Monday, January 19, 2009

III. Conclusions of Law



Vehicle Search Was Warrantless

70. The search warrant, Commonwealth’s Exhibit No. 2, does not apply to the search of the BMW post-arrest.

71. Despite the admitted error on the face of the search warrant, Commonwealth’s Exhibit No. 2, examination of this warrant reveals that application for the search warrant affidavit was made on May 14, 2007, the day before the Defendants were arrested.

72. Based upon the admitted errors set forth in the Findings of Fact above, the search warrant, Commonwealth’s Exhibit No. 2, itself was not valid until May 16, 2007, the day after the Defendants were arrested.

73. The search warrant, Commonwealth’s Exhibit No. 2, was not valid the day the Defendants were arrested.

74. The search warrant, Commonwealth’s Exhibit No 2, only relates to the Virginia Beach Police Department’s alleged investigation and prosecution of the Defendants on Conspiracy to Violate Virginia’s RICO statute, Conspiracy to Launder Money and Conspiracy to Receive Money from Earnings of Male or Female Prostitutes.

75. The search warrant, Commonwealth’s Exhibit No. 2, does not relate to the Pennsylvania prosecution of the Defendants for Criminal Homicide.

76. The search warrant, Commonwealth’s Exhibit No. 2, only authorizes search of the Defendants’ home at 1028 Stratem Court, Virginia and ”... vehicles parked on the curtilage of 1028 Stratem Court.”

77. The search warrant, Commonwealth’s Exhibit No. 2, does not authorize search or seizure of the Defendants’ vehicles wherever located or if located on a public roadway, such as Virginia Beach Boulevard.

78. The search and seizure of the Defendants’ BMW was warrantless.

79. The search warrant, Commonwealth’s Exhibit No. 2, that the Commonwealth submits as authority for this search and seizure is inapplicable.

80. The search warrant, Commonwealth’s Exhibit No. 2, a Virginia RICO warrant, simply does not cover the search and seizure of the Defendants’ BMW on a public roadway following a traffic stop on May 15, 2007.

81. Therefore, this issue should be treated as a warrantless search and analyzed under the automobile exception to the warrant requirement.

Virginia Law on Automobiie Exception to Warrant Requirement

82. 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.

83. Virginia adopts the Belton 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)

Pennsyivania Law on Automobiie Exception to the Warrant Requirement

84. 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.

85. 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.

86. 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.

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