Down to the Home Stretch...

With only 12 days to go until Harlow Cuadra's trial is scheduled to begin... there's just one last ruling we're waiting for: will Judge Peter Paul Olszewski allow or deny the motion to suppress evidence seized from the BMW, when Harlow Cuadra and Joseph Kerekes were arrested in Virginia Beach?

I spoke with someone last week about this very subject, figuring it would be soon... their response:

' He is a very very busy man these days... He has 2 weeks of criminal trials starting monday followed by this case and in addition he has a daunting civil docket, not to mention his new duties with the county commisioners to decide layoffs. He might keep you waiting '.

Thankfully, we don't have that much longer to wait.

Meanwhile... I'll continue to work on my ' Witnesses Explained ' post.

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.

Judge to Rule by 12/19/08

According to recent court documents filed... Judge Peter Paul Olszewki, Jr. is expected to announce his ruling on the Motion to Suppress Evidence by December 19, 2008.

The items of most interest include a knife and laptop computer... evidence siezed from the BMW M5 during Harlow Cuadra and Joseph Kerekes' arrest in May 2007.

Joseph Kerekes has already pleaded guilty to second-degree murder... while Harlow Cuadra apparently prepares for trial.

The Evidence That's Really Wanted?

After Harlow Cuadra and Joseph Kerekes were arrested, several items were seized from their black BMW:

"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."

Interestingly, when the DA's office filed their answer to Kerekes' motion, they also included the same RICO warrant information that the Defense did (Exhibit 1)... but... they also added this Incident Report Related Property List page:



#41: Cellular Telephone with Cord - Nokia 6030 - Qty. 1
#42: DVDS, Pornograph - Qty. 1
#43: Combat Knife with Case - Sig Sauer - Qty. 1

Other than the knife, it'll be interesting to know what significance the other 2 items have with this case. (for those that are 'new' to this case... here's a list of items that were seized by VA for the RICO forfeiture).

DA's Brief in Response to Defendants Motion to Suppress Evidence

COMMONWEALTH'S BRIEF IN RESPONSE TO DEFENDANTS CUADRA AND KEREKES' MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED PURSUANT TO SEARCH WARRANTS/EVIDENCE SIEZED FROM THE DEFENDANTS' E-MAIL ACCOUNTS

I. Statement of Relevant Facts
II. Issues: A
III. Issues: B
IV. Issues: C
V. Issues: D

Statement of Relevant Facts

I. Statement of Relevant Facts

On February 10, 2007, the Virginia Beach Police Department executed a search warrant on 1028 Stratem Court, Virginia Beach, Virginia. 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. Detective Sean Coerse of the Homicide Division, Virginia Beach Police Department had applied and sworn out this search warrant.

The search warrant states the offense committed was murder, and gives a specific description of 1028 Stratem Court, Virginia Beach, Virginia, the Defendants’ residence as the home to be searched. A detailed description of items to be searched for included recording devices, digital cameras, various types of computer equipment (modems, fixed discs, external hard drives etc), software, documents, etc. The warrant requests the ability to search for information stored within a computer system or storage media. See Rosa v. Commonwealth 48 Va. App. 93, 628 S.E.2d 92 (2006), relying upon the Pennsylvania case Commonwealth v. Copenhefer 526 Pa. 555, 587 A.2d 1353, (1991).

On January 30, 2007, a federal search warrant was served on Yahoo for the dmbottompa@yahoo.com email account which was the account used to contact the victim Bryan Kocis and make arrangements for the January 24, 2007 meeting with the victim.

On February 6, 2007, a federal search warrant was served upon IAC Search and Media for the email account of harlowrcuadra@excite.com. This email account was accessed from the same IP addresses during the same time period as the dmbottompa@yahoo.com account.

On March 14, 2007, three respective federal search warrants were served: one on the MySpace account of Harlow Cuadra and one on the MySpace account of Joseph Kerekes. A federal search warrant was served upon stareyes235l0@yahoo.com which Defendant Kerekes is the registered user. These accounts were all accessed from the same IP addresses during the same time period as the dmbottompa@yahoo.com account. The federal search warrants were each supported by lengthy affidavits of probable cause.

On August 27, 2007 District Justice James Tupper, on August 27, 2007, approved and issued a search warrant for any and all information related to the Yahoo Account party757@yahoo.com. This email account was accessed from the same IP addresses during the same time period as the dmbottompa@yahoo.com account. This search warrant was supported by a twenty — two (22) page affidavit of probable cause.

On July 28, 2008, Attorney Michael Senape served a ‘Joint Reply Brief to Commonwealth’s Brief in Opposition to Motion to Suppress Search Warrants and Evidence Seized from E-Mail Accounts’ on behalf of both Defendants. Defense counsel for both Defendants has filed multiple ‘joint’ briefs in recent weeks that, the Commonwealth asserts, indicates that their defenses are consistent, compatible and coordinated. In this brief, the defense argues that should the items seized pursuant to the February 10, 2007 search warrant executed on the Defendants’ 1028 Stratem Court, Virginia Beach, Virginia residence be suppressed, the use of any informationlevidence gained from that alleged illegal seizure to form the basis of Affidavits of Probable Cause for Defendants’ e-mail accounts would result in invalid search warrants, thereby requiring suppression of evidence obtained from the Defendants’ e-mail accounts.

The Commonwealth respectfully disagrees with defense counsel’s position as set forth below. The Commonwealth submits that evidence seized as a result of the Virginia Beach search warrant should not be suppressed, therefore, any reference to such items in affidavits for search warrants for email accounts is not fruit of the poisonous tree. Even if the Court were to suppress the computers/evidence seized from the Defendant’s residence, the Affidavits contain sufficient probable cause without reference to the seized items. Even if the search warrants did not contain sufficient probable cause, which the Commonwealth submits that they do, the ‘good faith’ exception would govern thereby allowing admission of the evidence obtained pursuant to those warrants. Beyond that, the Commonwealth would have discovered and/or been able to lawfully obtain the information in the email accounts in question from other sources than the computers seized from the Defendants’ residence.

Issues: A

This summary is not available. Please click here to view the post.

Issues: B

III. Issues: B. THE PENNSYLVANIA SEARCH WARRANT FOR THE DEFENDANTS’ PARTY757@YAHOO.COM EMAIL ACCOUNT IS VALID.

Pennsylvania Rule of Criminal Procedure 206 specifically outlines the requirements for a search warrant;

(a) the name and department, agency or address of the affiant.

(b) Identify specifically the items or property to be searched for and seized;

(c) The name or describe with particularity the person or place to be searched;

(d) Identify the owner, occupant, or possessor or the place to be searched;

(e) Specify or describe the crime which has been or is being committed,

(f) Setting forth the facts and circumstances which for the basis for the affiant’s conclusion that there is probable cause to believe that the items or property identified are evidence or the fruit of a crime, or are contraband or are expected to be otherwise unlawfully possesses or are subject to seizure, and that these items or property are or are expected to be located on the particular person or at the particular place described.

As mandated by the Pennsylvania Constitution, Article 1, Section 8, the standard for evaluating whether probable cause exists for a search warrant to be issued is the totality of the circumstances. See Commonwealth v. Smith 784 A.2d 182, 187 (Pa. Super. 2001), Commonwealth v. Bartee 868 A.2d 1218 (Pa. Super 2005) and Commonwealth v. Gray 503 A.2d 921 (Pa. 1995). The issuing authority must make a common — sense decision whether, pursuant to the totality of the circumstances presented, there is a fair probability that evidence of criminal activity will be found in a particular place to be searched. Commonwealth v. Smith 784 A.2d 182 (Pa. Super. 2001). As always, due deference is given to the issuing magistrate. Commonwealth v. Rompilla 653 A.2d 626, 632 (Pa. 1995).

Applying the “Totality of the Circumstances Test”, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for...[concluding] "that probable cause existed.” Illinois v. Gates 462 U.S. 213, 239 (1983).

Under Pennsylvania case law the above decision must be based on the facts described within the four corners of the supporting affidavit. Commonwealth v. Smith 784 A.2d 182, 184 (Pa. Super. Ct, 2001). Under Gates the traditional test of the “veracity” and “basis of Knowledge” set out in Spinelli v. United States 393 U.S. 410 (1969) and Aquilar v. Texas 378 U.S. 108 (1964), was abandoned in favor of including those factors with any other factors and analyzing the affidavit under the “totality of the circumstances” to determine if probable cause exists to issue a search warrant.

In Pennsylvania, probable cause to issue a search warrant test is as follows: two factors are used generally when determining if a search warrant should be issued: (1) the items sought are connected with criminal activity and (2) the items will be found in the place to be searched. Commonwealth v. Gray 469 A.2d 169, 173 (Pa. Super. Ct. 1983).

Where information is gleaned from an informant, the reliability of an informant as probable cause, A magistrate must consider four factors in determining the credibility of an unidentified informant and the reliability of his information: (1) Did the informant give reliable information? (2) Was the informant’s story corroborated by another source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip? Commonwealth v. Gray 469 A.2d 169, 174 (Pa. Super. Ct. 1983). The affidavit of probable cause does not have to satisfy all four factors. Id. Information provided by an informant establishes probable cause if there is a probability of criminal activity, a prima facie showing of criminal activity is not required. Commonwealth v. Luton 672 A.2d 819, 822 (Pa. Super. Ct. 1996). When information essential to a finding of probable cause is garnered from a confidential informant the authority issuing a search warrant determines the reliability of the informant’s information from the facts supplied by the police official. Commonwealth v. Gindlesperger 706 A.2d 1216, 1225 (Pa. Super. Ct. 1997).

Although information provided by informants that is contained in an affidavit is hearsay, it may be a sufficient basis to establish probable cause for the purposes of issuing a search warrant. The issuing authority will look within the “four corners” of the affidavit for four factors when determining whether or not an informant is a reliable source and whether or not the affidavit supports a finding of probable cause to issue the search warrant.

Even if the computer forensic examination conducted upon the computers seized from the Defendants’ residence was suppressed, there is still sufficient probable cause in the affidavit for the search warrant for the Defendants’ party757@yahoo.com email account as described at length in the above statement of facts section. The August 27, 2007 affidavit of probable cause for the search warrant for the party757 email account is an involved 22 pages, only a small part of which includes reference to the computer forensic examination on evidence seized from the Defendants’ residence; investigators acted in good faith in relying upon that warrant. Even if the evidence received from the party757@yahoo.com search warrant was suppressed (based on an alleged illegal seizure of computers from the Defendants’ residence), which the Commonwealth submits should not be suppressed, investigators would have ultimately been provided information regarding that account, including all emails exchanged between party757@yahoo.com and Matthew Brannon, from Matthew Brannon who has been interviewed by investigators.

Issues: C

IV. Issues: C. Pennsylvania Authorities Acted in Good Faith in Relying upon Search Warrant

The Good Faith Exception to the exclusionary rule will apply and evidence will not be uppressed where it is shown that authorities reasonably relied in good faith upon a search warrant. The defense correctly sets forth the controlling analysis for the good faith exception where evidence will only be excluded where an officer’s reliance on a warrant is not reasonable. The unreasonable reliance situations are: (1) when the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) when the magistrate judge abandoned his judicial role and failed to perform his neutral and detached function; (3) when the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) when the warrant was so facially deficient that it failed to particularized the place to be searched or the things to be seized. U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents 307 F.3d 137 (3d. Cir.1999).

The Commonwealth submits that Magistrate Tupper’s issuance of/Pennsylvania authorities’ reliance upon the search warrant for the party757 email account was reasonable based upon the arguments set forth in the statement of facts section above, therefore, even if the warrant was deemed to be invalid, the good faith exception would apply and the evidence is admissible.

Issues: D

V. Issues: D. Pennsylvania Authorities were able to obtain the relevant Party757@yahoo.com evidence from indetendent sources and the discovery of the email account was inevitable.

“The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawfiil search, and of testimony concerning knowledge acquired during an unlawful search Murray v. United States 487 U.S. 533 (1988)(citing Weeks v. United States 232 U.S. 383 (1914) and Silverman v. United States 365 U.S. 505 (1961)). “Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint.” Id. at 537 (citing Nardone v. United States 308 U.S. 338, 341 (1939); Wong Sun v. United States 371 U.S. 471, 484-485 (1963).

“The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Id. citing Nix v. Williams 467 U.S. 431, 443 (1984). “The independent source doctrine applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.” Id. citing Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 (1920).

“Information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.” Id. at 538 citing United States v. Silvestri 787 F. 2d 736, 739 (1986). “The independent source doctrine does not rest upon a metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawflul seizure is genuinely independent of an earlier, tainted one, which may well be difficult to establish where the seized goods are kept in the police’s possession, there is no reason why the independent source doctrine should not apply.” Id. at 541.

“In addition, the inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered though an independent source, it should be admissible if it inevitably would have been discovered.” Id. at 539.

The Commonwealth submits that, based on testimony, oral argument and the arguments contained in prior submissions that the evidence seized pursuant to the Virginia Beach warrant on the Defendants’ residence should not be suppressed. Even if the evidence seized were to be suppressed, the affidavits of probable cause for the respective email accounts in question still contained sufficient probable cause to obtain the sought after email account information. Even if the Court were to decide that the affidavits did not contain sufficient probable cause, the Commonwealth submits that the good faith exception would apply, thereby justifying the Magistrates’ issuance of and Pennsylvania authorities’ reliance upon the search warrants. Even if the Court were to decide that the warrants for the Virginia Beach residence and the email accounts in question were faulty and the 'good faith’ exception did not apply to any of the warrants, the Commonwealth submits that it still obtained the same information from independent sources and the emails in question would have been/were inevitably discovered by the Commonwealth; various recipients of emails sent from the email accounts in dispute, for example, Grant Roy, Sean Lockhart, Matthew Brannon and David Michaels were/are in lawful possession of the same email information the Commonwealth seeks to introduce and the Defendants are seeking to suppress.

Based on the foregoing, the Commonwealth respectfully requests that the Defendants’ joint motion to suppress information pursuant to search warrants for certain email accounts be denied and dismissed.

Harlow Cuadra & Joseph Kerekes: This Week

While we're still a little over a month away from Harlow Cuadra and Joseph Kerekes' trial to commence (jury selection at least)... it looks like we'll have a bit of news to deal with well before-hand:

Here's what I've got planned to post this week:

1. Copies of Harlow and Joe's joint reply brief to the Commonwealth's brief in oppisition to motion to suppress search warrant/evidence taken in Virginia Beach.

2. Copies of Harlow and Joe's joint reply brief in oppisition motion to suppress 4-2007 interceptions at Black's Beach and Crab Catchers.

3. Copies of Joe's reply brief to the Commonwealth's brief in oppisition to motion to suppress statements made after his arrest.

4. Wednesday's Suppression Hearing.

... and I'm sure I'll have some more. :)

Attorneys for Cuadra, Kerekes Want Taped Conversation Suppressed From Trial

The Citizens' Voice is reporting that attorneys for accused killers Harlow Cuadra and Joseph Kerekes reiterated their position Monday that a potentially incriminating conversation, recorded three months after the murder, should be suppressed, along with firearms, camcorders and other evidence seized from Cuadra’s home in Virginia Beach, Va.

Stephen Menn and Michael Senape, who represent Cuadra, and Shelley Centini and John Pike, who represents Kerekes, filed joint briefs Monday, renewing claims that the recording and the evidence were both obtained illegally.

Cuadra, 26, and Kerekes, 34, both of Virginia Beach, Va., are accused of killing Bryan Kocis, 46, the owner of a rival company that produced gay pornographic films, in Dallas Township in January 2007.

They are accused of slashing Kocis’ neck to the point of near decapitation, stabbing his torso nearly 30 times and later setting fire to his Midland Drive home. They both face the death penalty.

A suppression hearing is scheduled for 8:30 a.m. Thursday before Judge Peter Paul Olszewski Jr. Cuadra and Kerekes are scheduled to stand trial beginning Sept. 2.

Prosecutors said prior to the murder, Cuadra and Kerekes complained Kocis had been impeding their expansion into a new genre of films.

Cuadra and Kocis had wanted to recruit actor Sean Lockhart, who appeared under the stage name “Brent Corrigan,” but Lockhart was under contract to work only for Kocis.

Cuadra and Kerekes met with Lockhart and his business partner, Grant Roy, at an awards show in Las Vegas in early January 2007 and again in San Diego in April 2007.

Roy acted as an informant during the San Diego visit, and wore a recording device as Cuadra spoke in detail about killing Kocis, prosecutors said.

The attorneys for Cuadra and Kerekes said Pennsylvania law, which requires a government attorney review the facts and meet with the informant to determine his consent is voluntary before recording takes place, applies to the conversation, even though it took place in California.

If Olszewski decides the recording is governed by California law, which allows greater leeway for electronic surveillance by law enforcement, the attorneys said, “suppression is still warranted because Grant Roy’s consent was not voluntary and the communication was intended to be confidential.”
---

There's also a similar story in the Times Leader.

Strike 1 for the Prosecution?

In a previous post, blogger "BB" asked a question about the cameras that were stolen from Bryan's house: "talking about nutcases, one of them is claiming that in court last week it was revealed that the stolen cameras can not be linked to Bryan. anyone got info on this claim?"

Yes... I'm told that there was some brief discussion about the cameras last week during Harlow Cuadra and Joseph Kerekes' hearing. The way I recall it, it was revealed that the cameras believed to have been stolen from Kocis had the serial numbers forcibly removed from them, making it impossible to POSITIVELY link them.

This was brought up during some argument on the habeas motion for Joe.

(Update: 04/25/2008):Fellow blogger DewayneinSD does an excellent job of explaining "Digital Fingerprints" in a post he did today.