J-A23008-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                      Appellant           :
                                          :
             v.                           :
                                          :
JONATHAN H. DELACRUZ,                     :
                                          :
                      Appellee            : No. 1242 WDA 2013

                 Appeal from the Order entered July 29, 2013,
                   Court of Common Pleas, Cambria County,
             Criminal Division at No(s): CP-11-CR-0000538-2012,
            CP-11-CR-0000540-2012 and CP-11-CR-0000541-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 07, 2014

       The Commonwealth of Pennsylvania appeals from the July 29, 2013

order entered by the Cambria County Court of Common Pleas granting, in

part, the motion to suppress filed by Jonathan H. Delacruz (“Delacruz”).

After reconsideration,1 we reverse.

       The facts underlying this appeal, summarized by the suppression

court, are as follows:

             Detective Kevin Price (Price) testified that he is a
             detective with the Cambria County District Attorney’s
             Office and the field supervisor of the Cambria County
             Drug Task Force (Task Force). Price testified, in
             conformity with the affidavit of probable cause
             (Affidavit)  attached     to   the    search  warrant
             applications, that during an investigation into the
             sale of crack cocaine in the Johnstown area the Task
             Force became aware that Delacruz and Kevin


1
    See infra, n.2.
J-A23008-14


          Coggins (Coggins) may be involved in the drug
          trade. The Task Force initiated surveillance of the
          pair along with their known or suspected residences
          at 171 State Street and 1937 Minno Drive[FN] both in
          Johnstown. The Task Force eventually became aware
          that Samantha Zack (Zack) was living with Delacruz
          on State Street but listed her address as Rear 150
          Bucknell Avenue with her probation officer.

          During the surveillance[,] the Task Force learned
          that Delacruz owned a black Mazda registered to him
          at a Haynes Street address that was frequently
          driven by Coggins and was renting a white Ford
          Taurus that he would drive. The Task Force utilized
          two confidential informants (CI) to make a total of
          five controlled drug buys from Delacruz and Coggins.

          Buy 1: On February 6, 2012[,] a CI called Delacruz’s
          phone and spoke with Coggins who arranged to meet
          the CI on Virginia Avenue for the purpose of selling
          him crack cocaine. Coggins arrived in the black
          Mazda, the transaction took place and Coggins left.
          The Task Force did not know where Coggins came
          from or returned to. The substance obtained from
          Coggins tested positive as cocaine.

          Buy 2: On February 10, 2012[,] a CI called Delacruz
          who arranged to meet the CI on Virginia Avenue for
          the purpose of selling him crack cocaine. Delacruz
          arrived in the white Ford, the transaction took place
          and Delacruz left. The Task Force did not know
          where Delacruz came from or returned to but did
          observe him later at the State Street address. The
          substance obtained from Delacruz tested positive as
          cocaine.

          Buy 3: On February 15, 2012[,] a CI called
          Delacruz’s phone who arranged to meet the CI for
          the purpose of selling him crack cocaine. Coggins
          arrived in the black Mazda, the transaction took
          place and Coggins left. The Task Force did not know
          where Coggins came from but followed him to
          3[]Red’s Bar following the transaction. During the



                                  -2-
J-A23008-14


          transaction[,] surveillance was being conducted on
          the State Street address and Zack was observed
          there. The substance obtained from Coggins tested
          positive as cocaine.

          Buy 4: On February 16, 2012[,] a CI called
          Delacruz’s phone who arranged to meet the CI on
          Virginia Avenue for the purpose of selling him crack
          cocaine. Coggins arrived in the black Mazda, the
          transaction took place and Coggins left. The Task
          Force did not know where Coggins came from but
          followed him to the Bucknell address following the
          transaction. During the transaction[,] surveillance
          was being conducted on the State Street address
          and both Delacruz and Zack were observed there.
          The substance obtained from Coggins tested positive
          as cocaine.

          Buy 5: On February 25, 2012[,] a CI called
          Delacruz’s phone who informed the CI he was out of
          town and told him to call Coggins. The CI then called
          Coggins who arranged to meet the CI for the
          purpose of selling him crack cocaine. Coggins was
          observed leaving the State Street address in the
          black Mazda and driving to the Minno Drive location.
          Coggins exited the vehicle there, was not observed
          entering the building, reentered his vehicle and
          drove to Virginia Avenue where the transaction was
          to occur. The transaction took place, Coggins left and
          was observed driving to the Bucknell address and
          entering the residence there. He then left Bucknell
          and returned to State Street. The substance
          obtained from Coggins tested positive as cocaine.

          Based upon these transactions and surveillance[,]
          Price filed three applications for search warrants, one
          each for the Bucknell, State Street, and Minno Drive
          addresses. Attached to each application was an
          identical Affidavit of Probable Cause. A review of the
          Affidavit reveals: that neither Delacruz’s white Ford
          nor Zack’s vehicle was ever seen at the Bucknell
          address; that Delacruz, Zack, and Coggins are listed
          as the ‘[o]wner, occupier, or possessor’ of each of



                                   -3-
J-A23008-14


            the properties; and that Coggins was observed on
            one occasion driving to the Minno Drive address to
            pick up mail but was not seen entering the
            residence. Further, the Affidavit includes no
            information that any member of the Task Force or
            any CI was told by Delacruz or Coggins that drugs
            were stored at any of the locations or that they
            personally observed drugs at those places.

            Delacruz moved to suppress the evidence obtained
            from all three warrants as to him[,] arguing that no
            connection or nexus [exists] between his street
            activities and those locations. Following a hearing on
            the motion held July 3, 2013[,] the Court directed
            the parties to file briefs. After review of the briefs,
            hearing testimony, and law[,] the Court entered its
            July 29, 2013, Order denying the motion as to the
            State Street and Minno Drive properties and granting
            it as to the Bucknell address.
            _____________________
            [FN]
                  Delacruz listed the Minno Drive address as his
            residence but was known to be living at the State
            Street address.

Suppression Court Opinion, 10/28/13, at 2-4 (footnote included in the

original; other footnote omitted).

      The Commonwealth filed a timely notice of appeal, certifying therein

that the suppression court’s order terminated or substantially handicapped

the prosecution pursuant to Pa.R.A.P. 311(d).      It thereafter complied with

the trial court’s order for a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).      It raises one issue for our review:

“Did the suppression court err in suppressing evidence found via a search

warrant   served   at   150   Bucknell   Avenue,    Rear,   Johnstown,   PA?”

Commonwealth’s Brief at 5.



                                     -4-
J-A23008-14


      We review a decision concerning a motion to suppress to discern

whether the suppression court’s findings of fact are supported by the record

and   whether    the   legal    conclusions   drawn   therefrom   are   correct.

Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa. Super. 2014)

(citation omitted).    We are not bound by the suppression court’s legal

conclusions, but must apply the law to the supported facts found by the

suppression court.     Id.     The suppression court’s conclusions of law are

subject to our plenary review. Id.

      The Commonwealth presents its argument in two sub-parts: (1) the

suppression court erred by finding that Delacruz had a privacy interest in the

Bucknell address that permitted him to challenge the search of that location

(Commonwealth’s Brief at 10-16), and (2) the suppression court erred by

finding that the warrant request contained insufficient probable cause to

connect Delacruz to the Bucknell address (id. at 16-26). We begin with the

first sub-part, which we find dispositive for the following reasons.2




2
    We initially found this sub-part waived based upon the Commonwealth’s
failure to challenge Delacruz’s claimed privacy interest at the suppression
hearing, raising it instead in a responsive post-submission brief filed three
weeks after the suppression hearing. See Brief in Opposition to Defendant’s
Motion to Suppress, 7/26/13, at 10-11. The Commonwealth filed a petition
for reconsideration, therein citing for the first time to a footnote in a 1998
Supreme Court decision that states that a challenge to the defendant’s
privacy interest is not subject to waiver for the Commonwealth’s failure to
timely challenge the adequacy of the defendant’s stated privacy interest.
See Commonwealth v. Hawkins, 718 A.2d 265, 268 n.3 (Pa. 1998). We
granted reconsideration.


                                       -5-
J-A23008-14


      The record reflects that in his motion to suppress and at the

suppression hearing itself, Delacruz claimed he had a privacy interest in the

Bucknell address by virtue of the Commonwealth identifying Delacruz as an

“owner, occupant or possessor” of the residence on the face sheet of the

warrant request associated with that property. Motion to Suppress Physical

Evidence, 4/26/13, at 2 n.1; N.T., 7/3/13, at 47; see also Defendant’s

Exhibit C.    In his post-hearing motion, Delacruz further argued in the

alternative that the inclusion of Delacruz as an “owner, occupant or

possessor” of the Bucknell address constituted a “material misrepresentation

of fact,” pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Brief in

Support of Motion to Suppress Physical Evidence, 7/22/13, at 11-13.

      Although recognizing that Delacruz was required to establish that he

had a legitimate expectation of privacy, the trial court failed to address in its

written opinion whether Delacruz satisfied his burden of proof.             See

Suppression Court Opinion, 10/28/13, at 5. We need not remand the case

for a supplemental opinion addressing this issue, however, as the question

of whether a defendant had an expectation of privacy in an area searched is

purely a legal question for which our review is “plenary and non-deferential.”

Commonwealth v. Millner, 888 A.2d 680, 686 (Pa. 2005) (citation

omitted).

      Under both the Fourth Amendment to the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution, a defendant is



                                      -6-
J-A23008-14


required to prove that he or she has a legitimate expectation of privacy in

the area searched in order to prevail on a request to suppress the evidence

seized.3   Commonwealth v. Bostick, 958 A.2d 543, 551 (Pa. Super.

2008).

            An expectation of privacy will be found to exist when
            the individual exhibits an actual or subjective
            expectation of privacy and that expectation is one
            that society is prepared to recognize as reasonable.
            In determining whether a person’s expectation of
            privacy is legitimate or reasonable, the totality of the
            circumstances must be considered and the
            determination will ultimately rest upon a balancing of
            the societal interests involved. The constitutional
            legitimacy of an expectation of privacy is not
            dependent on the subjective intent of the individual
            asserting the right but on whether the expectation is
            reasonable in light of all the surrounding
            circumstances.

                                  *    *    *

            [F]actors to be considered in determining whether a
            defendant has a legitimate expectation of privacy in
            another person’s home include: (1) possession of a
            key to the premises; (2) having unlimited access to
            the premises; (3) storing of clothing or other
            possessions on the premises; (4) involvement in
            illegal activities conducted on the premises; (5)
            ability to exclude other persons from the premises;



3
      Pursuant to Pennsylvania constitutional jurisprudence, a criminal
defendant charged with a possessory offense has automatic standing to
challenge a search, entitling him or her to “an adjudication of the merits of a
suppression motion.” Hawkins, 718 A.2d at 267. “In order to prevail on
such a motion, however, a defendant is required to separately demonstrate
a personal privacy interest in the area searched or effects seized, and that
such interest was actual, societally sanctioned as reasonable, and
justifiable.” Id. (citation and quotation omitted).


                                      -7-
J-A23008-14


            and (6) expression of a subjective expectation of
            privacy in the premises.

Id. at 552, 553 (citations omitted).

      The record reflects that in the portion of the search warrant seeking

the name of the owner, occupant or possessor of the Bucknell address, the

Commonwealth listed Zack, Coggins and Delacruz.       Defendant’s Exhibit C.

This by itself does not create a legally cognizable privacy interest in

Delacruz, as it is not an actual or a subjective privacy interest or one that

society would find to be reasonable.     See Bostick, 958 A.2d at 552.     As

stated by the Commonwealth (and conceded by Delacruz), the argument

here is that the Commonwealth should be estopped from claiming that

Delacruz lacks a privacy interest based upon its representation in the

warrant.   See Commonwealth’s Brief at 13.       Neither the trial court nor

Delacruz cited any law, below or on appeal, that recognizes a privacy

interest by estoppel, and our research likewise has revealed none.

      There was no evidence of record from which the court could find that

Delacruz had a privacy interest in the Bucknell property. To the contrary,

Detective Kevin Price testified as follows: “The Bucknell address, the only

common thread we had was we saw Coggins going there. We never saw

Delacruz go there, but we saw Coggins go there on two different

occasions. Samantha Zack’s father owns the property. Samantha Zack is

living with Delacruz.”   N.T., 7/3/13, at 38 (emphasis added).       Moreover,




                                       -8-
J-A23008-14


Delacruz presented no evidence that he had a key to the Bucknell address,

had access to the premises, stored clothing or possessions there, had the

ability to exclude people from the residence, or that he believed he had an

expectation of privacy there. See Bostick, 958 A.2d at 553. Furthermore,

although the Commonwealth purports to connect contraband found at the

Bucknell residence to Delacruz, there was no evidence that Delacruz

conducted any illegal activity on the premises. See id. As such, we agree

with the Commonwealth that Delacruz failed to satisfy his burden of proving

that he had a legitimate expectation of privacy in the Bucknell address such

that he was entitled to suppression of the contraband seized from that

location.4

      Delacruz also belatedly raised a Franks v. Delaware5 argument

below, claiming that the inclusion of his name as an “owner, occupant or



4
  In his responsive brief filed in this Court on appeal, Delacruz states that he
did not present this evidence “because a challenge to [his] privacy interest
was not raised by the Commonwealth at the suppression hearing.”
Delacruz’s Brief at 12. However, to be entitled to suppression of evidence,
the defendant has the burden to prove that he or she has a legitimate
expectation of privacy in the area searched. Commonwealth v. Caban, 60
A.3d 120, 126 (Pa. Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013)).
As stated above, a challenge to the defendant’s failure to satisfy this burden
of proof is not waivable for failing to timely challenge it before the
suppression court. Hawkins, 718 A.2d at 268 n.3.
5
    Our Supreme Court explained the holding of Franks v. Delaware as
follows:
           The United States Supreme Court recognized the
           right to challenge an affidavit’s veracity in Franks v.
           Delaware, […] which addressed whether a


                                     -9-
J-A23008-14


possessor” of the Bucknell residence was a material misstatement of fact

knowingly and deliberately made by the affiant with reckless disregard for

the truth, resulting in the absence of probable cause for the issuance of the

warrant. Brief in Support of Motion to Suppress Physical Evidence, 7/22/13,

at 11-13; see also Delacruz’s Brief at 14. We question whether the failure

to raise this argument in his motion to suppress results in its waiver,

especially in light of the fact that the trial court did not address this


           defendant has the right, under the Fourth and
           Fourteenth      Amendments,      to    challenge     the
           truthfulness of factual averments in an affidavit of
           probable cause. The Court held where the defendant
           makes a substantial preliminary showing the affiant
           knowingly and intentionally, or with reckless
           disregard for the truth, included a false statement in
           the affidavit, the Fourth Amendment requires a
           hearing be held at the defendant’s request. The
           Court emphasized the defendant’s attack on the
           affidavit must be ‘more than conclusory and must be
           supported by more than a mere desire to cross-
           examine [ ]’; the defendant must allege deliberate
           falsehood or reckless disregard for the truth,
           accompanied by an offer of proof. If the defendant
           meets these requirements, but the remainder of the
           affidavit’s content is still sufficient to establish
           probable cause, no hearing is required. If the
           affidavit’s remaining content is insufficient, a hearing
           is held, at which the defendant must establish, by a
           preponderance of the evidence, the allegation of
           perjury or reckless disregard. If he meets this
           burden, the affidavit’s false material is disregarded;
           if its remaining content is insufficient to establish
           probable cause, the search warrant is voided, and
           the fruits thereof are excluded.

Commonwealth v. James, 69 A.3d 180, 188 (Pa. 2013) (internal citations
to Franks omitted).


                                    - 10 -
J-A23008-14


argument in its written opinion. Nonetheless, we are compelled to conclude

that Delacruz’s failure to establish that he had a legitimate expectation of

privacy in the area searched precluded relief on his Franks v. Delaware

claim.   See Commonwealth v. Hawkins, 718 A.2d 265, 268 n.3 (Pa.

1998) (it is “an essential element” for a defendant seeking suppression to

satisfy the burden of proving that he or she has a legitimate expectation of

privacy); Commonwealth v. Caban, 60 A.3d 120, 126 (Pa. Super. 2012),

appeal denied, 79 A.3d 1097 (Pa. 2013) (“To prevail in a challenge to the

search and seizure, […] a defendant accused of a possessory crime must []

establish, as a threshold matter, a legally cognizable expectation of privacy

in the area searched.”).

      As Delacruz failed to provide any evidence that he had a legitimate

expectation of privacy in Rear 150 Bucknell Avenue, we conclude that the

trial court erred by granting suppression of the evidence recovered by the

police during the search of that property.   We therefore reverse the trial

court’s order granting suppression as to the contraband obtained from the

Bucknell address and remand the case for further proceedings.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




                                   - 11 -
J-A23008-14


Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/7/2014




                          - 12 -
