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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. 
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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 
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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
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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. 
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 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. 
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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 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 
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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). 
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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, 
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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 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 
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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 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 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 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). 
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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. 
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Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/7/2014