58. Denied.
59. Admitted.
60. Admitted.
61. Admitted.
62. Denied. The Defendant does not specify what he means by service requirements.
63. Denied.
(a) In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held as follows:
Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 438 U.S. at 155-56. West v. Commonwealth, 16 Va. App. 679, 689, 432 S.E.2d 730, 736-37 (1993); Neustadter v. Commonwealth, 12 Va. App. 273,274, 403 S.E.2d 391,392, aff'd en bane, 13 Va. App. 283, 411 S.E.2d 228 (1991).
The Defendant's pleading is utterly devoid of any allegation as to a specific misstatement;
(b) Denied. The Commonwealth avers that Virginia, not Pennsylvania, law governs the legality of a search warrant, sworn out by Virginia Beach police, signed by a Virginia Beach Circuit Court judge and executed on a Virginia beach residence occupied by Virginia Beach citizens.
(c) Denied. Probable cause exists in the search warrant which delineates that Harlow Cuadra, under the guise of the fictitious identity Danny Moilin, used his 1028 Stratem Court computer to make arrangements to meet the victim at 60 Midland Drive, Dallas, Pennsylvania. Certain IP addresses comes back to Defendant Cuadra's residence. In addition, the affidavit sets forth that Defendant Cuadra pointed out to Sean Lockhart, the day after the homicide, that the Website WNEP-Channel 16 was reporting the death and fire at 60 Midland Drive, Dallas Pennsylvania. The Defendant Cuadra stated that "his guy went overboard."
(d) Denied. The warrant and Affidavit of Probable Cause allege sufficient facts;
(e) Denied.
(f) Denied. Defendant Cuadra used a fake identity to establish a meeting with the victim as a model. The victim was an adult movie producer. Cuadra was with the victim at the very moment the homicide was taking place;
(g) Denied.
(h) Denied to the extent this averment states the search was impermissible. The Commonwealth avers that Virginia, not Pennsylvania, law governs the legality of a search warrant, sworn out by Virginia Beach police, signed by a Virginia Beach Circuit Court judge and executed on a Virginia beach residence occupied by Virginia Beach citizens.
(i) Denied. All items seized were within the lawful purview of the warrant. The evidence upon which the issuance of a search warrant is based does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. The requirement is practically the same as that contained in the Fourth Amendment of the federal Constitution. Zimmerman v Town of Bedford, 134 Va. 787, 115 S.E. 362 (1922); Tri-Pharmacy, Inc. v. United States 203 Va. 723, 127 S.E.2d 89 (1962), cert. Denied. In addition, the items seized are admissible under the "good faith" exception to the warrant requirement. The Supreme Court of Virginia embraces the "good faith" exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984) and Anzualda v. Commonwealth, 44 Va. App. 764,607 S.B. 2d 749, 2005 Va. App. LEXIS 88 (2005)
64. Denied. Independent probable cause exists for Defendant-Cuadra's arrest. The arrest was not the fruit of an illegal search.
WHEREFORE, the Commonwealth requests this Honorable Court to deny the Defendant-Cuadra's Motion to Suppress under Virginia law.
59. Admitted.
60. Admitted.
61. Admitted.
62. Denied. The Defendant does not specify what he means by service requirements.
63. Denied.
(a) In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held as follows:
Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 438 U.S. at 155-56. West v. Commonwealth, 16 Va. App. 679, 689, 432 S.E.2d 730, 736-37 (1993); Neustadter v. Commonwealth, 12 Va. App. 273,274, 403 S.E.2d 391,392, aff'd en bane, 13 Va. App. 283, 411 S.E.2d 228 (1991).
The Defendant's pleading is utterly devoid of any allegation as to a specific misstatement;
(b) Denied. The Commonwealth avers that Virginia, not Pennsylvania, law governs the legality of a search warrant, sworn out by Virginia Beach police, signed by a Virginia Beach Circuit Court judge and executed on a Virginia beach residence occupied by Virginia Beach citizens.
(c) Denied. Probable cause exists in the search warrant which delineates that Harlow Cuadra, under the guise of the fictitious identity Danny Moilin, used his 1028 Stratem Court computer to make arrangements to meet the victim at 60 Midland Drive, Dallas, Pennsylvania. Certain IP addresses comes back to Defendant Cuadra's residence. In addition, the affidavit sets forth that Defendant Cuadra pointed out to Sean Lockhart, the day after the homicide, that the Website WNEP-Channel 16 was reporting the death and fire at 60 Midland Drive, Dallas Pennsylvania. The Defendant Cuadra stated that "his guy went overboard."
(d) Denied. The warrant and Affidavit of Probable Cause allege sufficient facts;
(e) Denied.
(f) Denied. Defendant Cuadra used a fake identity to establish a meeting with the victim as a model. The victim was an adult movie producer. Cuadra was with the victim at the very moment the homicide was taking place;
(g) Denied.
(h) Denied to the extent this averment states the search was impermissible. The Commonwealth avers that Virginia, not Pennsylvania, law governs the legality of a search warrant, sworn out by Virginia Beach police, signed by a Virginia Beach Circuit Court judge and executed on a Virginia beach residence occupied by Virginia Beach citizens.
(i) Denied. All items seized were within the lawful purview of the warrant. The evidence upon which the issuance of a search warrant is based does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. The requirement is practically the same as that contained in the Fourth Amendment of the federal Constitution. Zimmerman v Town of Bedford, 134 Va. 787, 115 S.E. 362 (1922); Tri-Pharmacy, Inc. v. United States 203 Va. 723, 127 S.E.2d 89 (1962), cert. Denied. In addition, the items seized are admissible under the "good faith" exception to the warrant requirement. The Supreme Court of Virginia embraces the "good faith" exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984) and Anzualda v. Commonwealth, 44 Va. App. 764,607 S.B. 2d 749, 2005 Va. App. LEXIS 88 (2005)
64. Denied. Independent probable cause exists for Defendant-Cuadra's arrest. The arrest was not the fruit of an illegal search.
WHEREFORE, the Commonwealth requests this Honorable Court to deny the Defendant-Cuadra's Motion to Suppress under Virginia law.
