VIII. Warrant Defects Under Virginia Law
In the event this Court decides that Virginia law controls the analysis of the question presented, the evidence should still be suppressed because the issuance and execution of the warrant did not comply with Virginia law or federal law.
In the event this Court decides that Virginia law controls the analysis of the question presented, the evidence should still be suppressed because the issuance and execution of the warrant did not comply with Virginia law or federal law.
Lack of Probable Cause and Failure to Establish Nexus as to Defendant Kerekes
Virginia search warrant law requires that search warrants may issue upon reasonable and probable cause. Va.Code §19.2-52. Like Pennsylvania, Virginia applies the Gates totality of the circumstances test discussed infra when determining probable cause for a warrant. Cunningham v. Commonwealth, 49 Va.App. 605, 643 S.E. 2d 514 (2007). Therefore, analysis of this issue is the same under both Virginia and Pennsylvania law.
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. Therefore, there is not a sufficient “nexus” between the items sought and defendant Kerekes or the death of Bryan Kocis. See Adams v. Commonwealth, 275 Va. 260, 657 SE. 2d 87 (2008) (Lack of probable cause because of failure to establish nexus where warrant specified details of a shooting but did not specify the residence to be searched.)
Unlike Pennsylvania, Virginia applies the good faith exception to the exclusionary rule set forth in United States V. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 LEd. 2d 677 (1984), which limits the application of the exclusionary rule “so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” The good faith exception is not a per se admissibility rule. It requires analysis of whether “the officer’s reliance on the magistrate’s probable cause determination and the technical sufficiency of the warrant” was objectively reasonable. All of the circumstances may be considered when deciding whether a reasonable officer “would have known that the search was illegal despite the magistrate’s authorization.” Leon at 922 and n. 23.
In the instant case, defendant Kerekes submits that no reasonable officer would have concluded that a nexus was established between the crime subject of the warrant (murder) and Joseph Kerekes by the mere reference included in the affidavit alleging that Joseph Kerekes is an associate of Harlow Cuadra in the operation of an ‘illegal escorting” business.
Virginia follows federal law which permits a court to look beyond the four corners of the warrant affidavit to the totality of the circumstances surrounding the issuance and execution of the warrant in assessing objective reasonableness and the good faith exception. Specifically, Virginia has adopted the Eighth Circuit’s test announced in United States v. Curry, 911 F.2d 72, 78 ( Cir. 1990) which states that those circumstances include “the knowledge that an officer in the searching officer’s position would have possessed.” Adams, 275 Va. 260 at 273 citing Curry 911 F.2d at 78. Here, the officer applying for the warrant was the same officer who conducted the search. Defendant submits that if the officer possessed greater knowledge of Joseph Kerekes’ involvement in the offense, more information regarding same would be contained in the warrant.
Virginia search warrant law requires that search warrants may issue upon reasonable and probable cause. Va.Code §19.2-52. Like Pennsylvania, Virginia applies the Gates totality of the circumstances test discussed infra when determining probable cause for a warrant. Cunningham v. Commonwealth, 49 Va.App. 605, 643 S.E. 2d 514 (2007). Therefore, analysis of this issue is the same under both Virginia and Pennsylvania law.
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. Therefore, there is not a sufficient “nexus” between the items sought and defendant Kerekes or the death of Bryan Kocis. See Adams v. Commonwealth, 275 Va. 260, 657 SE. 2d 87 (2008) (Lack of probable cause because of failure to establish nexus where warrant specified details of a shooting but did not specify the residence to be searched.)
Unlike Pennsylvania, Virginia applies the good faith exception to the exclusionary rule set forth in United States V. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 LEd. 2d 677 (1984), which limits the application of the exclusionary rule “so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” The good faith exception is not a per se admissibility rule. It requires analysis of whether “the officer’s reliance on the magistrate’s probable cause determination and the technical sufficiency of the warrant” was objectively reasonable. All of the circumstances may be considered when deciding whether a reasonable officer “would have known that the search was illegal despite the magistrate’s authorization.” Leon at 922 and n. 23.
In the instant case, defendant Kerekes submits that no reasonable officer would have concluded that a nexus was established between the crime subject of the warrant (murder) and Joseph Kerekes by the mere reference included in the affidavit alleging that Joseph Kerekes is an associate of Harlow Cuadra in the operation of an ‘illegal escorting” business.
Virginia follows federal law which permits a court to look beyond the four corners of the warrant affidavit to the totality of the circumstances surrounding the issuance and execution of the warrant in assessing objective reasonableness and the good faith exception. Specifically, Virginia has adopted the Eighth Circuit’s test announced in United States v. Curry, 911 F.2d 72, 78 ( Cir. 1990) which states that those circumstances include “the knowledge that an officer in the searching officer’s position would have possessed.” Adams, 275 Va. 260 at 273 citing Curry 911 F.2d at 78. Here, the officer applying for the warrant was the same officer who conducted the search. Defendant submits that if the officer possessed greater knowledge of Joseph Kerekes’ involvement in the offense, more information regarding same would be contained in the warrant.
