Tuesday, July 29, 2008

Siezure Exceeded the Authorized Scope of Warrant (II)

IX. Seizure Exceeded tbe Authorized Scope of Warrant (II)

It is clear that during the search of defendant’s residence, officers seized items not specifically authorized by the warrant in violation of Va §19.2-57. Specifically, the warrant authorized seizure of five categories of items: (1) actual computers and hardware, computer software and all information stored on computers or used to access information through computers; (2) blood, fiber, trace or other physical evidence; (3) knives or cutting instruments; (4) credit/debit cards, cash, financial data and receipts; and (5) all documents relating to the victim and the defendant’s residence. Affidavit Exhibit I at section 3. During the search, inter alia, luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation were seized. See Inventory Exhibit 1.

Virginia analysis of this issue complies with federal law. “The permissible scope of a search is limited by the terms of the warrant pursuant to which it is conducted.” Dotson v. Commonwealth, 47 Va 237, 243, 623 S.E.2d 414, 417 citing Kearney v. Commonwealth, 4 Va.App. 202, 204, 355 S.E.2d 897, 898 (1987). However, “a search warrant. . is not invalid merely because officers seize items not named in the warrant,” Id. citing Cherry v. Commonwealth, 21 Va.App. 132, 138-39, 462 S.E.2d 574, 577 (1995).

Under Horton and Hicks, supra, police may seize an item without a warrant if it is plain view, its incriminatory character is immediately apparent, and the officer is lawfully in the place where the seizure occurs and has lawful right of access to that object. In the instant case, the incriminatory character of luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation is not immediately apparent.

If the officers wanted to seize these items, one officer should have left the scene and applied for an additional warrant.

Under Virginia law, the affidavit lacked specific probable cause to link the crime alleged with the defendant, Joseph Kerekes. The good faith exception should not apply because a reasonable officer should have known this by even a cursory reading of the affidavit. Additionally, the officers exceeded the scope of the warrant during execution by the seizure of items not encompassed by the warrant and not immediately apparent as contraband. Therefore, even if this Court engages in analyzing the warrant, search and seizure under Virginia law suppression
of the evidence seized from the defendants’ home should be granted and the Court should further preclude any references to or argument regarding same during trial.

The Commonwealth relies on Dotson v. Commonwealth, supra, for two and one-half pages of its brief to support its position that the seizure of evidence was appropriate in this case, Dotson is inapposite. In Dotson, the warrant authorized search for ‘illegal drugs, paraphernalia... monies... records, or other information pertinent to the possession, distribution or manufacturing of marijuana or any other drug.” Datson, 47 Va 237, 243, fn. 3. Officers seized a safe they reasonably believed contained items specified in the warrant. Id. at 244. The court upheld the seizure as within the scope of the warrant. id. at 247.

In the instant case, the seized items at issue do not even approach the items sought by the warrant. Therefore, a plain view analysis is more appropriate.