United States v. Bershchansky

• Decision Date: 19 July 2013
• Docket Number: No. 12–CR–00064 (KAM).,12–CR–00064 (KAM).
• Citation: 958 F.Supp.2d 354
• Parties: UNITED STATES v. Yuri BERSHCHANSKY, Defendant.
• Court: U.S. District Court — Eastern District of New York

958 F.Supp.2d 354

UNITED STATES

v.Yuri BERSHCHANSKY, Defendant.

No. 12–CR–00064 (KAM).

United States District Court,

E.D. New York.

July 19, 2013.

M. Kristin Mace, U.S. Attorney's Office Eastern District of New York, Brooklyn, NY, for United States of America.

Andrey G. Tikhomirov, Brooklyn, NY, for Yuri Bershchansky.

MEMORANDUM AND ORDER

MATSUMOTO, District Judge.

Pending before the court is Defendant Yuri Bershchansky's (“defendant,” or “Mr. Bershchansky”) motion to suppress (i) evidence seized pursuant to a search warrant executed on January 31, 2011, and (ii) statements made by the defendant on January 31, 2011, during the execution of the search warrant. Mr. Bershchansky is charged with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(b) and 18 U.S.C. § 2252(b)(2). (ECF. No. 7, Indictment, filed 1/20/2012.) For the reasons discussed below, defendant's motion to suppress evidence seized and statements obtained pursuant to a search warrant executed on January 31, 2011, is granted.

BACKGROUND

A. The Search

On November 23 and 24, 2010, an investigator from the United States Department of Homeland Security, Homeland Security Investigations (“HSI”) used file sharing software to connect directly to a computer with Internet Protocol (“IP”) ¹ address 24.185.53.197, which was offering files for sharing on the Gnutella 1 peer-to-peer file sharing network.² (ECF No. 1, Supporting Affidavit, No. 11–mj–0068(JMA), filed 1/24/2011 (“Supporting Aff.”), ¶ 15.) The investigator identified numerous files offered for download by that computer with file names indicative of child pornography. ( Id. ¶ 16.) The investigator determined the unique Secure Hash Algorithm Version 1 (“SHA1”) value for each of those files and subsequently downloaded documents with identical SHA1 hash values from multiple sources.³( Id. ¶ 17.) After viewing the downloaded files, Special Agent Robert Raab (“Agent Raab”) confirmed that they depicted images of child pornography. ( Id. ¶ 17.) Agent Raab subsequently confirmed that IP address 24.185.53.197 was registered to cable provider Cablevision, and that the subscriber to IP address 24.185.53.197 during the relevant time frame was Mr. Bershchansky. ( Id. ¶ 19.) Cablevision provided defendant with internet access to/from his physical address at 2462 Gerritsen Avenue in Brooklyn, New York, 11229. ( Id.) As discussed below, Cablevision identified defendant as a resident of Apartment 2, although the door to his apartment is marked “1.”

On January 24, 2011, Agent Raab submitted an Affidavit In Support of a Search Warrant asserting that there was probable cause to search for “evidence or instrumentalities of the possession, transportation, receipt, distribution and reproduction of sexually explicit material relating to children, in violation of [18 U.S.C. §§ 2252 and 2252A],” concealed within the “premises known and described as 2462 Gerritsen Avenue, Apt. # 2, Brooklyn, New York 11229.” (Supporting Aff. at 1.) Agent Raab stated in the supporting affidavit that the IP address for Cablevision was subscribed to by “Yuri Bershchansky of 2462 Gerritsen Avenue Apartment 2,” that Con Edison confirmed that the bill for the subject premises was in the name of “Yuri Bershchansjy [sic],” and that “the tenant living at 2462 Gerritsen Avenue Apartment 1 stated that ‘Yuri and his mother live in apartment 2.’ ” ( Id. at ¶¶ 19–20.) The same day, Magistrate Judge Joan M. Azrack signed a search warrant authorizing the search of 2462 Gerritsen Avenue, Apartment # 2, Brooklyn, New York 11229. (ECF No. 1, Complaint, dated 12/19/2011 (“Compl.”) ¶ 7; ECF No. 22, Gov't Opposition to Def.'s Motion to Suppress, dated 4/13/2012 (“Opp.”), at 10.)

On January 31, 2011, Department of Homeland Security agents, including Agent Raab, executed the search warrant on defendant's residence, located at 2462 Gerritsen Avenue, Apartment # 1, Brooklyn, New York 11229. (Compl. ¶ 7.) The search warrant bore the caption “In the Matter of the Search of The Premises Known and Described as 2462 Gerritsen Avenue, Apt. # 2, Brooklyn, N.Y. 11229.” (ECF No. 2, Search Warrant, No. 11–mj–0068(JMA), filed 1/24/2011 (“Search Warrant”) (capitalization altered).) The search warrant also provided the following description for the premises to be searched:

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”.

(Search Warrant at 1.) Although the search warrant's caption referred to “Apt. # 2” and its description of the premises to be searched also referred to a door bearing the numbers “2462 2,” the search warrant was in fact executed on apartment # 1, which is defendant's apartment, the exterior door to which was marked with a “1.” (Government Exhibit (“Gov. Ex.”) 2–E; ECF No. 21–1 to 21–4, Affidavit of Marina Bershchansky, dated 3/27/12 (“Bershchansky Aff.”).)

According to the government, the agents knocked on the door of Apartment # 1, identified themselves to defendant's motherand informed her of the search warrant. (ECF No. 22–3, Homeland Security Investigators' Search Report (“HSI Search Report”).) The defendant's mother then allowed the agents to enter the residence. ( Id.) The agents went to defendant's bedroom, identified themselves, and notified defendant of the search warrant; defendant responded that he understood. ( Id.) ⁵ The agents allowed defendant to dress, then asked defendant if he would be willing to be interviewed. ( Id.) Defendant stated that he would and went into the kitchen with some of the agents. ( Id.) The agents advised defendant that he was not under arrest, that he was under no obligation to speak with law enforcement and that he was free to leave. (Compl. ¶ 8; HSI Search Report; 5/14/12 Tr. at 104–105.) The government asserts that defendant was not handcuffed or restrained in any way. (Opp. at 12; HSI Search Report.) Two agents interviewed defendant while the other agents searched the apartment. (HSI Search Report.) During the course of the interview, defendant unambiguously admitted to receiving and possessing child pornography. ( Id.)

According to defendant's mother, the agents did not inform her of the search warrant when they first arrived at defendant's residence. (Bershchansky Aff. ¶ ¶ 25–26.) Defendant's mother also saw defendant “being escorted by two officers to the kitchen, with one officer holding [defendant's] hands behind his back,” and “heard that the officer said that [defendant] has to answer some questions.” (Bershchansky Aff. ¶¶ 18–19.) In addition, defendant's mother later saw defendant “sitting in the middle of [the] kitchen in the chair usually standing next to the wall. One officer was standing right behind the chair and two officers sitting right [in front] of [defendant] asking him questions.” ( Id. ¶ 22.)

A preliminary forensic review of defendant's seized computer equipment revealed more than 100 videos containing child pornography. (Compl. ¶ 9; Opp. at 14.) In addition, the same files that the investigator had previously browsed on defendant's computer through the Gnutella 1 peer-to-peer file sharing network were subsequently found on defendant's computer, which was seized during the search executed on January 31, 2011. (Opp. at 26.) On December 19, 2011, Magistrate Judge Robert M. Levy signed an arrest warrant for defendant for violating 18 U.S.C. § 2252. (ECF No. 2, Arrest Warrant, filed 12/19/2011.) On December 21, 2011, agents executed the arrest warrant at defendant's home. (Opp. at 15.) Defendant was advised of and waived his Miranda rights. ( Id.; ECF No. 22–4, Arrest Report.) The Indictment was filed on January 20, 2012. (ECF No. 7, Indictment.)

B. Defendant's Motion to Suppress

On March 30, 2012, defendant moved to suppress (i) evidence seized pursuant to the search warrant executed on January 31, 2011, arguing that there was no probable cause for the search warrant and that the affidavit on which it was based omitted necessary information; and (ii) his pre-arrest statements, arguing that they were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ( See generally ECF No. 21, Def.'s Motion to Suppress, dated 3/30/2012 (“Mot.”).)

On April 13, 2012, the government filed its opposition to defendant's motion to suppress. (Opp.) The defendant filed a reply to the government's opposition on May 3, 2012. (ECF No. 26, Def.'s Reply in Support of Motion to Suppress, dated 5/3/2012 (“Reply”).)

At the parties' request, on May 14, 2012, the court held a hearing on defendant's motion to suppress. Agent Raab and the defendant's mother, Marina Bershchansky, both testified at the hearing. (Minute entry dated 5/15/2012 for proceedings held on 5/14/2012.) As discussed in greater detail below, Agent Raab credibly testified about the facts establishing the probable cause for the search warrant and the circumstances under which Mr. Bershchansky agreed to answer questions during the search.

The parties submitted post-hearing briefs after the May 14, 2012 suppression hearing that addressed the testimony given at the hearing. (ECF Nos. 32–34.) Notably, at the May 14, 2012 suppression hearing, defense counsel had asked Agent Raab if he recalled what apartment number the warrant was directed to, and Agent Raab responded “I believe the warrant had Apartment Number 2.” (5/14/12 Tr. at 116.) Defense counsel then asked Agent Raab if he knew the number of the apartment that government had searched, and Agent Raab replied “I believe it's Apartment 1.” ( Id. at 117.) Agent Raab also testified at the May 14 hearing that he had looked at the search warrant prior to entering the apartment and believed the warrant listed Apartment 2. ( Id...