Lead Opinion
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 track. By the time Officer Palmer arrived on the scene, other officers had stopped Hernandez and he was standing outside the track 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
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 [HJispanic male had paid $2,283.83 in U.S. currency. The package was shipped COD, which was suspicious to Mr. Purcell. The [HJispanic 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 wTas some type of controlled substance.
Members of the Bensalem Township Police Department established a perimeter and waited until the [HJispanic 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 [HJispanic male, the lone occupant of the U-Haul truck. The [HJispanic 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 [sicj (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 [HJispanic 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-PIaul 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 [Fjreight. A Police Officer has maintained constant visual surveillance of the U-Haul.
Whereas, based on the information contained within this Affidavit of Probable Cause, your Affiants have established probable cause exists to believe that the U-Haul contains approx. 20 boxes that contain controlled substances, and request the issuance of the accompanying search warrant to secure evidence of violations of ACT 64.
Commonwealth v. Hernandez,
The district justice approved the warrant later that afternoon and the ensuing search of the U-Haul truck yielded over four hundred pounds of marijuana.
Our review focuses on whether the trial court properly denied suppression and our standard is well settled. “[W]e must determine whether the record supports the court’s factual findings----[If so,] we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.” Commonwealth v. Stevenson,
Under the federal Constitution, law enforcement personnel may conduct a warrantless search of an automobile as long as probable cause exists. Chambers v. Maroney,
Precisely what satisfies the exigency requirement for warrantless vehicle searches has been the subject of many of this Court’s opinions, some of which include multiple, varying expressions with no clear majority.
Then Justice, now Chief Justice, Cappy wrote the lead opinion announcing the judgment of the Court in Perry. Justice Cappy concluded that the danger posed to police constituted exigent circumstances sufficient to permit the limited, warrantless search. Id. at 703. Justice Castille wrote a concurring opinion that Madame Justice Newman joined. Justice Castille agreed that if exigency were required for warrantless vehicle searches, then danger to police surely would satisfy that requirement. However, Justice Castille was of the opinion that our state “jurisprudence should [not] require any exigency beyond the mobility of a vehicle and the unexpected development of probable cause.” Id. at 706 (Castille, J. concurring).
Justice Saylor also filed a concurring opinion. He noted that the issue was less than settled, but stated nonetheless that “both probable cause and exigent circumstances [were required] to justify a warrantless [vehicle] search.” Id. at 719. Proceeding on the belief that exigency required more than merely late or recent acquisition of probable cause, Justice Saylor agreed that the dangerous circumstances presented in Perry justified the warrantless search. Id. at 720.
In a dissenting opinion, Justice Nigro, joined by Justice Zappala, stated that validation of the search based on danger to police “unjustifiably expanded] the scope of exigent circumstances.” Id. at 724 n. 5 (Nigro, J., dissenting). Justice Flaherty did not participate in the decision.
In this case, the suppression court found that police had ample basis to stop Hernandez’s vehicle.
Although we agree with the Superior Court that the initial, warrantless search of the U-Haul truck in this case was not justified on the basis of danger to police, we explicitly hold that potential danger to police or the public indeed satisfies the exigency requirement for warrantless vehicle searches in this Commonwealth. We proceed first to clarify that principle and go on to explain why it is inapplicable here.
The notion that the possibility of danger can rise to the level of exigent circumstances in the context of a vehicle search initially was suggested in Commonwealth v. White,
We do not propose to invalidate warrantless searches of vehicles where the police must search in order to avoid danger to themselves or others, as might occur in the case where police had reason to believe that explosives were present in the vehicle. Emergencies such as this, however, are not part of this case.
Id. at 902 n. 5.
This qualifying language in White was the foundation of Justice Cappy’s opinion in Perry and, apparently, the genesis of what later became known as the controversial “police danger exception” to the warrant requirement. But neither the footnote in White nor the lead opinion in Perry purported to create a separate and new “exception” to the warrant requirement for vehicles. Rather, both expressions simply recognized that potential danger to police or the public constituted exigent circumstances, which were required, along with probable cause, for warrantless vehicle searches. Although exigency based on danger is hardly a new concept, “danger to police” as a separate “exception” nonetheless appears to have taken on a life of its own, culminating in the Superior Court’s extensive analysis in this case of whether it even exists as the basis for justifying a warrantless search. Hernandez,
The fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient. Rather, police must be able to articulate the danger posed under the specific circumstances of the case.
Applying this standard to the facts in this case, we conclude that the claim of exigent circumstances based on potential danger was not sufficiently supported on the record. The transcript from the suppression hearing reveals that the Commonwealth did not offer any evidence in support of its assertion that there was potential for harm. Officer Palmer explained his decision to search the truck with a single sentence: “I wanted to open the gate to see for officers’ safety reasons if there was someone else in the truck.” N.T., 3/8/05, at 9. He did not attempt to explain why he was concerned for his safety.
Not only did the Commonwealth fail to proffer any evidence to show that police reasonably believed that someone else was present in the truck and posed a danger to them, but the testimony and documentary evidence of record showed otherwise. Specifically, Officer Palmer testified to knowing that Yellow Freight personnel reported a Hispanic male would be driving a U-Haul truck loaded with marijuana. Id.
There is no testimony of record that Officer Palmer suspected that another person was assisting Hernandez, nor was there testimony about a period of time that the truck was outside of police surveillance when another person could have joined him. Considering the suppression hearing record in its entirety, we are compelled to conclude that there was no evidence to support police claims of danger from a second person. Further, the testimony that was offered tended to show that just a single person occupied the truck. The Commonwealth suggests that that the police acted properly because, as the suppression court concluded, there is a high level of violence associated with the drug trade and those involved in the drug trade are known to frequently be armed. Appellants Brief at 14. Such a claim may supply a rationale for why police would be concerned that Hernandez posed a danger, but it fails to demonstrate the logic of believing a second person was present in the truck. This is particularly true in light of the information police received from Yellow Freight personnel describing a single male suspect. We reject the Commonwealth’s claim that the inherently dangerous nature of the drug trade translated supplies the evidence necessary to establish potential danger in this case. Indeed, Officer Palmer was not asked and did not offer the basis for his beliefs.
We likewise reject the Commonwealth’s argument that our holding means that police can only protect themselves if they are virtually certain that life or limb is in imminent danger. Id. at 17. The fatal flaw in this case is not that the Commonwealth failed to establish with certainty that someone else might have been hiding in the truck. Instead, it is that the Commonwealth did not offer any support for such a claim, and the evidence it did offer belies it.
Our conclusion that there were no exigent circumstances here does not end the inquiry. The law is clear that where some evidence contained in a search warrant affidavit is unlawfully obtained, we must consider whether the affidavit nonetheless sets forth probable cause in the absence of such evidence. Commonwealth v. Shaw,
The suppression court concluded that even if the initial search of the truck was unlawful and the officers’ observations were subject to suppression, the affidavit in support of the warrant set forth independent probable cause. The Superior Court acknowledged the rule in Shaw, but concluded with virtually no discussion that, absent the illegally obtained information, the warrant was issued upon an insufficient basis. Hernandez,
[T]he affidavit is silent as to Mr. Purcell’s familiarity or lack of familiarity with drugs or drugs packaging. Moreover, there is nothing contained in the affidavit to support Purcell’s subjective belief that the boxes contained contraband.
Id.
Our review of the record and applicable law leads us to conclude that the Superior Court decision is incorrect for several reasons. We begin with the definition of probable cause: “The police have probable cause where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Commonwealth v. Rogers,
The Superior Court’s blanket rejection of Purcell’s report to police is unwarranted. First, it is reasonable to assume that an identified citizen who reports an observation of criminal activity to police is trustworthy, particularly in the absence of any special circumstances that would call his report into question. Commonwealth v. Sudler,
The Superior Court did not discuss the additional information contained in the affidavit; it failed to consider whether and to what extent the information “would ... have been available to police if it were not for the unconstitutional search” and it failed to apply the totality of evidence standard.
The order of the Superior Court is reversed.
Notes
. While the discussion regarding the requirements for warrantless vehicle searches in McCree was not necessarily crucial to the resolution of the matter, the various expressions in that case illustrate the differing, current viewpoints held by members of this Court.
. Hernandez does not claim that the initial stop of his vehicle was unlawful.
. At the suppression hearing, the trial judge conceded that “nothing in the information that was received from Mr. Purcell ... tended to establish that ... [Hernandez] had someone accompanying him.” N.T. 3/8/05, at 39. Nonetheless, the court concluded that "none of [Purcell's] information ... exclude[d] that possibility,” thus, the search was justified. We cannot agree. The Commonwealth has the burden of affirmatively establishing exigent circumstances; it is not enough that ■ the possibility of exigent circumstances was not disproved.
. The Commonwealth argues that Hernandez’s statements to police, admitting that he was carrying contraband, likewise should be included in the evidence constituting probable cause. While the suppression transcript sheds little light on this issue, and the Superior Court reached no specific conclusion in this regard, we will assume, for argument's sake, that Hernandez’s confession to police was the “product” of the initial, unlawful search. But our assumplion does not change the result in this case, as our analysis demonstrates that probable cause was made out even in the absence of Hernandez’s admissions.
Concurrence Opinion
I concur in the result only, as I believe the warrantless search of the vehicle in this case was justified under the automobile exception to the warrant requirement. The Majority begins its analysis of the automobile exception under the Pennsylvania Constitution by declaring that “[tjhis dual requirement of probable cause plus exigency is an established part of our state constitutional jurisprudence.” Majority Op. at 328,
In a separate concurrence in McCree, I noted my agreement with the Chief Justice’s assessment that “the status of the automobile exception under Article I, Section 8 is uncertain.” McCree,
engaged in an extensive analysis of this Court’s precedent concerning the automobile exception, distinguishing what was clear and binding authority and what was not binding or persuasive, and I set forth my own views on the proper approach under Article I, Section 8. There is no need to repeat that analysis here. It is enough to state, for present purposes, that: (1) if this Court were to squarely face the question of what is demanded by Article I, Section 8 respecting automobile searches, I remain inclined to hold that our approach should be coextensive with the federal approach under the Fourth Amendment; and (2) failing that square joinder of the issue, it is my view that this Court’s existing Article I, Section 8 holdings in this area (which do not include a state constitutional analysis under Commonwealth v. Edmunds,526 Pa. 374 ,586 A.2d 887 (1991)), at most suggest that, if Article I, Section 8 requires an exigency to justify a probable cause-based warrantless entry of a vehicle (probable cause is the only federal requirement), all that is required is that the probable cause “arose unexpectedly, ie., in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose.” Perry,798 A.2d at 717 (Castille, J., concurring).2
McCree,
As I noted in Pern/, although there have been state constitutional holdings rendered under Article I, Section 8 which advert to some exigency beyond the federal requirement, there has yet to be a candid and responsible Edmunds-style state
This area of the law has not represented this Court’s finest jurisprudential hour. Unless and until this Court tackles the state constitutional question head-on via a thorough Edmunds analysis, I do not view the notion that the Pennsylvania Constitution requires more than the Fourth Amendment in this area as “settled” or “established.” We have holdings, without explanation, invoking cases which rely upon, and misapprehend, the Fourth Amendment. As I said in Perry, “Pennsylvania constitutional jurisprudence should be made of sterner stuff.” Id. at 714.
The McCree OAJC could safely ignore Perry because no majority expression emerged in that case. But the same is true of McCree, with respect to the contours of the Pennsylvania automobile exception. Because no majority expression emerged from McCree on this point, that OAJC is certainly not support for “establishing” some distinct state constitutional view of the Pennsylvania automobile exception.
In holding that police acted unlawfully in conducting the automobile search in the case sub judice, the Majority focuses exclusively upon the police danger exception which the Perry OAJC invoked to authorize the search in that case. It is notable, however, and wise, that today’s Majority does not purport to approve the legislative-type contours of the police danger exception as expressed in the Perry OAJC. As I noted in my Peiry concurrence, the Perry OAJC “extrapolatefd] from White a quasi-legislative construct governing automobile searches that sets forth various multi-part tests depending upon the type of exigency that is perceived.” Perry,
Today’s Majority sensibly declines to follow a legislative-type approach to constitutional explication. The contours of a police danger “exception” obviously have to arise from actual cases. The police danger exigency (to the extent one is needed with an automobile search) must allow sufficient flexibility to forward the sole constitutional value at issue, which is that police act reasonably and not arbitrarily. Police obviously must be able to negate danger to themselves and the public even if the danger is short of deadly. Moreover, there need not be a “great” potential of deadly danger, but a reasonable potential, or a colorable potential. Also, we should not adopt a rule under which police must suffer the deadly consequences if their actions somehow “created” the exigency.
Although today’s Majority wisely avoids legislating an ad hoc police danger exception, I cannot agree with its exclusive focus upon that exception under the facts sub judice. In its transition after explaining why it finds no police danger in this case, the Majority refers to its conclusion as being “that there were no exigent circumstances here.” Majority Op. at 334,
In my view, decisions from this Court such as Commonwealth v. Baker,
This Court has approved warrantless vehicle searches so long as: (1) police had probable cause, and (2) the probable cause arose unexpectedly, i.e., in circumstances that prevented police from securing a warrant before probable cause to search the vehicle arose.... The actual holding in White obviously fits this construct — as do numerous cases decided before or contemporaneously with White.
For example, in Baker, the police received a tip from a reliable informant that the defendant had waved a gun at an unknown individual in an alley. The informant stated that the defendant was driving an old, dilapidated red convertible with the top down. Police soon located the car with the defendant in it and set up surveillance. After approximately twenty to thirty minutes, the police approached, the defendant exited the car and, subsequently, the police searched the vehicle. In a unanimous opinion, this Court upheld the warrantless vehicle search, reasoning as follows:
[Cjertain exigencies may render the obtaining of a warrant not reasonably practicable under the circumstances of a given case, and, when that occurs, vehicle searches conducted without warrants have been deemed proper where probable cause was present.... This is not a case where police knew hours in advance that a particular vehicle carrying evidence of crime would be parked in a particular locale, such that it would have been reasonably practicable to obtain a search warrant before encountering the vehicle to be searched. Rather the instant search was conductedwhen police stopped a moving vehicle just thirty minutes after a reported crime. Inasmuch as the requirement of probable cause was satisfied, the exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search proper.
Commonwealth v. Baker,
Baker was recently cited approvingly in Commonwealth v. Luv,
Moreover, Baker’s approach has been embraced in numerous other cases decided by this Court. In those cases, whether the police had previous information that a particular vehicle would be involved in the commission of a crime has been the decisive factor in determining whether exigent circumstances justified a warrantless automobile search. See Commonwealth v. Labron,543 Pa. 86 ,669 A.2d 917 (1995) (Labron I) (no exigent circumstances where, prior to arranging surveillance of defendant, officer had specific information that defendant used his Lincoln automobile to transport drugs); Commonwealth v. Rodriguez,526 Pa. 268 ,585 A.2d 988 (1991) (exigent circumstances exist where police did not have advance notice that defendant and her husband would be traveling in York County in particular automobile); Commonwealth v. Ionata,518 Pa. 472 ,544 A.2d 917 (1988) (plurality) (no exigent circumstances where police had four hours’ advance notice that defendant would be transporting drugs in particular automobile and had obtained search warrant for defendant’s person and premises).
Perry,
The White dicta did not purport to overrule the Baker line of cases, a line which includes cases decided after White; and the Perry OAJC’s misapplication of the Baker line (by en-grafting the White dicta onto Baker), as a single-Justice expression, obviously could not diminish the precedential value of this series of majority expressions. The warrantless police search in this case was lawful under the Baker line and we should not give a contrary impression by overstating our holding.
Finally, although I would not reach the second issue concerning the independent validity of the search warrant, I write to register a concern with the Majority’s discussion of this Court’s canine sniff cases, as that is another problematic area in this Court’s search and seizure jurisprudence in need of reconsideration. Accurately citing Commonwealth v. Rogers, 578 Pa. 127,
1 concur in the result.
. The McCree OAJC was a majority opinion in some respects, but a plurality with respect to the automobile search issue.
. The OAJC in McCree never cited or discussed the Perry case.
. In his separate concurrence in Perry, Justice Saylor articulated his view of the exigency requirement emerging from the cases in slightly broader terms: "this Court has indicated, in the automobile paradigm, tha1 sufficient exigency is present where, because of the attending circumstances, it was not reasonably practicable for the police to obtain a warrant.”
. The fact that the Commonwealth fails to argue the Baker line does not preclude us from realizing the propriety of the police conduct under another settled line of authority. The suppression court denied relief and we must affirm that determination if it is correct for any reason, even if the reason differs from that accepted by the court below. See Moorhead v. Crozer Chester Med. Ctr.,
Concurrence Opinion
concurring.
Subject to the understanding that the majority addresses itself only to a subset of the circumstances that can reasonably be deemed “exigent” for purposes of the automobile exception to the warrant requirement as it pertains in Pennsylvania, I join the majority opinion. I obviously share Mr. Justice Castille’s view that the exception applies more broadly, as reflected in my decision to join the lead opinion in Commonwealth v. McCree,
Finally, I see no further need to consider whether the search in this case falls within the broader scope of the exigent circumstances exception, since I agree with the majority that the affidavit of probable cause contains sufficient independent information to support the issuance of the search warrant.