XI. MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED REGARDING THE DEFENDANT CUADRA’S E-MAIL ACCOUNTS
65. Cuadra incorporates herein by reference all previous paragraphs as if fully set forth in detail.
66. On or after January 30, 2007, and February 6, 2007 the Police executed search warrants upon Cuadra’s Internet service provider(s) for information subscriber information and/or documentation regarding e-mail accounts and e-mails sent by and/or received by Defendant Cuadra.
67. Defendant has a privacy interest and expectation of privacy in said e-mail accounts and transmissions.
68. The warrants did not meet with adequate service requirements.
69. The seizure of the evidence in which Cuadra had a reasonable expectation of privacy was illegal in that it was made pursuant to a search and seizure warrant that was invalid and unlawful for the following reasons:
(a) The warrants and the supporting Affidavits of Probable Cause contain material misrepresentations of relevant facts;
(b) The warrants and the supporting Affidavits of Probable cause fail to specifically describe the property to be seized; rather uses overly broad language. See, Commonwealth v. MeEnany, 667 A. 2d 1143, 1148,M.3(Pa. Super. 1995);
(c) The warrants and the supporting Affidavits of Probable Cause fail to state probable cause for a search in that the facts alleged do not establish reasonable grounds to believe that Defendant Cuadra had any involvement in the murder of Bryan Kocis;
(d) The warrants and the supporting Affidavits of Probable Cause fail to allege sufficient facts to enable the issuing authority to independently determine that the alleged information provided by confidential informants/tipsters were reliable;
(e) The warrants and the supporting Affidavits of Probable Cause were based, in part, upon the hearsay statements of confidential informants whose reliability is not established in the warrant, the Affidavit, of Probable Cause nor does it set forth the prior investigations involving the confidential informants/tipsters;
(f) No probable cause existed to reasonably believe that Cuadra committed a homicide.
(g) Information regarding a possible corrupting motive of the confidential informant/tipster including, but not limited to, supplying information in, exchange for leniency on an open ease or not filing charges, was not made available to the issuing authority;
(h) The seizure of the items identified in the Police’s Receipt/Inventory of Seized Property exceeded the permissible scope of the warrants, were not in plain view, not incident to arrest nor otherwise permissible under the laws of the United States and
Pennsylvania Constitutions; and
(I) The items seized by the Police were not specified in the_warrants nor the Affidavits of Probable Cause and were not otherwise subject to seizure under the laws and Constitutions of the United States and Pennsylvania.
70. Cuadra’s arrest and the items seized by the Police were the fruits of this
illegal search and all evidence seized pursuant to’ the aforesaid warrant was obtained in violation of Cuadra’s rights under the United States and Pennsylvania Constitutions.
WHEREFORE, Defendant believes that said search was conducted in contravention to the U.S. and Pennsylvania Constitutions and respectfully requests this Honorable Court to enter an Order suppressing any and all items seized and their fruit pursuant to the aforesaid search warrant.
65. Cuadra incorporates herein by reference all previous paragraphs as if fully set forth in detail.
66. On or after January 30, 2007, and February 6, 2007 the Police executed search warrants upon Cuadra’s Internet service provider(s) for information subscriber information and/or documentation regarding e-mail accounts and e-mails sent by and/or received by Defendant Cuadra.
67. Defendant has a privacy interest and expectation of privacy in said e-mail accounts and transmissions.
68. The warrants did not meet with adequate service requirements.
69. The seizure of the evidence in which Cuadra had a reasonable expectation of privacy was illegal in that it was made pursuant to a search and seizure warrant that was invalid and unlawful for the following reasons:
(a) The warrants and the supporting Affidavits of Probable Cause contain material misrepresentations of relevant facts;
(b) The warrants and the supporting Affidavits of Probable cause fail to specifically describe the property to be seized; rather uses overly broad language. See, Commonwealth v. MeEnany, 667 A. 2d 1143, 1148,M.3(Pa. Super. 1995);
(c) The warrants and the supporting Affidavits of Probable Cause fail to state probable cause for a search in that the facts alleged do not establish reasonable grounds to believe that Defendant Cuadra had any involvement in the murder of Bryan Kocis;
(d) The warrants and the supporting Affidavits of Probable Cause fail to allege sufficient facts to enable the issuing authority to independently determine that the alleged information provided by confidential informants/tipsters were reliable;
(e) The warrants and the supporting Affidavits of Probable Cause were based, in part, upon the hearsay statements of confidential informants whose reliability is not established in the warrant, the Affidavit, of Probable Cause nor does it set forth the prior investigations involving the confidential informants/tipsters;
(f) No probable cause existed to reasonably believe that Cuadra committed a homicide.
(g) Information regarding a possible corrupting motive of the confidential informant/tipster including, but not limited to, supplying information in, exchange for leniency on an open ease or not filing charges, was not made available to the issuing authority;
(h) The seizure of the items identified in the Police’s Receipt/Inventory of Seized Property exceeded the permissible scope of the warrants, were not in plain view, not incident to arrest nor otherwise permissible under the laws of the United States and
Pennsylvania Constitutions; and
(I) The items seized by the Police were not specified in the_warrants nor the Affidavits of Probable Cause and were not otherwise subject to seizure under the laws and Constitutions of the United States and Pennsylvania.
70. Cuadra’s arrest and the items seized by the Police were the fruits of this
illegal search and all evidence seized pursuant to’ the aforesaid warrant was obtained in violation of Cuadra’s rights under the United States and Pennsylvania Constitutions.
WHEREFORE, Defendant believes that said search was conducted in contravention to the U.S. and Pennsylvania Constitutions and respectfully requests this Honorable Court to enter an Order suppressing any and all items seized and their fruit pursuant to the aforesaid search warrant.
