Monday, July 14, 2008

XI. Motion to Suppress Search Warrants Executed on Defendant-Cuadra's E-Mail Accounts

65. Denied.

66. Admitted in part. The FBI executed various warrants as opposed to State law enforcement. There were also Grand Jury Subpoenas issued by a Federal Grand Jury. There was one state search warrant applicable to this Motion to Suppress.

67. Denied.

68. Denied. The Defendant does not specify what he means by service requirements.

69. 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.

(b) Denied.

(c) Denied.

(d) Denied. The warrant and Affidavit of Probable Cause allege sufficient facts;

(e) Denied.

(f) Denied.

(g) Denied.

(h) Denied.

(i) Denied.

70. Denied. Independent probable cause exists for Defendant Cuadra's arrest. The arrest was not the fruit of an illegal search. In Rosa v. Commonwealth, 48 Va. App. 93, 628 S.E.2d 92 (2006), under the search warrant executed in that case, the police officer was entitled to open all files, and to search deleted files, on hard drive of defendant's computer. This case relied upon Pennsylvania case law. The Rosa court wrote: The warrant authorized a search of all "electronic processing and storage devices, computer and computer devices, and external storage devices" and did not limit the search to any specific area of the computer. Deem (the detective), therefore, was permitted to look in any section of the computer that might contain the objects of the search, including deleted files that had been re-created. The deleted files are not entitled to additional protection simply because appellant attempted to erase them. The Rosa court relied upon a Pennsylvania case for its conclusion. See Copenhefer, 587 A.2d at 1356.

WHEREFORE, the Commonwealth requests this Honorable Court to deny the Defendant Cuadra's Motion to Suppress.