Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bershchansky

United States Court of Appeals, Second Circuit

June 5, 2015

UNITED STATES OF AMERICA, Appellant,
v.
YURI BERSHCHANSKY, Defendant-Appellee

Argued September 29, 2014.

Page 103

[Copyrighted Material Omitted]

Page 104

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK.

Interlocutory appeal by the government from an order of the United States District Court for the Eastern District of New York (Matsumoto, J.), granting defendant's motion to suppress physical evidence and statements obtained during the execution of a search warrant. The district court held that federal agents exceeded the scope of the search warrant and that the good-faith exception to the exclusionary rule was inapplicable.

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 Defendant-Appellee.

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

OPINION

Page 105

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

Page 106

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.