958 F. Supp. 2d 354
E.D.N.Y2013Background
- HSI sought to search 2462 Gerritsen Ave Apt 2 based on IP address 24.185.53.197 linking to Bershchansky and files indicating child pornography.
- Magistrate Judge Azrack signed a search warrant for Apt 2, describing the premises as the door to the right bearing 2462 2.
- Agents conducted the search on January 31, 2011, at Bershchansky’s apartment (Apt 1), not Apt 2, after arriving at the building.
- During the search, Bershchansky spoke with agents and admitted to possessing child pornography; his statements were later challenged as Miranda-related.
- Pre-search investigations showed Cablevision and Con Edison records pointing to 2462 Gerritsen Ave Apt 2 as Bershchansky’s address, though not definitively establishing Apt 2 as the search location.
- A later suppression hearing and proceedings addressed Voustianiouk, the accuracy of the warrant, and whether the search violated Fourth Amendment rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for the warrant | Bershchansky contends lack of probable cause due to mislinked premises. | Argues that evidence on Bershchansky’s computer cannot prove residence and thus no probable cause. | Probable cause established; motion denied on this ground. |
| Franks hearing request | Argues affidavit contained deliberately reckless omissions about investigation and files. | Maintains material misstatements/omissions existed affecting probable cause. | No Franks hearing; no substantial showing of material falsity or reckless disregard; motion denied on Franks grounds. |
| Scope and accuracy of the search | Warrant described Apt 2; officers searched Apt 1, potentially exceeding authorized scope. | Argues magistrate intended Apt 2 and search violated porary scope and inclusions. | Search of Apt 1 violated the warrant’s scope; Voustianiouk applicable; suppression required. |
| Good-faith exception to exclusionary rule | Argues officers relied in good faith on warrant despite misdescription. | Argues evidence should be suppressed as the warrant was defective and not reasonably relied upon. | Good-faith exception does not apply; suppression warranted due to deliberate/culpable description error. |
| Custodial interrogation and Miranda | Miranda warnings required if custody existed during interrogation. | Interrogation occurred in home; custody factors may render statements inadmissible. | Interrogation not custodial; Miranda warnings not required for the January 31 interview. |
Key Cases Cited
- United States v. Rosa, 626 F.3d 56 (2d Cir. 2010) (unattached supporting documents cannot cure a defective warrant)
- Voustianiouk v. United States, 685 F.3d 206 (2d Cir. 2012) (scope and particularity when warrant targets different premises)
- United States v. Groh, 540 U.S. 551 (U.S. 2004) (warrant must explicitly incorporate accompanying documents)
- Gates v. Illinois, 462 U.S. 213 (U.S. 1983) (probable cause balancing and totality of circumstances)
- Falso v. United States, 544 F.3d 110 (2d Cir. 2008) (SHA1 file signatures and probable cause context)
- United States v. Canfield, 212 F.3d 717 (2d Cir. 2000) (Franks framework for material omissions)
- Herring v. United States, 555 U.S. 135 (U.S. 2009) (good-faith exception dependency on objective reasonableness)
- Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) ( Fourth Amendment particularity and warrants)