*1 454
ORDER PER CURIAM. June, 1987, the Common- day
AND NOW first granted; is appeal for allowance petition wealth’s 587, 50, Court, 512 A.2d Superior Pa.Super. order vacated; Superior Court case is remanded to Common- of our decision light for reconsideration (Goldhammer II), v. wealth Goldhammer Pa. (1986). A.2d 1280
Argued March 1987. Aug. Decided 1987. Reargument Denied Nov. *3 Ittel, Jr., Pittsburgh, appellant.
Frank for W. Cook, Atty., Hepting, L. Dist. David A. F. David Robert Hawk, Butler, for Attys., appellee. Asst. Dist. LARSEN, FLAHERTY, McDERMOTT,
Before HUTCHINSON, PAPADAKOS, ZAPPALA and JJ. THE
OPINION OF COURT FLAHERTY, Justice.
Appellant was tried before Court of Common Pleas of for violations of the County, Butler Criminal Division two
457 Act. The Substance, Drug, and Cosmetic Device Controlled of him of one count court, a convicted sitting jury, without deliver, 780- intent to 35 P.S. marijuana with possessing § 35 marijuana, of P.S. 113(a)(30) possession one count of sentenced 780-113(a)(16). 1984 court On November § imprisonment followed to ten months appellant to five counts, the sentences to run on probation of both years two $1,000 ap- fine and costs. Cross plus a consecutively, sen- Court, vacated the Superior which were filed peals the sentence for and affirmed simple possession for tence Pa.Super. to deliver. 348 with intent possession rationale that the (1985). Superior was Court’s A.2d peti- sentencing purposes. Johnston merged for crimes allocatur to appeal granted and we tioned allowance case of whether evidence question address the search and seizure. illegal to an gathered pursuant David Munson of Special Agent February On Rent- present at the Enforcement Administration was Drug of Routes 19 and the intersections near A-Space Warehouse area, driving through this While County. Butler one of from carrying package a person Munson observed on Based seventeen parked facilities to a car. storage officer, Munson drug as a enforcement experience years marijuana. he saw was bale package that the believed car, into the put package person after this Shortly corridor of the same appeared from person another direction, and lockers, in the officer’s furtively looked then package. a similar two carrying to the car walked Building 4. building as Munson identified the away. drove *4 drugs he authorities that believed Munson then told local men had the two building in the where being stored were day, The next Feb- facility. Rent-A-Space at the appeared Police De- Allegheny County 15, from the ruary Officers Munson Agent and Bureau of Narcotics the State partment, Building to check order Rent-A-Space facility went The officers to sniff narcotics. dog trained police 4 with to Rent-A-Space of representative from a permission got Building of into the corridor dog scent take their trained allowing dog for the to sniff at the closed purpose storage and locked doors of individual lockers. Building The led to dog was into and allowed building. at doors corridor of sniff each of six that dog to its indicating The “alerted” locker number drugs. handler that locker 47 contained This information Gahagan, of Bureau of given Agent was to Charles Control, and Investigation Drug waiting Narcotics who was building. Upon checking records Rent-A-Space outside the Gahagan to the lessee locker number found identify signed Gahagan one had the lease. Dwight Johnston as a had arrested recognized person Johnston who been Gahagan before on narcotics violations. also talked twice Munson, men Agent originally who had seen the with marijuana, Munson carrying suspected bales of and day Agent Gahagan he had seen the before. repeated what of a support request an affidavit in composed then warrant, subsequent and a warrant issued. The search was 15,406 grams, thirty-four pounds or almost search revealed marijuana. drug- presence first claim is that the of the Appellant’s illegal trained his locker constituted an dog outside Pennsylvania under the and United States Constitu- search dog tions in without a warrant.1 present finds concept this claim rests on a which Fundamentally, States, 389 U.S. in Katz v. United 88 S.Ct. origins its (1967) expec- that there is a L.Ed.2d 576 reasonable from types citizens certain tation which insulates privacy provides: The Amendment to the United States Constitution Fourth houses, right people persons, in their The to be secure seizures, effects, against papers, and and unreasonable searches issue, violated, upon proba- no shall and Warrants shall but not be affirmation, cause, by supported particularly de- ble Oath or searched, persons things scribing place to be to be and the or seized. I, Pennsylvania provides: Constitution Article Section 8 of houses, papers persons, people shall be secure in their seizures, possessions and no war- from unreasonable searches any any person things рlace or or shall issue rant to seize be, may describing nearly nor them as without without cause, by subscribed the affiant. supported oath affirmation *5 an elec- Katz, attached agents In FBI searches. of a the outside recording device to and listening tronic into to introduce attempted booth telephone public Although parties recorded conversation. evidence evidence tape recorded admissibility that the argued a constitutional- telephone booth was turned on whether on the case area, declined to decide the Court ly protected issue: places. people, protects Amendment the Fourth in public, to the even knowingly exposes person aWhat Amend- Fourth office, a subject or is not own home his preserve But what he seeks protection____ ment may be public, to the in an area accessible even private, constitutionally protected. office, in a in a business an individual
No less than
tele-
taxicab,
in a
person
in
a
or
a
apartment,
friend’s
the Fourth
upon
protection
may rely
phone booth
it, shuts the door behind
occupies
One who
Amendment.
a call is
place
him to
permits
him,
the toll
pays
into
he utters
that the words
entitled to assume
surely
To
to the world.
not be broadcast
mouthpiece will
the vital
ignore
is to
narrowly
more
the Constitution
read
private
in
play
has come to
telephone
the public
role that
communication.
Katz,
351-2,
511,
389 U.S. an exposes or speaks then, person when a teaches that a public or private he is a public, whether object Amendment, but Fourth by the protected he is not place, private, objects keep speech physical he acts when area, unwilling may disclosure an public even the Fourth Amendment. forbidden like the FBI’s sniffing, dog’s is that the view Appellant’s surveillance, without war- impermissible electronic privacy expectation his it invaded rant because there a In neither case was locker under Katz. cases, police bоth space, of enclosed invasion physical canine) information to obtain (electronic and utilized devices which they were not able to by using obtain their own senses.
The most pronouncement recent of the United States *6 Supreme Court on the Fourth Amendment status of police use of narcotics detection in dogs appears United States v.
Place,
696,
2637,
(1983).
U.S.
S.Ct.
The Place Court also discussed the propriety use of the “canine sniff” as a drug procedure. detection A majori- ty of the Place Court balanced an individual’s interest in privacy and freedom from the embarrassment and inconven- ience of against particular searches type of intru- siveness characteristic of a canine sniff for narcotics:
The Fourth Amendment “protects people from unrea-
government
sonable
intrusions into
legitimate
their
expec-
tations of privacy.”
Chadwick,
United States v.
433 U.S.
[1]
at
7,
53 L.Ed.2d
In respects, these generis. canine sniff is sui We are aware of no other investigative procedure that is so limited both the manner in which the information is obtained and the content of the information revealed procedure. Therefore, we conclude that the particu- *7 lar course of investigation agents that the intended to pursue exposure of respondent’s luggage, which here— in public located a place, to a trained canine—did not constitute a “search” within the meaning the Fourth Amendment.
Id. at
Fourth Amendment itself has con- already performed stitutional police objectives balance between and personal privacy.” protections ... intended by the framers “[T]he easily could all too disappear consideration and balancing presented by of the multifarious circumstances cases, especially different when that be balancing may done in the instance officers by police engaged first ‘often competitive enterprise ferreting out crime’.” ... proposition truth of this is when apparent one consid- ers that the today employed balancing Court has test “to general swallow the rule that of property] [seizures probable are if only ‘reasonable’ based on cause.” ... “an emerging tendency Justice Blackmun’s concern over on the part Terry of the Court convert decision into a general statement that the Fourth Amendment requires reasonable,” only that seizure any certainly be ... justified. 718-19, 2650-51,
Id. at
We are
in the corridors of
drug
dogs
use of
detection
warrantless
is
law.
permitted
Pennsylvania
areas
under
leased
in
that a fundamental
agree with the dissenters
Place
We
a
balancing
in canine sniff cases is whether
question
points
As
Brennan
out
appropriate.
is
Mr. Justice
interests
dissent,
already
the Fourth Amendment has
in his Place
governmental
balance between
performed
constitutional
рersonal privacy,
Terry
and
and
extended that
interests
in
process only
special, limited circumstances.
balancing
regard
whether
Basically, our determination must be
we
as
similar to
therefore
present
analytically
Terry,
case
interests,
balancing police and individual
appropriate
as
Terry
or
case
so different from
present
whether
already
has
struck
the Fourth Amend-
the balance
been
Fur-
itself,
balancing
no further
should occur.
ment
to
ther,
Terry,
if
as
similar
regard
analytically
the case
we
interests,
balancing of
as
must
whether the
we
then decide
Place,
in
a search did or did
results
a determination that
whether,
a
did occur but
occur;
Terry,
as
circumstances without warrant.
justified
certain
may
course,
decision, of
that the
Terry
was
Critical
officer,
regarded
suspicious
had
what he
police
who
seen
imminent
of an
signaled
possibility
which
behavior
act,
immediately
act
and with-
upon
criminal
was called
no
an
He had
time write
affidavit
out warrant.
so,
Had he done
it is
magistrate.
out
seek
a disinterested
that,
time he returned with a warrant —assum-
likely
by the
were issued—the crime he feared
ing that a warrant
and the suspects
have occurred
already
imminent would
facts,
these
the United States
On
disappeared.
would have
and self-
inquiry
held that a limited
Supreme Court
ques-
garments
person
protective pat-down
outer
*9
tioned
permissible
under the Fourth Amendment. As
“
Mr.
it,
Justice Brennan put
Terry involves
‘necessarily
predicated
swift action
upon the on-the-spot observations of
the officer on the beat—which
been,
has
historically
practical
as a
be,
matter could not
subjected to the warrant
”
procedure.’ United
Place,
States v.
462 at
103 S.Ct.
We present believe case lacks the exigencies which were so important in reason, and for Terry, determination of whether there was a search cannot be made by balancing the privacy interests of the individual against the law enforcement objectives government, in this disagree we with the majority’s analysis in Place. As Mr. it, Justice Brennan puts the balance has already struck by been the Fourth Amendment itself. The issue under Pennsylvania law, then, Place, and contrary to is not occurred, whether a search did, it is our view that it but whether the search that occurred should implicate the usual requirements warrant charactеristic of police searches of private areas. This question necessarily involves a bal- Thus, ancing analysis. while we are unwilling to balance the privacy expectations of the against individual the law enforcement government interests of for the purpose of determining search, whether there was a we find the bal- ancing inquiry appropriate to determine whether this partic- ular kind of search in these circumstances necessarily impli- cates the requirements fullblown warrant of most other police searches. Professor puts LaFave the question this way: totally in terms of whether a issue is framed
If the dragnet fashion would dogs of such use unrestrained *10 might likely one’s answer be society, in a free tolerable be suggested test earlier so, If then under the no. dogs to Katz, such use of trained under appropriate a be held to constitute contraband should detect concealed is clear that search. Yet it Amendment Fourth relatively amounts to a technique surveillance particular involved, much less than is upon privacy, intrusion minor of a house in an ransacking entry say, physical so, Because this is of narcotics. quantity effort to find a dogs is a valuable surveil- the use of trained and because if hampered considerably be technique lance which would full cause and with only upon utilized it could be hand, push perspective from this warrant dogs use of trained holding that the in the direction of a quite This is not a search. concealed contraband to detect is some of whether there question leads to the obviously is, it is whether ground, middle Fourth Amendment to some practice enforcement subject to this law possible dragnet in a that it is not used so as to ensure restraints fashion, yet but unprincipled random or fashion or limita- imposing all by its effectiveness destroy other, kinds more traditional applicable tions which are privacy threatening more that are much of searches security. 2.1(e), (2d Ed.) p. 315. I and Seizure Search § Amendment middle is a Fourth that there We believe police investigations conducted applicable ground hand, one dogs. On the narcotics detection handlers of be utility dogs of such would enforcement much of the law required before were procedures if warrant lost full blown other, it is our view used; on the could but canine sniff be if use police may free not remain society free will that a device, at random and this, other crime detection any narcotics hold that a Accordingly, we reason. without for the presence to test deployed be dog may detection narcotics, of this case where: on the facts
1. police are able to articulate grounds reasonable believing thаt drugs may present place they test; seek to police are lawfully present in the place where the
canine sniff is conducted. holding part, Our is based in on considerations not dissimi- lar to those stated in United States v. Place: a canine sniff-search is less inherently upon intrusive an individual’s privacy than other searches such as wiretapping or rum- maging through one’s luggage; it is unlikely to intrude except marginally upon innocent persons; and an individu- al’s interest in being harassment, free from police annoy- ance, inconvenience and humiliation is reasonably certain of if protection must have a reason they may, before *11 in case, the circumstances of this utilize a narcotics detec- dog.3 tion
Applying this rule to the case, facts of this we police conclude both that the had and articulated a reason suspicion drugs able that might be located within the stor age and building police that the lawfully were situated they when conducted the canine search. Initially, police suspicion was aroused DEA Agent when Munson observed person emerge from Storage Building Four carrying Munson, parcel Agent which on years based seventeen of experience, to believed be a bale of He ex marijuana. plained he identify parcel that could the suspected mari of juana shape. becаuse its size and Bales marijuana of frequently prepared are in foreign using countries trash compactors, which of produce marijuana bales of the same approximate size and shape appellant as the one carried storage from his room. agreement Appeals
3. We note our with the United States Court of Circuit, the Ninth which held: presence the use of a canine’s keen sense of smell to the detect personal luggage contraband within sion, is a Fourth Amendment intru- may albeit a limited one that be conducted without a warrant may and which be based on an officer’s "founded" or “articulable” suspicion probable rather than cause Beale, (9th Cir.1982). United States 674 F.2d situated at the lawfully police the were As to whether were not search, argues they that appellant of the time locker “was re- the outside hallway the because the the confines of within having those business stricted appellant’s position difficulty The with storage facility.” storage facility; the have business within the did that facility’s of the permission the with they present were appellant gives signed by lease and the management; inspect to enter to authority management facility’s in therefore, present legally were police, premises.4 they made the storage area when of the hallway reasonable, illegal susрicion articulated had a they Four, Building justified which stored might narcotics reasons, For these dog. detection of a narcotics the use dog detection the use of a narcotics claim that appellant’s Con- Pennsylvania rights under appellant’s violated must fail.5 stitution support the affidavit final claim is that
Appellant’s cause believe probable did not contain the search warrant storage facility committed at the crime had been that a asserts appellant In particular, to be searched. which was (1) the ways: deficient jdiree the affidavit was concerning the no information given issuing authority was (2) dog; the affiant’s of the training prior experiеnce stale; was as a narcotics violator knowledge appellant suspicious activity (3) Agent Munson’s observations cause. not rise to the level did a warrant we decide whether The standard which *12 test, which of circumstances totality issued is the properly in v. Baker: described Commonwealth recently most we lease, pertinent part, provides: 4. The in agent may agrees at Lessor or his Tenant that INSPECTION. repairs. inspect premises or make any enter to the reasonable time added). (Emphasis the same rules upon in this case whether are not called to decide 5. We person today apply of a instead to a canine search we have established apparent become place; also that should it a and we note of reliable, particular a case or in either in sniff searches are canine invalid, Opinion become for then of this would general, the rationale any other search. become as intrusive sniff search would 468 for evaluating standard whether cause for the a “totality
exists
issuance of
is the
warrant
of
test
forth in
Gates,
circumstances”
set
Illinois v.
462
213,
(1983).
U.S.
103 S.Ct.
The task of the simply to make whether, practical, a commonsense decision all given him, the сircumstances set forth the affidavit before including the “veracity” “basis of knowledge” persons hearsay information, supplying there is a fair probability that a contraband evidence of crime will a particular place. be found in And a duty reviewing court is simply magistrate ensure that the had “substantial basis for ... concludpng] prob- able cause existed.” 23, 26, (1986). (Some
513 Pa. A.2d 803-04 citations omitted).
The search in the present warrant case contains the following of probable affidavit cause:
On Jan. met Agent Agent with DEA Frank to person(s) Schmotzer relative storing marihuana Rent-A-Space Storage business, North near Routes 19, Cranberry Twp. 228 & Butler County mailing with # Mars, (C. address of RD 7 Box 1292 Agent, Pa. This and Frank Gahagan) inquired Schmotzer a repre with of Rent-A-Space.Storage sentative permis obtained representative sion from the investigate storage room Bldg. 4 47 # 4 dog with certified scent for the purpose of locating Start, marihuana. Officer Allegheny J. Co. Pa. Police a K-9 (Shemp, used 2½ old male year German six Shepherd dog) approx, to examine storage rooms vicinity Bldg room 47 #4. The dog, is a Shemp certified N.A.P.W.D.A. and was so certified as told to Officer Start on dog, 11/25/83. The m[e] Shemp, alerted Officer to the door of 4 47 storage Start
469 indicating presence to Ptl. of Marihuana in room Start subsequently 4 47 room. Your Affiant checked Storage and learned that representative with the business 4 47 LEATHER suspect storage by room was rented Dwight in the name of LUGGAGE Johnston. then met H.
Your affiant with David MUNSON this following received the information. David same date and special agent D.E.A. and has H. MUNSON is with been employed enforcing years. federal narcotics laws for 17 1- approximately p.m. MUNSON stated that at 4:10 on 14-84, driving through space facility he was the rent a 228, Mars, Route 19 & Pa. S/A MUNSON observed a a corridor in 4. The exiting building w/m individual was x x parcel measuring approximately carrying wrapped plastic. parcel inches and was brown was person light in the trunk of a brown placed by corridor. Because up Chevrolet which was backed experience investigating S/A MUNSON has considerable hе to be smuggling recognized parcel marihuana person similar to a marihuana bale. He observed the that he suspiciously act evasive did observe coming from a locker on the North side of the corridor and closest to the East After Munson Driveway. S/A of the passed peering he observed another white male out corridor in an evasive manner toward the direction person emerged which S/A Munson traveled. The second carrying parcel from the corridor a similar to the one described above.
After disappearing sight, from their S/A Munson just walked back to the aforementioned location as the occupied Chevrolet vehicle left the area two males. by from storage space S/A Munson walked the rented persons which he had seen the two exit. S/A Munson locating by was aided in the exact corridor the tire tracks the melted snow where the Chevro- snow had the most let’s exhaust been. S/A observed in that corridor on the North Eastern door wall corridor bore number *14 Dwight
Your affiant knows Johnston from previous investigations Dwight narcotic knows and Johnston has arrested been on two occasions for violation of the Pa. Act # Subject CSDDC 64 of 1972 as amended. John- ston was arrested on 3-20-73 and 6-30-79 for those It violations. is the of this affiant opinion based on experience, knowledge, information received from S/A Start, independent investigation Munson and Pt. and marihuana, substances, controlled are concealed within the described above room. subject
The items to be for are searched to seizure are they because and their and posses- contraband sale sion constitute a violation of the Pa. # CSDDC Act 64 of Wherefore, 1972 as amended. based on the above infor- mation affiant your requests Search Warrant be issued for the rent-a-space. above described Breaking this affidavit down into significant its compo- nents, police we have a officer writing police that another officer seventeen years experience drug with enforce- ment an saw individual the day carry before from an storage identified package shape area a with the and ap- pearance of a bale of A second marijuana. person emerged from the same area a bundle same carrying of the size and shape. Both men a suspicious behaved and evasive manner. Based on the suspicion illegal narcotics activity observation, indicated this “a certified dog” scent was area, the brought storage to and with permission the of the storage operators, was taken to the from building which the two men suspicious had carried the where the parcels, dog indicated presencе marijuana storage. the room 47. The person who rented room 47 had been arrested before, on charges narcotics years, twice once eleven once five before the years affidavit was executed. plain information,
It is that if this together, taken is interpreted in the “common sense and realistic fashion” that required by is Baker it, and the cases which preceded magistraté had cause issue the warrant. is the informa remaining question whether only
The arrests prior of the was dog the matter tion about dog was claim that magistrate. before properly dog without as a certified scent identified adequately not enough inform information The affidavit contains merit. ordinary used not an animal magistrate that the instead was might anything, “alert” at but dog who require To narcotics. presence to indicate the trained dog attended affidavit the school that the indicate has dog in which the been breakdown searches bur impose unreasonable and inaccurate would accurate established, as it has it is police. on the dens Unless dogs detection record, that trained narcotics on been *15 accurate, is need for a more there no are less than 51% pedigree. dog’s narcotics detection detailed account and eleven As to the arrests which were five use of old, that this information involves the given the fact years in at issue the of criminal behavior that is type same case, to corroborate being only it is used that present affidavit, not information which allegations in the as other cause, it was probable to establish in itself was sufficient along with the to consider this the magistrate not error for Moreover, if even the other information in the affidavit. information, the had affidavit magistrate disregarded enough probable cause. have contained establish would claim, also, Thus, merit. appellant’s second is without is Superior The order of Court affirmed. or
NIX, C.J., did the consideration participate of this decision case. HUTCHINSON, JJ., file a
McDERMOTT and concurring opinion.
McDERMOTT,Justice, concurring. only
I result. join рublic of a tapping odor and the The detection of an is a different One direct telephone emphatically things. are expect can the one designed privacy action to invade 472
from line for paid. the which have they On the other hand if one contain odor of cannot the their business from seeping public into the they betrayed domain have their proves substance, secret. If odor the nature of the is illegal substance contraband there cause smeller, for a If the experienced warrant. whether it is an man, machine, pig, trained or dog, canary, say upon can training experience an that such odor from emanatеs an illegal substance warrant should issue. The other con- are concepts siderations for entertaining a world where people cannot die from smell. they what
HUTCHINSON, Justice, concurring.
I concur the result I reached find no majority. reasons, however, “canine sniff” define a search. I agree with of the United majority Supreme States Court that such a sniff is “so limited both the manner in which the information is obtained and content of the informa tion revealed ...” it does not constitute a of the Fourth Amendment. United States v. purposes Place, 696, 707, 462 U.S. 103 S.Ct. 77 L.Ed.2d (1983). I stated, As I previously have fail to see awhy I, different standard should be established undér Article Constitution. See Common Section of the Pennsylvania Sell, wealth (1983) 504 Pa. A.2d (Hutchinson, J., dissenting). significant There are no textual differences Compare U.S. these provisions. between two constitutional *16 with Pa. Const. Art. 8. See also Const. amend. IV 1, § Baker, v. Commonwealth 23, Pa. (1986) 513 518 802 A.2d (applying Gates federal standard for probable cause for law). search warrant I Pennsylvania am unpersuaded by majority’s policy reasons establishing different standard under our state constitution in this case.1 1, previously 1. This Court has held Article of our State § 8 imposes higher Constitution standards for searches and seizures than Sell, required by those the Federal Constitution. v. Commonwealth C.J., 46, (1983) (Nix, 470 majority); 504 Pa. A.2d 457 for the Common DeJohn, 32, (1979), denied, wealth 403 v. 486 Pa. A.2d 1283 cert. Pennsylvania, DeJohn v. 100 444 U.S. S.Ct. L.Ed.2d 530 A.2d Appellee, Pennsylvania, COMMONWEALTH BRYANT, Appellant. R. James Pennsylvania. Supreme Court Argued 1987. Jan. Aug.
Decided equally (1980). standard to reasons for this different I find the opinions. unpersuasive in these