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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : JONATHAN H. DELACRUZ, :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. D elacruz (“Delacruz”). After reconsideration, 1 we reverse. The facts underlying this appeal, summarized by th e 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 Coun ty 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 Tas k Force became aware that Delacruz and Kevin

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

- 2 - 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 sellin g 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 pla ce 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 theJ-A23008-14

- 3 - 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 crac k 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 call ed 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 Driv e addresses. Attached to each application was an identical Affidavit of Probable Cause. A review of the Affidavit reveals: that neither Delacruz’s white Fo rd nor Zack’s vehicle was ever seen at the Bucknell address; that Delacruz, Zack, and Coggins are liste d as the ‘[o]wner, occupier, or possessor’ of each ofJ-A23008-14

- 4 - 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 n o 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 bri efs, 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 grantin g 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 (footno te 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 su bstantially handicapped the prosecution pursuant to Pa.R.A.P. 311(d). It t hereafter 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 on e issue for our review: “Did the suppression court err in suppressing evide nce found via a search warrant served at 150 Bucknell Avenue, Rear, Johnst own, PA?”

Commonwealth’s Brief at 5.J-A23008-14

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We review a decision concerning a motion to suppre ss to discern whether the suppression court’s findings of fact ar e supported by the record and whether the legal conclusions drawn therefrom a re correct. Commonwealth v. Thompson , 93 A.3d 478, 484 (Pa. Super. 2014) (citation omitted). We are not bound by the suppre ssion court’s legal conclusions, but must apply the law to the supporte d 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 ha d a privacy interest in the Bucknell address that permitted him to challenge th e search of that location (Commonwealth’s Brief at 10-16), and (2) the suppre ssion court erred by finding that the warrant request contained insuffic ient 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 f ollowing reasons. 2

2 We initially found this sub-part waived based upo n the Commonwealth’s failure to challenge Delacruz’s claimed privacy int erest at the suppression hearing, raising it instead in a responsive post-su bmission 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 Commonw ealth filed a petition for reconsideration, therein citing for the first t ime 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 C ommonwealth’s failure to timely challenge the adequacy of the defendant’s st ated privacy interest. See Commonwealth v. Hawkins , 718 A.2d 265, 268 n.3 (Pa. 1998). We granted reconsideration.J-A23008-14

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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 iden tifying Delacruz as an “owner, occupant or possessor” of the residence on the face sheet of the warrant request associated with that property. Mot ion 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 fu rther argued in the

alternative that the inclusion of Delacruz as an “o wner, occupant or possessor” of the Bucknell address constituted a “m aterial 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 burd en of proof. See Suppression Court Opinion, 10/28/13, at 5. We need not remand the case for a supplemental opinion addressing this issue, h owever, as the question of whether a defendant had an expectation of privac y in an area searched is purely a legal question for which our review is “pl enary and non-deferential.”

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

Under both the Fourth Amendment to the United Stat es Constitution and Article I, Section 8 of the Pennsylvania Consti tution, a defendant isJ-A23008-14

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required to prove that he or she has a legitimate e xpectation 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 wh en

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 o f 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 individua l 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 i n 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 jurisprud ence, a criminal defendant charged with a possessory offense has aut omatic standing to challenge a search, entitling him or her to “an adj udication 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).J-A23008-14

- 8 - 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 sea rch warrant seeking the name of the owner, occupant or possessor of the Bucknell address, the Commonwealth listed Zack, Coggins and Delacruz. De fendant’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 pr ivacy 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 Delacru z), the argument here is that the Commonwealth should be estopped fr om claiming that Delacruz lacks a privacy interest based upon its re presentation in the

warrant. See Commonwealth’s Brief at 13. Neither the trial cou rt nor Delacruz cited any law, below or on appeal, that re cognizes a privacy interest by estoppel, and our research likewise has revealed none.

There was no evidence of record from which the cour t could find that Delacruz had a privacy interest in the Bucknell pro perty. To the contrary,

Detective Kevin Price testified as follows: “The B ucknell 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 propert y. Samantha Zack is living with Delacruz.” N.T., 7/3/13, at 38 (emphas is added). Moreover,J-A23008-14

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Delacruz presented no evidence that he had a key to the Bucknell address, had access to the premises, stored clothing or poss essions there, had the ability to exclude people from the residence, or th at he believed he had an expectation of privacy there. See Bostick , 958 A.2d at 553. Furthermore, although the Commonwealth purports to connect contr aband found at the Bucknell residence to Delacruz, there was no eviden ce that Delacruz conducted any illegal activity on the premises. See id. As such, we agree

with the Commonwealth that Delacruz failed to satis fy 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 contraba nd seized from that

location. 4 Delacruz also belatedly raised a Franks v. Delaware 5 argument below, claiming that the inclusion of his name as a n “owner, occupant or

4 In his responsive brief filed in this Court on ap peal, Delacruz states that he did not present this evidence “because a challenge to [his] privacy interest was not raised by the Commonwealth at the suppressi on hearing.” Delacruz’s Brief at 12. However, to be entitled to suppression of evidence, the defendant has the burden to prove that he or sh e 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 fai lure to satisfy this burden of proof is not waivable for failing to timely chal lenge 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 aJ-A23008-14

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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 cau se for the issuance of the warrant. Brief in Support of Motion to Suppress Ph ysical Evidence, 7/22/13, at 11-13; see also Delacruz’s Brief at 14. We question whether the f ailure to raise this argument in his motion to suppress re sults in its waiver, especially in light of the fact that the trial cour t did not address this

defendant has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual averments in an affidavit o f 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 besupported by more than a mere desire to crossexamine [ ]’; 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 establis h probable cause, no hearing is required. If the affidavit’s remaining content is insufficient, a he aring 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 disregard ed; if its remaining content is insufficient to establi sh 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).J-A23008-14

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

that Delacruz’s failure to establish that he had a legitimate expectation of privacy in the area searched precluded relief on hi s 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 challeng e to the search and seizure, [...] a defendant accused of a po ssessory crime must [] establish, as a threshold matter, a legally cogniza ble 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 ev idence recovered by the police during the search of that property. We ther efore reverse the trial court’s order granting suppression as to the contra band obtained from the Bucknell address and remand the case for further pr oceedings.

Order reversed. Case remanded. Jurisdiction relin quished.

Judgment Entered.J-A23008-14

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Joseph D. Seletyn, Esq. Prothonotary Date: 11/7/2014