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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

DISSENTING MEMORANDUM BY PANELLA, P.J.E.: FILED JULY 1, 2024

I respectfully dissent, as I would conclude that the drugs were lawfully 

seized where Officer Keen viewed them from a lawful vantage point, their 

incriminating nature was immediately apparent to the officer, and he could 

legally access them.

As my esteemed colleagues on the Majority note, “[i]f the record 

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

findings. However, we give no deference to the suppression court’s legal 

conclusions and review them de novo.” Commonwealth v. Carmenates, 

266 A.3d 1117, 1123 (Pa. Super. 2021) (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.
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Commonwealth v. Smith, 285 A.3d 328, 332 (Pa. Super. 2022) (citation 

omitted).

In determining whether the incriminating nature 

of an object is immediately apparent to the police 

officer, we look to the totality of the circumstances. 

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. 

When reviewing whether an object’s criminal nature is 

“immediately apparent,” we note that probable cause

merely requires that the facts available to the officer 

would warrant a man of reasonable caution in the 

belief, that certain items may be 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. at 333 (citations omitted). “In viewing the totality of the circumstances, 

the officer’s training and experience should be considered.” Commonwealth 

v. Bumbarger, 231 A.3d 10, 20 (Pa. Super. 2020) (citation omitted).

Officer Keen testified to observing the Christmas-style open-topped bag, 

inside of which was a plastic bag containing what appeared to be racks of 

drugs. See N.T. Suppression Hearing, 1/12/23, at 13-15, 27-29. He explained 

his experience as a police officer and noted that he has seen racks of drugs

like the ones in this case dozens of times in his career. See id. at 13-15. The 

officer described the plastic bag as not totally opaque, so he did not have to 

open it to see what was inside. See id. at 28. Officer Keen had “a good sense 

of what was on the other side of the [plastic]” and “thought it was drugs” 
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based on his training and experience. Id. at 28, 29. The record supports the 

officer had probable cause to believe, based on his training and experience, 

that the bag contained heroin and/or fentanyl. I would reverse and remand

for proceedings consistent this memorandum.