicles. The car was registered to one Maria Ramirez of Bakersfield, California.

Subsequently, the ATF agent called the Kern County Sheriffs Department and requested that an officer bring a drug detecting canine to the Federal Express office. The officer arrived shortly thereafter with his trained canine, which positively indicated the presence of narcotics in the package. The agent then allowed the package to be shipped to its intended destination in Pennsylvania and telephoned Detective Joe Mekosh in Berks County, Pennsylvania to relay information concerning the package. The detective used the information supplied by the ATF agent to secure a search warrant for the package upon its arrival in Pennsylvania. A search of the package revealed that the shipment contained fifteen smaller packets of marijuana. The detective then arranged for a controlled delivery of the package to the address listed and obtained a search warrant for the premises in question. The search resulted in the seizure of large amounts of cash, marijuana, and other evidence of drug trafficking.

Appellant Briceno-Rodriguez accepted delivery of the package and signed for its receipt. Appellant Sanchez was the owner of the premises and the person to whom the package was addressed. Police found substantial evidence, including telephone bills, connecting appellant Rivera to the residence. Appellants were each charged with possession of a controlled substance, possession with intent to deliver a controlled substance, possession of drug paraphernalia, and conspiracy to possess a controlled substance. Appellants Sanchez and Ramirez were also charged with conspiracy to possess with the intent to deliver a controlled substance and conspiracy to possess drug paraphernalia.

Appellants filed requests for habeas corpus relief and motions to suppress, alleging violations of the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution. After a hearing on the motions, the trial court determined that the legality of the canine sniff conducted in California should be evaluated under Pennsylvania law as opposed to California law. The court reasoned that the law of evidence is procedural in nature and that therefore, the law of the forum state should apply. The trial court further concluded that under Pennsylvania law, the facts known to the ATF agent did not rise to the level of reasonable suspicion to justify the canine search. Therefore, the trial court suppressed all of the evidence obtained subsequent to the canine sniff, and granted appellants’ requests for habeas corpus relief.

The Commonwealth certified that the suppression orders terminated the prosecution and appealed the trial court’s order to the Superior Court. The cases were consolidated for appeal. The Superior Court, in a published opinion and order, reversed the trial court and remanded the matter for trial.¹ The Superior Court found that the question of the propriety of the canine sniff was a question of substantive law that should be analyzed under California law, and concluded that the sniff of appellants’ package was legally conducted pursuant to California law. Petitioners filed a timely petition for allowance of appeal to this Court and allocatur was granted limited to the issue of whether Pennsylvania law or California law should apply to evaluate the propriety of the canine sniff.

Information secured through valid and legal means in a foreign jurisdiction may be used to establish probable cause for a search warrant in this Commonwealth. The result of a canine sniff constitutes admissible evidence in both California and Pennsylvania, and can be used to support a search warrant in Pennsylvania so long as the sniff was conducted legally. Thus, the issue that this Court must address is whether Pennsylvania or California law should be used to determine whether the canine sniff in the instant case was conducted through valid and legal means.²

In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state. In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome. Id. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.

Initially, we note that this case does not present a question of conflict between procedural laws as appellants assert. Appellants rely on the Superior Court’s decision in Commonwealth v. Dennis, 421 Pa.Super. 600, 618 A.2d 972 (1992), alloc, denied, 535 Pa. 654, 634 A.2d 218 (1993) to support their position that the issue of whether a canine sniff is a search is a matter of procedural rather than substantive law; and that accordingly, this Court should apply Pennsylvania law to evaluate the propriety of the canine sniff. We disagree. A substantive right is defined as “a right to equal enjoyment of fundamental rights, privileges and immunities; distinguished from a procedural right.” Black’s Law Dictionary 1429 (6th ed.1990). By contrast, procedural law is “that which prescribes the methods of enforcing rights or obtaining redress for their invasion; as distinguished from the substantive law which gives or defines the right.” Id. at 1203. The issue before this Court is a strict constitutional law question involving the fundamental right to be free from unreasonable searches and seizures. Therefore, the issue is one that must be addressed under the principles of conflicts between substantive laws, which require this Court to evaluate which state has the most interest in the outcome.

Here, California possessed the greater interest in the validity of the canine sniff in question. The canine sniff took place in California and involved a package shipped by California residents. While this Commonwealth has an interest in protecting its citizens from police misconduct and searches that are not supported by probable cause, the courts of this Commonwealth have no power to control the activities of a sister state or to punish conduct occurring within that sister state. No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff. The courts of California have determined that a canine sniff is not a search requiring probable cause or a warrant. We will not question that decision under the conflicting decisions of Pennsylvania because Pennsylvania has no interest in a canine sniff search conducted within California’s borders, even if the results are later used in the Pennsylvania Courts.

We find persuasive the reasoning of the Superior Court in Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976). In Bennett, the Superior Court held that evidence obtained during a drug investigation in New Jersey pursuant to a wiretap authorized by a New Jersey court on a telephone terminal located within New Jersey could be used to support a search warrant in Pennsylvania. The wiretap, which was authorized by New Jersey law, would have violated the Pennsylvania Wiretap Act. Nonetheless, the Superior Court determined that the information was competent evidence to support a Pennsylvania search warrant. The court stated: Id. at 460-61, 369 A.2d at 494-95; see also Commonwealth v. Corbo, 295 Pa.Super. 42, 440 A.2d 1213 (1982) (evidence obtained through electronic telephone surveillance in New Jersey provided police with sufficient probable cause for the issuance of a search warrant in Pennsylvania despite the fact that the surveillance would have been illegal in Pennsylvania).

It is, of course, obvious that the courts of this Commonwealth have absolutely no power to control the activities of a sister state or to punish conduct occurring within that sister state. The legislature of New Jersey has determined that wiretapping, in appropriate circumstances and for proper cause shown, will be permitted within its borders. Thus, the information involved in the appeal before us was obtained by the New Jersey Police under a legal authorization. ... If the legislature of a sister state or foreign jurisdiction determines that wiretapping will be permitted within its borders, we will not, under the present laws of Pennsylvania, question that decision.

Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state. Appellate courts in several other states have addressed this issue and reached similar results. In Frick v. Oklahoma, 634 P.2d 738 (Okla.Crim.App.1981), the Oklahoma Court of Criminal Appeals determined that wiretap evidence legally obtained in Virginia through court authorization was admissible in an Oklahoma court even though wiretapping was unlawful in Oklahoma. The court reasoned that “[i]n the present case, then, the authorization for disclosure should have come from the Virginia court which authorized the drug investigation during which officers overheard the conversations involving the appellant. And that court did issue such authorization.” Id. 634 P.2d at 740. Similarly, the Supreme Court of Washington determined that Washington’s Privacy Act did not apply to a defendant’s statements taken by California police and recorded without defendant’s knowledge or consent, as permitted by California law. Washington v. Brown, 132 Wash.2d 529, 940 P.2d 546 (1997), cert, denied, — U.S.-, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998). The court allowed the statements to be admitted in a capital murder trial in Washington despite the fact that similar action in Washington might have violated the Privacy Act. The court reasoned that there was no state interest to be advanced by suppressing the recorded statements because no Washington state officer violated the Privacy Act and no one’s statutory privacy interests were infringed. “The effect of suppression would have been to keep highly probative and lawfully obtained evidence from the jury.” Id. 940 P.2d at 577.

While it is true that the propriety of the canine sniff might be subjected to greater scrutiny if analyzed under the Pennsylvania Constitution,³ this fact has no effect on information properly obtained in a sister state. Therefore, because the Superior Court correctly applied the law of California, we affirm the order of the Superior Court reversing the order of the trial court and remanding the case for further proceedings consistent with its opinion.⁴

NIGRO, J., files a dissenting opinion in which FLAHERTY, C.J., joins.

1 . 448 Pa.Super. 631, 672 A.2d 830 (1996) (Beck, J. concurring).

2 . A canine sniff is not considered a search under California law, is not given constitutional protections, and therefore need not be supported by probable cause. People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982). This Court has held that a canine sniff is a search requiring: (1) that the police be able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and (2) that police are lawfully present in the place where the canine sniff is conducted. Commonwealth v. Johnston, 515 Pa. 454, 465, 530 A.2d 74, 79 (1987).

3 . There is a question whether the ATF agent acting on his own volition in California would be a state actor under the Pennsylvania Constitution; however, we need not reach this issue in light of our holding that California law applies. Furthermore, appellants raised both state and federal constitutional claims, and the ATF agent is a state actor for purposes of the federal constitution.

4 . In so doing, we express no opinion on whether appellants had any reasonable expectation of privacy in a package sitting in a California Federal Express office.