United States v. Bershchansky
2015 U.S. App. LEXIS 9383
| 2d Cir. | 2015Background
- DHS/HSI traced child‑pornography files on a peer‑to‑peer network to IP address 24.185.53.197 and, using provider records, associated that IP with "Yuri Bershchansky" at 2462 Gerritsen Ave Apt. 2, Brooklyn.
- Agent Raab obtained a warrant authorizing search of "2462 Gerritsen Avenue, Apt. #2" based on affidavits repeating that Apartment 2 was the target; the magistrate issued the warrant for Apt. 2 only.
- At execution, agents entered and searched Apartment 1 (the apartment on the right), seized computers and drives, and elicited Bershchansky’s admission; later forensics confirmed child‑pornography files.
- Post‑warrant records showed Cablevision mistakenly listed Apt. 2 for Bershchansky; Con Edison records indicated Bershchansky’s service address was Apt. 1FL and Apt. 2FL was registered to a neighbor, Svetlana Klishina.
- The district court suppressed the seized evidence and statements, concluding the agents searched an apartment not authorized by the warrant and that the Leon good‑faith exception did not apply; the government appealed.
Issues
| Issue | Bershchansky's Argument | Government's Argument | Held |
|---|---|---|---|
| Proper standard of review on appeal of suppression | Review facts in light most favorable to prevailing party (defendant) | Review facts in government's favor (even if not prevailing) | Court rejects viewing evidence for government; reviews facts for clear error and law de novo but notes outcome same either way for this case |
| Scope/particularity of warrant — which apartment was authorized? | Warrant authorized only Apt. 2; searching Apt. 1 was a separate, warrantless search | Warrant description ("to the right"/physical descriptors) plus minor errors meant officers reasonably targeted Bershchansky’s apt despite number error | Warrant authorized search of Apt. 2 only; searching Apt. 1 exceeded warrant scope and violated Fourth Amendment |
| Applicability of Leon good‑faith exception | No good faith: agents knowingly/ negligently ignored the apartment number and other indicia; Raab prepared the warrant and executed it | Officers acted reasonably relying on warrant and descriptions; mistake was not deliberate | Good‑faith exception rejected: officers’ conduct was not objectively reasonable; Raab’s errors and prior similar conduct (Voustianiouk) support deterrence via suppression |
| Whether deterrence outweighs suppression costs | Suppression justified to deter deliberate/recurrent errors | Suppression costly and should not apply where officers acted reasonably | Benefits of deterrence outweigh suppression costs given recurring/culpable conduct; suppression affirmed |
Key Cases Cited
- United States v. Voustianiouk, 685 F.3d 206 (2d Cir. 2012) (search of a different apartment than authorized is unlawful; similar facts and same lead agent)
- Groh v. Ramirez, 540 U.S. 551 (2004) (warrant’s text—not merely magistrate’s signature—defines scope)
- United States v. Leon, 468 U.S. 897 (1984) (good‑faith exception to exclusionary rule for objectively reasonable reliance on a warrant)
- Herring v. United States, 555 U.S. 135 (2009) (exclusionary rule deters deliberate, reckless, or systemic negligence)
- Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994) (description must permit officers to ascertain place intended without reasonable probability of error)
- Payton v. New York, 445 U.S. 573 (1980) (Fourth Amendment requires warrant to enter a home absent exigent circumstances)