United States v. Voustianiouk

• Decision Date: 12 July 2012
• Docket Number: Docket No. 10–4420.
• Parties: UNITED STATES of America, Appellee, v. Andrei VOUSTIANIOUK, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

685 F.3d 206

UNITED STATES of America, Appellee,

v.Andrei VOUSTIANIOUK, Defendant–Appellant.

Docket No. 10–4420.

United States Court of Appeals,

Second Circuit.

Submitted: Nov. 7, 2011.

Decided: July 12, 2012.

Kerry A. Lawrence (of counsel), Briccetti, Calhoun & Lawrence, LLP, White Plains, N.Y., for Defendant–Appellant Andrei Voustianiouk.

Janis M. Echenberg & Justin S. Weddle, Assistant United States Attorneys (of counsel), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.

Before: McLAUGHLIN, POOLER, and PARKER, Circuit Judges.

POOLER, Circuit Judge:

Federal agents arrived at a small two-story building in New York City one morning in January 2009 with a warrant to search the first-floor apartment. The warrant did not mention the name of the person who lived there and only authorized them to search that single apartment. But on the morning of the search the agents discovered that the suspect they were investigating lived on the second floor, not the first. He also happened to be home. So they decided to search his apartment instead.

The officials could have called a magistrate judge and obtained a new warrant to search the second-floor apartment. The evidence wasn't going anywhere, and neither was their suspect. But the officials took a shortcut. They searched the second floor without first obtaining a warrant from a judge.

The officials in this case did not stray far from their search warrant. They merely ventured up a flight of stairs. But the Fourth Amendment does not permit the police to search one apartment simply because they have a warrant to search another that is nearby.

We hold that these agents conducted a warrantless search of a person's home in violation of the Fourth Amendment. In addition, we conclude that the evidence seized as a result of this unconstitutional search should have been suppressed because the officials in this case knowingly stepped beyond the bounds of the search that the magistrate judge had authorized them to conduct. Accordingly, we reverse the district court's denial of Voustianiouk's motion to suppress the evidence, vacate his conviction and sentence, and remand the case for further proceedings consistent with this opinion.

BACKGROUND

In 2008, an American official with U.S. Immigration and Customs Enforcement obtained a report from the German federal police indicating that someone who had accessed a file-sharing network using a particular Internet Protocol (“IP”) address, which is a short string of numbers that can be used to identify individual computers, had a file on their computer containing child pornography.

American law enforcement officials traced the IP address to an Internet service provider, and filed a subpoena with the service provider's parent company requesting the name and address of the customer whose account was associated with the IP address under investigation. According to the Internet service provider, “the IP address was assigned to Andrei Voustianiouk, at 2424 Cambreleng Avenue, Apartment 1, Bronx, New York.”

Prior to applying for a search warrant, Robert Raab, a federal agent involved with the investigation, visited the building at 2424 Cambreleng Avenue and visually “observ[ed] ... [its] exterior.” Raab attempted to confirm the accuracy of Voustianiouk's address by checking with the United States Postal Service, as well as with a database maintained by New York State that contained the names and addresses of people who had registered for driver's licenses. Both sources of information confirmed that Voustianiouk lived at 2424 Cambreleng Avenue. But neither the postal service nor the New York State database indicated which apartment was Voustianiouk's.

Raab eventually obtained a search warrant authorizing agents to search “the premises known and described as 2424 Cambreleng Avenue Apt. 1, Bronx, New York 10458.” (capitalization altered). In an affidavit submitted to the magistrate judge in support of the search warrant, Raab identified the place to be searched as “a ground floor apartment inside a two-story white shingled house.” Raab's affidavit indicated that “[b]ased in part on information obtained through a summons directed to the internet service provider for [the] IP address” under investigation, he learned “the subscriber ... was an individual at 2424 Cambreleng Avenue, Apt. 1, Bronx, New York, 10458.”

Neither the search warrant nor any of the accompanying information—which comprised a total of twenty-four pages—mentions Voustianiouk's name. In fact, the government intentionally withheld Voustianiouk's name from the magistrate judge who approved the search warrant. When asked by the district court below why Voustianiouk's name was not mentioned in the warrant or its accompanying materials, an Assistant United States Attorney prosecuting the case explained: “There are cases, your Honor, where there are multiple people in a home and one person may be the person whose information is on the subscription for the Internet address, so it doesn't always make sense to name that person because going in you don't know if that's necessarily the person that you are going after....”

Thus, there is no indication that the magistrate judge who issued the search warrant was aware that the government even considered Voustianiouk a suspect, or knew what evidence the government had to support its suspicions.

Just over a week after obtaining a search warrant, Raab and other agents arrived at 2424 Cambreleng Avenue on the morning of January 22, 2009. As Raab later explained, they “rang both of the buzzers because neither were marked with an apartment number.” After the officials rang the doorbells, they “saw a light turn on from the second floor window and then a man came to the front door of” the building. Raab Affirmation 6. The man was asked whether “he was Andrei Voustianiouk[,] and he confirmed that he was.”

Raab also immediately recognized Voustianiouk from a photograph that Raab had seen on the Internet. Voustianiouk worked as a medical researcher at the New York University Medical Center, and Raab had found “a picture of the staff” from what he “believe[d] [was] the NYU Medical Center website.”

At that point, Raab and the other officials “showed the defendant that [they] had a search warrant and needed to enter his apartment.” “Voustianiouk then led [them] up the stairs and into his apartment on the second floor.”

There is no indication that the officials explained that the search warrant in their possession did not mention Voustianiouk's name or that the warrant clearly made reference to the downstairs apartment, not the one that he was leading them to on the second floor.

Upon searching the apartment, officials discovered thousands of files containing child pornography on computers and hard drives. Voustianiouk apparently had been downloading child pornography from the Internet for some time. He eventually admitted to “viewing child pornography for over one year at the time” agents searched his home. Voustianiouk was charged with receipt and possession of child pornography in violation of federal law, and was found guilty after a bench trial before Judge Robert P. Patterson, Jr., of the Southern District of New York.

In September 2010, Judge Patterson sentenced Voustianiouk to a five-year term in prison, which was the mandatory minimum sentence that had been set by Congress for the criminal conduct at issue. Voustianiouk is currently serving that sentence and is scheduled to be released from prison in March 2015. See Inmate Locator, Federal Bureau of Prisons, http:// www. bop. gov/ iloc 2/ Locate Inmate. jsp (indicating that Voustianiouk's release date is March 20, 2015).

On appeal, Voustianiouk argues that the search of his apartment violated the Fourth Amendment of the U.S. Constitution and that the government should have been prohibited from introducing the evidence that was seized as a result of that search at the trial against him. We agree.

DISCUSSION

“The standard of review for evaluating the district court's ruling on a suppression motion is clear error as to the district court's factual findings, viewing the evidence in the light most favorable to the government, and de novo as to questions of law.” United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir.2004).

I

The Fourth Amendment of the U.S. Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

The Fourth Amendment's requirements regarding search warrants are not “formalities.” McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948). By requiring police officers first to obtain a warrant before they search a person's home, unless some exception applies that permits a warrantless search, “the Fourth Amendment has interposed a magistrate between the citizen and the police,” “not to shield criminals nor to make the home a safe haven for illegal activities,” but rather to ensure “that an objective mind might weigh the need to invade that privacy in order to enforce the law.” Id.

Indeed, the Fourth Amendment's demand that search warrants “particularly describ[e] the place to be searched,” U.S. Const. amend. IV, provides a “limitation curtailing the officers' discretion when executing the warrant,” so that “the safeguard of having a magistrate determine the scope of the search is [not] lost.” United States v. George, 975 F.2d 72, 76 (2d Cir.1992); Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (noting that the Fourth Amendment's particularity “requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of...