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decided: August 5, 1987.


Appeal from the Order of the Superior Court of Pennsylvania dated November 29, 1985, at Nos. 1541 and 1545 PGH 1984, which affirmed in part and vacated in part the judgment of sentence of Court of Common Pleas of Butler County, Criminal Division, dated November 1, 1984, at C.A. No. 100 of 1984, Book 78, Page 102. 348 Pa. Super. Ct. 160; Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case. McDermott and Hutchinson, JJ., file a concurring opinion.

Author: Flaherty

[ 515 Pa. Page 456]


Appellant was tried before the Court of Common Pleas of Butler County, Criminal Division for two violations of the

[ 515 Pa. Page 457]

Controlled Substance, Drug, Device and Cosmetic Act. The court, sitting without a jury, convicted him of one count of possessing marijuana with intent to deliver, 35 P.S. § 780-113(a)(30) and one count of possession of marijuana, 35 P.S. § 780-113(a)(16). On November 1, 1984 the court sentenced appellant to five to ten months imprisonment followed by two years of probation on both counts, the sentences to run consecutively, plus a fine of $1,000 and costs. Cross appeals were filed to Superior Court, which vacated the sentence for simple possession and affirmed the sentence for possession with intent to deliver. 348 Pa. Super. 160, 501 A.2d 1119 (1985). Superior Court's rationale was that the crimes merged for sentencing purposes. Johnston petitioned for allowance of appeal and we granted allocatur to address the question of whether the evidence in this case was gathered pursuant to an illegal search and seizure.

On February 14, 1984 Special Agent David Munson of the Drug Enforcement Administration was present at the Rent-A-Space Warehouse near the intersections of Routes 19 and 228 in Butler County. While driving through this area, Munson observed a person carrying a package from one of the storage facilities to a parked car. Based on seventeen years of experience as a drug enforcement officer, Munson believed that the package he saw was a bale of marijuana. Shortly after this person put the package into the car, another person appeared from the same corridor of storage lockers, looked furtively in the officer's direction, and walked to the car carrying a similar package. The two then drove away. Munson identified the building as Building 4.

Munson then told local authorities that he believed drugs were being stored in the building where the two men had appeared at the Rent-A-Space facility. The next day, February 15, Officers from the Allegheny County Police Department, the State Bureau of Narcotics and Agent Munson went to the Rent-A-Space facility in order to check Building 4 with a police dog trained to sniff narcotics. The officers got permission from a representative of Rent-A-Space to take their trained scent dog into the corridor of Building 4

[ 515 Pa. Page 458]

    for the purpose of allowing the dog to sniff at the closed and locked doors of individual storage lockers.

The police dog was led into Building 4 and allowed to sniff at each of six doors in the corridor of that building. The dog "alerted" at locker number 47, indicating to its handler that locker 47 contained drugs. This information was given to Agent Charles Gahagan, of the Bureau of Narcotics Investigation and Drug Control, who was waiting outside the building. Upon checking Rent-A-Space records to identify the lessee of locker number 47, Gahagan found that one Dwight Johnston had signed the lease. Gahagan recognized Johnston as a person who had been arrested twice before on narcotics violations. Gahagan also talked with Agent Munson, who had originally seen the men carrying the suspected bales of marijuana, and Munson repeated what he had seen the day before. Agent Gahagan then composed an affidavit in support of a request for a search warrant, and a warrant was issued. The subsequent search revealed 15,406 grams, or almost thirty-four pounds of marijuana.

Appellant's first claim is that the presence of the drugtrained dog outside his storage locker constituted an illegal search under the Pennsylvania and United States Constitutions in that the dog was present without a warrant.*fn1

Fundamentally, this claim rests on a concept which finds its origins in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) that there is a reasonable expectation of privacy which insulates citizens from certain types

[ 515 Pa. Page 459]

    of police searches. In Katz, FBI agents attached an electronic listening and recording device to the outside of a public telephone booth and attempted to introduce into evidence the recorded conversation. Although the parties argued that the admissibility of the tape recorded evidence turned on whether the telephone booth was a constitutionally protected area, the Court declined to decide the case on this issue:

     the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

389 U.S. at 351-2, 88 S.Ct. at 511, 19 L.Ed.2d at 582. Katz, then, teaches that when a person speaks or exposes an object to the public, whether he is in a private or a public place, he is not protected by the Fourth Amendment, but when he acts to keep speech or physical objects private, even in a public area, an unwilling disclosure may be forbidden by the Fourth Amendment.

Appellant's view is that the dog's sniffing, like the FBI's electronic surveillance, was impermissible without a warrant because it invaded his expectation of privacy in the storage locker under Katz. In neither case was there a physical invasion of enclosed space, and in both cases, police utilized devices (electronic and canine) to obtain information

[ 515 Pa. Page 460]

    which they were not able to obtain by using their own senses.

The most recent pronouncement of the United States Supreme Court on the Fourth Amendment status of police use of narcotics detection dogs appears in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In Place Miami police alerted New York drug enforcement authorities that a particular passenger, bound for New York, might be carrying illegal drugs. When the suspect arrived in New York, narcotics agents stopped him and seized his luggage for ninety minutes in order to take it to another airport and subject it to a "canine sniff" for narcotics. The Court held that the drugs which were found in the luggage were inadmissible on the grounds that the investigative seizure, which might be justified under the Terry doctrine,*fn2 was not justified in this case because of the length of time the luggage was detained. Presumably, the New York agents might have arranged to have a narcotics detection dog more closely at hand.

The Place Court also discussed the propriety of the use of the "canine sniff" as a drug detection procedure. A majority of the Place Court balanced an individual's interest in privacy and freedom from the embarrassment and inconvenience of police searches against the particular type of intrusiveness characteristic of a canine sniff for narcotics:

The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. [1] at 7, 53 L.Ed.2d 538, 97 S.Ct. 2476 [at 2481 (1977)]. We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id., at 13, 53 L.Ed.2d 538, 97 S.Ct. 2476 [at 2484]. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It ...

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