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.

Commonwealth’s Proposed Findings of Fact (Part 3)

Continued from Part 2...

D. GOOD FAITH EXCEPTION

19. The Court further finds that even if the search warrant lacked probable cause to seize the vehicle, the seizure was sanctioned under the “good faith” exception to the search warrant requirement.

20. The Court finds: (1) Judge Shadrick was not misled by any information in the affidavit. There is no showing that any of the information provided by Detective Childress was false. In fact, Detective Childress somewhat surprisingly identified his confidential informants in this case; (2) Judge Shadrick did not abandon his judicial role. Detective Childress described the care the judge took in reviewing the document and, in fact, Judge Shadrick filed the sealed warrant. The Commonwealth’s Attorney, Paul Powers, had also reviewed the document and authorized the search; (3) There was no showing that the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence unreasonable; (4) there was no showing warrant was so facially deficient that the Virginia Beach police could not reasonably have assumed it valid.

21. 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). 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) The magistrate was misled by information in affidavit which affiant knew or should have known was false; (2) The issuing magistrate totally abandoned his judicial role; (3) The warrant was based on affidavit so lacking in indicia of probable cause as to render official belief in its existence unreasonable; or (4) The warrant was so facially deficient that executing officer could not reasonably have assumed it valid. Anzualda v. Commonwealth 44 Va. App. 764, 607 S.E. 2d 749, 2005 Va. App. LEXIS 88 (2005). As noted above, these exceptions to not apply in this case.

E. INVENTORY SEARCHES

22. The Court finds that the inventory search performed by Detective Childress and the discovery of the knife in the glove compartment was proper and lawful under the Fourth Amendment and Virginia case law interpreting it.

23. Virginia recognizes a “community caretaker exception to the general rule otherwise known as the inventory search exception. King v. Commonwealth 39 Va.App. 306, 572 S.E.2d 518(2002). The exception is grounded in the policy considerations recognized by the United States Supreme Court in South Dakota v. Opperman 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and Cady v. Dombrowski 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Those policy considerations include: 1) the protection of the owner’s property while it remains in police custody, 2) the protection of police against claims or disputes concerning lost or stolen property, and 3) protection of the public and the police from physical danger. Reese v. Commonwealth 220 Va 1035, 1039, 265 S.E.2d 746, 749 (1980); See generally Op 428 U.S. at 373-76, 96 S.Ct. at 3099-3 100; Cady, 413 U.S. at 442-48, 93 S.Ct. at 2528-2531.

“Under the community caretaker exception, the police may conduct a warrantless inventory search of a vehicle provided the following conditions are met: 1) the vehicle must be lawfully impounded; 2) the impoundment and subsequent search must be conducted pursuant to standard police procedures; and 3) the impoundment and subsequent search must not be a pretextual surrogate for an improper investigatory motive. King, 39 Va.App. at 310, 572 S.E.2d at 520; Servis v. Commonwealth 6 Va.App. 507, 521, 371 S.E.2d 156, 163 (1988).”

“Here, the inventory search was conducted pursuant to standard procedures and no evidence establishes that the police had an investigatory motive. The sole remaining question is whether the police properly impounded the vehicle. See Servis 6 Va.App. at 521, 371 S.E.2d at 163 (noting that “the crux of the issue in this case is whether the defendant’s car was lawfully impounded”).”

The Court answered the question in the affirmative. “We must consider “not whether there was a need for the police to impound the vehicle but, rather, whether the police officer’s decision to impound was reasonable under the circumstances,” United States v, Brown 787 F.2d 929, 932 (4th Cir.), cert. denied, 479 U.S. 837, 107 S.Ct. 137, 93 L.Ed.2d 80 (1986); see also Opperman 428 U.S. at 372-74, 96 S.Ct. at 3099-3100. “Objective reasonableness remains the linchpin of determining the validity of action taken under the community caretaker doctrine.” King 39 Va.App. at 312, 572 S.E.2d at 521.See also Williams v. Com. 594 S.E.2d 305,42 Va, App. 723 (Va. App., 2004).

24. The Court finds that the 2006 BMW MS was lawfully impounded. The Court finds the impoundment and subsequent search was conducted pursuant to standard police procedures as noted in Detective Childress’s testimony and the presentation of the Exhibits 3 and 4. The Court finds the impoundment and subsequent search was not a pretextual surrogate for an improper investigatory motive. King. 39 Va.App. at 310, 572 S.E.2d at 520; Servis v. Commonwealth 6 Va.App. 507, 521, 371 S 156, 163 (1988).

The evidence was clear that Virginia Beach had its own RICO, money laundering and prostitution investigation. The search warrant was authorized by Judge Shadrick for these crimes, The car was properly seized and, as required by standard operating procedure, had to be inventoried.

In Colorado v. Bertine 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Fourth Amendment does not prohibit the State from proving the criminal charges with the evidence discovered during the inventory search of respondent’s van. This case is controlled by the principles governing inventory searches of automobiles and of an arrestee’s personal effects, as set forth in South Dakota v. Opperman 428 U.S. 364, 96S.Ct. 3092, 49 L.Ed.2d 1000, and Illinois v.. Lafayette 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, rather than those governing searches of closed trunks and suitcases conducted solely for the purpose of investigating criminal conduct. United States v. Chadwick 433 U.S. 1, 97 S.C1. 2476, 53 L.Ed.2d 538, and Arkansas v. Sanders 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, distinguished. The policies behind the warrant requirement, and the related concept of probable cause, are not implicated in an inventory search, which serves the strong governmental interests in protecting an owner’s property while it is in police custody, insuring against claims of lost, stolen, or vandalized property, and guarding the police from danger. There was no showing here that the police, who were following standardized care taking procedures, acted in bad faith or for the sole purpose of investigation. Police, before inventorying a container, are not required to weigh the strength of the individual’s privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items. There is no merit to the contention that the search of respondent’s van was unconstitutional because departmental regulations gave the police discretion to choose between impounding the van and parking and locking it in a public parking place. The exercise of police discretion is not prohibited so long as that discretion is exercised—as was done here—according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.

25. Under the Fourth Amendment, police may seize an item without a warrant if it is in 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).

In this case, Detective Childress was lawfully conducting an inventory search of the Defendants’ BMW M5. As he was doing so, he found a Sig Sauer knife in the glove compartment. The incriminating nature of the weapon became immediately apparent to Detective Childress as he recalled that the Pennsylvania homicide was committed with a knife. Detective Childress then lawfully seized the knife and turned it over to Corporal Leo Hannon of the Pennsylvania State Police.

CONCLUSION:

WHEREFORE, based on the foregoing, the Commonwealth respectfully requests the Court to deny and dismiss the Defendants' motions to suppress evidence obtained during the search of the Defendants' car at the Virginia Beach Police Department's Special Investigation Division after their arrest on May 15, 2007.

Commonwealth’s Proposed Findings of Fact (Part 2)

Continued from Part 1...

CONCLUSIONS OF LAW

A. CONFLICT OF LAWS

1. The issue that this Court must address is whether Pennsylvania or Virginia law should be used to determine whether the May 15, 2007 searches and seizures in Virginia Beach, Virginia by the Virginia Beach Police Department based on violations of Virginia criminal law were conducted through valid and legal means.

2. The Court concludes that Virginia law should apply to these searches/seizures. First, violations of substantive Virginia law were the basis for the search warrant. The Defendants were Virginia residents. Their Virginia home was the subject of one of the searches. Virginia Beach Police Department secured authorization for the warrant from the Commonwealth Attorney’s office in Virginia Beach, not the Luzerne County District Attorney’s Office, Judge Shadrick, the Circuit Court Judge covering Virginia Beach, authorized the warrant. Judge Shadrick is akin to a Court of Common Pleas judge in the Commonwealth of Pennsylvania. The Virginia RICO investigation was well under way when the Kocis homicide had occurred. The jurisdiction most intimately concerned with the outcome is Virginia. Commonwealth. v. Sanchez 716 A.2d 1221, 552 Pa, 570 (Pa., 1998).

3. The fact that Virginia Beach waited to execute their RICO search warrant as a courtesy to the Pennsylvania authorities, who were closing in on the suspects, does not transmute this issue into one where Pennsylvania law should trump Virginia law. The Court concludes Virginia law applies to the search and seizure issues raised by the Defendant.

B. CONTRABAND-VIRGINIA LAW

4. The Court finds and concludes that the 2006 BMW M5 was contraband and a warrant was not required to seize it.

5. The Court relies on Florida v. White 526 U.S. 541, 119 SQ. 1545, 143 L.Ed.2d 731 (1999).

6. In Florida v. White 526 U.S. 541, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). The court wrote, “The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act’s provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not.”

7. The car was seized on the public street in Virginia Beach, Virginia. This is a public place. (NT. pg. 84). The remaining question for the Court is: Was probable cause present to seize this car?

8. In United States v. Brookins 345 F.3d 231 (4th Cir., 2003), the court wrote, “Finally, under the relevant forfeiture statutes, the police may seize an automobile without first obtaining a warrant when they have probable cause to believe that it is forfeitable contraband.” See Florida v. White 526 U.S. 559, 565 (1999). “Without probable cause, neither the “automobile exception” nor a forfeiture provision is available to support a warrantless search or seizure.’

9. The Commonwealth presented the following evidence to establish probable cause to seize the ear as contraband:

(a) The Boisrus Webpage-Exhibit “1”- this brazen advertisement, reviewed in a common sense manner, is a blatant invitation to hire prostitutes. Part of the sales pitch includes being picked up in the very car that is the subject of this motion, the 2006 BMW M5. The second page of Exhibit “1” displays the defendant Harlow Raymond Cuadra in a Speedo or skimpy underwear. There are various packages a person may purchase which common sense dictates is simply the sexual menu the Defendants’ escort business offered.

(b) The testimony of Detective Childress as noted above.

(c) The Search warrant authorized by Circuit Court Judge Shadrick which is Exhibit “2”.

10. The court finds support in McLaughlin v. Commonwealth 629 S.E.2d 724, 48 Va. App 243 (Va. App,, 2006), where the Virginia appellate court noted:

“it is well established that under certain circumstances the police may seize evidence in plain view without a warrant.’ Coolidge v. New Hampshire 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971). To invoke the plain view doctrine, howevcr, the police must have probable cause to believe the evidence seized was evidence of a crime or contraband. Arizona v. Hicks 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed2d 347 (1987). “The Fourth Amendments requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.” Minnesota v. Dickerson 508 U.S. 366, 376, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).

“Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States 267 U.S. 132, 162 ,45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Texas v. Brown 460 U.S. 730, 742, 103 S.Ct. 1535, 1543,75 L.Ed.2d 502 (1983).

“In determining whether probable cause exists, we are required to focus upon what the circumstances meant to trained police officers. Brown v. Commonwealth 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005). Nevertheless, an officer’s determination of probable cause must be based on “objective facts.” Den v. Commonwealth 6 Va.App. 215, 220, 368 S.E.2d 916, 918 (1988)(quoting United States v. Ross 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982)). “Suspicion, or even ‘strong reason to suspect” is not enough to constitute probable cause. See Henry v. United States 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959). Thus, applying the Texas v. Brown standard and the statute the officers purported to act upon in this case, we must ask whether the facts available to the police officers would warrant a person of “reasonable caution” to believe that the CDs were “possessed for the purpose of sale, rental or transfer” and did not have packaging with the manufacturer’s name and address”

11. The Court concludes as a matter of law that the 2006 BMW M5 was contraband and that a search warrant was not necessary to seize it. Nevertheless, the Virginia Beach Police Department had prepared a search warrant for vehicles located at 1028 Stratem Court, which the court addresses next.

C. SEARCH WARRANT-VEHICLES FLEEING CURTILAGE SUFFICIENCY OF WARRANT TO SEARCH HOME

12. The Court finds and concludes as a matter of law that the Virginia Beach search warrant clearly establishes probable cause to search the home at 1028 Stratem Coup, Virginia Beach, Virginia and the vehicles on the curtilage.

13. The investigation began in August 2006 and contains information up to May 12, 2007. The search warrant details that a confidential informant has given statements against his penal interest. The affiant, Detective Childress, has verified information given by the confidential informant by checking with the State Corporation Commission which noted Harlow Cuadra as President of Norfolk Companions, Inc. Detective Childress also noted The City of Virginia Beach issued a business license Norfolk Companions, Inc. Detective Childress verified through DMV and pistol records that Harlow Cuadra resided at 1028 Stratem Court, Virginia Beach, Virginia. Detective Childress, according to the search warrant, also verified the factual information provided by the confidential informant as it was advertised on the Defendants’ web site boisrus.com. The search warrant indicated that Harlow Cuadra and Joseph Kerekes were the primary escorts and they operated the business out of 1028 Stratem Court The totality of the circumstances, therefore, provided Judge Shadrick with a substantial basis to find that probable cause justified the search. See Slade v. Commonwealth 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231 (2004).

14. The search warrant also delineates that prostitution rings, such as Norfolk Companions, Inc. acquires assets through their ill-gotten gains which includes vehicles. The search warrant authorizes the seizure/search of vehicles on the curtilage.

15. The Court notes that federal courts have held that a warrant authorizing the search of identified premises encompasses vehicles which are on the premises. See, e.g., United States v. Percival 756 F.2d 600, 612-13 (7th Cir.1985); United States v. Bulgatz 693 F.2d 728, 729 n. 3 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983); United States v. Freeman 685 F.2d 942, 955 (5th Cir.1982). The affidavits in these cases generally established probable cause to believe the sought for evidence was in the residence or somewhere on the premises. See, e.g., Percival 756 F.2d at 612; Bulgatz 693 F.2d at 731; Freeman 685 F.2d at 946-55. In holding that the scope of the search was not exceeded by the search of vehicles on the premises, these holdings necessarily imply that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles. As stated by the 7th Circuit Court of Appeals in concluding that the search of a vehicle parked in the garage of suspected premises was within the scope of the warrant:

“A lawful search of fixed premises generally extends to every part of the premises in which the object of the search may be found, notwithstanding the fact that separate acts of opening or entry may be required to complete the search.” Percival 756 F.2d at 612 (citing United States v. Ross 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). See, e.g., United States v. Gottschalk 915 F.2d 1459, 1461-62 (10th Cir.1990) (court upheld search of vehicles on premises where search warrant did not reference any vehicles to be searched but authorized search of “premises; United States v. Cole 628 F.2d 897, 899-900 (5th Cir. 1980) (although warrant authorized search of dwelling and a specifically identified automobile, court also upheld search of truck on premises); Brooks v. United States 416 F.2d 1044, 1050 (5th Cir.1969)(search of automobile “completely justified” under terms of warrant for premises for which there was probable cause). The affidavits in these cases generally established probable cause to believe the evidence sought was in the residence or somewhere on the premises. See, e.g., Percival 756 F.2d at 611; Freeman 685 F.2d at 955. In holding that the scope of the search warrant was not exceeded by the search of vehicles on the premises, these cases “necessarily imply that the probable cause showing with respect to the premises in general was sufficient to establish probable cause for the search of the vehicles,’ See Hughes v. State 843 S.W.2d 591,at 595 (Tex. Crim. App., 1992).

16. In this instance, the Defendants drove away in the 2006 BMW M5 which the Commonwealth contended was contraband.

17. Even if the car was not contraband, this Court finds as a matter of law that the seizure of the 2006 BMW M5 in the 3900 block of Virginia Beach Blvd., Virginia Beach, Virginia by the Virginia Beach Police Department was proper and lawful under the search warrant. Detective Childress testified that a tactical decision was made by police to arrest the Defendants by a marked police unit and uniformed officers for safety reasons. The Defendants were being charged with crimes of violence, for example, criminal homicide, robbery and arson. The Defendants were known to have at least one handgun, a 9 mm Glock, The nature of the underlying homicide was the near complete decapitation of the victim. The Court finds that it was prudent and reasonable for the police to have followed this course of conduct.

18. The Court finds support for its conclusion in Lassiter v. State of Florida 959 So.2d 360 (Fla. App. 2007), where the police obtained a warrant to search a home, its curtilage and vehicles parked thereon. A car was observed on the property when the police arrive to serve the warrant. The Defendant exited the house then drove off in the car. The police allowed him to travel 5 miles from the house before stopping him so that the other occupants in the house would not be alerted to the police presence. The defendant had been making a volatile, dangerous drug MDMA. The Lassiter court noted:

“Given the volatile nature of the drug being manufactured at the residence, we find it both prudent and reasonable for the police to have waited for Mr. Lassiter to leave in the car from the location described in the warrant before executing the warrant. In coming to this conclusion, however, we underscore that this off premises search is permissible because of the peculiar and dangerous nature of the product involved, as well as the reasonable time and distance that elapsed before the search occurred.”

Part 3 tomorrow.

Commonwealth’s Proposed Findings of Fact (Part 1)

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