Dog searches—meaning a police K9 unit allowing a K9 to sniff outside or inside a vehicle—present a unique situation in Pennsylvania. This is the result of Pennsylvania’s constitution which provides the citizens within Pennsylvania greater protections from government intrusions then the Federal constitution. As a result, the use of a K9 under the Federal Constitution and the use of a K9 under the Pennsylvania Constitution would have two entirely different analysis when determining the legality of the search.
For example, a Philadelphia resident is pulled over for having dark tints and an expired temporary tag. During the traffic stop, a uniformed officer smells the faint order of marijuana. However, he sees no ashes, burnt marijuana cigarettes, or other indicia of marijuana smoking from either the driver or within the vehicle. In addition to the faint order of marijuana, the officer notices nervous behavior from the driver who is sweating and breathing heavily. There was no indication prior to the stop of the defendant being impaired while driving. Pursuant to
Commonwealth v. Barr, a 2020 Pennsylvania Supreme Court case, the plain smell of marijuana alone does not provide police probable cause to search a vehicle. Knowing this, the officer calls a K9 unit to perform a dog search of the vehicle.
Under federal law, dog searches are not considered a search under the Constitution. So, a dog sniff during a normal traffic stop is legal. As a result, there would be no invasion of the Philadelphia resident’s privacy interest under Federal law. But remember, the Pennsylvania Constitution provides greater protections then the Federal Constitution. Under the Pennsylvania Constitution,
a dog sniff is a search.
In a 1987 case,
Commonwealth
v. Johnston, the Pennsylvania Supreme Court held a dog sniff is lawful where the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test. What this boils down to is that officer is required to have reasonable suspicion of a criminal act prior to perform a K9 sniff. Reasonable suspicion is found where a reasonable officer would find specific and articulatable facts that criminal activity is afoot.
Applying this to the situation of our Philadelphian resident above, where the officer smells the faint order of marijuana, with no other evidence of illegal narcotics present, it would be my position that the officer does not have reasonable suspicion. This is because vaped smell of marijuana is indistinguishable from the smell of burnt marijuana. Vaped marijuana is legal in Pennsylvania with a proper medical license. In the situation above, without some evidence of smoked marijuana, or evidence that the driver did not possess a valid medical marijuana license, the officer above would have no reasonable belief drugs would be found. Thus, a subsequent dog search would violate the driver’s rights under the Pennsylvania constitution.