Tuesday, July 29, 2008

Warrant Defects Under Pennsylvania Law

V. Warrant Detects Under Pennsylvania Law

The search warrant, affidavit and inventory at issue have several fatal defects when analyzed under Pennsylvania law.

Failure to Obtain District Attorney Approval Prior to issuance

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

The warrant at issue in this case was not submItted to a District Attorney either in Virginia or Pennsylvania prior to its issuance. The warrant was prepared by a Virginia Beach police officer with the assistance of Pennsylvania State Police. No government attorney prepared, assisted in the preparation of or even reviewed this search warrant before it was presented or executed, although prosecution was expected to occur in Luzerne County, Pennsylvania.

The issuance of this warrant did not fall within the established standards of procedure within the county responsible for the prosecution.

Lack of Probable Cause as to Defendant Kerekes

Search warrants in Pennsylvania must be supported by an affidavit which “sets 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” Pa.R.Crim.Pro. 206(6). Pennsylvania has adopted the Gates totality of the circumstances test. In applying a “totality of the circumstances” analysis to a magistrate’s consideration of a warrant application, The Supreme Court has held that “ task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him... there is a fair probability that contraband or evidence of a particular crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,238, 103 S.Ct. 2317,76 L.Ed 527 (1983); See also Commonwealth v Gray, 503 A.2d 921 (Pa. 1985).

In Pennsylvania, “ determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four-corners of the affidavit.” Commonwealth v. Sharp, 453 Pa.Super. 349, 683 A.2d 1219, 1223 (1996).

The warrant indicates that the offense in relation to which the search is to be made is “Murder in violation of Virginia State Code 18.2-32.” See Warrant and Affidavit Exhibit 1 at section 1.

To support the seizure of evidence, alleged probable cause is outlined in section 4 of the warrant. The probable cause is outlined in six and one-half pages of the document. In those pages, two paragraphs mention “Joseph Kerekes” and the context is as a business associate of Harlow Cuadra in the operation of “an illegal escort service” and in the production of “gay pornography” and “modeling.” Affidavit Exhibit 1 at section 4.

No allegation in the affidavit shows that Joseph Kerekes is tied to the murder of Bryan Kocis, The five categories of items authorized for seizure by the warrant are: (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 1 at section 3. These items are alleged to relate to the homicide of Bryan Kocis, not to “illegal escorting.”

Other facts in the affidavit of probable cause establish that Kerekes’ co-defendant Harlow Cuadra sent e-mails to Bryan Kocis, that Bryan Kocis was expecting Harlow Cuadra to visit him on the evening of his murder because of e-mails sent from Harlow Cuadra, the e-mails from Harlow Cuadra may have originated from Harlow Cuadra’s residence, and that Harlow Cuadra stated to associates during a meeting in Las Vegas, “What if Bryan went to Canada?” in reference to getting rid of or killing him. See Affidavit Exhibit 1 at section 4.

Indeed, in the Commonwealth’s brief, when describing the probable cause supporting the warrant, the Commonwealth itself makes absolutely no reference to Joseph Kerekes. See Commonwealth’s Brief at p. 10, paragraph 1.

The seizure of evidence should therefore be precluded from use against Joseph Kerekes, as the affidavit does not support that Joseph Kerekes was involved in the illegal activity identified on the face of the warrant (murder) and only establishes through a bare allegation that he was involved in any illegal activity at all (illegal escorting) and there is no connection between that illegal activity and the items to be seized established in the warrant.