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United States v. Berkolayko

September 22, 2009

UNITED STATES OF AMERICA
v.
VSEVOLOD BERKOLAYKO DEFENDANT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

Defendant Vsevolod Berkolayko ("Berkolayko") is one of seven defendants charged in a seven-count superseding indictment with, inter alia, conspiracy to violate the Hobbs Act, 18 U.S.C. §1951, in connection with attempts to hijack Federal Express tractor-trailer trucks on the west side of Manhattan. Berkolayko moves to suppress physical evidence, including a black pistol-like pellet gun and multiple rounds of ammunition, recovered by the Government pursuant to a search of an apartment in Brooklyn the day after his arrest. In his moving papers and at an evidentiary hearing held on August 5, 2009, Berkolayko has argued principally that the consent to search obtained by federal agents from a live-in nanny was neither voluntary nor authorized. For the following reasons Berkolayko's motion is DENIED.

I. FACTUAL BACKGROUND

After Berkolayko was named as a defendant in a superseding indictment and an arrest warrant issued, agents of the FBI conducted surveillance in an effort to locate and arrest him. Tr. of August 5, 2009 Hrg. ("Tr.") 5, 32. In the early evening of April 2, 2009, Berkolayko was arrested on the street as he exited a gambling club near East 8th Street and Avenue U in Brooklyn. Tr. 33-34. Berkolayko was then transported to the FBI office in Manhattan, and in the course of his processing after the arrest he told the agents that he lived in an apartment on Bragg Street in Brooklyn.*fn1 Tr. 5, 35. Berkolayko was then transferred to the Metropolitan Detention Center, where he has remained in custody since the date of his arrest. See Decl. of Vsevolod Berkolayko, dated May 19, 2009 ("Berkolayko Decl.") ¶ 2.

The following day, April 3, 2009, a team of FBI agents comprised of Special Agent Michael Zuk ("Zuk") and three other agents, travelled to the apartment on Bragg Street and knocked on the door. Tr. 7. The door to the apartment was opened by a woman, later identified as Chris Aiferman ("Aiferman"), and the agents immediately observed two small children eating at a table in the main room of the apartment. Tr. 7. Special Agent Zuk testified that the agents identified themselves and informed Aiferman that Berkolayko had been arrested. Tr. 8. Aiferman then informed the agents that the children were Berkolayko's and that she was the nanny who cared for them. Tr. 8. Zuk then informed Aiferman that Berkolayko had been arrested for a violent crime and that the evidence suggested he had possessed a weapon at the time of the offense. Tr. 8. Zuk testified that he explained to Aiferman that he hoped she would consent to a search of the apartment, in part because of the possibility that there was a weapon present in the apartment where the children were living. Tr. 8, 49. Aiferman told the agents they should get a warrant. Tr. 9. Zuk responded that he understood and that for purposes of his report he needed Aiferman's name and date of birth. Tr. 8-9. He also asked where she was from. Tr. 9. Aiferman responded that she was from Israel and that she had been in the country for three days on a tourist visa and had been living in the apartment as the nanny for the children since her arrival. Tr. 10. Zuk responded that he did not understand why, if she was in the country on a tourist visa, she was caring for the children instead of "doing anything seemingly related to tourism" and he informed Aiferman that he intended to call to Immigrations and Customs Enforcement ("ICE") to determine if she was in the country legally. Tr. 10-11, 13.

The agents left and went down to the lobby of the building where one of them placed the call to ICE. Tr. 11. At that time, Zuk spoke to a man who was working on the building and appeared to be the superintendant. Tr. 11. Zuk asked the man if he knew if a nanny lived in the apartment they had just visited and, if so, for how long she had lived there. Tr. 11. The man responded that he believed a nanny had been living there for more than a year.*fn2 Tr. 11-12. While the agents were waiting for a return phone call from ICE, they observed Aiferman, the two children, and an unidentified man hurriedly exiting the building through a back exit. Tr. 12.

The agents followed and caught up with Aiferman on the sidewalk. There they confronted her with the fact that her story did not make sense and appeared to have been contradicted by the building superintendant; the agents stated further that they believed she had lied to them about her immigration status. Tr. 13, 53-55. Zuk testified that Aiferman became angry and confrontational and disputed his account of what she had said earlier. Tr. 14. Zuk asked her to wait while the agents waited for the return call from ICE, and Aiferman then volunteered that she had been in the country for ten years and that she was unaware of her immigration status. Tr. 14. Aiferman remained confrontational and when she refused to adhere to the agents' request that she stay put, the agents handcuffed her and placed her in the back seat of their nearby S.U.V. with the door open.*fn3 Tr. 15. Zuk testified that the agents placed Aiferman in the vehicle to save her the embarrassment of being handcuffed on the street in front of her home and because it was lightly raining at the time. Tr. 15-16.

Zuk further testified that once she was seated in the vehicle, Aiferman's demeanor changed dramatically: she became soft spoken and polite and immediately apologized for initially providing false information to the agents. Tr. 16. According to Zuk's testimony, Aiferman stated that the only reason she had refused consent to search was because the children were in the apartment and that she did not want them to be frightened. Tr. 16. Aiferman told the agents that she had lived in the apartment for three days and two nights and that her mother had previously been the nanny for Berkolayko's children. Tr. 18. Aiferman indicated that she had moved all of her belongings into the apartment and had an agreement with Berkolayko whereby she would live in the apartment rent free in exchange for taking care of the children. Tr. 18-19; 63. Aiferman also said that she intended to remain in the apartment indefinitely. Aiferman told the agents that she was the primary caregiver for the children-she fed them, clothed them, and cared for them at night-and that Berkolayko did not reside in the apartment but would sleep there once or twice a week on the couch in the living room. Tr. 25, 48.

As the agents continued to wait for the return phone call, Aiferman repeatedly offered to consent to a search and Zuk ultimately agreed. Aiferman signed a consent to search form and led the agents back to the apartment, letting them in with her own key. Tr. 17-19. In the apartment Aiferman pointed out her own belongings to the agents which included her clothing and pets, including a cat, a rabbit and fish in an aquarium in the corner of the living room. According to Zuk's testimony, the presence of Aiferman's belongings corroborated for the agents that she in fact lived there. Tr. 25.

The apartment was small and its one bedroom appeared to be occupied by the children, based upon the way it was decorated and Aiferman's statement that it was they who slept there. Tr. 26. In the living room was a closet that was separated from the room with a curtain, but no door. In it, were men's clothes as well as items that appeared to belong to a woman or a child. Tr. 61; see also GX 3C, D. After moving some of the clothes out of the way, the agents recovered number of items of evidence that Berkolayko seeks to suppress here, including a starter pistol and plastic zip ties. Tr. 23, 59. During the course of the search, Zuk neither asked, nor did Aiferman volunteer, whether she had been instructed not to enter certain areas of the apartment. Tr. 63.

In a declaration submitted in support of his motion to suppress, Berkolayko declares that he is the lessee of the apartment in which his two daughters, ages 3 and 5, reside. Berkolayko Decl. ¶3. Berkolayko further declares that Chris Aiferman's mother, Tonya Aiferman, is the nanny for his children, that on the date of the search Chris Aiferman was temporarily substituting for her mother and that she did not have his authority to consent to a search of the apartment. Id. at ¶¶ 3-6.

II. DISCUSSION

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated...."' U.S. CONST. AM. IV. A warrantless search is per se unreasonable unless one of a "'few specifically established and well-delineated exceptions" applies. Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007) (quoting Schnecklothv. Bustamonte, 412 U.S. 218, 219 (1973)). A warrantless search conducted pursuant to valid consent is a well-established exception to the general prohibition on warrantless searches. See United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (citing Schneckloth, 412 U.S. at 219)). To determine whether the search of Berkolayko's apartment was made pursuant to valid consent, ...


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