United States v. Bershchansky

Decision Date05 June 2015
Docket NumberDocket No. 13–3145.
Citation788 F.3d 102
PartiesUNITED STATES of America, Appellant, v. Yuri BERSHCHANSKY, Defendant–Appellee.
CourtU.S. Court of Appeals — Second Circuit

Saritha Komatireddy, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, New York, for Appellant.

Megan Wolfe Benett, New York, New York, and Gary Farrell, New York, New York, for DefendantAppellee.

Before: WINTER and CHIN, Circuit Judges, and OETKEN, District Judge.*

Opinion

CHIN, Circuit Judge:

In this case, the Department of Homeland Security (“DHS”) identified a computer in Brooklyn, New York, that it believed was offering, on a peer-to-peer network, electronic files that contained child pornography. DHS agents determined that the computer was subscribed to defendant-appellee Yuri Bershchansky and they obtained a warrant to search what they apparently believed to be his residence. The agents searched Bershchansky's home, seized his computer equipment, and elicited a confession from him. Bershchansky was later arrested and charged with one count of possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2).

The warrant authorized a search of Apartment 2 at the location where Bershchansky lived, but the agents executed the warrant by searching Apartment 1 instead. Bershchansky moved to suppress on the grounds that the agents exceeded the scope of the warrant when they searched an apartment other than the one approved by the magistrate judge. On July 19, 2013, the United States District Court for the Eastern District of New York (Matsumoto, J .) granted the motion. The government appeals. We affirm.

BACKGROUND
A. The Investigation

After two evidentiary hearings, the district court made detailed findings of fact. Based on the district court's findings and the record in the case, we summarize the facts as follows:

In November 2010, an investigator in the Homeland Security Investigations unit (“HSI”) of DHS identified a computer on a peer-to-peer network that he believed was hosting digital files known to be associated with child pornography.1 The computer was logged in from Internet Protocol address 24.185.53.197 (the “IP Address”).2 The investigator “direct connected” to the IP Address and discovered numerous video and image files being offered for download, many of which contained titles indicative of child pornography. The investigator, using special software, downloaded these files.

Special Agent Robert Raab, a member of HSI's Child Exploitation Group, was assigned to investigate the IP Address. He confirmed that the downloaded files contained images of child pornography. He also determined that the IP Address was registered to Cablevision, an internet service provider. He issued an administrative summons to Cablevision, requesting the subscriber information associated with the IP Address. Cablevision informed Raab that, during the relevant time period, the IP Address was assigned to Yuri Bershchansky at address “2462 Gerritsen Av Apt 2” in Brooklyn, New York. Raab next contacted Con Edison, an electrical service provider, by telephone to confirm the subscriber information associated with the Gerritsen Avenue address provided by Cablevision. Raab testified that a Con Edison representative told him that the bill for Apartment 2 at 2462 Gerritsen Avenue in Brooklyn was in Bershchansky's name.

Next, Raab, along with Special Agent Steven Cerutti, visited 2462 Gerritsen Avenue to confirm Bershchansky's residence. The building at 2462 Gerritsen Avenue is a multi-family dwelling with at least three apartments. Two exterior doors face Gerritsen Avenue, with one on the left, slightly above street level, and the other on the right, slightly below street level. The apartment on the left is Apartment 2 and the apartment on the right is Apartment 1.3 Raab and Cerutti knocked on the door to the left (Apartment 2) and a young woman, Anna Klishina, answered. The agents proceeded to ask her who lived in the apartment. Anna answered that she lived there with her mother and stepfather. The agents next asked whether an individual named “Kim”—a fictitious name—lived in the apartment to the right. Raab and Cerutti testified that they could not remember the “exact words” of Anna's response, but Anna's mother, Svetlana Klishina, overheard the conversation and testified that Anna told the agents that “Kim” did not live in that apartment, but rather, that a mother and her son lived there. When the agents initially went to the apartment on the left, they did not know who lived there, and they picked it “just [as] a place to start.” G.App. at 160. After speaking to Anna, they did not rule out that Bershchansky lived in the apartment with the Klishina family.

B. The Search Warrant Application

On January 24, 2011, Raab submitted a search warrant application for 2462 GERRITSEN AVENUE, APT. # 2, BROOKLYN, N.Y. 11229.” In his affidavit, Raab described the premises to be searched as follows:

The SUBJECT PREMISES is an apartment located within a two-story red brick multi-family dwelling, which is attached on one side. The front of the dwelling has two exterior doors. The door to the left leads upstairs to apartment # 1. The door to the right as you face the building leads to the SUBJECT PREMISES. The door is brown and bears the number “2462 2”.

G.App. at 171. Raab did not mention whether the door to the right was upstairs or downstairs. In his affidavit, he also summarized the steps HSI took in investigating the computer associated with the IP Address. He repeatedly cited the IP Address as the target of the investigation. He further outlined how he determined that the IP Address was subscribed to Yuri Bershchansky of 2462 Gerritsen Avenue Apartment 2, Brooklyn, New York.” Specifically, Raab represented that Cablevision, Con Edison, and Anna Klishina confirmed that Bershchansky lived in Apartment 2. Raab concluded that there was “probable cause to believe that there is kept and concealed within THE PREMISES KNOWN AND DESCRIBED AS 2462 GERRITSEN AVENUE, APT. # 2, BROOKLYN, N.Y. 11229 ... evidence or instrumentalities of ... sexually explicit material relating to children.” G.App. at 168.

In fact, records from Con Edison—obtained after the search warrant was issued—indicated that Bershchansky's service address was 2462 Gerritsen Ave 1FL. The Con Edison records also indicated that “2462 GERRITSEN AVE 2FL” was assigned to Svetlana Klishina.”4 The Cablevision records obtained before the search indicated—erroneously—that Bershchansky resided in Apartment 2.

The magistrate judge (Azrack, J .) reviewed the warrant application and Raab's supporting affidavit and issued the requested warrant authorizing the search of 2462 Gerritsen Avenue, Apartment 2. Thereafter, Raab prepared and distributed an Enforcement Operation Plan to apprise the search team of the place to be searched, the target of the investigation, and any potential safety hazards. The Enforcement Operation Plan repeatedly identified “2462 Gerritsen Avenue # 2, Brooklyn, NY” as the place to be searched and included no other physical descriptions of the residence. Raab also held a pre-search briefing with the search team and circulated a copy of the search warrant.

C. The Execution of the Search Warrant

On January 28, 2011, approximately eight HSI agents—including Raab and Cerutti—assembled to execute the search warrant. Upon arriving at 2462 Gerritsen Avenue, Raab knocked on the door to the right, Apartment 1. Bershchansky's mother answered and the agents informed her of the search warrant. Raab and the other agents then entered the apartment to conduct the search, finding and seizing computer equipment, including a desktop computer and two external hard drives. Photographs of the doors received into evidence at the suppression hearing show that both the outer and inner doors to the apartment to the left were clearly marked “2,” and that the inner door to the apartment on the right—the apartment that was searched—was clearly marked “1.”5

Bershchansky was present during the search and the agents proceeded to interview him. He admitted receiving and possessing child pornography. The government would later, through forensic review, determine the presence of more than 100 electronic files containing child pornography in the seized computer equipment. On December 21, 2011, Bershchansky was arrested and charged with possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2).

D. Proceedings Below

On March 30, 2012, Bershchansky moved to suppress the computer evidence and admissions in question. Bershchansky argued, inter alia, that the search warrant was not supported by probable cause and that Raab knowingly misled the magistrate judge by omitting material information in the warrant application. On May 15, 2012, the district court held a hearing on the motion and reserved judgment. On August 10, 2012, Bershchansky filed a supplemental brief arguing that this Court's intervening decision in United States v. Voustianiouk, 685 F.3d 206 (2d Cir.2012), required suppression of the evidence. On December 12, 2012, the district court held a second evidentiary hearing.

On July 19, 2013, the district court issued a well-reasoned and carefully-considered thirty-page memorandum and order, ordering the suppression of the evidence seized and statements made during the execution of the warrant. United States v. Bershchansky, 958 F.Supp.2d 354 (E.D.N.Y.2013). The district court concluded that the agents exceeded the scope of the search warrant by searching premises other than the one they were authorized to search, and it also determined that the good faith exception to the exclusionary rule did not apply. Hence, it suppressed the evidence. Id. at 383. This appeal followed.6

DISCUSSION

We consider three areas of dispute: (a) the standard...

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