Com. v. Delacruz, J. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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