Tuesday, July 29, 2008

Law and Argument: Pennsylvania Search Warrant Law

III. Law and Argument: Pennsylvania Search Warrant Law

A search warrant in Pennsylvania may be issued to search for and seize:

(1) Contraband, the fruits of a crime, or things otherwise criminally possesssed;

(2) Property that is or has been used as the means of committing a criminal offense; or

(3) Property that constitutes evidence of the commission of a criminal offense. Pa.R.Crim.Pro. 201.

Luzerne County has opted to require submission of search warrant applications to the District Attorney’s Office for approval prior to issuance. See Pa 202; Luzerne County Crim.LR 202. (Emphasis supplied).

“No search warrant shall issue but upon probable cause... “supported by affidavits and no evidence may be considered by the issuing authority”... outside of the affidavits.” Pa.R.Crim.Pro. 203(B).

Further, at a suppression hearing regarding the warrant”.. . no evidence shall be admissible to establish probable cause other than the affidavits.. . “Pa.R.Crim.P. 203(D).

“No search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.” Pa.R.Crim.P. 203(E). “Nighttime” is defined as 10 p.m. until 6:00 am. See Pa.R.Crim.P. 206(7). (Emphasis supplied).

The affidavit establishing the probable cause for the warrant must, inter alia,


(2) identify specifically the items or property to be searched for and


(5) specify or describe the crime which has been or is being committed;

(6) set forth specifically the facts and circumstances which form the basis for the affiant’s conclusion that there is probable cause to believe that the items or property identified are evidence or fruit of a crime, or are contraband, or are expected to be otherwise unlawfully possessed or subject to seizure, and that these items or property are or are expected to be located on the particular person or at the particular place described; and

(7) if a “nighttime” search is requested (i.e. 10 p.m. to 6 a.m.), state additional reasonable cause for seeking permission to search in nighttime.

Pa.R.Crim.Pro. 206.

In the instant case, the search warrant for the defendants’ residence at 1028 Stratem Court, Virginia Beach, VA was obtained without approval of an Assistant District Attorney for either Virginia or Pennsylvania. The affidavit indicates only that Joseph Kerekes is an associate of Harlow Cuadra and identifies only that the criminal enterprise in which Joseph Kerekes is allegedly involved is “an illegal escort service” Further, the execution occurred at 5:53 a.m as defined by Pennsylvania—without any statement of additional reasonable cause for a nighttime search as is required by Pennsylvania law. The seizure of evidence exceeded the scope of the warrant in that items were seized from the residence that were not contraband nor were they items specifically authorized for seizure by the warrant.

Here, the Court must determine whether Virginia or Pennsylvania law controls the issuance, authorization, execution, search and seizure pursuant to the warrant. It is defendant Kerekes’ contention that Pennsylvania law controls this situation. Pennsylvania warrant procedure is clearly different from Virginia warrant procedure However, neither Pennsylvania nor Virginia procedure and protocols were followed in this seizure. Therefore, the fruits should be suppressed.