Friday, October 31, 2008

The Knives...

Harlow Cuadra and Joseph Kerekes purchased a "Sigarms" Sig Sauer model #FX1SG, lock blade folding knife at the Superior Pawn and Gun Shop, in Virginia Beach on 01/23/07. Then Harlow and Joe purchase another knife at a Wal-Mart in PA on the day of the murder. After reviewing Wal-Mart's website, they don't appear to sell the Sigarms brand, so it had to be a different brand/style (from what I know, it was a "multi-tool-style" knife).

According to the Affidavit of Probable Cause, police say that Harlow used a Visa card to buy a knife similar to the weapon found at the murder scene, yet the knife Harlow purchased in Virginia Beach was found in the glove box of his BMW in Virginia Beach. What's interesting though, is that police never did find the 'second' knife Harlow and Joe purchased... not in their house, car, or anywhere on their person. So where's the second knife?

I personally think the knife that was found at Bryan Kocis' house is the exact same brand, and model that Harlow and Joe bought just hours before the murder at Wal-Mart. Now wouldn't that be an(other) odd 'coincidence'?

Now knowing that two knives were purchased right before the murder, one has to wonder if both were used in the slice and stabs, or only one?

Perhaps Harlow and Joe figured out that they were in fact being video taped at the pawn shop, so they assumed the purchase could come back to haunt them... and decided to purchase the murder weapon at the Wilkes-Barre Wal-Mart, figuring it would be 'safer'... or... maybe Harlow and Joe both had knives, and one of them forgot to take their's after leaving Bryan's house... or... I could go on and on... what do you think?

Sunday, October 26, 2008

The Background Check...

Since we're still a couple of months away from Harlow and Joe's trial, I've been going over all of the evidence that's been offered (again and again acutally), and one of the things I haven't been able to understand is why Harlow Cuadra & Joseph Kerekes bought the background check for Bryan Kocis... especially since it would've provided more circumstantial evidence against them.

So I took a look at usa-people-search.com, and it would appear that the background check Harlow and/or Joe (Harlow's credit card was used, but we don't know which one ordered it) bought was apparently the "Extreme Background Check", which is advertised as:


"Our premium report. We search over 24 databases and billions of records. You get a highly detailed, easy to read report".

Included in your report:
  • most current, updated info
  • address and phone history
  • birth date, age
  • aliases / maiden names
  • marriages, divorces
  • court records & personal assets
  • relatives, roommates, neighbors
  • property ownership
What's interesting is that Harlow & Joe didn't spring for the extra $10 fee for "criminal records" or "business ownership" information. The whole thing seems odd, that is unless Sean and Grant really didn't tell them much, so they had to go digging... or perhaps they did... and H&J were looking for something else.

While we probably won't know the real answer until after the trial begins... what are your thoughts?

Update 10/27/08: I've gone ahead and purchased (or wasted) a people search ($39.95) from usa-people-search.com for Bryan Kocis... now I'm not sure if it's simply because he's been deceased for over a year, or what... but there really isn't that much information to be had... other than addresses, a phone number, and a few other things. The entire report is 7 pages, but I'll only be posting the first page, since I don't feel like spending the entire evening blocking every family member/neighbors' phone number and address out:



Based on this report... I can only assume Harlow and Joe knew nothing about Bryan, and used this in the hopes of trying to gather as much information as they could (which honestly doesn't look that impressive).

Thursday, October 23, 2008

Harlow Cuadra Get's Sued Again...

Harlow Cuadra

Two separate civil lawsuits were filed today in Virginia Beach General District Court, both are against Harlow Cuadra by the City of Virginia Beach Treasurer's Office . They're listed as a "Warrant in Debt", and one of the lawsuits also lists Norfolk Companions, Inc. as a defendant. The hearings are scheduled for 12/03/2008 at 8:30 AM, though I'm sure this will easily result in being ruled a default judgement(s), since the lack of Harlow being able to attend and/or afford an attorney is pretty obvious.

No civil lawsuits have currently been filed against Joseph Kerekes.

Harlow Cuadra Lawsuit 1Harlow Cuadra Lawsuit 2

Update @ 10/26/08: A reliable source has told me that the reason for the lawsuit(s) is because of bounced checks/payments that were made last year for personal/business property taxes (the vehicles: Viper, Corvette, Honda, etc...) equaling around $5000.

Apparently what happened was the checks were written by Joe to pay the property taxes on the vehicles at, or around the same time the Commonwealth of Virginia seized their bank account, causing the checks to bounce. Since they haven't been repaid, the City of Virginia Beach has taken Harlow to court because all of the vehicles were either in Harlow's name, or that of Norfolk Companions, Inc... with Harlow being the person named legally responsible.

Tuesday, October 21, 2008

Another Defense Motion Denied

On October 8, 2008, Harlow Cuadra and Joseph Kerekes' attorneys filed a joint motion to amend order to permit interlocutory appeal... Judge Peter Paul Olszewski quickly denied the motion on October 9, 2008. Here's a copy of the defendant's motion (simply click on the images for a larger version):

Monday, October 20, 2008

Whatever Happened To... Part Deux

As blogger Jim once said: "Some comments here are so interesting, they really deserve their own seperate threads. This IMO is one of those instances"...

I'm also caught with facing the same dilemma in a comment that was just recently made:

"DeWayne In San Diego said...

PC I think we have discussed this before you don't "Owe" anyone or anything but the TRUTH. If you can confirm who lives there at the Bordello you have the right to report that fact.

Some may ask what relevance this has to Joe and Harlow sitting in jail awaiting trial.

Let me fill you in here,,if we learned for instance that Harlows relatives were living at Stratum Ct that is legitimate news.

Why?

Because we would need to know if they are paying rent or living rent free?

Why?

When Demtrious Fannick was hired for Harlow who was going to pay his fee?

If the same couple have arranged for Harlows family to live in the house I think you can draw a pretty good picture of whats going on.

The Kerkes family has made it very clear to Harlow Cuadra as long as you stay loyal to Joe we will take care of your family.

If Harlow were to testify against Joe all bets are off.

You see the reason we are interested WHO lives at the Bordello has a lot to do with this case its NOT an irrelevancy!

Far from it.

I would guess PC has been threatened, no surprise, its happened before the people on Joe and Harlow's side are not exactly ethical.

Yeah good "Christians" Mama and Papa Kerekes think they be,,,

RRRIGGGHHTTT!,,,
"

---

What's interesting about this comment is the fact that Joseph Kerekes' family did sell their house the day after Harlow Cuadra and Joseph Kerekes were extradited to Pennsylvania. Perhaps it's not that hard to figure out where the money came from to hire Fannick, and what the Kerekes' family was promised - free housing perhaps?

We'll all know very shortly.

Sunday, October 12, 2008

Whatever Happened To...

Accused murder suspects' Harlow Cuadra and Joseph Kerekes bought the infamous bordello at 1028 Stratem Court, Virginia Beach, Virginia around 10/19/2005 for over $540,000.00. After their arrest on May 15, 2007, Harlow and Joe later tried to sell the house with several different prices:

08/19/07 - $679,000.00
11/10/07 - $699,000.00
12/20/07 - $471,900.00

Then on May 4, 2008... it was reported here that the house was removed from the market... but it wasn't sold.

What did become of the bordello?

Well... according to Virginia Beach real estate records, Harlow and Joe still own it... court records also show that there have not been any foreclosure proceedings.

So... is the house now a rental... is someone else paying the mortgage and not living there... are Harlow or Joe's family members living there?

...these are all good questions and I'll post the answer tomorrow... meanwhile, what are your theories?

Update 1: 10/13/08:


[ Click Picture to Enlarge ]

After driving out to Birdneck Woods... I can confirm that the house is still being lived in - though no one answered the door, there was a newspaper (today's) on the porch... and the lawn appears to have been recently mowed. A reliable source also tells me that the house is indeed being rented - now the question is to whom? Stay tuned...

Update 2: 10/15/08:

I drove back out this evening, and arrived at the house at 8:32 PM... no lights on, no cars in the drive and no newspaper at the doorstep - sadly no pictures this time since my camera can't seem to take a picture in the dark to save it's life (POS).

Wednesday, October 8, 2008

The Evidence That's Really Wanted?

After Harlow Cuadra and Joseph Kerekes were arrested, several items were seized from their black BMW:

"Among the items seized from the Defendants’ during the inventory search of their vehicle by the Virginia Beach Police Department were: a “SigSauer” folding knife, a “Sony” laptop computer, a black bag containing a “Toshiba” laptop computer and a “Sprint” mobile air card. The Virginia Beach Police Department turned these items over to the Pennsylvania State Police on May 18, 2007."

Interestingly, when the DA's office filed their answer to Kerekes' motion, they also included the same RICO warrant information that the Defense did (Exhibit 1)... but... they also added this Incident Report Related Property List page:



#41: Cellular Telephone with Cord - Nokia 6030 - Qty. 1
#42: DVDS, Pornograph - Qty. 1
#43: Combat Knife with Case - Sig Sauer - Qty. 1

Other than the knife, it'll be interesting to know what significance the other 2 items have with this case. (for those that are 'new' to this case... here's a list of items that were seized by VA for the RICO forfeiture).

Defendant Cuadra's Joinder

DEFENDANT CUADRA'S JOINDER IN DEFENDANT KEREKES' MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED FROM DEFENDANT'S VEHICLE FILED NUNC PRO TUNC


TO THE HONORABLE, THE JUDGES OF THE COURT OF COMMON PLEAS OF LUZERNE COUNTY:

The Defendant, HARLOW RAYMOND CUADRA, by and through his appointed counsel, Stephen Menn, Esquire and Michael B. Senape, Esquire, hereby JOINS in Defendant Kerekes’ Motion to Suppress Physical Evidence Seized From Defendant’s Vehicle Filed Nunc Pro Tunc and in support thereof respectfully represents as follows:

1. On or about August 12, 2008, Defendant Kerekes, by and through his appointed counsel, Shelley L. Centini, Esquire and John B. Pike, Esquire, presented a Petition To File Summary Appeal Nunc Pro Turic to Judge Olszewski, requesting additional time for Defendant Kerekes to file a Motion to Suppress evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007.

2. On August 12, 2008, Judge Olszewski entered an Order granting Defendant Kerekes permission to file the Motion to Suppress evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007. This Order was docketed, along with the Petition To File Summary Appeal Nunc Pro Tunc, on August 13, 2008 by the Luzerne County Clerk of Courts.

3. On August 19, 2008, Judge Olszewski entered an Order extending the time for the briefing schedule for Defendant Kerekes and the Commonwealth based upon Defendant Kerekes’ representations that the Commonwealth had still not supplied Defendant Kerekes with any search warrants or other documents relating to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007. This Order was docketed, along with the Defendant Kerekes’ Motion for Enlargement of Time to File Defendant’s Brief in Support of His Motion to Suppress Physical Evidence Seized from Defendant’s Vehicle, on August 19, 2008 by the Luzerne County Clerk of Courts.

4. In Defendant Kerekes’ Motion for Enlargement of Time to File Defendant’s Brief in Support of His Motion to Suppress Physical Evidence Seized from Defendant’s Vehicle, Attorney Centini points out to the Court that from July 17, 2008, through the date of the filing of said Motion, the Commonwealth had not produced any search warrants or other documents relating to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007.

5. The Court, in its August 19, 2008 Order scheduled the hearing and/or argument on Defendant Kerekes’ Motion to Suppress for September 22, 2008 at 1:00PM in Courtroom No. 2 of the Luzerne County Courthouse.

6. Defendant Kerekes filed his Brief in Support of His Motion to Suppress Physical Evidence Seized From Defendant’s Vehicle and/or His Home with the Luzerne County Clerk of Courts on September 5, 2008.

7. The Commonwealth filed its Answer to Defendant Joseph Kerekes’ Motion to Suppress Physical Evidence Seized from Defendant’s Vehicle and supporting Brief on September 19, 2008.

8. On September 22, 2008, at approximately 12:30P.M., the Commonwealth served the undersigned, Michael B. Senape, Esquire, with approximately 130 pages of discovery allegedly relating to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 200 This was the first time the undersigned, Michael B. Senape, Esquire, was provided with any information and/or documentation relating to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007.

9. The hearing before Judge Olszewski on Defendant Kerekes’ Motion to Suppress commenced on September 22, 2008 at 1:00PM. The undersigned, Michael B. Senape, Esquire, was merely present to observe the testimony and arguments presented by Defendant Kerekes and the Commonwealth to determine what action, if any, would be pursued on Defendant Cuadra’s behalf since the Commonwealth had not formally served Defendant Cuadra with the within referenced evidence until one half hour prior to the September 22, 2008 hearing.

10. Prior to the conclusion of the September 22, 2008 hearing, the Court, sua sponte, requested a side bar with counsel for Defendant Kerekes and the Commonwealth and undersigned, Michael B. Senape, Esquire, to inquire as to Defendant Cuadra’s position regarding Defendant Kerekes Motion to Suppress Physical Evidence Seized From Defendant’s Vehicle and/or His Home.

11. The Court’s inquiry regarding Defendant Cuadra’s position was based upon Assistant District Attorney Michael Melnick’s conduct in presenting exhibits to the undersigned, Michael B. Senape, Esquire, prior to presentation of said exhibits to the witness for the Commonwealth, Detective Matthew Patrick Childress of the Virginia Beach Police Department, which had the effect of including Defendant Cuadra in the hearing without Defendant Cuadra being physically present in the courtroom for the hearing.

12. The Court, in an effort to ensure fairness to all parties and given the representations of the undersigned, Michael B. Senape, Esquire, regarding the Commonwealth not having provided certain discovery to Defendant Cuadra relating to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007, adjourned the hearing and directed the Commonwealth to turn over all documents and/or evidence relating to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007, it had in its possession, and that it had previously provided to Defendant Kerekes, to the undersigned, Michael B. Senape, Esquire.

13. The Court granted the undersigned, Michael B. Senape, Esquire, and Defendant Cuadra 10 days to file a pleading joining in Defendant Kerekes’ Motion to Suppress, file his own Motion to Suppress or any other action Defendant Cuadra, and his appointed counsel, deemed appropriate for his defense. The Court indicated that, depending on the course of action taken by Defendant Cuadra, the Court would set a date and time for the continuation of the hearing on said Motion and, if necessary, direct the Commonwealth to present the witness, Detective Matthew Patrick Childress of the Virginia Beach Police Department, again for testimony and subject to cross examination in the presence of Defendant Cuadra.

14. Based upon the review of the above referenced pleading and discovery from the Commonwealth, as well as the testimony presented at the hearing on September 22, 2008, and after consultation with Defendant Cuadra, the undersigned, Michael B. Senape, Esquire and Stephen Menn, Esquire, Defendant Cuadra JOINS In Defendant Kerekes’ Motion to Suppress Physical Evidence Seized From Defendant’s Vehicle and/or His Home and Defendant Kerekes’ Brief in Support of thereof.

WHEREFORE, for the foregoing reasons and averments the Defendant Cuadra JOINS in Defendant Kerekes’ Motion to Suppress Physical Evidence Seized From Defendant’s Vehicle and/or His Home and Defendant Kerekes’ Brief in Support of thereof and request is hereby made for the Court to set a date and time for the continuation of the hearing on said Motion and direct that the Commonwealth present the witness, Detective Matthew Patrick Childress of the Virginia Beach Police Department, again for testimony and subject to cross examination in the presence of Defendant Cuadra.

Tuesday, October 7, 2008

DA's Brief Opposing Kerekes' Motion to Supress Evidence Seized from Vehicle

COMMONWEALTH’S BRIEF IN OPPOSITION TO DEFENDANT KEREKES’ MOTION TO SUPRESS PHYSICAL EVIDENCE SEIZED FROM THE DEFENDANTS’ VEHICLE

STATEMENT OF FACTS

On May 15, 2007, Pennsylvania authorities filed homicide and related charges against the Defendants at Magistrate Tupper’s District Court in Shavertown, Pennsylvania. Arrest warrants were immediately issued for the Defendants. On the same date, the Virginia Beach Police Department obtained a search warrant for the Defendants’ residence at 1028 Stratem Court, Virginia Beach, Virginia, as well as, any and all vehicles obtained, used, or associated with the RICO violations, money laundering and prostitution.’ The warrant also describes the defendants’ various services including “out call” services where the Defendants would drive to the clients’ houses or motel rooms for the appointments.

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. A copy of the warrant is attached hereto and marked as Exhibit “1”. Detective Matthew Childress of the Special Investigations Division, Virginia Beach Police Department had applied and sworn out this search warrant.

The search warrant specifically states the offense committed were Conspiracy to violate the Virginia Racketeer Influenced and Corrupt Organization Act (hereinafter “RICO”) § 18.2-514, Conspiracy to Launder Money, § 18.2-246.3, and Conspiracy to Receive Money from the Earnings of Male or Female Prostitutes, § 18.2-357, and gives a specific description of 1028 Stratcm Court, Virginia Beach, Virginia, the defendants’ residence, as the home to be searched, as well as, the items to be searched including cars and other luxury items. A detailed description of items to be searched for in Section 3 of the warrant includes any and all assets, personal property, luxury items, jewelry, U.S. currency, vehicles, or any and all items obtained, used, or associated with the furtherance of the criminal enterprise, or associated with the laundering of assets derived in whole or in part from the criminal enterprise, or prostitution ring.

On May 15, 2007, the Defendants’ vehicle was stopped by the Virginia Beach Police Department. The Virginia Beach Police Department stopped the vehicle occupied by the Defendants because (1) they were aware of the active fugitive arrest warrants for the occupants/Defendants out of Pennsylvania and (2) the active search warrant issued by a Virginia Beach Circuit Court Judge for the Defendants’ property. The vehicle which the Defendants occupied at the time of the stop was driven back to the Virginia Beach Police Department’s Special Investigation Division since the Defendants were in custody. The vehicle was subject to an inventory search, which is the standard practice and protocol of the Virginia Beach Police Department, by Virginia Beach Police Detective Matthew Childress.

Among the items seized from the Defendants’ during the inventory search of their vehicle by the Virginia Beach Police Department were: a “SigSauer” folding knife, a “Sony” laptop computer, a black bag containing a “Toshiba” laptop computer and a “Sprint” mobile air card. The Virginia Beach Police Department turned these items over to the Pennsylvania State Police on May 18, 2007.

ISSUES

1. Whether Pennsylvania or Virginia law governs the search of the Defendants’ vehicle?

Suggested Answer: Virginia law governs.

2. Whether or not the Virginia Beach search warrant is valid under Virginia law?

Suggested Answer: Yes.

3. Whether or not the Commonwealth of Virginia has adopted the good faith exception regarding search warrants?

Suggested Answer: Yes.

4. Whether the search of Defendants’ car was a lawful inventory search?

Suggested Answer: Yes.

5. Whether the automobile exception to search warrants applies.

Suggested Answer: No.

LAW AND ARGUEMENT

Part A: Conflicts of Laws-Virginia Law Governs the Search of the Defendant's Vehicle in Virginia Beach, Virginia.
Part B: Detective Childress' Search Warrant is Valid.
Part C: Good Faith Exception.
Part D: The Defendants’ Vehicle was Subject to a Lawful Inventory Search.
Part E: The Automobile Exception Does Not Apply & Conclusion.

Law and Argument: Part A

A. CONFLICTS OF LAWS-VIRGINIA LAW GOVERNS THE SEARCH OF THE DEFENDANTS’ VEHICLE IN VIRGINIA BEACH VIRGINIA

In Commonwealth. v. Sanchez 716 A.2d 1221, 552 Pa. 570 (Pa., 1998), the court wrote:

In this case of first impression this Court is asked to determine whether Pennsylvania law or California law should be used to evaluate the propriety of a canine sniff search conducted in California which provided probable cause for a search warrant in Pennsylvania. For the following reasons, we affirm the order of the Superior Court and hold that the legality of the canine sniff conducted in California must be evaluated under California law Thus, the issue that this Court must address is whether Pennsylvania or California law should be used to determine whether the canine sniff in the instant case was conducted through valid and legal means.

In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state. In cases where the substantive laws 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. Griffith v. United Air Lines 416 Pa. 1, 203 A.2d 796, 805 (1964). 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 to apply the policy of the jurisdiction most intimately concerned with the outcome. Id. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.

Initially, we note that this case does not present a question of conflict between procedural laws as appellants assert. Appellants rely on the Superior Court’s decision Commonwealth v. Dennis 421 Pa.Super. 600, 618 A.2d 972 (1992), alloc. denied, 535 Pa. 654, 634 A.2d 218 (1993) to support their position that the issue of whether a canine sniff is a search is a matter of procedural rather than substantive law; and that accordingly, this Court should apply Pennsylvania law to evaluate the propriety of the canine sniff. We disagree. A substantive right is defined as “a right to equal enjoyment of fundamental rights, privileges and immunities; distinguished from a procedural right.” Black’s Law Dictionary 1429 (6th ed. 1990). By contrast, procedural law is “that which prescribes the methods of enforcing rights or obtaining redress for their invasion; as distinguished from the substantive law which gives or defines the right.” Id. at 1203. The issue before this Court is a strict constitutional law question involving the fundamental right to be free from unreasonable searches and seizures. Therefore, the issue is one that must be addressed under the principles of conflicts between substantive laws, which require this Court to evaluate which state has the most interest in the outcome.

Here, California possessed the greater interest in the validity of the canine sniff in question. The canine sniff took place in California and involved a package shipped by California residents. While this Commonwealth has an interest in protecting its citizens from police misconduct and searches that are not supported by probable cause, the courts of this Commonwealth have no power to control the activities of a sister state or to punish conduct occurring within that sister state. 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 The courts of California have determined that a canine sniff is not a search requiring probable cause or a warrant. We will not question that decision under the conflicting decisions of Pennsylvania because Pennsylvania has no interest in a canine sniff search conducted within California’s borders, even if the results are
later used in the Pennsylvania Courts.

We find persuasive the reasoning of the Superior Court in Commonwealth v. Bennett 245 Pa.Super. 457, 369 A.2d 493 (1976). In Bennett, the Superior Court held that evidence obtained during a drug investigation in New Jersey pursuant to a wiretap authorized by a New Jersey court on a telephone terminal located within New Jersey could be used to support a search warrant in Pennsylvania. The wiretap, which was authorized by New Jersey law, would have violated the Pennsylvania Wiretap Act. Nonetheless, the Superior Court determined that the information was competent evidence to support a Pennsylvania search warrant. The court stated:

It is, of course, obvious that the courts of this Commonwealth have absolutely no power to control the activities of a sister state or to punish conduct occurring within that sister state. The legislature of New Jersey has determined that wiretapping, in appropriate circumstances and for proper cause shown, will be permitted within its borders. Thus, the information involved in the appeal before us was obtained by the New Jersey Police under a legal authorization.... If the legislature of a sister state or foreign jurisdiction determines that wiretapping will be permitted within its borders, we will not, under the present laws of Pennsylvania, question that decision.

Id. at 460-61, 369 A.2d at 494-95; Commonwealth v. Corbo 295 Pa.Super. 42, 440 A.2d 1213 (1982) (evidence obtained through electronic telephone surveillance in New Jersey provided police with sufficient probable cause for the issuance of a search warrant in Pennsylvania despite the fact that the surveillance would have been illegal in Pennsylvania).

Thus we hold 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 borders must be evaluated under the laws of that state. Appellate courts in several other states have addressed this issue and reached similar results. Frick v. Oklahoma 634 P.2d 738 (Okla.Crim.App.1981), the Oklahoma Court of Criminal Appeals determined that wiretap evidence legally obtained in Virginia through court authorization was admissible in an Oklahoma court even though wiretapping was unlawful in Oklahoma. The court reasoned that “in the present case, then, the authorization for disclosure should have come from the Virginia court which authorized the drug investigation during which officers overheard the conversations involving the appellant. And that court did issue such authorization, Id. 634 P.2d at 740. Similarly, the Supreme Court of Washington determined that Washington’s Privacy Act did not apply to a defendant’s statements taken by California police and recorded without defendants knowledge or consent, as permitted by California law. Washington v. Brown 132 Wash.2d 529, 940 P.2d 546 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998). The court allowed the statements to be admitted in a capital murder trial in Washington despite the fact that similar action in Washington might have violated the Privacy Act. The court reasoned that there was no state interest to be advanced by suppressing the recorded statements because no Washington state officer violated the Privacy Act and no one’s statutory privacy interests were infringed. “The effect of suppression would have been to keep highly probative and lawfully obtained evidence from the jury.” Id. 940 P.2d at 577.

While it is true that the propriety of the canine sniff might be subjected to greater scrutiny if analyzed under the Pennsylvania Constitution, this fact has no effect on information properly obtained in a sister state. Therefore, because the Superior Court correctly applied the law of California, we affirm the order of the Superior Court reversing the order of the trial court and remanding the case for further proceedings consistent with its opinion.

The Commonwealth submits that Virginia law governs the legality of the Virginia Beach RICO search warrant served on Virginia residents’ property; the Defendants’ vehicles were among the items to be seized and searched pursuant to the warrant. Furthermore, the Virginia Beach Police Department stopped the Defendants in Virginia Beach and took them into custody on the Pennsylvania arrest warrant. The Virginia Beach Police Department is therefore charged with seizing the car, maintaining custody of the Defendants’ car at the Virginia Beach Police Department and inventorying the contents of the vehicle.

Law and Argument: Part B

B. DETECTIVE CHILDRESS’ SEARCH WARRANT IS VALID

A single search warrant may be issued for the search of certain described premises and also for a described vehicle and in such a case a search of both the premises and the vehicle will be lawful if the supporting affidavit establishes probable cause to both. United States v. Motz 936 F.2d 1021(9th Cir. 1991). Furthermore, a search warrant authorizing the search of certain premises covers automobiles found on those premises. The assumption seems to be that a vehicle should be viewed in the same way as any other personal effects found on the described premises. E.g. United States v. Singer 970 F.2d 1414 (5th Cir.1992).

In Lassiter v. State of Florida 959 So. 2d 360; 2007 Fla. App. LEXIS 9021 (2007), the court held that based on an investigation aided by a confidential informant, defendant’s daughter, the police obtained a warrant to search a home, its curtilage, and any vehicles parked thereon. A vehicle was observed on the property when the police arrived to serve the warrant. Defendant was seen exiting the house, raising and lowering the hood of the vehicle, and then driving off The police allowed him to travel five miles from the house before stopping him so that other occupants in the house would not be alerted to the police presence. MDMA was found under the hood of the vehicle. The appellate court affirmed. Under the warrant, the vehicle could have been searched before defendant drove off. Given the volatile nature of the MDMA being manufactured at the residence, it was both prudent and reasonable for the police to have waited for defendant to leave in the vehicle before executing the warrant. Beyond the warrant, the appellate court also concluded that the police had probable cause to arrest defendant based on the informant’s information and other evidence that arose out of a police surveillance of the house and defendant and other investigative activities.

Mr. Lassiter filed a motion to suppress “all physical evidence gathered from his detention, “including the package of MDMA pills found underneath the hood of his car, and “any and all statements made to law enforcement following his detention and arrest.” He argued that even if the State had the authority to search the Palm Coast house, the State did not have sufficient corroborating evidence creating a reasonable suspicion allowing the authorities to stop Mr. Lassiter when he was miles away from the residence. Id. at 362.

Lassiter asserted that the search warrant did not authorize the stopping and search of his vehicle at some point away from the house and grounds described in the warrant, He points out that the Camaro he was driving was not specifically described in the warrant and was not located within the curtilage of the Palm Coast house when it was searched. He next posits that the police did not have either a reasonable suspicion or probable cause to stop and search his car, irrespective of the warrant. The Court disagreed with both positions.

First, the Court held that the warrant was properly executed. A number of prior decisions are instructive in this regard. In Terhune v. State 470 So. 2d 840 (Fla. 2d DCA 1985), for example, the police obtained a warrant to search a residence and the persons inside for evidence of cocaine distribution, Id. at 364. The house was believed to have weapons within it, and was located near a school that was about to dismiss its students for the day. As a result, the police delayed implementing the search warrant. In the interim, a police officer, posing as a taxi driver, picked up the appellant at the house. A patrol car stopped the cab two blocks from the residence, searched the appellant, and found cocaine in his possession. The appellant filed a motion to suppress, arguing that the police could not execute the warrant on him after he left the curtilage of the house. The Second District concluded, however, that the facts presented sufficient exigent circumstances for the execution of the warrant away from the home, Because the police action was patently reasonable, the evidence seized was not subject to the exclusionary rule. See also Crain v. State 914 So. 2d 1015, 1023 (Fla. 5th DCA 2005), review denied, 940 So. 2d 427 (Fla. 2006); State v. Hendrix 855 So. 2d 662 (Fla. 1st DCA 2003).

Furthermore, the warrant in the Lassiter case authorized law enforcement to search the Palm Coast house as well as the “yard and curtilage thereof and any vehicles parked thereon.” It does not seem to be disputed that the warrant could have been executed while Mr. Lassiter was physically located in the Palm Coast house, and that the Camaro could have been searched pursuant to the warrant while it was parked for a number of hours in the driveway associated with that house. Id.

What is a reasonable search is purely a judicial question, and in determining it the court must look, to all the circumstances. Johnson v. Commonwealth 213 Va. 102, 189 S.E.2d 678 (1972), cert.denied, 409 U.S. 1116, 93 S.Ct. 918, 34 L.Ed.2d 700 (1973).

The standard for determining probable cause is probability, and not a prima facie showing, of criminal activity. Manley v. Commonwealth 211 Va. 146, 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 5. Ct. 2245, 29 L.Ed.2d 716 (1971).

The relevant Virginia Statutory sections are noted below:

Sec. 19.2-52. When search warrant may issue. -- Except as provided in Sec. 19.2-56-1, search warrants, based upon complaint on oath supported by an affidavit as required in Sec. 19.2-54, may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant. (Code 1950, Sec. 19.1-83; 1960, c. 366; 1975, c. 495; 1986, c. 636)

Sec. 19.2-53. What may be searched and seized. —- Search warrants may be issued for the search of or for specified places, things or persons, and seizure therefrom of the following things as specified in the warrant:

(1) Weapons or other objects used in the commission of crime;
(2) Articles or things the sale or possession of which is unlawful;
(3) Stolen property or the fruits of any crime;
(4) Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime. Notwithstanding any other provision in this chapter to the contrary, no search warrant may be issued as a substitute for a witness subpoena.

Sec. 19.2.54. Affidavit preliminary to issuance of search warrant;
general search warrant prohibited; effect of failure to file affidavit
. — No search warrant shall be issued until there is filed with the officer authorized to issue the same an affidavit of some person reasonably describing the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense in relation to which such search is to be made and that the object, thing, or person searched for constitutes evidence of the commission of such offense. The affidavit may be filed by electronically transmitted facsimile process. Such affidavit shall be certified by the officer who issues such warrant and delivered in person or mailed by certified mail, return receipt requested, by such officer or other officer authorized to certify such warrants to the clerk of the circuit court of the county or city wherein the search is made within seven days after the issuance of such warrant and shall by such clerk be preserved as a record and shall at all times be subject to inspection by the public; however such affidavit may be temporarily sealed by the appropriate court upon application of the attorney for the Commonwealth for good cause shown in an ex parte hearing. Any individual arrested and claiming to be aggrieved by such search and seizure or any person who claims to be entitled to lawful possession of such property seized may move the appropriate court for the unsealing of such affidavit, and the burden of proof with respect to continued sealing shall be upon the Commonwealth. Each such clerk shall maintain an index of all such affidavits filed in his office in order to facilitate inspection. No such warrant shall be issued on an affidavit omitting such essentials, and no general warrant for the search of a house, place, compartment, vehicle or baggage shall be issued. The term “affidavit” as used in this section, means statements made under oath or affirmation and preserved verbatim.

Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of thirty days. If the affidavit is filed prior to the expiration of the thirty-day period, nevertheless, evidence obtained in any such search shall not be admissible until a reasonable time after the tiling of the required affidavit.

Sec. 19.2-56. To whom search warrant directed; what it shall command; warrant to show date and time of issuance; copy of affidavit to be part of warrant and served therewith; warrants not executed within 15 days. The judge, magistrate or other official authorized to issue criminal warrants, shall issue a search warrant if he finds from the facts or circumstances recited in the affidavit that there is probable cause for the issuance thereof.

Every search warrant shall be direct to (i) the sheriff’, sergeant, or any policeman of the county, city or town in which the place to be searched is located, (ii) any law-enforcement officer or agent employed by the Commonwealth and vested with the powers of sheriffs and police, . . .The warrant shall (1) name the affiant, (ii) recite the offense in relation to which the search is to be made, (iii) name or describe the place to be searched, (iv) describe the property or person to be searched for, and (v) recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committed or is committing a crime.

The warrant shall command that the place be forthwith searched, either in day or night, and that the objects or persons described in the warrant, if found there, be seized. An inventory shall be produced before a court having jurisdiction of the offense in relation to which the warrant was issued as provided in Sec. 19.2-57.

Any such warrant as provided in this section shall be executed by the policeman or other law-enforcement officer or agent into whose hands it shall come or be delivered. If the warrant is directed jointly to a sheriff, sergeant, policeman or law-enforcement officer or agent of the Commonwealth and a federal agent or officer as otherwise provided in this section, the warrant may be executed jointly or by the policeman, law-enforcement officer or agent into whose hands it is delivered. No other person may be permitted to be present during or participate in the execution of a warrant to search a place except (i) the owners and occupants of the place to be searched when permitted to be present by the officer in charge of the conduct of the search and (ii) persons designated by the officer in charge of the conduct of the search to assist or provide expertise in the conduct of the search.

Every search warrant shall contain the date and time it was issued. However, the failure of any such search warrant to contain the date and time it was issued shall not render the warrant void, provided that the date and time of issuing of said warrant is established by competent evidence.

The judge, magistrate, or other official authorized to issue criminal warrants shall attach a copy of the affidavit required by Sec. 19.2-54, which shall become a part of the search warrant and served therewith. However, this provision shall not be applicable in any case in which the affidavit is made by means of a voice or videotape recording or where the affidavit has been sealed pursuant to Sec. 19-2-54.

The requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant (Sees. 19.2-54 and 19.2-56) are in substance the same as those contained in the Fourth Amendment. Kirby v. Commonwealth 209 Va. 806, 167 S.E.2d 411(1969).

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.

“The required affidavit” means the affidavit required to support issuance of a search warrant, Under the Fourth Amendment warrant requirement, the content of that affidavit must be sufficient to support a finding of probable cause by a neutral and detached magistrate. The Constitution does not require the magistrate to certify an affidavit. The purpose of that requirement in this section is to ensure that the affidavit filed with the clerk for the information of the accused is the same affidavit upon which the finding of probable cause was based. Quintana v. Commonwealth 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

In Slade v. Commonwealth 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231(2004) facts in affidavit held sufficient. A Magistrate had probable cause to issue a search warrant to search defendant’s apartment where the affidavit supporting the warrant provided a detailed description of a confidential, reliable informant who, after giving “buy money” to an unwitting informant, saw the unwitting informant knock on defendant’s door, walk, in with money, and return to hand the reliable informant cocaine that was purchased. The totality of the circumstances, therefore, provided the magistrate with a substantial basis to find that probable cause justified the search. Slade v. Commonwealth 43 Va. App 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231(2004).

Under the Constitution of the United States and the statutory law of Virginia it is essential to the validity of a search warrant that it describe with particularity the place to be searched. All that is required, however, is that the description be such that the officer charged with executing the search warrant can, with reasonable effort, ascertain and identify the place intended. Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970), cert. denied, 403 U.s. 936, 91 S. Ct. 2245, 29 L.Ed.2d 716 (1971).

Scope of search was not exceeded in Dotson v. Commonwealth 47 Va. App. 237, 623 S.E.2d 414, 2005 Va App. LEXIS 514 (2005). Defendant’s motion to suppress was properly denied, a safe located during a search of his residence was in plain view, and officers could reasonably expect to find the items listed on a search warrant within the safe. The officers did not exceed the scope of the search authorized by the warrant by delaying some fifteen days to open the safe after it was seized and removed to police property. Dotson v. Commonwealth 47 Va. App. 237, 623 S.E.2d 414, 2005 Va. App. LEXIS 514 (2005). The Dotson court wrote:

“The permissible scope of a search is limited by the terms of the warrant pursuant to which it is conducted.” Kearney v. Commonwealth, 4 Va. App. 202, 204, 355 S.E.2d 897, 898 (1987). However, “a search warrant. . . is not invalid merely because officers seize items not named in the warrant.” Cherry v. Commonwealth 21 Va. App. 132, 138-39, 462 S.E.2d 574, 577 (1995).

Here, the warrant described with particularity the items for which the search of appellant’s residence was to be made, specifying items related to the possession, distribution, or manufacture of marijuana, or any other illicit drugs. ‘A search may be as extensive as reasonably required to locate the items described in the warrant.” Kearney, 4 Va. App. at 205-06, 355 S.E.2d at 899 or, as stated by one court, “the permitted scope of a search is, logically, whatever is necessary to serve the purpose of that particular search, but don’t look for an elephant in a matchbox.” Wilkerson v. State 594 A.2d 597, 605 n.3 (Md. App. 1991).

In the course of conducting the search of appellant’s residence, the officers observed the small portable safe in plain view in the living room of appellant’s residence. Fuller explained that, in his experience, when police find a safe during a search of a residence in a narcotics case, “most of the time there’s money, records, or drugs in the safe.” Clearly, the safe was a container that officers reasonably believed contained items specified in the warrant, particularly illicit drugs, drug paraphernalia, and records of illegal drug sales. Stated differently, the officers were not searching for an elephant in a matchbox.

Appellant’s reliance upon Shearer v. Commonwealth 9 Va. App. 394, 388 S.E.2d 828 (1990), and Arizona v.Flicks 480 U.S. 321 (1987), is misplaced. In Shearer the police searched a residence pursuant to a warrant for clothing suspected to have been worn by an intruder in a break-in at a shopping mall. During that search, police found a metal cash box in a dresser drawer that matched the description of one taken during a recent unrelated burglary. Shearer told police that he purchased the metal box, knew it was stolen, but did not identify the seller. We held that the box was found “in plain view” and subject to seizure as identifiable contraband, despite not being named in the warrant. When officers opened the metal box, they found ear keys that had been stolen in a separate burglary. While concluding that the metal box could not be seized pursuant to the search warrant for clothing, as it was not an item specified in the search warrant, we held that because the officers found the metal box in “plain view” during the search for clothing and recognized it as stolen property, they had authority to seize it as contraband. We noted that the metal box was discovered in a place where the police had a lawful right to be under the authority of the search warrant.

In Hicks the officers were lawfully in an apartment without a warrant and, while there, moved stereo equipment to locate serial numbers that they then used to determine the equipment was stolen. The United States Supreme Court held that the officers tacked probable cause to believe that the equipment was contraband prior to searching for the serial numbers, and, therefore, the seizure of the stereo equipment violated the Fourth Amendment. While the officers were in a place they had a lawful right to be, the serial numbers were not in “plain view.”

Here, officers conducted the search of appellant’s residence pursuant to a search warrant listing “Marijuana Marijuana plants, seeds or any other Illegal Drugs, drug Paraphernalia , weapons, monies, growing equipment, records, or other information pertinent to the possession, distribution or manufacturing of marijuana or any other drugs” as objects of the search. The small locked safe was in plain view, and the officers could reasonably expect to find those items within the safe.

Appellant’s argument that the officers needed a separate warrant to open the locked safe once it was removed from the searched premises is also without merit. It is clear that if the safe had been unlocked when officers at the scene seized it, they would have been permitted to open it to determine if it contained any of the items particularized in the search warrant. The scope of a lawful search of premises described in a warrant “extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search’’ Kearney, 4 Va. App. at 205, 355 S.E.2d at 899 (quoting United States v. Ross 456 U.S. 798, 820-21 (1982)). Other courts considering whether a search warrant also permits the search of locked containers, found during the search and likely to contain items specified in the warrant, have consistently concluded that it does. See United States v. Snow 919 F.2d 1458, 1461 (10th Cir. 1990) (holding that a “locked safe was a likely source for the specified documents and could therefore be opened”); United States v, O'Neill, 27 F. Supp.2d 1121, 1135 (RD. Wis. 1998) (search warrant for firearms permitted search of locked safe and locked opaque canvas bag “as long as those items could possibly fit in the safe or the opaque bag”); United States v. Harris, 961 F. Supp. 1 127, 1134 (S.D. Ohio 1997) (search of residence for vials of bacteria extended to car parked in front of the house and “authorized [ officers] to open the [ locked glove box because vials are small enough to fit in that compartment”); Green v. State, 676 N.E.2d 755, 759 ( Ct. App. 1996) (search warrant for illegal pornographic photographs in defendant’s residence authorized officers to seize locked safe from the premises because “a second warrant to search the safe was not necessary”).

Here, we conclude that it was reasonable for the officers to believe that items listed in the warrant could be found in the locked safe located during the search. We also conclude that the officers did not exceed the scope of the search authorized by the warrant by delaying some fifteen days to open the safe after it was seized and removed to police property. United States v. Johns, 469 U.S. 478 (1985) (search of vehicle held in police custody three days after seizure held to be valid). Fuller explained that the delay resulted because of his difficulty locating a locksmith in a rural area to open the safe. Moreover, the locked safe was portable, and could have been easily removed from the scene by others if the officers left it there. There was a substantial likelihood that items named in the search warrant, including drugs, drug-related items, money, and records of appellant’s suspected drug business would be found within the safe. Under these circumstances, we hold that the trial court correctly found that the removal of the small safe from the searched premises, and its being opened by the officers some fifteen days later, did not violate appellant’s Fourth Amendment protections.

We hold that the seizure of the safe during execution of the search warrant was reasonable and within the scope of the warrant. Furthermore, we conclude from this record that the subsequent search of the safe and seizure of its contents at the narcotics task force office fifteen days after it was removed from the searched premises was reasonable. The trial court did not err in denying appellanfs motion to suppress” Dotson at pg 7.

The Affidavit must include any supplementary facts presented to the magistrate to establish probable cause. MeCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984). The McCary court wrote:

The search warrant was issued by a magistrate on the basis of an affidavit made by a law enforcement officer stating that he had personal knowledge of the facts set forth therein. At the suppression hearing, the officer testified that he had no personal knowledge of the facts but set forth in the affidavit information given to him by other law enforcement officers. He further testified, over McCary’s objection, that he had so informed the magistrate when he applied for the search warrant.

The Fourth Amendment requires only that the magistrate have a “substantial basis” for concluding the search will uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 233 1-32, 76 L.Ed.2d 527 (1983) (replacing the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), with a “totality of the circumstances” test for determining probable cause). Since the affidavit of Officer Blount contained allegations of facts known to victims, eyewitnesses, and investigating officers, the information contained therein supplied probable cause for issuance of the search warrant.

The main thrust of McCary’s attack on the warrant, however, is Blount’s admittedly incorrect statement that he had personal knowledge of the facts contained in the affidavit. We conclude that the error did not invalidate the warrant or the search and seizure conducted thereunder.

The Fourth Amendment requires that the magistrate receive sufficient information, under oath or affirmation, to support a finding of probable cause. Gates, 103 S.Ct. at 2331-32. There is no requirement under the Fourth Amendment that the sworn statement be reduced to writing. United States ex rel. Gaugler v. Brierley, 477 F.2d 516, 522 (3d Cir.1973). Thus, an insufficient affidavit may be supplemented or rehabilitated by information disclosed to the issuing magistrate upon application for the search warrant. Id.; Leeper v. United States, 446 F.2d 281, 286 (10th Cir.1971), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1972); Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306 (1971); Aguilar v. Texas, 378 U.S. 108, 109 n. 1,84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964).

McCary contends, however, that Virginia Code § 19.2-54 requires that any statement in support of a warrant be preserved verbatim. Therefore, he says, since Blounts explanatory statement to the magistrate was not preserved verbatim, it was inadmissible in evidence, We disagree.

Code § 19.2-54 states what shall be included in the affidavit and defines “affidavit” as “statements made under oath or affirmation and preserved verbatim.” We agree that the affidavit must include any supplementary facts presented to the magistrate to establish probable cause. But here no such additional facts were supplied. A statement of the source of the affiant’s information, while required by the Fourth Amendment, is not mandated by Code § 19.2-54. It was proper to admit Blount’s testimony, given to rebut the charge that the warrant was based on a false affidavit, that he had given the magistrate the correct source of his information. It was also proper for the magistrate to consider Blount’s explanation together with the written affidavit. The affidavit form did not contain a statement to be checked by the affiant when his information was obtained from other police officers. Blount’s explanation did not expand or supplement the facts supporting probable cause for issuance of a warrant. His testimony shows that he supplied accurate information on which the magistrate properly relied in issuing the warrant.

We hold the search was valid for another reason. We embrace the recently announced “good faith” exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637, at 644 (1984).

The vehicle in question was listed in the warrant as an item to be searched. Furthermore, as stated above, the warrant sought the search and seizure of any and all ill- gotten gains from the prostitution ring and anything used in the furtherance thereof. Under the warrant the vehicle the Defendants were stopped in can also be classified as a luxury item, as well as, something that furthered the prostitution ring since they also drove to service calls with clients. Finally, the Defendants did not contest the forfeiture of this vehicle during the Virginia Beach RICO forfeiture proceedings.

Law and Argument: Part C

C. GOOD FAITH EXCEPTION

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).

In Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E. 2d 749, 2005 Va. App. LEXIS 88 (2005) the Trial court did not err in denying defendant’s motion to suppress evidence seized as a result of a search warrant, where despite the fact that the affidavit supporting the same failed to provide the issuing magistrate with a substantial basis for concluding that probable cause to search defendant’s home existed to issue said warrant, officers possessed an objectively reasonable belief in the existence of probable cause, namely, that the fruits of criminal activity would probable be found at defendant’s residence, for the good faith exception to the exclusionary rule to apply. Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E. 2d 749, 2005 Va. App. LEXIS 88 (2005).

The Anzualda court noted that because deterrent effect of exclusionary rule is absent where officer, acting in objective good faith, obtains search warrant from magistrate and acts within scope of warrant, evidence seized pursuant to invalid search warrant is nevertheless admissible if officer executing warrant reasonably believed that warrant was valid. Under good faith exception, if police officer has objectively reasonable belief that issuing magistrate had probable cause to issue search warrant, officer may rely upon magistrate’s probable cause determination and evidence will not be excluded, even though affidavit may not have provided that magistrate with probable cause to issue warrant. There are four recognized situations in which good faith exception will not be applied to admit evidence seized pursuant to search which was based on invalid search warrant: (1) magistrate was misled by information in affidavit which affiant knew or should have known was false; (2) Issuing magistrate totally abandoned his judicial role; (3) warrant was based on affidavit so lacking in indicia of probable cause as to render official belief in its existence unreasonable; or (4) warrant was so facially deficient that executing officer could not reasonably have assumed it valid. Absence of “substantial basis” for determining probable cause to issue search warrant does not necessarily mean that affidavit was so entirely lacking in indicia of probable cause that police officer could not have harbored objectively reasonable belief in validity of warrant. In other words, “no substantial basis” does not automatically equate to “no indicia of probable cause” Third exception to good-faith rule prevents finding of objective faith to rely on invalid search warrant only when officer’s affidavit is so lacking in indicia of probable cause to render official belief in its existence entirely unreasonable. This is less demanding showing than “substantial basis” threshold required to prove existence of probable cause in first place. It is entirely possible that search warrant affidavit could be insufficient for probable cause, but sufficient for officer’s good faith reliance, so as to support admission of evidence seized during search. If there are some indicia of probable cause in underlying search warrant affidavit, court will apply good faith exception as long as reasonable police officer, after assessing facts set forth in affidavit, could have believed that warrant was valid In ordinary case, officer conducting search pursuant to warrant cannot be expected to question magistrate’s probable cause determination or his judgment that form of warrant is technically sufficient. Magistrate lacked substantial basis for finding that facts set forth in affidavit established probable cause to issue search warrant, but affidavit established probable cause to issue search warrant, but affidavit contained some indieia of probable cause, and thus good faith exception applied.

In Polston v. Commonwealth, 255 Va. 500, 498 S.E.2d 924. (1998), the court noted that the Exclusionary rule is designed to deter police misconduct. This deterrent is not applicable when police officer, acting in good faith, obtains search warrant from magistrate and conducts search within scope of warrant. The Good Faith exception to exclusionary rule has been adopted in Virginia. Suppression remains an appropriate remedy if magistrate or judge issuing warrant was misled by information in affidavit that affiant knew was false or would have known was false except for his reckless disregard of truth or where issuing magistrate wholly abandoned his judicial role. Nor would officer manifest objective good faith in relying on warrant based on affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Depending on circumstances of particular ease, warrant may be so facially deficient — i.e., in failing to particularize place to be searched or things to be seized — that executing officers cannot reasonably presume it to be valid. Regardless of actual validity of search warrant, evidence seized during search of defendant’s apartment was admissible under good faith exception to exclusionary rule.

In Adams v. Commonwealth, 48 Va. App. 737, 635, S.E.2d 20. (2006) the court noted that when officers rely in good faith upon a search warrant subsequently quashed for lack of probable cause, suppressing the evidence will have no deterrent effect. Under the good faith exception to exclusionary rule, the evidence seized pursuant to a search warrant, not issued on probable cause, is admissible if the officer executing the warrant reasonably believed that the warrant was valid. Where a reasonable police officer has a objectively reasonable belief that the issuing magistrate had probable cause to issue the search warrant, the officer may rely upon the magistrate’s probable cause determination and the evidence will not be excluded, even though the affidavit may not have provided magistrate, in fact, with probable cause to issue the warrant. A Deficient affidavit underlying the search warrant for a residence, when read in conjunction with criminal complaint, sufficiently linked the defendant to the residence to establish probable cause to issue the search warrant. Therefore, the officer’s reliance on the warrant was reasonable as to implicate the good-faith exception to the exclusionary rule.

An affidavit in support of a search warrant that is deficient on its face may, under appropriate circumstance, be rehabilitated with facts not included in the affidavit if the evidence established that the omitted facts were actually disclosed to the magistrate under oath or affirmation. Obviously, a deficient affidavit in support of a search warrant cannot be cured by officer’s later testimony on his subjective intentions or knowledge. A deficient affidavit underlying the search warrant for residence, when read in conjunction with the criminal complaint, sufficiently linked the defendant to the residence to establish probable cause to issue the search warrant. Therefore, the officer’s reliance on the warrant was reasonable as to implicate the good-faith exception to the exclusionary rule.

In Derr v. Commonwealth, 242 Va. 413, 410 S 662. (1991), the court held that the Fourth Amendment does not require that the sworn statement upon which the magistrate relies in determining probable cause be reduced to writing. An insufficient affidavit may be supplemented or rehabilitated by information disclosed to the issuing magistrate upon the application for the search warrant. Code Sec. 19.2-54 permits the magistrate to consider both the affidavit and the police officer’s verbal explanation that he did not have personal knowledge of the facts contained in the affidavit but had received the information from other officers. The affidavit may be supplemented or rehabilitated with additional affidavits which contain collective facts relevant to the same offenses when those affidavits are presented simultaneously to the issuing magistrate by the same officer. The magistrate did not violate Code Sec. 19.2-54 when she considered search. Courts should not invalidate warrants by interpreting affidavits in hyper-technical, rather than commonsense manner.

The Commonwealth submits that the search warrant for 1028 Stratem Court is valid, and even if there were some technical defect, the good faith exception would still permit the introduction of evidence seized from the vehicle.

Law and Argument: Part D

D. The Defendants’ Vehicle was Subject to a Lawful Inventory Search.

It is common practice and typically a police department regulation for vehicles taken into custody to be subject to an inventory search. “Inventory searches have two purposes: To protect the vehicle and the property in it, and to safeguard the police or other officers from claims of lost possessions.” United States v. Ducker, 491 F.2d 1190 (5th Cir.1974).

It is thus customary for an inventory to extend to all parts of the car where personal property might be found, and to include an inventory of containers found within the vehicle.” See United States v, Davis, 496 F.2d 1026 ( Cir. 1974). The United States Supreme Court, in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), referenced a “diminished” expectation of privacy as to automobiles and of the reasons customarily given for police inventory of impounded vehicles and concluded that “the decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable.”

Furthermore, the United States Supreme Court has upheld a warrantless search of an automobile even though the automobile was in police custody and even though a prior inventory search had already been made. The justification to conduct such a warrantless search does not vanish once the car has been immobilized. Florida v. Meyers, 466 U.S. 380; 104 S. Ct. 1852; 80 L.Ed. 2d 381 (1984). In Meyers, upon the defendanfs arrest, the police officers searched his car and seized several items. His car was then towed to another location and impounded in a locked, secure area. About eight hours later, a police officer conducted a warrantless search of the car for a second time and seized additional evidence. At trial, the trial court denied defendant’s motion to suppress evidence seized during the second search and entered a conviction for sexual battery. The state appellate court reversed the conviction, holding that the second search violated the Fourth Amendment, concluding that only police officers who had probable cause to believe there was contraband inside a stopped car could search it without a warrant. The element of mobility was removed because defendant’s vehicle had been impounded. The state Supreme Court denied review. On certiorari, the United States Supreme Court held that a warrantless search of an impounded car was constitutional. In reversing, the Court determined that the state appellate Court’s ruling was clearly inconsistent with precedent, which emphasized that the justification to conduct a warrantless search did not vanish once a car was immobilized.

In the present case, the Defendants were apprehended on Virginia Beach Blvd. and taken into custody As such, the vehicle the Defendants were occupying was driven back to the Virginia Beach Police Department Special Investigations Division by Detective Bailey and secured where it was subject to an inventory search by Detective Matthew Childress and another Detective pursuant to department regulations.

Law and Argument: Part E & Conclusion

E. The Automobile Exception Does Not Apply.

Defense counsel correctly cites the standard set forth in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and adopted by Virginia, for the warrantless search of automobiles. Again, that court held that “...when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

The Commonwealth submits that this exception does not apply because when the Virginia Beach Police Department took the Defendants into custody on the Pennsylvania homicide arrest warrants, the vehicle was not immediately searched. The vehicle was driven back to the Virginia Beach Police Department Special Investigations Division by a Virginia Beach Detective where it was subject to an Inventory Search by Virginia Beach Detectives. Furthermore, a search warrant did exist which requested the search and seizure of the Defendants' vehicles for RICO related charges in Virginia Beach.

CONCLUSION

The Commonwealth submits that the Virginia Beach Police Department had the authority to stop and apprehend the Defendants based on a valid Pennsylvania arrest warrant. The vehicle was later subject to an inventory search subject to Virginia Beach Police Department policies and regulations. In addition, the Virginia Beach Police Department possessed a valid search warrant for the search and seizure of the Defendants’ vehicle for alleged RICO related violations. Even if the Court were to find that Virginia’s warrant was not valid, Virginia has adopted the “good faith” exception which the Commonwealth submits would apply to the seizure of the Defendants’ vehicle. The items found in the Defendants’ vehicle were properly seized and relevant items were subsequently turned over to the Pennsylvania State Police. The Commonwealth submits that the Defendants’ Motion to Suppress should be denied and dismissed.

Monday, October 6, 2008

DA's Answer to Kerekes' Motion to Supress Evidence from Vehicle

COMMONWEALTH’S ANSWER TO DEFENDANT JOSEPH KEREKES’ MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED FROM DEFENDANTS’ VEHICLE.


1. Admitted that the Defendant Kerekes is lodged in the Luzerne County Correctional Facility; the Defendant is not eligible for bail due to the pending homicide and related charges.

2. Admitted.

3. Admitted in part. Pennsylvania authorities also contacted Virginia authorities to make them aware that there was an active warrant for the Defendants. In further response thereto, when an arrest warrant is issued by a local Pennsylvania magistrate, the warrant is automatically entered into the National Crime Information Center (hereinafter “NCIC”) index and immediately becomes available to federal, state and local law enforcement agencies throughout the country.

4. Admitted only that the Defendants were apprehended prior to the arrival of Pennsylvania authorities. It is denied that there was no valid arrest warrant for the Defendants prior to the arrival of Pennsylvania authorities in Virginia.

5. Denied. A Pennsylvania arrest warrant for homicide and related charges was issued prior to the Defendants being apprehended in Virginia. Furthermore, a search warrant was issued by the Virginia Beach Circuit Court on the same day, May 15, 2007, for the Defendants and their property based on charges of Conspiracy to violate the Virginia Racketeer Influenced and Corrupt Organization Act (hereinafter “RICO”), Conspiracy to Launder Money and Conspiracy to Receive Money from the Earnings of Male or Female Prostitutes.

6. Admitted. The Defendants were arrested, their car was lawfully impounded and subject to forfeiture as a fruit of the Defendants’ illegal enterprise. The Defendants’ vehicle was subject to an inventory search at the Virginia Beach Police Department’s Special Investigations Division, as well as, a search pursuant to the Virginia RICO search warrant/search warrant.

7. Admitted that the Commonwealth may seek to introduce certain evidence obtained from the Defendants’ vehicle as a result of the inventory search.

8. It is admitted that the Commonwealth provided the Defendants with a copy of the Virginia RICO search warrant. It is denied that the search warrant only permits a search of the Defendants’ home and vehicles on the curtilage; the warrant also allows the search of any and all assets, personal property, luxury items, jewelry, U.S. currency, vehicles, or any and all items obtained, used, or associated with the furtherance of the criminal enterprise, or associated with the laundering of assets derived in whole or in part from the criminal enterprise, or prostitution ring.

9. Admitted.

10. Denied. The Commonwealth denies that the Defendants’ arrest and the subsequent search and seizure of property was conducted in violation of the United States, Virginia and/or Pennsylvania Constitutions In further response thereto, both a valid Pennsylvania Arrest Warrant and a valid Virginia Search Warrant existed at the time of the seizure of property.

WHEREFORE, as set forth above, the Commonwealth respectfully submits that the Defendant’s Motion to Suppress should be denied and dismissed.

Virginia Beach Search Warrant (RICO): Details

This is also considered "Exhibit 1" in my previous post about Harlow Cuadra and Joseph Kerekes' motion to suppress evidence seized from their car and home:

Section 1Section 2

Section 3: The things or person to be searched for are described as follows:

Any and all documents having to do with the booking of escorts, to include ledgers depicting appointments, appointment locations, client names and/or escort names, the length of the appointments and any telephone numbers associated with either the clients or the escorts. Also to be searched for are the financial records either belonging to Norfolk Companion Inc., Norfolk Gay Escorts companies to include those financial records of Harlow Raymond Cuadra and Joseph M. Kerekes or anyone else receiving monies of financial benefit from the proceeds of either the listed companies or the listed persons. Also to searched for are the bank records, bank accounts and/or checking and saving accounts, safe deposit boxes and/or keys, photographs of escorts or employees of the escort companies, paperwork describing the physical stature and/or race of the escorts or employees, contracts for the employees, computers, to include hard drives or central processing units, disks, memory devices utilized to store computer data or to backup computer data and United States currency or other financial specie.

Any and all bank records, bank statements, cancelled checks, deposit tickets and source items, loan account statements, and credit or loan applications.

Books, records, invoices, receipts, records of real estate transactions, personal property transactions and related records, passbooks, money drafts, letters of credit, money orders, bank drafts, cashier’s checks, safe deposit box keys, money wrappers, United States Currency, and other items evidencing the obtaining, secreting, transferring, and/or concealment of assets and the obtaining, secreting, transferring, concealment and/or expenditure of money. Additionally, any and all documents, business records, and financial records that, by their nature reveal, an attempt to disguise and conceal the true nature of a prostitution business; address and/or telephone books, rolodex indices and any papers reflecting names, addresses, telephone numbers, pager numbers, fax numbers, and telex-numbers of co-conspirators, associates, employees, customers, financial institutions, and other individuals or businesses with whom a financial relationship exists;

Indicia of occupancy, residency, rental and/or ownership of each premise to be searched, including utility and telephone records and bills, envelopes, rental and purchase or lease agreements and keys;

Asset ownership documentation including titles, purchase orders, sales orders, payment booklets, and other evidence of the purchase orders, sales orders, payment booklets, and other evidence of the purchase of assets by the individuals listed in the affidavit;

Photographs, including still photos, negatives, videotapes, films, undeveloped film and the contents therein, as well as slides, that demonstrate evidence of co-conspirators, assets, and/or associates or clients;

Documents and papers reflecting operation of a business whose nature is prostitution, including "owe" sheets, physical descriptions/attributes of employees, locations of prostitutes including lists of hotel names, numbers and room numbers, correspondence, and appointment books;

Documentation regarding any operation of a credit card terminai used to transmit credit card data to a third party processing company;

Documents relating to the expenses associated with the ongoing operations of the businesses listed herein, including payroll records, tax bills and records, utility and telephone agreements and bills, rental agreements, and any other associated business expenses;

Electronic equipment, telex machines, facsimile machines, currency counting machines, telephone answering machine and related manuals used to generate, transfer, count, record, and or store any items above;

Any federal or state returns, to include individual income taxes, corporate taxes, partnership taxes, employment taxes and applicable sales taxes, together with any schedules and forms relating thereto with respect to the tax periods 2005-present.

Any federal or state applicable tax forms such as Forms W-2 and Forms 1099 and related documents. Any payroll records, contractor agreements, employment agreements or related documents.

Any and all assets, personal property, luxury items, jewelry, U.S. Currency, vehicles, or any and all items obtained, used, or associated with the furtherance of the criminal enterprise, or associated with the laundering of assets derived in whole or in part from the criminal enterprise, or prostitution ring.

SECTION 4: The material facts constituting probable cause that the search should be made:

The Virginia Beach Police Department Special Investigations received a complaint in January 2006 that a prostitution ring was being operated in the City of Virginia Beach, disguised as a legitimate escort service advertised as Norfolk Companions Inc. This escort service is owned and operatod by Harlow Cuadra and Joseph Kerekes. A similar complaint was received in August 2006, alleging that the web site boisrus.com was operating as a front for illicit prostitution. The State Corporation Commission lists Harlow Cuadra as the president of Norfolk Companions and the City of Virginia Beach shows a business license issued to Norfolk Companions, at 2537 N. Landing Road, Virginia Beach, VA. As of December 27, 2006, Norfolk Companions Inc has listed their address as 1028 Stratem Court, Virginia Beach, VA 23451. A DMV and Pistol records check shows both Harlow Raymond Cuadra (W/M; 08/05/1981; SSN: XXX-XX-XXXX) and Joseph M. Kerekes (W/M; 12/30/1973; SSN: XXX-XX-XXXX) as both residing at 1028 Stratem Court.

Confidential Informant (CI #170 is a reliable confidential informant, whose information has been corroborated, and was once employed by Norfolk Companions Inc. CI #170 states that Norfolk Companions Inc. is owned by Harlow Cuadra and his business partner Joseph Kerokes and that they operate the business from their house in Virginia Beach located at 1028 Stratem Court. CI # 170 states that potential clients sign up to be members of a website called boybatter.com for $200.00, where they are able to purchase XXX DVD videos and also order escort services on a linked website, boisrus.com. CI # 170, while working as an escort for Norfolk Companions was directed by Harlow Cuadra to perfonn sexual acts with paying clients. Cuadra was present during the performance of the sexual acts with those clients.

CI #170 received payment in check form and in cash from Norfolk Companions Inc. for his escort/sexual services rendered. The checks were drawn from the company’s checking account though Bank of the Commonwealth for $150.00, which is 30% of the $500.00 booking fee Norfolk Companions Inc. received. CI #170 states that Harlow Cuadra and Joseph Kerekes are the primary escorts, but they also employ several other young men as well. CI #170 has worked as an escort in the past for Norfolk Companions Inc and oontinues to have contact with Cuadra and Kerekes. This affiant observed the workings of Cuadra’s website, boisrus.com. This afflant learned from the website that an “in call” service is $200.00 per hour and “out cal1” service is $250 an hour. CI #170 states that “in-call” refers to a date that is held at Cuadra's house and “out-call” refers to the escort going to the client’s home or hotel room. In call services are advertised “all inclusive” and are held at their house at 1028 Stratem Ct., the room provided has a massage table, multiple head shower, king sized bed, leather coach and hot tub, alcohol and snacks are provided for the client and Cuadra and Kerekes offer the client use of their video camera to tape the encounter. Out call services require the escort/prostitute to meet with a client at a home or at a hotel room where money would be given for sexual services; the escort/prostitute would comply with the client’s sexual request as directed by Cuadra and Kerekes, the escort/prostitute would then take the money back to Cuadra and Kerekes where they would give the escort/prostitute a percentage of the earnings. Cuadra and Kerekes advertise a “Signature Combo Deal” for $350.00 per hour at their “one million-dollar location” and that “rates are all inclusive. No tips needed! Top, bottom, versatile, vanilla, active, passive service is rendered as needed!” This affiant affirms that these terms refer to sexual positions and preferences.

As of May 12, 2007, CI #170 has had continuous contact with both Harlow Cuadra and Joesph Kerekes, They have offered CI #170 cash bonuses to return to full employment. CI #170 states full employment to included escort/prostitution as well as filming pornographic movies.

Based upon this Affiant’s training and experience and upon my participation in investigations of other illegal enterprises involving violations of Prostitution laws, IRS laws, the Money Laundering Control Act, and related offenses, this affiant knows that:

- Money laundering is the process of conducting financial transactions intended to conceal or disguise the true source of illegal cash proceeds.
- Large scale prostitution rings are motivated by the profits generated from prostitution, which they usc to enhance their lifestyle or recognition in the community through the purchase of luxury items. Assets may include the purchase and leasing of property, the purchase and rental of communications equipment.
- Large scale prostitution rings often use various money laundering schemes to purchase luxury items with prostitution proceeds. These methods include the use of debit and credit cards to purchase luxury items, goods and services in an effort to conceal their purchases from law enforcement.
- Large scale prostitution rings use U.S. currency (cash) and credit card service companies as a method of conducting their illegal business.
- Large scale prostitution rings spend cash proceeds in a manner designed to hinder law enforcement’s detection of the assets acquired.
- Large scale prostitution rings may have legitimate income. Often they co-mingle legitimate ftinds with illegitimate in an attempt to conceal and disguise their sources of income.
- The conversion or disposition of large amounts of cash at financial institutions is problematic for persons involved in illegal activity due to financial institution currency reporting requirements.
- Individuals involved in illegal activity attempt to evade ot avoid the filing of Currency Transaction Reports because these forms create a “paper trail” which can he used by law enforoenient as evidence to convict those involved in criminal activity and those who laundered the proceeds.
- In order to evade or avoid the filing requirements of CTRs, persons with illegal proceeds often “structure” cash transactions so that no one transaction exceeds $10,000. Structuring involves paying the total amount of cash in several smaller transactions over a period of time, whereby each smaller transaction avoids the filing of a CTR.
- Access to a targets credit history is an essential element in tracking illegitimate proceeds.
- Credit reports also provide law enforcement with indicators that money laundering through cash structuring is taking place.

SECTION 6:

[X] I have personal knowledge of the facts set fourth in this affidavit OR
[X] I was advised of the facts set fourth in this affidavit, in whole or in part, by an informer - this informer's credibility or reliability of the information may be Determined from the following facts:

This affiant has been employed in a law enforcement capacity with the City of Virginia Beach since December 1998; first with the Virginia Beach Sheriffs Office and subsequently with the Virginia Beach Police Department. This affiant has attended two Department of Criminal Justice Police academies where narcotics identification was taught by sight, smell, and texture, as well as burned; furthermore, this affiant is a Virginia State Police certified Drug Abuse Education instructor where advanced drug recognition was taught, specifically marijuana. This affiant has attended numerous Drug Enforcement Agency sponsored street drug seminars, as well as Department Special Investigation Drug seminars. This affiant has authored and served numerous narcotics, fraud (section-8), and common nuisance warrants and has made over sixty arrests for marijuana and cocaine alone. Detective Childress is currently assigned as a detective in Special Investigations vice/narcotics unit. Detective Childress has authored search warrants pertaining to drug conspiraces, and has investigated numerous prostitution criminal solicitation and pandering cases.

Special Investigations Confidental and Reliable Informant #170 has provided information that this affiant has been able to verify true and correct. CI #170 made statements against his penal interest to Detective Childress and provided substantial amounts of information that was corroborated through independent Police investigation.

Friday, October 3, 2008

Kerekes' Motion to Suppress Evidence Seized from Vehicle & Home

After posting this article about Harlow Cuadra joining Joseph Kerekes in the motion to suppress evidence seized from their car and home... I realized that I never did publish the original motion, or the Commonwealth's response(s).

Here's Joe's original Motion (note: the Motion to suppress physical evidence seized from defendant’s residence at 1028 Stratem Court, Virginia Beach, Virginia, has already been denied & I'll also be adding exhibits 1,2,3, 5 & 6 as additional posts... since they're certainly worthy of being done separately):

DEFENDANT KEREKES’ BRIEF IN SUPPORT OF HIS MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE AND/OR HIS HOME

Statement of Relevant Facts

On May 15, 2007 an arrest warrant for Mr. Kerekes was issued in Pennsylvania. Mr. Kerekes was charged by Criminal Complaint with, inter alia, Criminal Homicide relating to the death of Bryan Kocis.

Upon issuance of the Pennsylvania arrest warrant, Pennsylvania authorities traveled to Virginia with the warrant and, upon information and belief, the intent to arrest Mr. Kerekes. See Pennsylvania Arrest Warrant, attached hereto as “Exhibit 2.”

Upon information and belief, Pennsylvania authorities communicated with Virginia law enforcement authorities to advise that they had received an arrest warrant for Mr. Kerekes and that they were en route to Virginia. According to Pennsylvania authorities, they faxed a copy of the Pennsylvania arrest warrant to Virginia. See PSP Incident Report, attached hereto as “Exhibit 3.”

Upon information and belief, before Pennsylvania authorities arrived in Virginia with the actual warrant, Mr. Kerekes was apprehended by Virginia Beach authorities during a “traffic stop.” ld.

Upon information and belief, this “traffic stop” was initiated in the area of Virginia Beach Boulevard.

Upon information and belief, authorities from Virginia Beach and Pennsylvania were in communication while Pennsylvania authorities were en route to Virginia. Further, Virginia Beach authorities notified Pennsylvania authorities when they had Mr. Kerekes in custody. See Homicide Investigation Action Report of 7/11/07, attached hereto as “Exhibit 4.”

The Commonwealth alleges that Virginia arrested Mr. Kerekes on a “Fugitive From Justice warrant.” Id. However, the Commonwealth has never produced this “Fugitive From Justice warrant” which they claim Virginia relied on to arrest Mr. Kerekes.

Following Mr. Kerekes’ arrest, his entire vehicle was searched by Virginia Beach authorities and, upon information and belief, certain items were seized. The following day, on May 16, 2007, Mr. Kerekes’ home was searched pursuant to the RICO warrant. See RICO warrant, Exhibit 1. Again, certain items were seized pursuant to this warrant. Among the items seized from the vehicle and/or the home were a knife, laptop computers, a camcorder, tapes and a Sprint mobile air card. PSP Homicide Investigation Action Report of 7/10/07, attached hereto as “Exhibit 5.”

These items were given by Virginia Beach authorities to Pennsylvania authorities and were not retained by Virginia. See Id. See also RICO Warrant Property Voucher, Exhibit 1; PSP Property Record, attached hereto as “Exhibit 6.”

Law and Argument—Vehicle Search

Vehicle Search Was Warrantless

In response to Mr. Kerekes’ continuing discovery request for documents related to his apprehension and search of his vehicle, the Commonwealth has produced a search warrant which it alleges authorized the search of Mr. Kerekes’ vehicle and the seizure items therefrom on May 15, 2007 when he was apprehended. See RICO Warrant, “Exhibit 1.“

This warrant does not apply to the search of Mr. Kerekes’ vehicle post-arrest.

Examination of this warrant reveals that application for the search warrant affidavit was made on May 14, 2007, the day before Mr. Kerekes’ arrest. See RICO Warrant, Exhibit 1. However, the warrant itself was not issued until May 16, 2007, the day after Mr. Kerekes’ arrest. See ld. Therefore, this warrant was not valid the day of Mr. Kerekes’ arrest.

The warrant only relates to Virginia’s alleged prosecution on Conspiracy to Violate Virginia’s RICO statute, Conspiracy to Launder Money and Conspiracy to Receive Money from Earnings of Male or Female Prostitutes. See RICO Warrant, Exhibit 1. The warrant does not relate to the Pennsylvania prosecution for Criminal Homicide.

Additionally, the warrant only authorizes search of Mr. Kerekes’ home at 1028 Stratem Court, Virginia and” . . vehicles parked on the curtilage of 1028 Stratem Court.” See RICO Warrant, Exhibit 1. The warrant does not authorize search or seizure of Mr. Kerekes’ vehicles wherever located or if located on a public roadway, such as Virginia Beach Boulevard.

The search and seizure of Mr. Kerekes’ vehicle was warrantless. The warrant that the Commonwealth submits as authority for this search and seizure Is inapplicable. The Virginia RICO warrant simply does not cover the search and seizure of Mr. Kerekes’ vehicle on a public roadway following a traffic stop on May 15, 2007. Therefore, this issue should be treated as a warrantless search and analyzed under the automobile exception to the warrant requirement.

Virginia Law on Automobile Exception to Warrant Requirement

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court adopted a bright-line rule regarding warrantless searches of automobiles. The Court held that “... when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton, 453 U.S. 454 at 460.

Virginia adopts this analysis and has held that when determining the legality of a search of a vehicle incident to arrest, Virginia courts will examine: 1. Whether the defendant was the subject of a lawful custodial arrest; and 2. Whether the arrestee was the occupant of the vehicle that was searched. Glasco v. Commonwealth of Virginia, 257 Va. 433, 438, 513 S.E.2d 137, 140 (1999) citing People v. Savedra, 907 P.2d 596, 597-98 (Cob. 1995)

Pennsylvania Law on Automobile Exception to the Warrant Requirement

Pennsylvania has held that Article 1 Section 8 of the Pennsylvania Constitution provides greater protection than the Fourth Amendment to the United States Constitution regarding warrantless searches and seizures relating to automobiles. In Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), the Pennsylvania Supreme Court rejected the Belton automobile exception to the warrant requirement, stating that:

...this court, when considering the relative importance of privacy as against securing criminal convictions, has struck a different balance than has the United States Supreme Court, and under the Pennsylvania balance, an individual’s privacy interests are given greater deference than under federal law... . Merely arresting someone does not give police carte blanche to search any property belonging to the arrestee. Certainly, a police officer may search the arrestee’s person and the area in which the person is detained in order to prevent the arrestee from obtaining weapons or destroying evidence, but otherwise, absent an exigency, the arrestee’s privacy interests remain intact as against a warrantless search. In short, there is no justifiable search incident to arrest under the Pennsylvania Constitution save for the search of the person and the immediate area which the person occupies during his custody...

White at 902.

Further, the White court made it clear that a warrantless search of a vehicle conducted in violation of Article 1 Section 8 cannot be excused by re-naming it as an inventory search or relying on the fact that an inventory search would have revealed the same evidence. See White at 903.

Because Virginia’s law differs from Pennsylvania’s regarding warrantless vehicle searches and seizures, the Court must engage in a conflict of laws analysis to determine which state’s law to apply.

Conflict of Laws

The analysis regarding conflict of laws is identical to that articulated in defendant’s previously filed briefs regarding the electronic intercepts, search of defendant’s home and statements made post-arrest. To summarize, this matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa.Super 111, 750 A.2d 895 (2000).

“In cases where the substantive laws 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. See Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796, 805 (1964). 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 to apply the policy of the jurisdiction most intimately concerned with the outcome. ld. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez, et al, 552 Pa. 570, 576, 716 A.2d 1221,1224(1998) (Emphasis suppiled).

Because Virginia law enforcement arrested Mr. Kerekes for Pennsylvania authorities who were en route with the Pennsylvania warrant, Pennsylvania has the greater interest in the outcome. Virginia did not execute their own search warrant until the following day. Further, the items seized relate to the Pennsylvania prosecution and not any prosecution Virginia authorities have instituted as is evidenced by the fact that Virginia turned over these items to Pennsylvania and did not retain them. Mr. Kerekes was not charged with crimes in Virginia. Moreover, the “Fugitive From Justice warrant” that Virginia authorities claim they relied on to seize Mr. Kerekes does not exist.

The Sanchez case makes these distinctions even more clear. 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. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. Id. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania. ld. at 1224.

In reaching this conclusion, the Sanchez court reasoned:

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.

Thus we hold 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 borders must be evaluated under the laws of that state.

ld. at 1224, 1225. (Emphasis suppiled).

Virginia authorities did not possess any Virginia arrest warrant for Mr. Kerekes. The only valid warrant they possessed at the time was the arrest warrant from Pennsylvania. The items at issue were turned over to Pennsylvania authorities, Virginia never charged Mr. Kerekes with any crimes.

Analysis compels the result that Pennsylvania law applies to the search of Mr. Kerekes’ vehicle and the seizure of items therefrom.

Analysis Under Pennsylvania Law

Under Pennsylvania law, a warrantless search of a vehicle incident to arrest violates Article 1 Section 8 of the Pennsylvania State Constitution. See Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995). Once Mr. Kerekes was in custody, there was no reason to dispense with the warrant requirement if police wanted to search the car for investigatory purposes.

Under a Pennsylvania analysis, it is very clear that the items seized should be suppressed as they are fruits of an illegal search.

Analysis Under Virginia Law

In applying Belton to the analysis of warrantless vehicle searches, Virginia courts will examine: 1. Whether the defendant was the subject of a lawtul custodial arrest; and 2. Whether the arrestee was the occupant of the vehicle that was searched. Glasco v. Commonwealth of Virginia, 257 Va. 433, 438, 513 S.E.2d 137, 140 (1999) citing People v. Savedra, 907 P.2d 596, 597-98 (Cob. 1995). Again, the scope of the search extends only to the passenger compartment of the vehicle. Belton, 453 u.s. 454 at 460. The purpose of a search without warrant contemporaneous to arrest is the need, “to remove any weapons that [ arrestee] might seek to use in order to resist arrest or to effect his escape” and the need to prevent the concealment or destruction of evidence. Chime! v. California, 395 u.s. 752, 763, 89 S,Ct.2034, 23 L.Ed.2d 685 (1969).

Here, there is no question that Mr. Kerekes was the occupant of the vehicle that was searched and that if the items were seized from Mr. Kerekes’ passenger compartment, the seizure would be valid under Virginia law.

However, Mr. Kerekes reasserts that Pennsylvania law controls the situation and therefore compels the result that any seizure of evidence from the defendant’s vehicle was warrantless, incident to arrest, and should be suppressed.

Law and Argument—Home Search

Mr. Kerekes’ home was searched pursuant to the Virginia RICO warrant the day after his arrest, on May 16, 2007. See RICO Warrant, Exhibit 1. Police reports and inventories allege that the items at issue—the knife, laptop computers, a camcorder, tapes and a Sprint mobile air card, were seized at the home by Virginia authorities pursuant to this RICO warrant and turned over to Pennsylvania authorities for use in the Pennsylvania, homicide prosecution. See ld.; See also PSP Homicide Investigation Action Report of 7/10/07, attached hereto as “Exhibit 5.”

The corrupt organization that Virginia alleges Mr. Kerekes was involved in is prostitution. See RICO Warrant and Property Voucher, Exhibit 1.

The items sought by the affidavit accompanying the warrant relate to the business of the illegal enterprise. See ld.

The warrant authorizes the seizure of all items at issue herein, except for the knife. See ld.

No Conflict of Laws—Seizure of Knife Illegal Under Virginia Law

It is believed and therefore averred that the RICO warrant was initiated and executed by Virginia law enforcement without involvement or at the behest of Pennsylvania.

Therefore, Virginia’s laws apply to the execution of the RICO warrant.

Virginia search warrant law requires that search warrants may issue upon reasonable and probable cause. Va.Code §19.2-52. The following things may be seized upon specification in the warrant:

(1) weapons or other objects used in the commission of the crime;

(2) Articles or things the sale or possession of which is unlawful;

(3) Stolen property or the fruits of any crime; and

(4) Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime.
Va.Code §19.2-53.

The affidavit supporting the search warrant must:

reasonably describ the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense in relation to which such search is to be made and that the object, thing or person searched for constitutes evidence of the commission of such offense.”

Va.Code §19.2-54. (Emphasis supplied)

The warrant must, inter alia, describe the property or person to be searched for and “recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committed or is committing a crime.” Va.Code §19.2-56.

“The warrant shall be executed by the search of the place described... and, if property described in the warrant is found there, by the seizure of the property.” Va.Code § 19.2-57.

It has long been established that a search made pursuant to a warrant may not go beyond the property described in the warrant and must be reasonably conducted to turn up the materials described. See Marron v. United States, 275 u.s. 192 (1927).

The seizure of the knife exceeded the scope of the warrant and any legal authority. Although it is a weapon, it is not a weapon alleged to have been used in the commission of the crime of prostitution or RICO violations for which the warrant was issued. See Va.Code p19.2-53. Indeed, Virginia authorities had no intention to use the knife in their anticipated prosecution of Mr. Kerekes on RICO charges as they immediately turned the knife over to Cpl. Hannon of the Pennsylvania State Police for his use in the Pennsylvania homicide prosecution. See RICO Warrant Property Voucher, Exhibit 1. The knife was not encompassed by the warrant nor has its seizure been authorized. Further, the knife is not per se illegal or contraband. Because Mr. Kerekes had already been placed in custody the day before, there was no danger he would destroy or use the knife. There was no reason that Pennsylvania authorities, who were in the area at the time, could not have accompanied Virginia authorities for a separate warrant authorizing the seizure of the knife for the Pennsylvania prosecution.

Even though the seizure of the item was not authorized in the warrant, the Commonwealth may rely on the “plain view” exception to the warrant requirement if certain factors are met. Under the Fourth Amendment, police may seize an item without a warrant if it is plain view, its incriminatory character is immediately apparent, and the officer is lawfully in the place where the seizure occurs and has lawful right of access to that object. Horton v. California, 496 U.S. 128 (1990). In the instant case, the incriminatory character of the knife is not immediately apparent.

Therefore, the Commonwealth cannot even avail itself of an exception to the warrant requirement to justify the seizure of the knife. Therefore, the knife should be suppressed.

Conclusion

If any items were seized from Mr. Kerekes’ vehicle, Pennsylvania law would apply and the seizure would be illegal. If the items were seized from Mr. Kerekes’ home, the knife was seized outside the scope of the warrant under Virginia law and that item should be suppressed.