CONCLUSIONS OF LAW
A. CONFLICT OF LAWS
1. The issue that this Court must address is whether Pennsylvania or Virginia law should be used to determine whether the May 15, 2007 searches and seizures in Virginia Beach, Virginia by the Virginia Beach Police Department based on violations of Virginia criminal law were conducted through valid and legal means.
2. The Court concludes that Virginia law should apply to these searches/seizures. First, violations of substantive Virginia law were the basis for the search warrant. The Defendants were Virginia residents. Their Virginia home was the subject of one of the searches. Virginia Beach Police Department secured authorization for the warrant from the Commonwealth Attorney’s office in Virginia Beach, not the Luzerne County District Attorney’s Office, Judge Shadrick, the Circuit Court Judge covering Virginia Beach, authorized the warrant. Judge Shadrick is akin to a Court of Common Pleas judge in the Commonwealth of Pennsylvania. The Virginia RICO investigation was well under way when the Kocis homicide had occurred. The jurisdiction most intimately concerned with the outcome is Virginia. Commonwealth. v. Sanchez 716 A.2d 1221, 552 Pa, 570 (Pa., 1998).
3. The fact that Virginia Beach waited to execute their RICO search warrant as a courtesy to the Pennsylvania authorities, who were closing in on the suspects, does not transmute this issue into one where Pennsylvania law should trump Virginia law. The Court concludes Virginia law applies to the search and seizure issues raised by the Defendant.
B. CONTRABAND-VIRGINIA LAW
4. The Court finds and concludes that the 2006 BMW M5 was contraband and a warrant was not required to seize it.
5. The Court relies on Florida v. White 526 U.S. 541, 119 SQ. 1545, 143 L.Ed.2d 731 (1999).
6. In Florida v. White 526 U.S. 541, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). The court wrote, “The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act’s provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not.”
7. The car was seized on the public street in Virginia Beach, Virginia. This is a public place. (NT. pg. 84). The remaining question for the Court is: Was probable cause present to seize this car?
8. In United States v. Brookins 345 F.3d 231 (4th Cir., 2003), the court wrote, “Finally, under the relevant forfeiture statutes, the police may seize an automobile without first obtaining a warrant when they have probable cause to believe that it is forfeitable contraband.” See Florida v. White 526 U.S. 559, 565 (1999). “Without probable cause, neither the “automobile exception” nor a forfeiture provision is available to support a warrantless search or seizure.’
9. The Commonwealth presented the following evidence to establish probable cause to seize the ear as contraband:
(a) The Boisrus Webpage-Exhibit “1”- this brazen advertisement, reviewed in a common sense manner, is a blatant invitation to hire prostitutes. Part of the sales pitch includes being picked up in the very car that is the subject of this motion, the 2006 BMW M5. The second page of Exhibit “1” displays the defendant Harlow Raymond Cuadra in a Speedo or skimpy underwear. There are various packages a person may purchase which common sense dictates is simply the sexual menu the Defendants’ escort business offered.
(b) The testimony of Detective Childress as noted above.
(c) The Search warrant authorized by Circuit Court Judge Shadrick which is Exhibit “2”.
10. The court finds support in McLaughlin v. Commonwealth 629 S.E.2d 724, 48 Va. App 243 (Va. App,, 2006), where the Virginia appellate court noted:
“it is well established that under certain circumstances the police may seize evidence in plain view without a warrant.’ Coolidge v. New Hampshire 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971). To invoke the plain view doctrine, howevcr, the police must have probable cause to believe the evidence seized was evidence of a crime or contraband. Arizona v. Hicks 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed2d 347 (1987). “The Fourth Amendments requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.” Minnesota v. Dickerson 508 U.S. 366, 376, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).
“Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States 267 U.S. 132, 162 ,45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Texas v. Brown 460 U.S. 730, 742, 103 S.Ct. 1535, 1543,75 L.Ed.2d 502 (1983).
“In determining whether probable cause exists, we are required to focus upon what the circumstances meant to trained police officers. Brown v. Commonwealth 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005). Nevertheless, an officer’s determination of probable cause must be based on “objective facts.” Den v. Commonwealth 6 Va.App. 215, 220, 368 S.E.2d 916, 918 (1988)(quoting United States v. Ross 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982)). “Suspicion, or even ‘strong reason to suspect” is not enough to constitute probable cause. See Henry v. United States 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959). Thus, applying the Texas v. Brown standard and the statute the officers purported to act upon in this case, we must ask whether the facts available to the police officers would warrant a person of “reasonable caution” to believe that the CDs were “possessed for the purpose of sale, rental or transfer” and did not have packaging with the manufacturer’s name and address”
11. The Court concludes as a matter of law that the 2006 BMW M5 was contraband and that a search warrant was not necessary to seize it. Nevertheless, the Virginia Beach Police Department had prepared a search warrant for vehicles located at 1028 Stratem Court, which the court addresses next.
C. SEARCH WARRANT-VEHICLES FLEEING CURTILAGE SUFFICIENCY OF WARRANT TO SEARCH HOME
12. The Court finds and concludes as a matter of law that the Virginia Beach search warrant clearly establishes probable cause to search the home at 1028 Stratem Coup, Virginia Beach, Virginia and the vehicles on the curtilage.
13. The investigation began in August 2006 and contains information up to May 12, 2007. The search warrant details that a confidential informant has given statements against his penal interest. The affiant, Detective Childress, has verified information given by the confidential informant by checking with the State Corporation Commission which noted Harlow Cuadra as President of Norfolk Companions, Inc. Detective Childress also noted The City of Virginia Beach issued a business license Norfolk Companions, Inc. Detective Childress verified through DMV and pistol records that Harlow Cuadra resided at 1028 Stratem Court, Virginia Beach, Virginia. Detective Childress, according to the search warrant, also verified the factual information provided by the confidential informant as it was advertised on the Defendants’ web site boisrus.com. The search warrant indicated that Harlow Cuadra and Joseph Kerekes were the primary escorts and they operated the business out of 1028 Stratem Court The totality of the circumstances, therefore, provided Judge Shadrick with a substantial basis to find that probable cause justified the search. See Slade v. Commonwealth 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231 (2004).
14. The search warrant also delineates that prostitution rings, such as Norfolk Companions, Inc. acquires assets through their ill-gotten gains which includes vehicles. The search warrant authorizes the seizure/search of vehicles on the curtilage.
15. The Court notes that federal courts have held that a warrant authorizing the search of identified premises encompasses vehicles which are on the premises. See, e.g., United States v. Percival 756 F.2d 600, 612-13 (7th Cir.1985); United States v. Bulgatz 693 F.2d 728, 729 n. 3 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983); United States v. Freeman 685 F.2d 942, 955 (5th Cir.1982). The affidavits in these cases generally established probable cause to believe the sought for evidence was in the residence or somewhere on the premises. See, e.g., Percival 756 F.2d at 612; Bulgatz 693 F.2d at 731; Freeman 685 F.2d at 946-55. In holding that the scope of the search was not exceeded by the search of vehicles on the premises, these holdings necessarily imply that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles. As stated by the 7th Circuit Court of Appeals in concluding that the search of a vehicle parked in the garage of suspected premises was within the scope of the warrant:
“A lawful search of fixed premises generally extends to every part of the premises in which the object of the search may be found, notwithstanding the fact that separate acts of opening or entry may be required to complete the search.” Percival 756 F.2d at 612 (citing United States v. Ross 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). See, e.g., United States v. Gottschalk 915 F.2d 1459, 1461-62 (10th Cir.1990) (court upheld search of vehicles on premises where search warrant did not reference any vehicles to be searched but authorized search of “premises; United States v. Cole 628 F.2d 897, 899-900 (5th Cir. 1980) (although warrant authorized search of dwelling and a specifically identified automobile, court also upheld search of truck on premises); Brooks v. United States 416 F.2d 1044, 1050 (5th Cir.1969)(search of automobile “completely justified” under terms of warrant for premises for which there was probable cause). The affidavits in these cases generally established probable cause to believe the evidence sought was in the residence or somewhere on the premises. See, e.g., Percival 756 F.2d at 611; Freeman 685 F.2d at 955. In holding that the scope of the search warrant was not exceeded by the search of vehicles on the premises, these cases “necessarily imply that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles,’ See Hughes v. State 843 S.W.2d 591,at 595 (Tex. Crim. App., 1992).
16. In this instance, the Defendants drove away in the 2006 BMW M5 which the Commonwealth contended was contraband.
17. Even if the car was not contraband, this Court finds as a matter of law that the seizure of the 2006 BMW M5 in the 3900 block of Virginia Beach Blvd., Virginia Beach, Virginia by the Virginia Beach Police Department was proper and lawful under the search warrant. Detective Childress testified that a tactical decision was made by police to arrest the Defendants by a marked police unit and uniformed officers for safety reasons. The Defendants were being charged with crimes of violence, for example, criminal homicide, robbery and arson. The Defendants were known to have at least one handgun, a 9 mm Glock, The nature of the underlying homicide was the near complete decapitation of the victim. The Court finds that it was prudent and reasonable for the police to have followed this course of conduct.
18. The Court finds support for its conclusion in Lassiter v. State of Florida 959 So.2d 360 (Fla. App. 2007), where the police obtained a warrant to search a home, its curtilage and vehicles parked thereon. A car was observed on the property when the police arrive to serve the warrant. The Defendant exited the house then drove off in the car. The police allowed him to travel 5 miles from the house before stopping him so that the other occupants in the house would not be alerted to the police presence. The defendant had been making a volatile, dangerous drug MDMA. The Lassiter court noted:
“Given the volatile nature of the drug being manufactured at the residence, we find it both prudent and reasonable for the police to have waited for Mr. Lassiter to leave in the car from the location described in the warrant before executing the warrant. In coming to this conclusion, however, we underscore that this off premises search is permissible because of the peculiar and dangerous nature of the product involved, as well as the reasonable time and distance that elapsed before the search occurred.”
Part 3 tomorrow.
1. The issue that this Court must address is whether Pennsylvania or Virginia law should be used to determine whether the May 15, 2007 searches and seizures in Virginia Beach, Virginia by the Virginia Beach Police Department based on violations of Virginia criminal law were conducted through valid and legal means.
2. The Court concludes that Virginia law should apply to these searches/seizures. First, violations of substantive Virginia law were the basis for the search warrant. The Defendants were Virginia residents. Their Virginia home was the subject of one of the searches. Virginia Beach Police Department secured authorization for the warrant from the Commonwealth Attorney’s office in Virginia Beach, not the Luzerne County District Attorney’s Office, Judge Shadrick, the Circuit Court Judge covering Virginia Beach, authorized the warrant. Judge Shadrick is akin to a Court of Common Pleas judge in the Commonwealth of Pennsylvania. The Virginia RICO investigation was well under way when the Kocis homicide had occurred. The jurisdiction most intimately concerned with the outcome is Virginia. Commonwealth. v. Sanchez 716 A.2d 1221, 552 Pa, 570 (Pa., 1998).
3. The fact that Virginia Beach waited to execute their RICO search warrant as a courtesy to the Pennsylvania authorities, who were closing in on the suspects, does not transmute this issue into one where Pennsylvania law should trump Virginia law. The Court concludes Virginia law applies to the search and seizure issues raised by the Defendant.
B. CONTRABAND-VIRGINIA LAW
4. The Court finds and concludes that the 2006 BMW M5 was contraband and a warrant was not required to seize it.
5. The Court relies on Florida v. White 526 U.S. 541, 119 SQ. 1545, 143 L.Ed.2d 731 (1999).
6. In Florida v. White 526 U.S. 541, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). The court wrote, “The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act’s provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not.”
7. The car was seized on the public street in Virginia Beach, Virginia. This is a public place. (NT. pg. 84). The remaining question for the Court is: Was probable cause present to seize this car?
8. In United States v. Brookins 345 F.3d 231 (4th Cir., 2003), the court wrote, “Finally, under the relevant forfeiture statutes, the police may seize an automobile without first obtaining a warrant when they have probable cause to believe that it is forfeitable contraband.” See Florida v. White 526 U.S. 559, 565 (1999). “Without probable cause, neither the “automobile exception” nor a forfeiture provision is available to support a warrantless search or seizure.’
9. The Commonwealth presented the following evidence to establish probable cause to seize the ear as contraband:
(a) The Boisrus Webpage-Exhibit “1”- this brazen advertisement, reviewed in a common sense manner, is a blatant invitation to hire prostitutes. Part of the sales pitch includes being picked up in the very car that is the subject of this motion, the 2006 BMW M5. The second page of Exhibit “1” displays the defendant Harlow Raymond Cuadra in a Speedo or skimpy underwear. There are various packages a person may purchase which common sense dictates is simply the sexual menu the Defendants’ escort business offered.
(b) The testimony of Detective Childress as noted above.
(c) The Search warrant authorized by Circuit Court Judge Shadrick which is Exhibit “2”.
10. The court finds support in McLaughlin v. Commonwealth 629 S.E.2d 724, 48 Va. App 243 (Va. App,, 2006), where the Virginia appellate court noted:
“it is well established that under certain circumstances the police may seize evidence in plain view without a warrant.’ Coolidge v. New Hampshire 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971). To invoke the plain view doctrine, howevcr, the police must have probable cause to believe the evidence seized was evidence of a crime or contraband. Arizona v. Hicks 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed2d 347 (1987). “The Fourth Amendments requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.” Minnesota v. Dickerson 508 U.S. 366, 376, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).
“Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States 267 U.S. 132, 162 ,45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Texas v. Brown 460 U.S. 730, 742, 103 S.Ct. 1535, 1543,75 L.Ed.2d 502 (1983).
“In determining whether probable cause exists, we are required to focus upon what the circumstances meant to trained police officers. Brown v. Commonwealth 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005). Nevertheless, an officer’s determination of probable cause must be based on “objective facts.” Den v. Commonwealth 6 Va.App. 215, 220, 368 S.E.2d 916, 918 (1988)(quoting United States v. Ross 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982)). “Suspicion, or even ‘strong reason to suspect” is not enough to constitute probable cause. See Henry v. United States 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959). Thus, applying the Texas v. Brown standard and the statute the officers purported to act upon in this case, we must ask whether the facts available to the police officers would warrant a person of “reasonable caution” to believe that the CDs were “possessed for the purpose of sale, rental or transfer” and did not have packaging with the manufacturer’s name and address”
11. The Court concludes as a matter of law that the 2006 BMW M5 was contraband and that a search warrant was not necessary to seize it. Nevertheless, the Virginia Beach Police Department had prepared a search warrant for vehicles located at 1028 Stratem Court, which the court addresses next.
C. SEARCH WARRANT-VEHICLES FLEEING CURTILAGE SUFFICIENCY OF WARRANT TO SEARCH HOME
12. The Court finds and concludes as a matter of law that the Virginia Beach search warrant clearly establishes probable cause to search the home at 1028 Stratem Coup, Virginia Beach, Virginia and the vehicles on the curtilage.
13. The investigation began in August 2006 and contains information up to May 12, 2007. The search warrant details that a confidential informant has given statements against his penal interest. The affiant, Detective Childress, has verified information given by the confidential informant by checking with the State Corporation Commission which noted Harlow Cuadra as President of Norfolk Companions, Inc. Detective Childress also noted The City of Virginia Beach issued a business license Norfolk Companions, Inc. Detective Childress verified through DMV and pistol records that Harlow Cuadra resided at 1028 Stratem Court, Virginia Beach, Virginia. Detective Childress, according to the search warrant, also verified the factual information provided by the confidential informant as it was advertised on the Defendants’ web site boisrus.com. The search warrant indicated that Harlow Cuadra and Joseph Kerekes were the primary escorts and they operated the business out of 1028 Stratem Court The totality of the circumstances, therefore, provided Judge Shadrick with a substantial basis to find that probable cause justified the search. See Slade v. Commonwealth 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231 (2004).
14. The search warrant also delineates that prostitution rings, such as Norfolk Companions, Inc. acquires assets through their ill-gotten gains which includes vehicles. The search warrant authorizes the seizure/search of vehicles on the curtilage.
15. The Court notes that federal courts have held that a warrant authorizing the search of identified premises encompasses vehicles which are on the premises. See, e.g., United States v. Percival 756 F.2d 600, 612-13 (7th Cir.1985); United States v. Bulgatz 693 F.2d 728, 729 n. 3 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983); United States v. Freeman 685 F.2d 942, 955 (5th Cir.1982). The affidavits in these cases generally established probable cause to believe the sought for evidence was in the residence or somewhere on the premises. See, e.g., Percival 756 F.2d at 612; Bulgatz 693 F.2d at 731; Freeman 685 F.2d at 946-55. In holding that the scope of the search was not exceeded by the search of vehicles on the premises, these holdings necessarily imply that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles. As stated by the 7th Circuit Court of Appeals in concluding that the search of a vehicle parked in the garage of suspected premises was within the scope of the warrant:
“A lawful search of fixed premises generally extends to every part of the premises in which the object of the search may be found, notwithstanding the fact that separate acts of opening or entry may be required to complete the search.” Percival 756 F.2d at 612 (citing United States v. Ross 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). See, e.g., United States v. Gottschalk 915 F.2d 1459, 1461-62 (10th Cir.1990) (court upheld search of vehicles on premises where search warrant did not reference any vehicles to be searched but authorized search of “premises; United States v. Cole 628 F.2d 897, 899-900 (5th Cir. 1980) (although warrant authorized search of dwelling and a specifically identified automobile, court also upheld search of truck on premises); Brooks v. United States 416 F.2d 1044, 1050 (5th Cir.1969)(search of automobile “completely justified” under terms of warrant for premises for which there was probable cause). The affidavits in these cases generally established probable cause to believe the evidence sought was in the residence or somewhere on the premises. See, e.g., Percival 756 F.2d at 611; Freeman 685 F.2d at 955. In holding that the scope of the search warrant was not exceeded by the search of vehicles on the premises, these cases “necessarily imply that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles,’ See Hughes v. State 843 S.W.2d 591,at 595 (Tex. Crim. App., 1992).
16. In this instance, the Defendants drove away in the 2006 BMW M5 which the Commonwealth contended was contraband.
17. Even if the car was not contraband, this Court finds as a matter of law that the seizure of the 2006 BMW M5 in the 3900 block of Virginia Beach Blvd., Virginia Beach, Virginia by the Virginia Beach Police Department was proper and lawful under the search warrant. Detective Childress testified that a tactical decision was made by police to arrest the Defendants by a marked police unit and uniformed officers for safety reasons. The Defendants were being charged with crimes of violence, for example, criminal homicide, robbery and arson. The Defendants were known to have at least one handgun, a 9 mm Glock, The nature of the underlying homicide was the near complete decapitation of the victim. The Court finds that it was prudent and reasonable for the police to have followed this course of conduct.
18. The Court finds support for its conclusion in Lassiter v. State of Florida 959 So.2d 360 (Fla. App. 2007), where the police obtained a warrant to search a home, its curtilage and vehicles parked thereon. A car was observed on the property when the police arrive to serve the warrant. The Defendant exited the house then drove off in the car. The police allowed him to travel 5 miles from the house before stopping him so that the other occupants in the house would not be alerted to the police presence. The defendant had been making a volatile, dangerous drug MDMA. The Lassiter court noted:
“Given the volatile nature of the drug being manufactured at the residence, we find it both prudent and reasonable for the police to have waited for Mr. Lassiter to leave in the car from the location described in the warrant before executing the warrant. In coming to this conclusion, however, we underscore that this off premises search is permissible because of the peculiar and dangerous nature of the product involved, as well as the reasonable time and distance that elapsed before the search occurred.”
Part 3 tomorrow.
