Commonwealth v. Hernandez

• Decision Date: 21 November 2007
• Docket Number: [DO] No. 99 MAP 2006.
• Citation: 935 A.2d 1275
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Jose HERNANDEZ, Appellee.
• Court: Pennsylvania Supreme Court

935 A.2d 1275

COMMONWEALTH of Pennsylvania, Appellant, v. Jose HERNANDEZ, Appellee.

No. 99 MAP 2006.

Supreme Court of Pennsylvania.

Argued April 16, 2007.

Decided November 21, 2007.

Diane E. Gibbons, Esq., Stephen B. Harris, Nathaniel Frederick Spang, Esq.,

Bucks County District Attorney's Office, for Commonwealth of Pennsylvania.

Cohen Stanley, pro hac vice, for Pennsylvania Police Criminal Law Bulletin.

Ann P. Russavage-Faust, Esq., Lisa Yvette Williams, Esq., Christa L. Schott, Esq., Stephen H. Shantz, Esq., Bucks County Public Defender's Office, Doylestown, for Jose Hernandez.

BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice FITZGERALD.

This case involves the limited search of a motor vehicle without a warrant, which supported, in part, the issuance of a search warrant for the entire vehicle. We must determine whether the initial search was lawful and, if not, whether the probable cause affidavit that included information obtained in that search nonetheless was sufficient to validate the warrant that ultimately issued. The Commonwealth, as Appellant, challenges the Order of the Superior Court, which deemed the search unlawful, reversed the trial court's denial of suppression, and vacated sentence. We now reverse the Superior Court's Order and reinstate the judgment of sentence.

On October 21, 2004, Joseph Purcell, the Operations Manager of Yellow Freight shipping company in Bensalem Township, contacted local police. Purcell reported that a Hispanic male had arrived at the office to pick up a shipment of 20 boxes, for which a fee of over $2,000 was due on delivery. Purcell said the man, whom he described as "nervous," was unaware that he would have to pay for the shipment. According to Purcell, the man left the premises and promised to return with the cash. Purcell became suspicious and inspected the shipment. In one of the boxes, he observed packets of marijuana wrapped in plastic.

With the cooperation of other law enforcement personnel, Bensalem Police instructed Purcell to allow the man to pick up the shipment, which he did less than thirty minutes later. The man paid the shipping fee in cash and the boxes were loaded into the U-Haul truck he was driving. Meanwhile, police staked out the area around Yellow Freight and waited for the U-Haul truck to exit the terminal. When it did so, police stopped the truck and ordered the man from it. The man was identified as Appellee Jose Hernandez. In his possession were directions from the Philadelphia International Airport to the Yellow Freight terminal, as well as directions from Yellow Freight to an address in Reading, Pennsylvania. Police learned that Hernandez had flown from Los Angeles to Philadelphia earlier that morning and paid cash for a hotel room in Bensalem with two other Hispanic males. Several hours later, Hernandez rented the U-Haul truck, also with cash, and then made his way to Yellow Freight.

Bensalem Police Officer Cary Palmer was involved in the investigation and had been approaching the Yellow Freight terminal in his vehicle when he observed the U-Haul truck. By the time Officer Palmer arrived on the scene, other officers had stopped Hernandez and he was standing outside the truck speaking to the officers. Officer Palmer approached the truck and observed that the rollup rear door was closed with a latch, but unlocked. Drawing his weapon, he opened the rollup door, entered the rear of the truck, and circled the pallet of boxes contained inside. Officer Palmer did not touch any of the boxes, but he did observe an open box and saw that it contained "a brown package, maybe 12 to 18 inches in length . . . that, from [his] training and experience [he] recognized . . . [as] consistent with . . . some kind of narcotics."

According to Officer Palmer, he entered the rear of the truck "to see[,] for officers' safety reasons[,] if there was someone else in the truck." Following Palmer's observation, the officers had the U-Haul truck towed to headquarters, where they continued their investigation. A canine sniff of the vehicle resulted in a positive indication for controlled substances in the rear. Further, Hernandez spoke with officers and explained that he had been paid $1,000 to travel from Los Angeles to Philadelphia to pick up the shipment. He admitted that the shipment contained controlled substances, but he refused to name the person for whom he was working because he feared for his family's safety.

Law enforcement personnel prepared an affidavit of probable cause seeking a search warrant for the U-Haul truck and included all of the facts set out above. The affidavit, in relevant part, provided the following:

Whereas, on 10/21/04 at approximately 1043 HRS Joseph Purcell, the Operations Manager of Yellow Freight 2627 State Road, Bensalem, PA 19020, contacted the Bensalem Township Police Department regarding suspicious packages being picked up. Joseph Purcell stated that a[H]ispanic male had arrived to pick up a pallet of approximately 20 boxes and had been acting suspicious and nervous, and that the [H]ispanic male had paid $2,283.83 in U.S. currency. The package was shipped COD, which was suspicious to Mr. Purcell. The [H]ispanic male was unaware that he had to pay the $2,283.83 and went outside returning with the $2,283.83 approx. 1/2 hour later. Mr. Purcell had opened one of the approximately 20 boxes and observed a package in the box that he believed to be marijuana wrapped in plastic wrap. Mr. Purcell was confident that the item in the opened box was some type of controlled substance.

Members of the Bensalem Township Police Department established a perimeter and waited until the [H]ispanic male took possession of the approximately 20 boxes, having them loaded into the back of a rented U-Haul box truck. The police officers converged on the [H]ispanic male, the lone occupant of the U-Haul truck. The [H]ispanic male was identified as Jose M. Hernandez Jr. DOB: 12/28/71. Hernandez had in his possession printed out directions from Yahoo Maps, specifically directions from the Philadelphia International Airport to Yellow Freight, and a second set of directions from Yellow Freight to 831 Walnut Street in Reading, PA. Hernandez also possessed a cellular telephone.

During the investigation your Affiants learned that Jose Hernandez had flown in to Philadelphia Airport from Los Angeles California at 9:50 PM on 10/21/04 [sic] (Pacific Standard Time), arriving in the early AM hours on 10/21/04. Hernandez then rented room # 107 at the Sleep Inn 3427 Street Road, Bensalem, PA 19020, paying cash. Hernandez was accompanied by two unidentified [H]ispanic males when he checked into the room. At 9:42 AM Hernandez rented a U-Haul truck paying $284.52 in cash. Hernandez arrived at the Yellow Freight 2627 State Road, Bensalem, PA 19020. The package [sic] with the approximately 20 boxes was loaded into the U-Haul truck.

Whereas, your Affiants are familiar with the fact through their training and experience that people involved in the illicit possession and distribution of controlled substances pay for everything in cash as drug dealing is a cash business generating vast amount[s] of U.S. currency. Whereas, the U-Haul truck had an Arizona registration plate: AB02180, bearing VIN: 1FDKF37G2VEB24093. Police Officer Palmer, Smith and Det. Gross observed in the back of the U-Haul rental truck a pallet containing approximately 20 cardboard boxes, one of which had been opened. The Officers were checking to ensure that there were no persons hiding in the back of the U-Haul that could pose a threat to the Officers' safety as well as their own. Det. Gross has made hundreds of narcotics related arrests, has recovered controlled substances hundreds of times, and has attended hundreds of hours of specialized narcotics training. Det. Gross observed a package inside of the opened box that he described as rectangular with rounded edges, 1 1/2-2 feet long and several inches thick, wrapped in plastic wrap and tape. Det. Gross through his training and experience recognized the packaging as being consistent with packaging that has been recovered in the past containing controlled substances. It is Det. Gross' opinion that the package contained controlled substances.

Whereas, Hernandez was interviewed at police headquarters by Sgt. Barry and D.E.A. Agent Bleier. Hernandez stated that this was the first time he had done this, and that he was paid $1,000.00 to fly out to Philadelphia from Los Angeles, California to pick-up the shipment at Yellow Freight. Hernandez was supposed to call someone who [sic] he refused to identify and transfer the U-Haul and shipment it contains somewhere on the way to Reading. Hernandez was to get detailed instructions when he placed the call. Hernandez refused to give names and certain specifics stating that he had 5 children and family and that he feared for their lives if he gave specifics. Hernandez stated that someone else had paid for his plane ticket. Hernandez stated that he knew the boxes contained controlled substances, either marijuana or cocaine, believing it was probably cocaine.

Whereas, Officer David Weiser, K-9 certified Police Officer with Bristol Township Police Department, utilizing his narcotics detector certified K-9 Rommel, conducted a search of the exterior of the vehicle for the presence of the odor of controlled substances. K-9 Rommel gave a positive indication for the presence of the odor of controlled substances at the rear/tail roll-up door of the U-Haul.

Whereas, Hernandez stated that he had one prior arrest for possession of cocaine in California.

Whereas, the U-Haul truck has been seized and has been in police custody since the time that it was stopped after having exited the parking lot of Yellow [F]reight. A Police Officer has maintained constant visual surveillance of the U-Haul.

Whereas, based on the information contained within this Affidavit of...