dissenting.
Today the majority has placed a choke collar on law enforcement and pulled it tight. I dissent.
The majority distinguishes Commonwealth v. Johnston finding that the sniff search of Martin’s person struck at the core of the privacy interests protected by our Constitution. However, the majority has failed to explain how the search of Martin’s satchel constitutes a search of Martin’s person. Equally significant, the majority has neglected to explain how the search of this personal possession was more intrusive than the sniff search permitted in Johnston.
In Johnston we held that a canine sniff is a search within the meaning of Article I, section 8 of our Constitution. However, we recognized that the lack of intrusiveness of a sniff search coupled with the compelling governmental need made it appropriate to depart from the usual probable cause requirement. Thus, a constitutional middle ground was established that permitted a warrantless canine sniff search if the search was supported by reasonable suspicion. Since I believe that the reasonable suspicion standard also should apply to the facts of this case, I dissent.
The foundation of the majority’s holding is the conclusory assertion, “[bjecause the search in this case involved Martin’s person, we believe that in addition to lawfully being in place at the time of the search, the police must have probable cause.” (Majority at 560). Although, I disagree with the majority’s assertion and the concurring opinion’s analysis that a seizure of a satchel is a search of a person, focusing on nomenclature misses the point. The reasonableness of a search is not determined by the name we affix to a particular intrusion. *150Rather, the proper focus of our inquiry should on be the scope and degree of the intrusion. A search of a personal effect may, under certain circumstances, be more intrusive than a search of a place. However, this fact does not automatically trigger the traditional probable cause analysis. For example, under appropriate circumstances limited searches and seizures of one’s person with less than probable cause are permitted. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, the fact that a different interest is implicated in the present case merely begs the question of whether this difference requires a departure from the standard set forth in Johnston.
The proper analysis focuses on whether the sniff search of a satchel is a more severe intrusion than the sniff search of a commercial storage facility permitted in Johnston. In discussing the intrusiveness of such a sniff search, this court stated:
a canine sniff-search is inherently less intrusive upon an individual’s privacy than other searches such as wiretapping or rummaging through one’s luggage; it is unlikely to intrude except marginally upon innocent persons; and an individual’s interest in being free from police harassment, annoyance, inconvenience and humiliation is reasonably certain of protection if the police must have a reason before they may, in the circumstances of this case, utilize a narcotics detection dog.
Johnston 515 Pa. at 466, 530 A.2d at 80.
Here, the police, while conducting a brief investigatory stop, directed a drug detection dog to sniff a satchel that was placed on the ground. The present search, like the one in Johnston, implicated privacy interests protected by our constitution in an inherently less intrusive manner than a traditional search. The sniff search only provided police with the limited information of whether contraband was present, and therefore was unlikely to intrude, except marginally, upon an innocent person’s rights. The additional inconvenience of a brief sniff search conducted during a valid investigatory stop was minimal. Further, the subject of the investigation was reasonably *151protected from police harassment, annoyance and humiliation since both the investigatory stop and the canine sniff were supported by reasonable suspicion. Thus, the limited intrusion in the present case was not qualitatively different from the sniff search permitted in Johnston.
Indeed, in Johnston our Court noted its agreement with the United States Court of Appeals for the Ninth Circuit, which held:
the use of a canine’s keen sense of smell to detect the presence of contraband within personal luggage is a Fourth Amendment intrusion, albeit a limited one that may be conducted without a warrant and which may be based on an officer’s ‘founded’ or ‘articulable’ suspicion rather than probable cause.
Johnston at 466, n. 3, 530 A.2d 74 quoting United States v. Beale, 674 F.2d 1327, 1335 (9th Cir.1982).1
The majority concedes that the State’s interest is compelling, but holds, “all things are not permissible even in pursuit of a compelling state interest. The Constitution does not cease to exist merely because the government’s interest is compelling.” (Majority at 561). I am not suggesting a cessation of constitutional rights, but rather that a dog sniff of a satchel based on reasonable suspicion falls within the constitutional framework set forth in Johnston. Further, I cannot equate the minimal intrusion of a dog sniffing for odors emanating from William Martin’s satchel with a societal sacrifice of “every vestige of human dignity and privacy so preciously preserved by our founding fathers.” (Concurring Opinion Cappy, J. at 563).
*152The effect of this unwarranted restraint on law enforcement will not be, “modest enough, in light' of our constitutional mandate” (Majority at 144), and the procedure set forth does not create “a potential layer of protection from search for the innocent citizen.” (Concurring Opinion, Cappy, J. at 146). In fact, the only possible result would be the elimination of the use of dogs trained in narcotics detection.
Under the majority’s standard, the police must have probable cause to believe the satchel contains contraband before conducting a sniff search. If the dog sniff indicates the presence of drugs, then nothing has been gained because the police already had probable cause to believe that the satchel contained contraband. However, if the dog sniff does not indicate the presence of drugs, then the police are in a quandary. As Justice Cappy’s concurring opinion points out, depending on the facts of the case, the probable cause determination may be undermined. (Concurring Opinion, Cappy, J. at 147 n. 1). At the very least, the evidence of probable cause would be equivocal. It stands to reason that the police will not use a technique, which they are not required to use, that could only work to undermine their law enforcement efforts. Therefore, I do not view the majority as creating “a potential layer of protection.” Instead the police are told to discard an unintrusive tool that was utilized to meet a compelling need.
Unfortunately, the error of the majority’s holding runs deeper than an imprudent departure from precedent. The majority has also given law enforcement officers questionable guidance on how to conduct an arrest subsequent to a canine sniff search. The court states:
once the police have probable cause and a sniff search has been conducted pursuant to probable cause, before any search, beyond that permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) may be conducted (patting down outer [garments] to check for weapons upon reasonable suspicion that the suspect may be armed), the police must secure a search warrant and they may detain *153the suspect for a reasonable time while the warrant is sought.
(Majority at 143-144).
After the police have conducted a sniff search pursuant to probable cause, which now informs them a second time that they have probable cause to conduct a search, the police are also told, “before any search, beyond that permitted by Terry v. Ohio ... may be conducted ... the police must secure a search warrant and they may detain the suspect for a reasonable time while a warrant is sought.” (Majority at 143-144). If the police wish to seize an object, pursuant to probable cause in order to obtain a search warrant, they are certainly entitled to do so. However, a detention of the suspect that goes beyond the scope of a brief investigatory stop is an arrest. Thus, the police are instructed to conduct a useless dog sniff, and then to arrest the suspect, but at the same time are told not to conduct a search incident to a lawful arrest. Rather the new hybrid procedure is to arrest appellant, and then conduct nothing more than a Terry frisk.
From this procedure the majority deduces its alternate holding that, “even assuming probable cause, which would validate the sniff search, police did not secure a warrant to conduct the actual search of the satchel.” (Majority at 145). This conclusion exalts form over substance. Once the drug detection canine alerted the police that the satchel contained contraband, the police had probable cause to arrest. The contemporaneous search of the satchel, which was at Martin’s feet at the time of the search, was a proper search incident to a lawful arrest.
I do not find it significant that Martin was not verbally advised that he was under arrest until after the search of the satchel, since at the time the dog alerted the police to the presence of contraband, the police had probable cause to arrest. In Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982), the Superior Court explained:
a search conducted immediately prior to an arrest is as valid as a search conducted subsequent and incident to the arrest *154provided the officer had probable cause to arrest prior to the search [and] as long as the contraband discovered in the search is not used as justification or probable cause for the arrest.
Commonwealth v. Trenge, at 404, n. 8, 451 A.2d at 710, n. 8 (1982) citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”); Sibron v. New York, 392 U.S. 40, 77, 88 S.Ct. 1889, 1909, 20 L.Ed.2d 917 (1968) (Harlan, J. concurring) (“There is no case in which the defendant may validly say, ‘Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards’).
Therefore, I find thát the police properly conducted a dog sniff supported by reasonable suspicion, and then properly conducted a search incident to a lawful arrest supported by probable cause.
I dissent.
LARSEN and PAPADAKOS, JJ., join this dissenting opinion.. United States v. Beale, 674 F.2d 1327 (9th Cir.1982) (“Beale I") was vacated at 463 U.S. 1202 in light of United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In United States v. Beale, 736 F.2d 1289 (9th Cir.1984) (“Beale II") the court determined that a canine sniff search of personal luggage did not constitute a search implicating the fourth amendment. This subsequent case history, which occurred prior to Johnston, does not change the [act that the Johnston Court found the rationale expressed in Beale I to be persuasive.