Monday, August 11, 2008

Statement of Relevant Facts

I. Statement of Relevant Facts

On February 10, 2007, the Virginia Beach Police Department executed a search warrant on 1028 Stratem Court, Virginia Beach, Virginia. The warrant had been sworn out before a Judge from of the Virginia Beach Circuit Court, the equivalent of the Pennsylvania Court of Common Pleas. Detective Sean Coerse of the Homicide Division, Virginia Beach Police Department had applied and sworn out this search warrant.

The search warrant states the offense committed was murder, and gives a specific description of 1028 Stratem Court, Virginia Beach, Virginia, the Defendants’ residence as the home to be searched. A detailed description of items to be searched for included recording devices, digital cameras, various types of computer equipment (modems, fixed discs, external hard drives etc), software, documents, etc. The warrant requests the ability to search for information stored within a computer system or storage media. See Rosa v. Commonwealth 48 Va. App. 93, 628 S.E.2d 92 (2006), relying upon the Pennsylvania case Commonwealth v. Copenhefer 526 Pa. 555, 587 A.2d 1353, (1991).

On January 30, 2007, a federal search warrant was served on Yahoo for the email account which was the account used to contact the victim Bryan Kocis and make arrangements for the January 24, 2007 meeting with the victim.

On February 6, 2007, a federal search warrant was served upon IAC Search and Media for the email account of This email account was accessed from the same IP addresses during the same time period as the account.

On March 14, 2007, three respective federal search warrants were served: one on the MySpace account of Harlow Cuadra and one on the MySpace account of Joseph Kerekes. A federal search warrant was served upon which Defendant Kerekes is the registered user. These accounts were all accessed from the same IP addresses during the same time period as the account. The federal search warrants were each supported by lengthy affidavits of probable cause.

On August 27, 2007 District Justice James Tupper, on August 27, 2007, approved and issued a search warrant for any and all information related to the Yahoo Account This email account was accessed from the same IP addresses during the same time period as the account. This search warrant was supported by a twenty — two (22) page affidavit of probable cause.

On July 28, 2008, Attorney Michael Senape served a ‘Joint Reply Brief to Commonwealth’s Brief in Opposition to Motion to Suppress Search Warrants and Evidence Seized from E-Mail Accounts’ on behalf of both Defendants. Defense counsel for both Defendants has filed multiple ‘joint’ briefs in recent weeks that, the Commonwealth asserts, indicates that their defenses are consistent, compatible and coordinated. In this brief, the defense argues that should the items seized pursuant to the February 10, 2007 search warrant executed on the Defendants’ 1028 Stratem Court, Virginia Beach, Virginia residence be suppressed, the use of any informationlevidence gained from that alleged illegal seizure to form the basis of Affidavits of Probable Cause for Defendants’ e-mail accounts would result in invalid search warrants, thereby requiring suppression of evidence obtained from the Defendants’ e-mail accounts.

The Commonwealth respectfully disagrees with defense counsel’s position as set forth below. The Commonwealth submits that evidence seized as a result of the Virginia Beach search warrant should not be suppressed, therefore, any reference to such items in affidavits for search warrants for email accounts is not fruit of the poisonous tree. Even if the Court were to suppress the computers/evidence seized from the Defendant’s residence, the Affidavits contain sufficient probable cause without reference to the seized items. Even if the search warrants did not contain sufficient probable cause, which the Commonwealth submits that they do, the ‘good faith’ exception would govern thereby allowing admission of the evidence obtained pursuant to those warrants. Beyond that, the Commonwealth would have discovered and/or been able to lawfully obtain the information in the email accounts in question from other sources than the computers seized from the Defendants’ residence.