J-A10037-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ADIAN CRUZ

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 703 EDA 2023

Appeal from the Order Entered February 10, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009127-2021

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED JULY 1, 2024

The Commonwealth appeals from the order entered by the Philadelphia 

County Court of Common Pleas (the “trial court”) granting the motion filed by 

Adian Cruz (“Cruz”) to suppress evidence obtained by police during a traffic 

stop. The evidence in question was paper-wrapped blocks, containing several

packets of controlled substances, which were located in a closed plastic bag 

inside an open-top Christmas gift bag. The Commonwealth argues that the 

trial court erred in finding that Cruz had a reasonable expectation of a privacy 

in the plastic bag that contained the controlled substances and that police did 

not observe the drugs in plain view. We affirm.

The trial court summarized the relevant factual and procedural histories

of this case as follows:

[The trial court] held a hearing on January 12, 2023, on 

[Cruz’s] [m]otion to [s]uppress physical evidence recovered from 
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a vehicle stop. The Commonwealth called Philadelphia Police 

Officer Jason [Keen] to testify about his stop and search of the 

vehicle in which [Cruz] was a passenger. Officer [Keen] testified 

that on May 4, 2021, while his police car was stopped at an 

intersection, he and his partner saw an automobile cross the 

intersection. Officer [Keen] saw two men sitting in the back seat, 

who looked in his direction with their eyes widened, turned their 

heads, and simultaneously looked down towards the floor. The 

officers then pulled over the motor vehicle for a tag cover 

violation. After the officers pulled over the vehicle, its driver 

handed a business card to Officer [Keen, which] indicated that he 

worked for Shannon Cab Company, and [he] showed [the officers]

his tablet computer documenting that he was currently in the 

process of completing a trip.

Officer [Keen] then requested [identification] from the two 

passengers sitting in the back seat, [Cruz] and Lamont Roundtree

[(“Roundtree”)]. While Officer [Keen] spoke to them, Roundtree 

appeared to be nervous, as he was shaking, “sucking down a 

cigarette very fast,” and “nervously biting his fingernails back and 

forth.” [Cruz], however, did not exhibit nervous behavior. [Cruz]

presented a Pennsylvania I.D. that Officer [Keen] suspected was 

not real based on its missing plastic layer and faded appearance. 

The officers decided to perform a protective sweep of the vehicle; 

before the search, they frisked the occupants and placed them in 

police vehicles. Officer [Keen] then called for another unit and 

several officers arrived at the scene. During the protective search, 

a backup officer found and alerted Officer [Keen] to the presence 

of a holiday, “Christmas-style” gift bag on the floor of the back 

seat, between where the passengers had been sitting. Officer 

[Keen] recalled that the first thing searched was “the area[]

leading up to the bag, around the bag.”

Officer [Keen] initially stated that he looked inside the gift 

bag and saw twenty racks of heroin. However, he later 

acknowledged that there was “[a] bag that was inside this gift 

bag, there was a white plastic bag that was knotted at the top,” 

and that he opened that plastic bag. He did so because “[he] 

wanted to determine before [he] placed anybody into custody or 

seized any items that they are, in fact, what [he] believed them 

to be.” Officer [Keen] testified that before he opened the plastic 

bag inside the gift bag and peeled back the paper of the drug 

packaging, he suspected the bag contained drugs and was certain 

that it did not contain a weapon. After Officer [Keen] determined 
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that the bag contained ... heroin, the officers arrested [Cruz] and 

charged him with the offenses of [p]ossession with the [i]ntent to 

[d]eliver (“PWID”)1, [c]onspiracy2, and [i]ntentional [p]ossession 

of a [c]ontrolled [s]ubstance.3

1

 35 P.S. § 780-113(a)(30).

2

 18 Pa.C.S. § 903.

3

 35 P.S. § 780-113(a)(16).

This Court issued its findings of fact and conclusions of law 

on February 10, 2023, granting [Cruz’s] [m]otion to [s]uppress. 

[The trial court] concluded that [Cruz] had a reasonable 

expectation of privacy in the closed bag that was on the floor at 

his feet; that the officers lacked reasonable suspicion that the 

occupants were armed and dangerous, and that the protective 

search was therefore unjustified; and that the heroin was not 

reasonably identifiable to Officer [Keen] by sight or feel. 

Accordingly, [the trial court held that] the officer’s taking and 

opening of the bag was an illegal search. As a result, the physical 

evidence seized from the bag was suppressed.

On March 10, 2023, the Commonwealth filed a [n]otice of 

[a]ppeal to the Superior Court from the February 10, 2023 [o]rder 

granting [Cruz]’s suppression motion. The [n]otice included the 

Commonwealth’s certification that the [o]rder terminated or 

substantially handicapped the prosecution. On March 15, 2023, 

[the trial court] issued an [o]rder pursuant to Pa.R.A.P. 1925(b) 

for the Commonwealth to file a [c]oncise [s]tatement of [e]rrors 

[c]omplained of on [a]ppeal.

Trial Court Opinion, 5/9/2023, at 1-3 (record citations omitted; officer’s name 

corrected).

The Commonwealth presents the following question for review:

Did the [trial] court err in suppressing evidence when[:]

(a) [Cruz], a passenger in a hired rideshare vehicle where drugs 

were found, did not establish a reasonable expectation of 

privacy; and when
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(b) the totality of the circumstances caused police to believe 

that the wrapped blocks they observed in an open-topped 

gift bag were illegal drugs?

Commonwealth’s Brief at 4.

Our review of a granted suppression motion is limited to determining 

“whether the record supports the trial court’s factual findings and whether the 

legal conclusions drawn from those facts are correct.” Commonwealth v. 

Carmenates, 266 A.3d 1117, 1122-23 (Pa. Super. 2021) (en banc). “We 

may only consider evidence presented at the suppression hearing.” Id. at 

1123 (citation omitted). “Because the defendant prevailed on this issue before 

the suppression court, we consider only the defendant’s evidence and so much 

of the Commonwealth’s evidence as remains uncontradicted when read in the 

context of the suppression record as a whole.” Id.

Additionally, this Court is highly deferential to the suppression court’s 

factual findings and credibility determinations. Commonwealth v. Batista, 

219 A.3d 1199, 1206 (Pa. Super. 2019). “It is within the suppression court’s 

sole province as factfinder to pass on the credibility of witnesses and the 

weight to be given to their testimony. The [suppression] court is free to 

believe all, some or none of the evidence presented at the suppression 

hearing.” Carmenates, 266 A.3d at 1123. If the record supports the 

suppression court’s findings, we may not substitute our own findings. 

Batista, 219 A.3d at 1206. We do not, however, give such deference to the 

suppression court’s legal conclusions and, instead, review them de novo. Id.
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Once a defendant files a motion to suppress, “it is the Commonwealth’s burden 

to prove, by a preponderance of the evidence, that the challenged evidence 

was not obtained in violation of the defendant’s rights.” Commonwealth v. 

Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012).

The Commonwealth argues that the trial court erred in determining that 

Cruz had a reasonable expectation of privacy in the contents of the “opentopped Christmas-style gift bag” because the contents of the gift bag, i.e., the 

plastic bag that contained the drugs, were partly visible. Commonwealth’s 

Brief at 10-12. The Commonwealth contends that the trial court wrongly 

equated the gift bag, and the plastic bag it contained, with a piece of luggage. 

Id. at 12. The Commonwealth further argues that the trial court erred in 

finding the police did not have probable cause to search the plastic bag 

because “[Officer Keen] was able to reasonably determine that the plastic bag 

in the open gift bag contained packages he recognized as typical of packaging 

of illegal drugs.” Id. at 13. The Commonwealth asserts that because the gift 

bag was open, and the plastic bag was not totally opaque, that the drugs in 

the bags were “effectively in plain view.” Id. at 15. The Commonwealth 

contends that Officer Keen did not need to know with “complete certainty” 

that drugs were in the plastic bag to have probable cause and that probable 

cause only required a “fair probability” that the officer would find contraband 

in the bag. Id. at 16.
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“Both the Fourth Amendment [to] the United States Constitution and 

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals[’]

freedom from unreasonable searches and seizures.” Commonwealth v. 

Duke, 208 A.3d 465, 470 (Pa. Super. 2019) (citation and quotation marks 

omitted). “A warrantless search or seizure is presumptively unreasonable 

under the Fourth Amendment and Article I, § 8, subject to a few specifically 

established, well-delineated exceptions.” Commonwealth v. Smith, 285 

A.3d 328, 332 (Pa. Super. 2022) (quotation marks and citation omitted). 

“Exceptions to the warrant requirement include the consent exception, the 

plain view exception, the inventory search exception, the exigent 

circumstances exception, the automobile exception ..., the stop and frisk 

exception, and the search incident to arrest exception.” Commonwealth v. 

Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (quotation marks and 

citation omitted).

In Pennsylvania, a defendant charged with a possessory offense has 

“automatic standing” to pursue a suppression motion. Commonwealth v. 

Enimpah, 106 A.3d 695, 698 (Pa. 2014). “[A] defendant must show that he 

had a privacy interest in the place invaded or thing seized that society is 

prepared to recognize as reasonable.” Id. “The expectation of privacy is an 

inquiry into the validity of the search or seizure itself; if the defendant has no 

protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is 

implicated.” Id. at 699.
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In determining whether an individual’s expectation of privacy is 

legitimate or reasonable, we must consider the totality of the circumstances 

and the determination “ultimately rests upon a balancing of the societal 

interests involved.” Commonwealth v. Peterson, 636 A.2d 615, 619 (Pa. 

1993). “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.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 

2009) (en banc) (citation omitted).

The plain view doctrine “allows the admission of evidence seized without 

a warrant when: (1) an officer views the object from a lawful vantage point; 

(2) it is immediately apparent to him that the object is incriminating; and (3) 

the officer has a lawful right of access to the object.” Smith, 285 A.3d at

332. “There can be no reasonable expectation of privacy in an object that is 

in plain view.” Commonwealth v. Bumbarger, 231 A.3d 10, 20 (Pa. Super. 

2020). “In determining whether the incriminating nature of an object is 

immediately apparent to the police officer, we look to the totality of the 

circumstances.” Smith, 285 A.3d at 333 (citation omitted). “An officer can 

never be one hundred percent certain that a substance in plain view is 

incriminating, but his belief must be supported by probable cause.” Id.

(citation omitted). Probable cause, in turn,

requires that the facts available to the officer would warrant a man 

of reasonable caution in the belief[] that certain items may be 
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contraband or stolen property or useful as evidence of a crime; it 

does not demand any showing that such a belief be correct or 

more likely true than false. A practical, non-technical probability 

that incriminating evidence is involved is all that is required.

Id. (citation omitted).

The record in this matter reflects that on direct examination, Officer 

Keen stated that he could immediately identify the contents of the opentopped gift bag as drugs: “I look inside the silver bag and I could see, it looks 

like there’s about 20 racks of heroin or fentanyl.” N.T., 1/12/2023, at 13. On 

cross-examination, Officer Keen clarified that the drugs were in fact inside a 

white, tied-off, plastic shopping bag that was inside the gift bag:

Q. Okay. And the bag that was inside this gift bag, there was a 

white plastic bag that was knotted at the top, correct?

A. Yes. A shopping bag.

Q. So you couldn’t see into what was in that plastic bag, correct?

A. It wasn’t totally opaque. I could -- I could -- I had a good 

sense of what was on the other side of that.

* * *

Q. ... You could see through the plastic bag?

A. I believe so, yes.

Q. Okay. And but you opened the plastic bag, correct?

A. Yes. Because I wanted to determine before I placed anybody 

into custody or seized any items that they are, in fact, what I 

believed them to be.

Q. So you thought there was drugs in there, but you weren’t sure. 

Is that an accurate statement?
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A. I observed, based on my experiences --

Q. What you recall --

A. – racks. I thought it was drugs.

Q. Okay. But you weren’t sure until you opened the bag and 

peeled back the paper, correct?

A. Yes.

Q. Okay. And then your suspicions were confirmed. Correct? 

And that’s when you realized it was drugs. Correct?

A. I believed it to be drugs. But I want to give everyone the 

benefit of the doubt. If I could peel back a piece of paper to go, 

okay, I was right, that’s heroin.

Id. at 27-29.

In concluding that Cruz had reasonable expectation of privacy in the 

plastic bag and that the drugs were not subject to the plain view exception, 

the trial court explained the following in its Rule 1925(a) opinion:

Officer [Keen] testified that the gift bag was on the floor 

where the back seat passengers’ feet were. The location of the 

gift bag indicates that the bag belonged to one or both 

passengers; the contents were not left out in the view of the 

vehicle’s other occupants. There was no testimony supporting a 

finding that the driver could access the bag, or even that he knew 

it was there. Officer [Keen] also testified that there was a knotted 

plastic bag inside the gift bag; this demonstrates that the gift bag 

was a closed container, the kind that would be used to store 

something private, and its contents were hidden. [Cruz]

accordingly maintained a subjective and reasonable expectation 

that the contents of the gift bag would remain private.

* * *

The Commonwealth’s suggestion that the wrapped blocks 

were in an open-topped bag is incorrect; the wrapped blocks were 

inside a knotted plastic bag, which was inside an open-topped bag. 
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Officer [Keen] had to open the knotted plastic bag to reveal the 

wrapped blocks of heroin inside it. As this [c]ourt concluded, until 

the plastic bag was opened, the heroin blocks were not readily 

identifiable by sight or by feel. Accordingly, the plain view 

exception does not apply.

Trial Court Opinion, 5/9/2023, at 5.

The Commonwealth argues that the gift bag should not be treated akin 

to luggage because it was “non-opaque,” “open-topped,” and its contents 

were “at least partly visible.” Commonwealth’s Brief at 12. The 

Commonwealth cites several cases from various other jurisdictions that state 

that there is no reasonable expectation of privacy in clear, translucent, or 

transparent plastic bags. Id. at 12-13. None of those cases, however, 

support the Commonwealth’s argument, as Officer Keen did not testify that 

the plastic bag was clear, translucent, or transparent, but rather gave a vague 

statement that the bag “wasn’t totally opaque.” See N.T., 1/12/2023, at 28. 

Moreover, the Commonwealth’s argument that the bag was “open-topped” 

with its contents “at least partly visible” misconstrues Officer Keen’s 

testimony. At the suppression hearing, Officer Keen specifically testified that 

police found the plastic bag containing drugs inside a “Christmas-style” holiday 

gift bag and that the plastic bag was knotted at the top. Id. at 12-27. Thus, 

the record reflects that while the gift bag may have been open-topped, and 

that the plastic bag that contained drugs may have been partly visible, the 

drugs inside that plastic bag were not.
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In further support of its claim, the Commonwealth attempts to equate 

the instant case to Commonwealth v. Viall, 890 A.2d 419 (Pa. Super. 2005). 

In Viall, police recovered drugs and drug paraphernalia from the backseat of 

a vehicle in which the appellant was a passenger after the driver of the vehicle 

consented to a search. Id. at 421. This Court held that “an ordinary 

passenger in an automobile does not by his mere presence have a legitimate 

expectation of privacy in the entire passenger compartment of that vehicle.” 

Id. at 423. Our Court “reasoned that it would be unreasonable to maintain a 

subjective expectation of privacy in locations of common access to all 

occupants.” Id. The Court emphasized, however, that “passengers in an 

automobile may maintain a reasonable expectation of privacy in the contents 

of luggage they placed inside an automobile.” Id. Ultimately, in Viall, this 

Court concluded that “the drugs and drug paraphernalia were recovered from 

a common area in the backseat of the vehicle” and “that it would be 

unreasonable for [the appellant] to have expected to maintain a privacy 

interest in objects which were placed inside the car and not shielded from the 

view of the many others occupying the same small space.” Id.

This case is readily distinguishable from Viall in several key aspects. In 

this case, unlike Viall, the driver of the vehicle did not consent to a search of 

the vehicle. See N.T., 1/12/2023, at 12. Additionally, unlike Viall, police did 

not recover drugs that were sitting out in the open in the backseat of the car;

rather Officer Keen recovered the drugs from a tied-off plastic bag that was 
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inside a Christmas gift bag, which was situated at Cruz’s feet. See id. at 12-

14.

Based on the foregoing, the record supports trial court’s finding that 

Cruz intended to keep the contents of the plastic bag, which was tied off and 

sitting inside a Christmas-style gift bag, private. See Carmenates, 266 A.3d 

at 1122-23. We therefore conclude that the trial court did not err in 

determining that Cruz possessed a reasonable expectation of privacy in the 

plastic bag. See Commonwealth v. Sell, 470 A.2d 457, 468 (Pa. 1983) (“So 

long as a person seeks to preserve his effects as private, even if they are 

accessible to others, they are constitutionally protected.”).

The record further supports the trial court’s findings that the drugs were 

not readily identifiable by sight, that Officer Keen wavered on whether he 

knew the plastic bag contained drugs, and that consequently, Officer Keen did 

not possess any knowledge, beyond a hunch, that there was contraband inside 

the plastic bag. See Carmenates, 266 A.3d at 1122-23. Accordingly, we 

conclude that the trial court likewise did not err in determining that the drugs 

were not in plain view and Officer Keen did not have probable cause to search 

the contents of the plastic bag.

Order affirmed.

President Judge Lazarus joins the memorandum.

President Judge Emeritus Panella files a dissenting memorandum.
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Date: 7/1/2024