Cuadra’s Findings of Fact and Conclusions of Law

DEFENDANT CUADRA’S FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT’S’ 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 submits the following Findings of Fact and Conclusions of Law in support of Defendants’ Motions to Suppress Physical Evidence Seized From Defendant’s Vehicle Filed Nunc Pro Tunc:

I. Brief Procedural History
II. Findings of Fact
III. Conclusions of Law
IV. Conflicts of Law

I. Brief Procedural History

Brief Procedural History

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 Petitionto File Summary Appeal Nunc Pro Tunc 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 flied 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, 2007. This was the first time the undersigned, Michael B. Senape, Esquire, was provided with any information and/or documentation relating to the to the evidence seized during the arrest of both Defendants, Cuadra and Kerekes, in Virginia on or about May 15, 2007.

II. Findings of Fact

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).

III. Conclusions of Law

CONCLUSIONS OF LAW

VEHICLE SEARCH

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.

IV. Conflicts of Law

CONFLICTS OF LAW

88. The analysis regarding conflict of laws is identical to that articulated in the Defendants’ previously filed briefs regarding the electronic intercepts, search of Defendants’ home and statements made post-arrest.

89. 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).

90. 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).

91. 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.

92. Defendant Cuadra believes 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 supplied).

93. Because Virginia law enforcement arrested the Defendants for Pennsylvania authorities who were en route with the Pennsylvania warrants, Pennsylvania has the greater interest in the outcome of this matter.

94. Virginia did not execute their own search warrant until the following day.

95. Further, the items seized, namely the Sig Sauer knife, 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 and based upon the Findings of Fact outlined above.

96. Defendant Cuadra was not charged with crimes in Virginia. Moreover, the “Fugitive From Justice warrant” that Virginia authorities claim they relied on to seize Defendant Cuadra does not exist. As outlined above in the Findings of Fact, the arrest warrant was issued by MDJ Tupper on May 15, 2007.

97. 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. Id at 1224. Jn 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, Id. at 1224, 1225. (Emphasis supplied).

98. Virginia authorities did not possess any Virginia arrest warrant for Defendant Cuadra.

99. The only valid warrant Virginia authorities possessed at the time was the knowledge of the existence of the arrest warrants for the Defendants from Pennsylvania.

100. The items at issue, namely the knife, were turned over to Pennsylvania authorities.

101. Virginia authorities never charged the Defendants with any crimes.

102. Analysis compels the result that Pennsylvania law applies to the search of the Defendants’ BMW and the seizure of items, namely the knife, therefrom. Analysis Under Pennsylvania Law.

103. 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).

104. Once Mr. Cuadra was in custody, there was no reason to dispense with the warrant requirement if police wanted to search the car for investigatory purposes.

105. 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

106. In applying Belton to the analysis of warrantless vehicle searches, 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) clUng People v. Savedra, 907 P.2d 596, 597-98 (Cob. 1995).

107. Again, the scope of the search extends only to the passenger compartment of the vehicle. Belton, 453 U.S. 454 at 460.

108. 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. Cailfornia, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

109. Here, there is no question that Defendant Cuadra was an occupant of the BMW that was searched and that if the items were seized from Defendant Cuadra’s passenger compartment, the seizure would be valid under Virginia law.

110. However, Defendant Cuadra 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

111. The Defendants’ home was searched pursuant to the search warrant, Commonwealth’s Exhibit No. 2, the Virginia RICO warrant, the day after their arrest, on May 16, 2007. 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.

112. The corrupt organization that Virginia alleges the Defendants were involved in is prostitution.

113. The items sought by the affidavit accompanying the search warrant, Commonwealth’s Exhibit No. 2, relate to the business of the illegal enterprise.

114. The search warrant, Commonwealth’s Exhibit No. 2, authorizes the seizure of all items at issue herein, except for the Sig Sauer knife.

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

115. The search warrant, Commonwealth’s Exhibit No. 2, the RICO warrant, was initiated and executed by Virginia law enforcement without involvement or at the behest of Pennsylvania.

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

117. Virginia search warrant law requires that search warrants may issue upon reasonable and probable cause. Va.Code §19.2-52.

118. 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 describe 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).

119. 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 vommitting 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. (Emphasis supplied)

120. 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 Matron v. United States, 275 U.S. 192 (1927).

121. The seizure of the Sig Sauer knife exceeded the scope of the search warrant, Commonwealth’s Exhibit No. 2, and any legal authority.

122. Although it is a weapon, the Sig Sauer knife it is not a weapon alleged to have been used in the commission of the crime of prostitution or RICO violations for which the search warrant, Commonwealth’s Exhibit No. 2, was issued. See Va.Code §9.2-53.

123. Indeed, Virginia authorities had no intention to use the Sig Sauer knife in their anticipated prosecution of the Defendants on RICO charges as they immediately turned the Sig Sauer knife over to Hannon of the Pennsylvania State Police for his use in the Pennsylvania homicide prosecution. See Defendant Cuadra Exhibit No. 44

124. The Sig Sauer knife was not encompassed by the warrant nor has its seizure been authorized.

125. Further, the Sig Sauer knife is not per se illegal or contraband.

126. Because Defendant Cuadra had already been placed in custody the day before, there was no danger he would destroy or use the Sig Sauer knife.

127. 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 Sig Sauer knife for the Pennsylvania prosecution.

128. Even though the seizure of the Sig Sauer knife was not authorized in the warrant, the Commonwealth may rely on the “plain view” exception to the warrant requirement if certain factors are met.

129. 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).

130. In the instant case, the incriminatory character of the Sig Sauer knife is not immediately apparent.

131. Therefore, the Commonwealth cannot even avail itself of an exception to the warrant requirement to justify the seizure of the Sig Sauer knife.

132. Therefore, the Sig Sauer knife should be suppressed.

Quick Harlow and Joe Update

While it would appear that nothing much is happening right now... it's actually been a busy day 'behind the scenes' today:

Harlow Cuadra's attorneys have filed their findings of fact and conclusion of law, for the motion to suppress evidence seized from the BMW. Meanwhile... Joseph Kerekes has to pay some more money, including the bill for a computer forensic expert, expert psychiatrist, and expert criminologist. This is in addition to the $655.73 and other fines he's already been ordered to restitute, after pleading guily to second-degree murder last month.

I'll detail both of these stories within the next few days.

Update 1/10/09: According to the Times Leader: A Luzerne County judge recently approved payments of more than $7,300 for two experts and a surveillance company hired by attorneys for homicide suspect Joseph Kerekes.

Kerekes, 34, was sentenced on Dec. 8 to life in prison after he pleaded guilty to second-degree murder in the killing of Bryan Kocis, 44, in January 2007.

Kerekes’ attorneys, Shelley Centini and John Pike, hired forensic psychiatrist Dr. Richard E. Fischbein, of Kingston, Dr. Robert Johnson, of Herndon, Va., and Surveillance Technology Group, Inc., of North Wales, to assist in the defense.

According to receipts submitted to Court of Common Pleas Judge Peter Paul Olszewski Jr.:

Fischbein submitted a bill on Dec. 9 for $1,920, which included a review of a report by psychiatric expert Dr. John O’Brien, a telephone interview with Kerekes’ parents, and a meeting with Centini and Pike.

Johnson, a criminologist, submitted a bill on Dec. 17 for $400, which included a one-hour review of files and research on prison adjustment.

Surveillance Technology Group was hired as a computer forensic expert, and submitted a bill on Dec. 13 for $4,990.16, which included 41 hours of reviewing investigative records.

Olszewski on Jan. 3 approved the payments to Fischbein, Johnson and Surveillance Technology. Olszewski’s orders that approved the payments were released on Friday.

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):

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.

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.