FINDINGS OF FACT
9. The hearing before Judge Olszewski on Defendant Kerekes’ Motion to Suppress commenced on September 22, 2008 at 1:00P.M. 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. (N.T. Suppression Hearing 9/22/08 at 39 and 42-45)
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. (N.T. Suppression Hearing 9/22/08 at 38-39)
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. This discussion occurred off the record. (N.T. Suppression Hearing 9/22/08 at 38, Lns 19-22)
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. (N.T. Suppression Hearing 9/22/08 at 45-50).
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. (N.T. Suppression Hearing 9/22/08 at 45-50)
14. On October 1, 2008, the undersigned, Michael B. Senape, Esquire and Stephen Menn, Esquire, after consultation with Defendant Cuadra and after review of Defendant Kerekes’ pleading and the discovery from the Commonwealth, as well as the testimony presented at the hearing on September 22, 2008, and Defendant regarding the Search Warrant, Defendant Cuadra filed Defendant Cuadra’s Joinder in Defendant Kerekes’Motion to Suppress Physical Evidence Seized From Defendant’s Vehicle Nunc Pro Tunc and Defendant Kerekes’ Brief in Support of thereof.
15. On November 20, 2008, at the Pre-Trial Conference Judge Olszewski scheduled the final suppression hearing regarding the Defendants’ Motions to Suppress Physical Evidence Seized From Defendant’s Vehicle for December 4, 2008.
16. The final suppression hearing regarding the Defendants’ Motions to Suppress Physical Evidence Seized From Defendant’s Vehicle commenced on December 4, 2008 at 9:17A.M. before Judge Olszewski. (N.T. Suppression Hearing 12/4/08 at 5)
17. Matthew Patrick Childress (“Childress”) is a detective who has been employed by the City of Virginia Beach Police Department since 1998. (N.T. Suppression Hearing 9/22/08 at 2, Ln 23)
18. For the past 3 years Childress has been assigned to the City of Virginia Beach Police Department’s Special Investigation Division (“SID”), where he has investigated organized crime, vice, narcotics, money laundering, prostitution and other related offenses. (N.T. Suppression Hearing 12/4/08 at 6)
19. Childress identified both Defendant Cuadra and Defendant Kerekes in open court as individuals that were the subject of a Racketeer Influenced and Corrupt Organizations Act (WRICO investigation in Virginia Beach, VA regarding a business known as Norfolk Companions as an alleged illegal escort company, which was working out of the Hampton Roads area of Virginia Beach, which investigation was based upon police informants who had been working for Childress and had worked with the Defendants. (NT. Suppression Hearing 12/4/08 at 6-8) and (N.T. Suppression Hearing 9/22/08 at 4-5)
20. Childress testified that he had personally viewed and printed out a page from the Defendants’ website, Boisrus’, which was marked and admitted as Commonwealth’s Exhibit No. 1, which detailed the different services that the Defendants’ business offered, including the use of a specific type of vehicle, “2006 BMW M5 - the fastest luxury sedan on the planet.” (N.T. Suppression Hearing 12/4/08 at 10).
21. Childress testified that he had no information or belief that any type of weapon, namely a knife, was used as part of the alleged escort or prostitution ring which he was investigating regarding the Defendants. (N.T. Suppression Hearing 12/4/08 at 58).
22. Sometime in January 2007, Childress was informed that the Pennsylvania State Police and other law enforcement officials were conducting a homicide investigation and Childress was requested to assist in that investigation and to share information he had gained regarding the money laundering and prostitution investigation of the Defendants. (N.T. Suppression Hearing 12/4/08 at 13-14 and 16)
23. On May 15, 2007, Childress learned that the Pennsylvania Authorities were going to arrest the Defendants for capital homicide and Childress was preparing a search and seizure warrant for the Defendants’ joint Residence at 1028 Stratem Court, Virginia Beach, VA (“Defendants Residence”) and the Defendants’ bank accounts. (N.T. Suppression Hearing 9/22/08 at 6-8).
24. For a few days prior to May 15, 2007, Childress and the Virginia Beach Police Department had the Defendants and Defendants’ Residence under 24 hour surveillance and the Defendants were primarily staying at the Defendants’ Residence. (N.T. Suppression Hearing 9/22/ 08 at 7).
25. Childress testified that on May 14, 2007 he met with Attorney Paul Powers, a Commonwealth of Virginia Attorney, to review the search and seizure warrant for the Defendants’ residence, which was marked and admitted as Commonwealth’s Exhibit No. 2, and thereafter he and Attorney Powers presented the search and seizure warrant along with a sealing order affidavit to Judge Shadrick of Commonwealth of Virginia Circuit Judge, who signed both the search and seizure warrant and the sealing order affidavit on May 14, 2007 (N.T. Suppression Hearing 12/4/08 at 17-20).
26. Childress testified that there was a typographical error on the warrant in that on the bottom left-hand corner of the search and seizure warrant the date of issuance is type written as “May 16, 2007”. (N.T. Suppression Hearing 12/4/08 at 17).
27. Childress admitted that he, the Commonwealth Attorney and the Judge missed the error of the “May 16, 2007” and that no one new of the error of the incorrect date on the face of the search and seizure warrant for the Defendants’ Residence until the initial suppression hearing in September 2008 (N.T. Suppression Hearing 12/4/08 at 41-43).
28. Childress admitted that at least four or five people with many, many years of experience didn’t catch the error. (N.T. Suppression Hearing 12/4/08 at 41-43).
29. Childress testified that after on May 15, 2007 the Virginia Beach Police Department planned on using its tactical team to effect an arrest and to execute the search and seizure warrant on the Defendants’ Residence. (N.T. Suppression Hearing 12/4/08 at 21).
30. Leo D. Hannon, Jr. (“Hannon”), testified that he, being a member of the Pennsylvania State Police, was assigned in January 2007 to investigate the homicide of Brian Kocis and that as part of that investigation on May 15, 2007, he obtained arrest warrants for the Defendants from Magisterial District Judge Tupper. (N.T. Suppression Hearing 12/4/08 at 108).
31. Hannon testified that he had contacted the Virginia Beach Police Department and they jointly determined that the Pennsylvania arrest warrants would be hand delivered to the Virginia Beach Police Department and the arrests of the Defendants would be effected by the Virginia Beach Police Department’s SWAT Unit.(N.T. Suppression Hearing 12/4/08 at 108).
32. Hannon testified that the Pennsylvania arrest warrants for the Defendants were issued between approximately 9:30A.M. and 9:45A.M. on May 15, 2007. (N.T. Suppression Hearing 12/4/08 at 109).
33. Hannon testified that he left the effectuation and service of the Pennsylvania arrest warrants for the Defendants to the discretion of the Virginia Beach Police Department. (N.T. Suppression Hearing 12/4/08 at 112).
34. Childress was aware of the specific information of the BMW, namely its make, model, year, owner, lien holder, from a DMV transcript of it, which was introduced during the hearing as Commonwealth’s Exhibit No. 5, which Childress used in preparing the search and seizure warrant for Defendants’ Residence and vehicles. (N.T. Suppression Hearing 12/4/08 at 34).
35. Despite knowing the specific detailed information about the BMW, Childress did not include it specifically in the search and seizure warrant affidavit and testified that he had no reason why he did not specifically list the vehicle. (N.T. Suppression Hearing 12/4/08 at 94).
36. The purpose of the search and seizure warrant set forth in Commonwealth’s Exhibit No. 2 was to find, seize and forfeit all items related to the RICO investigation and no where in Commonwealth’s Exhibit No. 2 was there any reference to any type of weapon to be searched for, seized or forfeited, including any knife. (N.T. Suppression Hearing 12/4/08 at 58, 75-76)
37. The search warrant authorized the seizure of items generally that were in the home or on the curtliage. (N.T. Suppression Hearing 12/4/08 at 94).
38. During the morning hours of May 15, 2007, Childress, while at the Special Investigations Division building ( was informed that the Pennsylvania State Police had arrest warrants signed for the Defendants and was also informed by the Virginia Beach Police Department surveillance that at approximately 10:30 A.M. Defendants were beginning to leave the Residence with some sort of personal bag or luggage. (N.T. Suppression Hearing 12/4/08 at 23-24) and (N.T. Suppression Hearing 9/22/08 at 12).
39. The bag which Defendant Cuadra was seen leaving the Residence with prior to the vehicle being stopped was not a suitcase, was smaller than the size of an overnight bag and was just for personal items. (N.T. Suppression Hearing 12/4/08 at 54-55).
40. Childress testified that the item of luggage that Defendant Cuadra was seen leaving the Residence with was actually a shaving bag where you put a razor, shaving cream, toothbrush, and toothpaste in. (N.T. Suppression Hearing 12/4/08 at 94).
41. Childress testified that the original plan was to execute the search and seizure warrant while the Defendants’ were in the Residence, but the plan was later changed for tactical and safety reasons to take the Defendants while they were outside of the Residence. (N.T. Suppression Hearing 12/4/08 at 24).
42. The search and seizure warrant under which Childress and the Virginia Beach Police Department was acting included language that all vehicles on the curtilage of the residence could be searched and seized.(N.T. Suppression Hearing 12/4/08 at 25).
43. On May 15, 2007, the members of the Pennsylvania State Police investigating the Defendants and who were in possession of the arrest warrants did not have direct communication with Childress but rather his supervisor, Sergeant Winn, the on-site supervisor at the Residence. (N.T. Suppression Hearing 12/4/08 at 25).
44. The Defendants were stopped by uniformed patrol officers of the Virginia Beach Police Department in the 3900 block of Virginia Beach Boulevard, which is approximately 5 miles from the Residence for a “traffic stop” [emphasis added]. (N.T. Suppression Hearing 12/4/08 at 27-28) and (N.T. Suppression Hearing 9/22/08 at 13).
45. The Defendants were being followed by the uniformed patrol officers of the Virginia Beach Police Department and were stopped in the 3900 block of Virginia Beach Boulevard because they had criminal homicide warrants outstanding from the State of Pennsylvania. (N.T. Suppression Hearing 9/22/08 at 29).
46. When the Defendants were pulled over in Virginia they were not cited for any other criminal offenses in the Commonwealth of Virginia, the Defendants did not offer any resistance to the Police and were not arrested for any violation of Virginia Law, and the only reason they were pulled over was because the Virginia Beach Police Department was informed by the Pennsylvania State Police that there was an arrest warrant issued from the Commonwealth of Pennsylvania. (N.T. Suppression Hearing 12/4/08 at 48-49).
47. The BMW and the Defendants were not stopped on the curtilage of the Defendants’ Residence. (N.T. Suppression Hearing 12/4/08 at 94-95).
48. Childress testified that the search of the BMW was not pursuant to the search warrant. (N.T. Suppression Hearing 12/4/08 at 95).
49. Childress testified that he had no knowledge that any part of the vehicle, including glove compartments or closed containers were search by the Virginia Beach Police Department as searches incident to arrest. (N.T. Suppression Hearing 12/4/08 at 77-80).
50. Virginia Beach Police Department considered the BMW a tow when the Defendants were taken into custody and the BMW was driven by one of the Virginia Beach Police Department Detectives to the SID. (N.T. Suppression Hearing 12/4/08 at 28-29).
51. Childress testified that the inventory search of the BMW was done pursuant to and in compliance with 2 Virginia Beach Police Department policies, General Order 6.01 — Constitutional Issues, marked as Commonwealth’s Exhibit No. 3, and General Order 12.12 — Abandoned Vehicles, Towing and Inventory Procedures, marked as Commonwealth’s Exhibit No. 4. (N.T. Suppression Hearing 12/4/08 at 29-29).
52. Childress testified that the policies were followed in this particular case, that the inventory search in this case served 2 purposes, to protect the personal property of the Defendants and documenting of any evidence recovered from the vehicle and that all items found during the inventory search were documented on a Property Voucher form entitled PD 78-4. (N.T. Suppression Hearing 12/4/08 at 30-31).
53. Childress testified that the purpose of the inventory search on the BMW was pursuant to the policy which reads:
Officers have a responsibility to protect property in their custody. This responsibility includes property within motor vehicles or boats which have been seized, towed, or otherwise removed from the custody of their owner by direction of the officer. . .Laxity in this regard can result in property losses which could have been averted by precautionary measures taken by the officer. (N.T. Suppression Hearing 12/4/08 at 51).
54. Childress testified that the forms used and completed by the Virginia Beach Police Department, including himself, during the inventory search performed on the BMW at the SID were out of date and not in compliance with the specific provisions of the Virginia Beach Police Department policies. (N.T. Suppression Hearing 12/4/08 at 61 and 74-75)
55. Childress testified that Virginia Beach Police Department General Order 6.01 — Constitutional Issues, Commonwealth’s Exhibit No. 3, was effective January 9, 2007 and General Order 12.12 — Abandoned Vehicles, Towing and Inventory Procedures, Commonwealth’s Exhibit NO. 4, was effective September 15, 2005. (N.T. Suppression Hearing 12/4/08 at 61).
56. Childress testified that Defendant Cuadra’s Exhibit Nos. 1, 2, 3, and 4, are the Property and Evidence Vouchers for both the items taken from the Residence and the items taken from the BMW, and items turned over to the Pennsylvania State Police, including the Sig Sauer folding knife. (N.T. Suppression Hearing 12/4/08 at 62-74).
57. Childress testified that there were no exigent circumstances at the time of the inventory search that required the Police from removing the Sig Sauer knife from the BMW since the BMW was in a secure location at the SID. (N.T. Suppression Hearing 12/4/08 at 74).
58. In response to questioning by ADA Melnick, Childress testified that he did not seize the knife at the direction of law enforcement official of the state of Pennsylvania. (N.T. Suppression Hearing 12/4/08 at 89).
59. The policy of Virginia Beach Police Department with regard to inventory searches is a policy similar to that of police departments all over the country. (N.T. Suppression Hearing 12/4/08 at 95).
60. The purpose of this inventory is essentially to protect property owned by the owner of the vehicle. (N.T. Suppression Hearing 12/4/08 at 95).
61. Childress testified that the knife was taken as evidence and labeled as evidence on the Property and Evidence Voucher even though there was no knife listed as an item subject to search, seizure and forfeiture under the search and seizure warrant. (N.T. Suppression Hearing 12/4/08 at 76-77).
62. The knife was not taken as evidence of the RICO or prostitution investigation, but was held as evidence for the State of Pennsylvania based upon Childress’ knowledge of the circumstances involved in Pennsylvania’s investigation. (N.T. Suppression Hearing 12/4/08 at 97).
63. Childress testified that he never thought about going to get a revised search warrant once the knife was found, he simply took possession of it, labeled it evidence and turned it over the Hannon based upon his knowledge of the Pennsylvania case. (N.T. Suppression Hearing 12/4/08 at 74).
64. Childress testified that the BMW was considered an item or fruit of prostitution and therefore contraband. (N.T. Suppression Hearing 12/4/08 at 32).
65. Neither Childress nor the Virginia Beach Police Department had a search warrant for the BMW outside the curtilage of the Defendants’ Residence. (N.T. Suppression Hearing 12/4/08 at 51-52).
66. Childress testified that the BMW did go through forfeiture proceedings but the vehicle was eventually returned to the vehicle’s lien holder, the Commonwealth of Virginia Attorney believed could be sold for via the forfeiture proceedings. (N.T. Suppression Hearing 12/4/08 at 88-89).
67. There was coordination by Childress and the Virginia Beach Police Department and the Pennsylvania State Police that the search warrant for the home would take place on the same day the arrest warrant for the Defendants in the Pennsylvania homicide was issued. (N.T. Suppression Hearing 12/4/08 at 98-99).
68. Childress provided conflicting testimony as to the basis for the decision to stop the Defendants on Virginia Beach Boulevard and Childress did not have any personal knowledge of the specific exigent circumstances supporting the stop of the Defendants at that specific time and location. (N.T. Suppression Hearing 12/4/08 at 99-103).
69. Childress eventually admitted to the Court that exigent circumstances had nothing to do with the stop and arrest of the Defendants on May 15, 2007 and the specific reason for their stop and arrest was the active homicide warrants from Pennsylvania. (N.T. Suppression Hearing 12/4/08 at 103).
