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.