J-A09024-16

2016 PA Super 181

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RANDY JESUS VALDIVIA

Appellant No. 319 MDA 2015

Appeal from the Judgment of Sentence January 23, 2015

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0002234-2013

BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

OPINION BY JENKINS, J.: FILED AUGUST 19, 2016

Randy Valdivia appeals from his judgment of sentence of 111⁄2 - 23 

months’ imprisonment followed by 30 days’ probation for possession with 

intent to deliver a controlled substance, possession of a controlled substance 

and possession of drug paraphernalia.1 Valdivia contends that the trial court 

erred in denying his motion to suppress all evidence seized from his motor 

vehicle during a traffic stop following a written traffic warning. We conclude 

that state troopers had reasonable suspicion to detain Valdivia for 

investigation, and that he voluntarily consented to the search of his vehicle, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), (a)(16) and (a)(32), respectively.
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including a canine sniff of items found in the passenger compartment. 

Accordingly, we affirm.

Valdivia was arrested following discovery of marijuana in his car during 

a traffic stop on Interstate 80. The trial court held a suppression hearing 

and subsequently entered findings of fact and conclusions of law denying 

Valdivia’s motion to suppress. The case proceeded to a non-jury trial in 

which the court found Valdivia guilty of all charges. After sentencing, 

Valdivia filed a timely notice of appeal, and both Valdivia and the trial court 

complied with Pa.R.A.P. 1925.

Valdivia raises three issues in this appeal:

1. Whether the trial court erred in denying [] Valdivia’s motions 

to suppress all evidence and fruit of the poisonous tree where 

the arresting officer illegally detained [] Valdivia and engaged in 

a second investigative detention that was not supported by 

reasonable suspicion once the initial traffic stop was completed, 

and where the initial traffic stop was unreasonably prolonged to 

allow time for a drug sniffing canine to arrive on the scene?

2. Whether the trial court erred in denying [] Valdivia’s motions 

to suppress all evidence and fruit of the poisonous tree since any 

purported consent to search given by [] Valdivia was not 

knowingly, intelligently, or voluntarily given and any purported 

consent to search was the product of an unconstitutional search?

3. Whether the trial court erred in denying [] Valdivia’s motion to 

suppress evidence and all fruit of the poisonous tree since the 

canine sniff was illegal and not supported by reasonable 

suspicion, and where the use of trained drug-sniffing dogs was 

outside the scope of any purported consent?

Brief For Appellant, at 7.
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All three arguments on appeal challenge the denial of Valdivia’s motion 

to suppress. In an appeal from the denial of a motion to suppress,

[our] standard of review ... is limited to determining whether the 

suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court’s factual findings are 

supported by the record, [the appellate court is] bound by 

[those] findings and may reverse only if the court’s legal 

conclusions are erroneous. Where ... the appeal of the 

determination of the suppression court turns on allegations of 

legal error, the suppression court’s legal conclusions are not 

binding on an appellate court, whose duty it is to determine if 

the suppression court properly applied the law to the facts. 

Thus, the conclusions of law of the courts below are subject to [] 

plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010).

The record supports the following findings of fact made by the trial 

court. On December 12, 2013, Troopers Hoy and Long were traveling east 

bound in a marked patrol cruiser on Interstate 80. Trial Court’s Findings of 

Facts (“FF”), ¶ 1. The troopers were following a white Dodge Caravan with a 

Michigan license plate in the left hand lane. FF, ¶ 2. Trooper Hoy observed 

the vehicle quickly move from the left lane to the right lane without using a 

turn signal, at which time Trooper Long immediately activated his overhead 

lights and initiated a traffic stop. FF, ¶ 3. 

Both Troopers Hoy and Long exited their police cruiser and Trooper 

Hoy approached the vehicle from the passenger side while Trooper Long 
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stood behind the vehicle as backup. FF, ¶ 4. As Trooper Hoy approached 

the vehicle, he noticed two large boxes wrapped in Christmas paper and a 

suitcase in the cargo area of the vehicle. FF, ¶ 5. Trooper Hoy testified that 

drug smugglers often wrap drugs in Christmas paper around the holidays in 

an effort to blend in with innocent motorists. N.T., 8/8/14, at 25.2 

Trooper Hoy asked the driver (Valdivia) for his license, registration, 

and proof of insurance. Valdivia gave Trooper Hoy a license and rental 

agreement and stated that the vehicle was a rental. FF, ¶ 6. As Valdivia 

produced the documents, the trooper noticed that Valdivia’s hands were 

shaking, and that he seemed nervous. Valdivia stated that he needed to pull 

off and get gas. FF, ¶ 7. Trooper Hoy found this strange because gas had 

been available at two exits that Valdivia had just passed. N.T., 8/8/14, at 

9.3

Trooper Hoy asked Valdivia about his travel plans. Valdivia responded 

that he was flying from Fort Lauderdale, Florida to New Jersey, but his flight 

had been re-routed to Detroit, Michigan, and he had to rent a vehicle 

because he had missed his connecting flight to New Jersey. FF, ¶ 8. 

____________________________________________

2 Although the trial court did not include this detail in its findings of fact, we 

have the authority to consider it because the Commonwealth presented this 

evidence and prevailed in the trial court on Valdivia’s motion to suppress. 

See Jones, 988 A.2d at 654. 

3 We have the authority to consider this detail for the reasons given in 

footnote 2.
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Trooper Hoy found it strange that the packages in the cargo area were 

unblemished, even though they presumably had been part of Valdivia’s 

belongings on his flight from Florida. Id. at 15.4 Trooper Hoy noticed from 

the vehicle information that Valdivia rented the car in Ann Arbor, Michigan, 

not Detroit, Michigan as he had stated, and that the rental was for a oneway trip. FF, ¶ 9. Trooper Hoy knew from his training and experience that 

the route Valdivia was traveling, Michigan to New Jersey, is a common drug 

trafficking route. FF, ¶ 10.

Trooper Hoy then went back to his patrol cruiser and ran a records 

check, as is his custom, while completing the warning paperwork for the 

illegal lane change. FF, ¶ 11. Trooper Hoy also contacted a State Police K-9 

Unit to respond to the scene. FF, ¶ 12. The record check revealed that 

Valdivia had been previously charged in Florida with possession with intent 

to deliver. FF, ¶ 13. 

Trooper Hoy returned to Valdivia’s vehicle, asked him to exit the 

vehicle, explained the warning, and returned Valdivia’s identification 

documents. FF, ¶ 14. Trooper Hoy then inquired if he could ask some 

follow-up questions about Valdivia’s travel plans. FF, ¶ 15. Valdivia 

changed his story when answering these additional questions. He now 

____________________________________________

4 We have the authority to consider this detail for the reasons given in 

footnote 2.
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stated that he had flown to Detroit to visit a friend and had left early the 

next morning. He also said that when he arrived at the Detroit airport, all of 

the rental companies were closed, which was why he rented the vehicle in 

Ann Arbor. FF, ¶ 16. Trooper Hoy felt that Valdivia’s responses were 

unusual, because one does not normally visit a friend for such a short time, 

most of which would be spent sleeping. Trooper Hoy also found it difficult to 

believe that all rental companies would have been closed at a large airport 

such as Detroit. FF, ¶ 17.

Trooper Hoy asked Valdivia for consent to search his vehicle, and 

Valdivia agreed. Trooper Long filled out a consent to search form, and 

Valdivia signed the form after reading it. N.T., 8/8/14, at 17-18, 81-82.5

The consent form itself was not admitted into evidence, Id. at 2, but Trooper 

Long testified that the form stated that Valdivia did not have to consent to 

the search. Id. at 81-82. Valdivia never revoked his consent or said: “No, 

stop searching.” Id. at 82.

Trooper Hoy testified that after Valdivia gave verbal consent to search 

his vehicle, he told Valdivia that he would call a K-9 unit to assist in the 

search. N.T., 8/8/14, at 54. Later in his testimony, however, Trooper Hoy 

testified that he could not remember whether he told Valdivia that he would 

call for a K-9 unit. Id. at 55-56. 

____________________________________________

5 We may consider this detail for the reasons given in footnote 2.
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Trooper Tiracorda, his K-9 partner, Tom, and several other state police 

officers arrived at the scene in marked police cruisers. FF, ¶ 20. Trooper 

Hoy and the other officers searched the vehicle while Valdivia sat in the back 

seat of the patrol cruiser upon an offer by the Troopers due to the cold 

weather. FF, ¶ 21. 

The troopers removed the Christmas packages from the back of the 

vehicle and placed them on the ground in an area safe enough for Tom to 

perform a canine sniff. FF, ¶ 22. There is no evidence that Valdivia objected 

to the canine sniff. Tom alerted to the larger of the two packages on the 

first “fast pass” by stopping in front of the package, changing his posture, 

and increasing his respiration. Tom alerted to the package again on the 

second systematic search. FF, ¶ 23. The troopers opened the packages and 

found 21 clear, vacuum-sealed bags, each containing forty smaller bags of 

what appeared to be marijuana. FF, ¶ 24. Valdivia was placed under arrest. 

FF, ¶ 25.

One important detail is absent from the trial court’s findings of fact. 

Before obtaining Valdivia’s consent to search the vehicle, Trooper Hoy did 

not tell Valdivia that he was free to leave. Trooper Hoy testified as follows:

Q. You never at any point in time told [] Valdivia that he was 

free to leave, free to be on his way and go about his business. 

That’s true?
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A. Yeah, that’s true. At that time I had reasonable suspicion to 

believe that there was criminal activity in the vehicle.

N.T., 8/8/14, at 49.6

In his first argument on appeal, Valdivia argues that Trooper Hoy 

lacked reasonable suspicion to detain Valdivia for further investigation after 

issuing the traffic warning. We disagree.

Preliminarily, Valdivia does not dispute that the initial traffic stop was 

legal. Nor could he, because the evidence demonstrates that Trooper Hoy 

had probable cause to believe that Valdivia violated the Vehicle Code by 

changing lanes without using his turn signal. See 75 Pa.C.S. § 3334(a) 

(“upon a roadway no person shall ... move from one traffic lane to another ... 

unless and until the movement can be made with reasonable safety nor 

without giving an appropriate signal in the manner provided in this section”); 

Commonwealth v. Spieler, 887 A.2d 1271, 1275-76 (Pa.Super.2005) 

(police officer had probable cause to stop defendant for violation of section 

3334 where defendant moved to and from right-hand to left-hand lane 

without using appropriate signals). 

____________________________________________

6 We have the authority to consider this additional evidence because it 

“remains uncontradicted when read in the context of the record as a whole.” 

Jones, 988 A.2d at 654.
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Trooper Hoy developed reasonable suspicion during the traffic stop to 

believe that Valdivia was transporting illegal controlled substances. We have 

defined “reasonable suspicion” as follows:

[T]he officer must articulate specific observations which, in 

conjunction with reasonable inferences derived from these 

observations, led him reasonably to conclude, in light of his 

experience, that criminal activity was afoot ... In order to 

determine whether the police officer had reasonable suspicion, 

the totality of the circumstances must be considered. In making 

this determination, we must give due weight ... to the specific 

reasonable inferences [the police officer] is entitled to draw from 

the facts in light of his experience. Also, the totality of the 

circumstances test does not limit our inquiry to an examination 

of only those facts that clearly indicate criminal conduct. Rather, 

even a combination of innocent facts, when taken together, may 

warrant further investigation by the police officer.

Commonwealth v. Smith, 917 A.2d 848, 852 (Pa.Super.2007) (citations 

omitted). 

During a traffic stop, the officer “may ask the detainee a moderate 

number of questions to determine his identity and to try to obtain

information confirming or dispelling the officer’s suspicions.” Berkemer v. 

McCarthy, 468 U.S. 420, 439 (1984). “[I]f there is a legitimate stop for a 

traffic violation ... additional suspicion may arise before the initial stop’s 

purpose has been fulfilled; then, detention may be permissible to investigate 

the new suspicions.” Commonwealth v. Chase, 960 A.2d 108, 115 n.5 

(Pa.2008). The fact that a driver is nervous or overly apologetic during a 

traffic stop does not, without more, furnish reasonable suspicion for 

continued investigatory detention. See Commonwealth v. Tam Thanh 
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Nguyen, 116 A.3d 657, 669 (Pa.Super.2015). Conversely, nervous 

behavior during a traffic stop, combined with other factors, may give rise to 

reasonable suspicion that criminal activity is afoot. See Commonwealth v. 

Caban, 60 A.3d 120, 129-30 (Pa.Super.2012) (following valid traffic stop for 

speeding, officer had reasonable suspicion of criminal activity to justify 

continued detention of driver and passenger; driver acted nervously, car was 

owned by third party not present in vehicle, answers provided by driver and 

passenger to basic questions regarding their destination were inconsistent, 

and various masking agents, including air fresheners, canisters of perfume, 

and bottle of odor eliminator, were present in vehicle).

Here, Trooper Hoy observed a variety of suspicious details during the 

traffic stop. Valdivia behaved nervously during the traffic stop, and his 

hands were visibly shaking. He claimed that he was about to run out of gas, 

an odd remark given that he had just passed two exits with gas stations. 

His explanation for why he was driving on I-80 was unusually elaborate. He 

said that he was flying from Florida to New Jersey, but his flight was rerouted to Detroit, Michigan, and he missed his connecting flight to New 

Jersey. All car rental companies in Detroit were closed (a detail that Trooper 

Hoy found unusual due to the size of Detroit’s airport), so he had to travel to 

Ann Arbor, Michigan to rent a vehicle to drive to New Jersey. He was driving 

a rental vehicle one way, a common tactic of drug smugglers. Inside the 

car, there were two large boxes wrapped in Christmas paper in the backseat. 
J-A09024-16

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Strangely, the packages were unmarked and undamaged, even though they 

presumably had been on board Valdivia’s flight to Detroit. Drug smugglers, 

Trooper Hoy added, often wrap drugs in Christmas paper around the 

holidays in an effort to blend in with innocent motorists. Trooper Hoy 

discovered during a criminal history check that Florida authorities had 

charged Valdivia with selling drugs. Finally, when Trooper Hoy asked 

Valdivia to exit the vehicle to receive a warning for his turn signal violation, 

Valdivia changed his story. He now stated that he flew to Detroit (not New 

Jersey) to meet a friend and then left the following morning to rent a vehicle 

to drive to New Jersey. This combination of factors provided reasonable 

suspicion to detain Valdivia and continue an investigation into possible 

criminal wrongdoing. See Caban, 60 A.3d at 129-30. 

In his second argument on appeal, Valdivia contends that he did not 

voluntarily consent to the search of his vehicle. The Commonwealth bears 

the burden of proving that the defendant consented to a warrantless search. 

See Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa.Super.2003) (en 

banc). To establish a voluntary consensual search, the Commonwealth must 

prove “that a consent is the product of an essentially free and unconstrained 

choice—not the result of duress or coercion, express or implied, or a will 

overborne—under the totality of the circumstances.” Commonwealth v. 

Strickler, 757 A.2d 884, 901 (Pa.2000).
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There is no shortage of decisions relating to consent. A convenient 

starting point is two decisions issued on the same date by our Supreme 

Court: Strickler and Commonwealth v. Freeman, 757 A.2d 903 

(Pa.2000).

In Strickler, a police officer observed a car parked along a country 

road. Two men were standing near the car and appeared to be urinating. 

After questioning the men and verifying the documentation for the vehicle 

and the driver, the officer returned the documents to the driver. At that 

time, the officer informed Strickler that it was not appropriate to stop along 

the road and urinate on someone’s property. The officer began walking back 

to his cruiser when he turned and asked Strickler if there was anything 

illegal in the vehicle. When Strickler stated that there was not, the officer 

requested Strickler’s consent to search the vehicle. The officer told Strickler 

that he was free to withhold his consent. Strickler consented to the search, 

which disclosed a marijuana smoking pipe. 

The trial court suppressed the marijuana pipe on the ground that 

Strickler’s consent was not voluntary. Our Supreme Court held, however, 

that Strickler’s consent was voluntary, even though the officer never 

expressly told Strickler that he was free to leave following the initial lawful 

detention. Strickler, 757 A.2d at 900. The Court adopted a totality-of-thecircumstances approach delineating a nonexclusive list of factors to consider 

in making this assessment, including: (1) the presence or absence of police 
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excesses; (2) whether physical contact occurred; (3) whether police directed 

the individual’s movements; (4) police demeanor and manner of expression; 

(5) the location and time of the interdiction; (6) the content of the questions 

and statements; (7) the existence and character of the initial investigative 

detention, including its degree of coerciveness; (8) whether and to what 

degree the transition between the traffic stop/investigative detention and the 

subsequent encounter can be viewed as seamless, thus suggesting to the 

individual that his movements may remain subject to police restraint; and 

(9) whether the police expressly told the individual that he was free to leave 

-- this latter factor being an objective and potent one. Id. at 898-901. 

With regard to the last two factors, Strickler observed:

The degree to which the transition between the traffic 

stop/investigative detention and the subsequent encounter can 

be viewed as seamless ... thus suggesting to a citizen that his 

movements may remain subject to police restraint, is a pertinent 

factor ... ‘[F]ew motorists would feel free ... to leave the scene of 

a traffic stop without being told they might do so.’ While 

recognizing ... that the admonition to a motorist that he is free to 

leave is not a constitutional imperative, the presence or absence 

of such a clear, identified endpoint to the lawful seizure remains 

a significant, salient factor in the totality assessment.

Id. at 898-99.

The Strickler court opined: “[T]he officer did not touch Strickler or 

direct his movements; there is no evidence of any use of coercive language 

or tone by the officer. We also deem significant the arresting officer’s 

admonition to Strickler that he was not required to consent to the search.” 

Id. at 900 (emphasis added). Thus, the officer’s admonition that Strickler 
J-A09024-16

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could refuse consent outweighed the officer’s failure to expressly advise the 

defendant that he was free to leave following the initial detention. Id. at 

901-02.

In Freeman, a state trooper stopped Freeman for making improper 

lane changes in what appeared to be a “cat and mouse” game with another 

car on the highway. Freeman denied having any problem with the other car. 

The trooper gave Freeman a written warning and advised that she was free 

to leave, but the events that followed

were inconsistent with [the trooper’s] statement to Freeman that 

she was free to leave ...: [the trooper] returned to Freeman’s 

vehicle; questioned her about the second vehicle; pointed out 

the inconsistent statements from the vehicle’s occupants when 

she denied traveling with that vehicle; and, ultimately and most 

significantly, asked her to step out of the vehicle prior to the 

request for consent. Such directive constituted a greater show of 

authority than had previously been made (other than the 

physical stop of Freeman’s vehicle itself).

Id. at 907. The Supreme Court held that these events constituted an invalid 

seizure, because the trooper had no reasonable suspicion of criminal 

activity: “Even if Freeman’s answer to the trooper’s question, contradicting 

as it did the information given by the occupants of the other car, could 

arguably be viewed as evasive behavior,” the trooper had no more than an 

“unparticularized suspicion or ‘hunch’ of criminal activity.” Id. at 908.

As a result, Freeman’s consent was invalid, mandating suppression of 

the fruits of the resulting search: 

The detention that preceded Freeman’s consent to search was 

unlawful, and Freeman’s consent, even if voluntarily given, will 
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not justify the otherwise illegal search unless the Commonwealth 

can demonstrate that Freeman’s consent was an independent act 

of free will and not the product of the illegal detention ... Here, 

although we do not view the trooper’s actions as flagrant, the 

record does not establish the necessary break in the sequence of 

events that would isolate Freeman’s consent from the prior 

coercive interaction. To the contrary, the evidence supports the 

conclusion that the trooper’s initiation of a second seizure and 

receipt of Freeman’s consent were integrally connected. 

Id. at 909.

In the wake of Strickler and Freeman, this court has issued many 

decisions relating to the issue of consent during traffic stops. In some, we 

held that the totality of circumstances proved voluntary consent;7in others, 

we determined that consent was involuntary.8

____________________________________________

7 See Caban, 60 A.3d at 131-32 (vehicle passenger’s consent to search of 

vehicle that was owned by his father and driven by his friend was voluntary, 

where there was no evidence of police abuses, aggressive tactics, physical 

contact, or use of physical restraints any time during the detention, 

passenger was advised that he was free to leave, passenger initially refused 

consent to search, and officer accepted refusal without argument but merely 

explained that passenger could either consent or wait for drug-sniffing dog 

to arrive); Commonwealth v. Kemp, 961 A.2d 1247, 1261 

(Pa.Super.2008) (following valid investigatory stop, defendant voluntarily 

consented to search of vehicle, even though investigating officer did not 

inform defendant that he could refuse to consent to search; there was no 

excessive police conduct, no physical contact occurred between police and 

defendant, officer did not display his weapon, officer’s order to defendant’s 

companion to exit car was necessitated by fact that companion was not 

licensed driver and had to move out of driver’s seat, defendant did not lack 

maturity or sophistication and was not intellectually incapable of exercising 

free will, and character of initial investigative detention, the traffic stop, was 

routine); Commonwealth v. Bell, 871 A.2d 267, 274 (Pa.Super.2005) (en 

banc) (defendant voluntarily consented to warrantless search of vehicle, 

where defendant understood all of his rights, detective informed defendant 

that police knew he was there to deliver drugs and that officer observed 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

defendant put package on floor of car, detective invited defendant to 

cooperate, detective did not coerce defendant into making statement with 

threats or actions, defendant, having waived his right to remain silent and to 

an attorney, admitted having an ounce of cocaine for delivery to female at 

particular location, defendant signed consent form that detective read to him 

while defendant appeared to read along, and before signing consent form, 

defendant confirmed that he spoke English and was not under influence of 

drugs or alcohol); Commonwealth v. By, 812 A.2d 1250, 1258 

(Pa.Super.2002) (following valid traffic stop at night, officer obtained 

defendant’s consent to search vehicle through non-coercive means; although 

two other officers were present, officer spoke casually and nonthreateningly, told defendant he was free to leave, did not restrain 

defendant’s movement by use or threat of force, asked defendant if he could 

search vehicle, and reminded defendant that he was free to leave prior to 

obtaining consent); cf. Commonwealth v. Reid, 811 A.2d 530, 548 

(Pa.2002) (defendant’s consent to search his jacket, boots, motel room, and 

truck, during consensual encounter at police barracks that involved 

questioning about deaths of defendant’s estranged wife and stepdaughter, 

was voluntary, where, inter alia, trooper read consent form to defendant 

explaining his right to refuse search and defendant signed form).

8 See Tam Thanh Nguyen, 116 A.3d at 669 (driver’s consent to search 

vehicle vitiated by taint of illegal continued investigatory detention of driver 

and defendant following conclusion of traffic stop that was not justified by 

reasonable suspicion of criminal activity; driver consented to search only 

moments after state trooper re-initiated contact with defendant after 

advising that driver was free to leave, no intervening circumstances 

diminished coercive atmosphere of illegal detention or otherwise justified 

search, and at time of consent, vehicle was surrounded by two troopers and 

trooper had just repeated questions regarding driver’s excessive nervous 

and apologetic demeanor); Commonwealth v. Moyer, 954 A.2d 659, 668-

69 (Pa.Super.2008) (en banc) (defendant’s consent held involuntary 

following investigatory stop that itself was not justified by reasonable 

suspicion; officer reintroduced questioning after returning defendant’s 

documents and telling him he was free, defendant walked from rear of car to 

car door when officer stopped him again, there was no precise end to traffic 

stop, two armed and uniformed police officers stood near defendant, who 

was alone and isolated outside car at night on rural, unlit road when he was 

asked if he would answer questions, police had activated flashing lights and 

directed bright white police spotlight at car, defendant was not informed that 

he did not have to answer further questions, officer told defendant results of 

(Footnote Continued Next Page)
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In the present case, Trooper Hoy requested Valdivia’s consent to 

search his vehicle during a valid investigative detention. Based on the 

foregoing opinions on consent, we detect a mixture of coercive and noncoercive factors at the time of Trooper Hoy’s request. The coercive elements 

were: (1) Trooper Hoy never told Valdivia he was free to leave, a factor 

found coercive in Acosta and Moyer; (2) Trooper Hoy ordered Valdivia to 

exit his car to receive the traffic warning (see Freeman), (3) there was 

more than one trooper at the scene of the stop (see Acosta), and (4) 

Trooper Hoy never verbally advised Valdivia that he was free to refuse 

consent (see Moyer; but see Kemp, in which consent was found voluntary 

even though officer never advised that defendant was free to refuse search). 

The non-coercive elements were: (1) Trooper Hoy gave back Valdivia’s 

documentation, (2) there is no evidence of police abuses, aggressive tactics, 

coercive language, coercive tone of voice, physical contact, or the use of 

physical restraints any time during the detention (see Caban), and (3) 

Valdivia read and signed a consent form which advised that he did not have 

(Footnote Continued) _______________________

his criminal history check and accused him of past drug activity, and 

defendant was asked if there were controlled substances or paraphernalia in 

his car or on his person); Commonwealth v. Acosta, 815 A.2d 1078, 

1085-87 (Pa.Super.2003) (en banc) (consent held involuntary despite prior 

valid stop for suspended license plate, where officer withheld defendant’s 

vehicular documentation, other officers and marked police cars were present 

with flashing lights in close proximity to defendant, and officer never 

expressly informed defendant that he was free to leave or that he was free 

not to consent to search of vehicle).
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to consent. This final element resembles Bell and Reid, where the 

reviewing court found voluntariness because the defendant signed a consent 

form after reading it or having it read to him. From these precedents, it 

appears that Pennsylvania courts construe the defendant’s review of rightto-refuse language on consent forms as a strong sign of voluntariness. 

While the issue is close, we conclude on balance that the non-coercive 

elements outweigh the coercive elements. The most persuasive indicium of 

voluntary consent is that Valdivia read and signed the consent form. He 

knew from the form that he could refuse consent, but he voluntarily elected 

not to do so. The suppression court properly concluded that Valdivia gave 

valid consent to the search of his vehicle.

In his third and final issue, Valdivia argues that even if he consented 

to the search of his vehicle, the canine sniff of his vehicle exceeded the 

scope of his consent. “When an official search is properly authorized, the 

scope of the search is limited by the terms of its authorization.” Reid, 811 

A.2d at 549. The standard for measuring the scope of a person's consent is 

an objective evaluation of what a reasonable person would have understood 

by the exchange between the officer and the person who gave the consent. 

Id.

In this case, a reasonable person would have understood that 

Valdivia’s consent encompassed canine sniffs of packages found in his 

vehicle. Nothing about a canine sniff strikes us as more intrusive than a 
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vehicle search by humans, so when an individual consents to an official 

search of his vehicle, it is natural to assume that his consent includes both 

human and canine searches. The most logical way – and perhaps the only 

way – for a defendant to place canine sniffs beyond the scope of consent is 

to tell the officer that canine searches are off limits. In this case, Valdivia 

never told any officer that he did not consent to a canine sniff. As the trial 

court stated:

Testimony at the hearing was conflicting as to whether or not 

Trooper Hoy indicated to [Valdivia] that he would be calling a K9 Unit to conduct a search. Trooper Hoy testified that it was his 

standard practice to do so but could not recall if he did on this 

specific instance. Despite this minor uncertainty, the record 

reflects that [Valdivia] never indicated he was limiting his search 

so as not to include a consent for a K -9 Unit, nor did he make 

any attempt to revoke consent when he saw the K -9 Unit arrive.

Pa.R.A.P. 1925 opinion, at 9. Thus, the trial court properly held that the 

canine sniff did not exceed the scope of Valdivia’s consent.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/2016