Monday, September 22, 2008

PPO's Memorandum: Harlow Cuadra (Part 2)



1. Pursuant to the applicable Rules of Criminal Procedure, the Commonwealth of Pennsylvania bears the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of a defendant’s rights. Pa. R.Crim.P. 581(H).

2. The California Electronic Eavesdropping Law, California Penal Code § and 633 allows for warrantless electronic eavesdropping where an informant has given voluntary consent and is acting at the direction of an enumerated law enforcement officer, See People v. Towery, 174 Cal. App. 3 1114, 220 Cal. Rptr. 475 (1985).

3. California Courts analyze whether an informant’s consent is voluntary after electronic eavesdropping has occurred and consider a number of factors including whether the informant approached the police or police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by police. See People v. Towery.

4. In contrast, Pennsylvania’s Electronic Eavesdropping Law, 18 Pa. C.S.A. §5704 requires that one of several enumerated government attorneys analyze the facts surrounding the intercept and the circumstances surrounding the informant’s consent before electronic eavesdropping occurs. Commonwealth attorneys have an affirmative duty to meet with and speak to the consenting party prior to approving the intercept. See Commonwealth v. Clark, 542 A.2d 1036, 1039 (Pa. Super. 1988).

5. This fundamental difference in state law requires this Court to initially determine whether California law or Pennsylvania law should be used to examine whether the questioned intercepts were conducted lawfully.

6. In conflict of law cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state. In cases where the substantive law of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania Courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the Court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum state to apply the policy of the jurisdiction most intimately concerned with the outcome. A similar approach is taken in the criminal context where the substantive law of this Commonwealth conflict with those of a sister state. See Commonwea!th v. Sanchez, 716 A.2d 1221, 1223-24 (Pa. Super. 2000). See also, Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000).

7. A substantive right is defined as a right to equal enjoyment of fundamental rights, privileges and immunities, as distinguished from a procedural right. By contrast, procedural law is that which prescribes the methods of enforcing rights or obtaining redress for their invasion; this is distinguished from the substantive law which gives or defines the right. Sanchez at 1224.

8. Since the issue before us involves a constitutional protection against self incrimination this issue must be addressed under the principles of conflict between substantive laws, which requires this Court to evaluate which state has the most interest in the outcome.

9. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California law but not Pennsylvania law. Sanchez at 1222-23.

10. Sanchez concluded that California possessed the greater interest in the validity of a canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.

11. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff. (Emphasis added).

12. Sanchez concluded by holding “that if the courts of a sister state determine that a canine sniff is not a search in that state the propriety of a sniff initiated by that state’s officers and conducted within that state’s boarders must be evaluated under the laws of that state”. (Emphasis added). Sanchez at 1225.

13. The electronic eavesdropping in our case occurred on Apri 27, 2007 in La Hoya, California and April 28, 2007 in San Diego, California.

14. As set forth in Findings of Fact 14 and 15, the San Diego Police Department planned, supervised, and conducted the actual interception. San Diego Police supervised the intercepts, and arranged for the fitting, operation, transmission and recording of the intercepted conversations. Pennsylvania law enforcement played a de minimis role in the operation.

15. Under these circumstances, clearly California has the most interest in the procedures used to obtain the intercepts . Pennsylvania should not interfere in the wiretapping procedures adopted by the California legislature and analyzed by California courts even though the California recordings are used to further a Pennsylvania homicide prosecution. See also Commonwealth v. Bennett, 369 A.2d 493 (Pa. Super. 1976).

16. Having concluded that California law controls the instant analysis, the issue thus becomes whether Grant Roy validly consented to the intercept.

17. Roy’s consent was freely and voluntarily given. He was coerced by no one. He was not motivated by present or potential legal problems. He was not under the influence of alcohol or any controlled substance. He neither requested nor was offered immunity. No promises were made to him. No pressure was exerted. No compensation was paid to him.

18. San Diego Detective Donaldson acted as the supervising detective for the interception and was authorized to do so pursuant to § and 633 of the California Penal Code.

19. Finally, Defendant Kerekes possessed no reasonable expectation of privacy with regard to either conversation. The conversations occurred at a public restaurant and a public beach. See Lieberman v. KCOP Television, Inc., I Cal. Rptr. 3 536 (Cal. App., 2003).


25. On April 28, 2007 Grant Roy met with San Diego Detectives Donaldson and Pappas prior to meeting Kerekes and Cuadra. (N.T. July 28, 2008 at page 201).

26. Grant Roy orally agreed consented to acting as an informant and participating in the interception on April 27, 2007. (N.T. July 28, 2008 at pages 180-181; 201).

27. Roy further consented to wearing a body wire. He never withdrew his consent, He was under no pressure from any law enforcement agency to agree and consent. Law enforcement officials made no promises or threats to coerce or obtain agreement or consent. Roy received no compensation for acting as an informant and had no charges pending against him at the time. (N.T. July 28, 2008 at pages 180-181; 201-202).

28. The San Diego Police Department planned, supervised, and conducted the actual interception of conversations between Roy, Lockhart, Kerekes and Cuadra. Detective Donaldson acted as the Supervising Detective for the intercepts and Detective Andrew Pappas, also of the San Diego Police Department acted as the Technical Officer and arranged for the fitting, operation, transmission and recording of the intercepted conversations. (N.T. July 28, 2008 at pages 188; 191).

29. On April 28, 2007, San Diego Detectives did not request written consent from Mr. Roy. (N.T. July 28, 2008 at pages 184-185).

30. On April 28, 2007, Roy did not meet with any District Attorney, Assistant District Attorney, Attorney General or Deputy Attorney General prior to participating in the intercept. (N.T. July 28, 2008 at page 184).

31. Detective Pappas provided Roy with an electronic key remote which acted as a transmitter for the interception of conversations with Kerekes and Cuadra at Black Beach. (N.T. July 28, 2008 at page 187).

32. Black Beach is a public nude beach located at the base of Torrey Pines Golf Course in San Diego, California. Because Roy anticipated being nude, wearing a body wire was obviously impossible, and thus Detective Pappas fitted him with the key remote which would serve as the transmitter. (N.T. July 28, 2008 at pages 179-180; 187).

33. On April 28, 2007, Roy and Lockhart then went to Defendants’ motel and transported Kerekes and Cuadra to Black Beach where Roy’s key remote electronically transmitted the conversations and statements made by Kerekes and Cuadra at Black Beach. Those conversations were simultaneously intercepted and recorded by San Diego Police. (N.T. July 28, 2008 at pages 186-1 87).

34. Corporal Hannon and the other Pennsylvania law enforcement officials were who present in San Diego at the time of the intercept played a de minimis, inconsequential role in the intercept of the Black Beach conversations. (N.T. July 28, 2008 at pages 178; 191-192).