Commonwealth v. Hernandez

¶1concurring.

¶2While I agree with the analysis and conclusions reached by the majority, I feel it is important to recognize and address appellant’s challenge to the validity of the Tennessee search warrant.

¶3Appellant seeks to assert that his Fourth Amendment rights were violated as the search warrant, issued two (2) days after his arrest on March 26, 1988, was not supported by probable cause. Based upon this allegation, appellant concludes that all evidence seized from his automobile pursuant to the warrant should have been suppressed. This contention is without merit.

¶4Initially, the law to be utilized in determining the validity of a search warrant, and our consequent standard of review on appeal, is governed by Tennessee law.1 As set forth by the Tennessee Supreme Court,

[t]he Fourth Amendment warrant requirement mandates a probable cause determination made by a neutral and detached magistrate. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 396, 92 L.Ed. 436 (1948). Where the determination is made by such a magistrate, it is entitled to “great deference” by a reviewing court. The reviewing court’s standard is whether the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of wrongdoing, (citations omitted).

¶5State v. Jacumin, 778 S.W.2d 430, 432 (Tenn.1989) (emphasis added). “ ‘[I]n passing on the validity of a warrant, the reviewing court may consider only the information brought to the magistrate’s attention.’ ” Id., citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964) (emphasis in original). And this information is to be contained in an affidavit of probable cause. See Id., citing Tenn.R.Crim.P., Rule 41(c). See also Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21 (1956) (It is from the contents *167of the affidavit for search warrant that the magistrate determines the existence of probable cause). With these principles in mind, it must be determined whether the issuing magistrate had a substantial basis for concluding that there was probable cause.

¶6As stated by the Court of Appeals for the Sixth Circuit in United States v. Acklen, 690 F.2d 70 (6th Cir.1982), the test for probable cause is

... whether “the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief’ that certain items are the fruits, instrumentalities, or evidence of crime and that these items are presently to be found at a certain place.

¶7United States v. Acklen, 690 F.2d 70, 73 (6th Cir.1982), citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (emphasis added).2 The recitation of facts set forth in the affidavit must provide a nexus between the crime and the automobile to be searched so that one can reasonably conclude that the evidence is in the place sought to be searched. State v. Longstreet, 619 S.W.2d 97, 99 (Tenn.1981), citing Whitley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 565-566, [91 S.Ct. 1031, 1035-1036, 28 L.Ed.2d 306] (1971).

¶8In the instant case, the Statement of Probable Cause, attached to the Affidavit, alleges the following facts:

*1681) On March 21, 1988, at approximately 9:35 a.m., the bodies of four (4) people were discovered in Philadelphia, Pennsylvania;

2) These bodies were the father, step-mother and two (2) step-brothers of Jose Enrique Hernandez (appellant herein);

3) Jose Enrique Hernandez was seen going in and out of the house in which the bodies were discovered the entire week of March 14, 1988 thru March 21,1988, the date the bodies were found;

4) Based upon this information, a Pennsylvania Arrest Warrant was obtained for Jose Enrique Hernandez, alleging four (4) counts of murder;

5) On March 24, 1988, at approximately 1:30 a.m., Jose Enrique Hernandez was taken into custody by Tennessee State Trooper Deal, after Trooper Deal observed Hernandez acting suspiciously while resting at Reed’s Truck Stop in Dickson County, Tennessee;

6) Due to Hernandez’s suspicious behavior, Trooper Deal entered the license plate on Hernandez’ automobile and found out that the occupant of the vehicle was wanted on four (4) counts of murder;

7) Based on the above information, plus the fact that the evidence sought [i.e. blood samples, or bloody clothing/rags, .22 caliber ammunition (affiant knows that the murder weapon used was a .22 caliber pistol), or any notes, writing, or papers in relation to the four murders on or about March 14, 1988] was not found in the Philadelphia residence of the victims, the affiant believed there was probable cause to search the automobile which Hernandez was driving.

¶9See “Affidavit and Search Warrant for Evidence of Crime” and “Statement of Probable Cause” attached thereto. After reviewing these facts and circumstances, it is not unreasonable to conclude that the items sought, since not present in appellant’s home in Philadelphia, might be present in the car which appellant utilized to drive from Pennsylvania into Tennessee. See United States v. Hatfield, 599 F.2d 759, *169762 (6th Cir.1979), citing United States v. Hodge, 539 F.2d 898, 903 (6th Cir.1976), quoting Brinegar, supra338 U.S. at 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (“In dealing with probable cause ... as the very name implies, we deal with probabilities.”) Given the facts of the Affidavit, and as commonsense dictates that there was a probability that the items might be in the automobile, the magistrate had a substantial basis for issuing the search warrant. See Id. at 762, citing United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) (Where a recitation of the underlying circumstances in the affidavit are detailed, and where the magistrate has found probable cause, the courts should not interpret the validity of a warrant other than by a commonsense analysis.) Therefore, appellant’s assertion that his Fourth Amendment rights were violated is without merit.