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United States v. Voustianiouk

August 4, 2009


The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.


On January 22, 2009, Immigration and Customs Enforcement ("ICE") agents executed a search warrant at Defendant Andrei Voustianiouk's ("Defendant") Bronx apartment, seizing over 2500 computer files containing child pornography. Defendant is now charged with receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(a)(5)(B). With this motion, Defendant moves to suppress the physical evidence seized during the execution of the warrant on two grounds: 1) that the search warrant lacked probable cause, and 2) that the search occurred at a location different than that specified on the search warrant. Defendant also moves to suppress the statements he made to the ICE agents during the execution of the search warrant, claiming that his rights under Miranda v. Arizona, 384 U.S. 436 (1966) were violated. Oral Argument and a hearing on Defendant's Miranda claim were held before this Court on July 10, 2009. For the reasons that follow, Defendant's motion is denied.

I. Factual Background

A. The Investigation

In 2007 and 2008, ICE agents stationed in Frankfurt, Germany (the "ICE Attache") met with officials of the German Federal Police ("BKA"), who provided them with reports and evidence relating to the distribution of child pornography on the Internet. (Affirmation of ICE agent Robert Raab, dated June 12, 2009 ("Raab Aff."), ¶3(a).)*fn1 In July 2008, the ICE Attache forwarded a BKA report to the ICE Cyber Crimes Center stating that on July 3, 2008, an individual connected to the Internet through Internet Protocol ("IP") address, hosted a child pornography file known as "1.avi" through the eDonkey2000 peer-to-peer file-sharing network. (Id. ¶3(b).) Upon receipt of the BKA report, the ICE Cyber Crimes Center subpoenaed Internet Service Provider CSC Holdings Inc. ("CSC"), requesting the records for IP address (Id.) In response, CSC informed ICE that that IP address was assigned to Defendant (Andrei Voustianiouk), who resided at 2424 Cambreleng Avenue, Apartment 1, in the Bronx, New York. (Id. ¶3(e).)

i. The Premises

To corroborate that the address provided by CSC belonged to Defendant, Agent Raab spoke with a United States Postal Service agent, who stated that Andrei Voustianiouk received mail at 2424 Cambreleng Avenue, Bronx, New York. (Raab Aff. ¶4.) Agent Raab also crosschecked the address against a New York drivers' license database, which listed Defendant's address as 2424 Cambreleng Avenue in the Bronx. (Id. ¶8.) Neither the postal agent nor the search of the license database provided Agent Raab with an apartment number. (Id. ¶¶4, 8.)

2424 Cambreleng Avenue is a two-story residence with an apartment on each floor.*fn2 (Affidavit of Andrei Voustianiouk, dated May 21, 2009 ("Voustianiouk Aff."), Ex. 1.) There are no markings on any of the doors inside or outside 2424 Cambreleng Avenue to indicate which apartment is Apartment 1, or whether the building even contains numbered apartments. (Voustianiouk Aff. Ex 1.) Prior to executing the warrant, Agent Raab visited that address, and from his observations, inferred that Apartment 1 was the ground floor apartment. (Raab Aff. ¶9(a).)

ii. The "1.avi" File

Prior to providing an affidavit in support of the search warrant application, Agent Raab also viewed the "1.avi" file, which contains approximately thirty minutes of short video scenes. (Raab Aff. ¶6.) According to Agent Raab, more than twenty scenes contain child pornography, including scenes depicting: (1) an adult male ejaculating onto the genitals of a prepubescent female; (2) a prepubescent female sucking the penis of an adult male through a teddy bear; and (3) an adult male engaging in sexual intercourse with a prepubescent female. (Id. ¶6.)

B. The Warrant Application

On January 14, 2009, Agent Raab signed an affidavit in support of an application for a warrant to search 2424 Cambreleng Avenue, Apartment 1, Bronx, New York. (Affirmation of Kerry Lawrence, dated May 22, 2009 ("Lawrence Aff."), Ex. B [Warrant Affidavit].) Agent Raab did not append the "1.avi" video or still pictures from the video, nor did he provide a description of the video in the warrant application; Agent Raab simply stated that the file was "known to German law enforcement to be a child pornography file." (Lawrence Aff., Ex. B ¶8.)*fn3 Agent Raab described the premises to be searched as "a ground floor apartment inside a two-story white-shingled house." (Id. ¶4.) Agent Raab did not include Defendant's name in his affidavit in support of the search warrant application. (Id. ¶10.)

On January 14, 2009, Magistrate Judge Dolinger signed a search warrant authorizing the search of "the premises known and described as 2424 Cambreleng Avenue, Apt. 1, Bronx, New York 10458." (Lawrence Aff., Ex. B at 31.) Judge Dolinger did not ask Agent Raab any questions about the materials to be seized. (July 10, 2009 Hearing Transcript ("Hr'g Tr.") at 5-6.)

C. The Search

Between 6:00 a.m. and 7:00 a.m. on January 22, 2009, Agent Raab and other officers executed the search warrant. (Hr'g Tr. at 29.) When the agents approached the front door of the two-story house, they saw two door buzzers to the left of the front door. (Raab Aff. ¶9.) Neither buzzer was marked with an apartment number, so the agents rang both buzzers. (Id.) A light turned on from the second floor window, and then a man came to the front door of 2424 Cambreleng Avenue. Defendant answered the door and the agents asked if he was Andrei Voustianiouk; Defendant responded that he was. (Id. ¶9.) The agents showed Defendant their credentials and informed him that they had a search warrant;*fn4 the agents did not show him the search warrant at that time. (Id. ¶ 9(c).) Defendant then led the agents upstairs to his apartment. (Raab Aff. ¶9.) While inside Defendant's apartment, the agents took photographs of Defendant's mail, which showed that no apartment number was listed on any of the mail received by Defendant. (Id. Ex. A [mail pictures].)

From inside Defendant's residence, ICE agents seized three computers and ten external hard drives, which contained over 2500 files of child pornography. (Raab Aff. ¶¶9(e), 10.) The agents gave Defendant a copy of the search warrant as they were leaving. (Id. ¶5.) At no time did Defendant consent to the search of his apartment. (Voustianiouk Aff. ¶3.)

D. Statements Defendant Made to the Agents During the Search

While five agents searched Defendant's apartment, two agents, Raab and Cerutti, questioned Defendant in his kitchen. During the questioning, Defendant admitted to visiting child pornography websites and downloading child pornography videos from the eDonkey2000 network. (Lawrence Aff. Ex. C.) Defendant also stated that he alone had access to the computers that were seized by the agents. (Id.) Defendant viewed the 1.avi ...

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