13‐3145 United States v. Bershchansky
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2014
(Argued: September 29, 2014 Decided: June 5, 2015)
Docket No. 13‐3145
UNITED STATES OF AMERICA,
Appellant, v.
YURI BERSHCHANSKY,
Defendant‐Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Before: WINTER and CHIN, Circuit Judges, and OETKEN, District Judge.*
* The Honorable J. Paul Oetken, of the Southern District of New York, sitting by designation.
Interlocutory appeal by the government from an order of the United
States District Court for the Eastern District of New York (Matsumoto, J.),
granting defendantʹs 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.
AFFIRMED.
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.
CHIN, Circuit Judge:
In this case, the Department of Homeland Security (ʺDHSʺ)
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
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believed to be his residence. The agents searched Bershchanskyʹs 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 courtʹs findings and the record in the case,
we summarize the facts as follows:
In November 2010, an investigator in the Homeland Security
Investigations unit (ʺHSIʺ) of DHS identified a computer on a peer‐to‐peer
network that he believed was hosting digital files known to be associated with
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child pornography.1 The computer was logged in from Internet Protocol address
24.185.53.197 (the ʺIP Addressʺ).2 The investigator ʺdirect connectedʺ 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 HSIʹs 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 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 ʺYuri
Bershchanskyʺ at address ʺ2462 Gerritsen Av Apt 2ʺ 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
1 A peer‐to‐peer network allows computer users to share electronic files directly with each other, not through a central server or website. See Metro‐Goldwyn‐ Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919‐20 (2005).
2 An internet protocol (ʺIPʺ) address is a numerical label consisting of four numbers, separated by periods. Every computer that communicates with an internet network is assigned a unique IP address. See Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 409‐11 (2d Cir. 2004). ‐4‐
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
Bershchanskyʹs name.
Next, Raab, along with Special Agent Steven Cerutti, visited 2462
Gerritsen Avenue to confirm Bershchanskyʹs 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 ʺKimʺ ‐‐ a fictitious name ‐‐
lived in the apartment to the right. Raab and Cerutti testified that they could not
remember the ʺexact wordsʺ of Annaʹs response, but Annaʹs mother, Svetlana
Klishina, overheard the conversation and testified that Anna told the agents that
ʺKimʺ 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
3 The entrance to a third apartment was around the corner, on a different street. ‐5‐
know who lived there, and they picked it ʺjust [as] a place to start.ʺ 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 ʺ2462 GERRITSEN AVENUE, APT. #2, BROOKLYN, NY 11229.ʺ 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 SUBJECT PREMISES. The door is brown and bears the number ʺ2462 2ʺ.
G. App. at 171. Raab did not mention whether the door to the right was upstairs
or downstairs. In his affidavit, he also summarized the steps HSI took in
investigating the computer associated with the IP Address. He repeatedly cited
the IP Address as the target of the investigation. He further outlined how he
determined that the IP Address was subscribed to ʺYuri Bershchansky of 2462
Gerritsen Avenue Apartment 2, Brooklyn, New York.ʺ Specifically, Raab
represented that Cablevision, Con Edison, and Anna Klishina confirmed that
Bershchansky lived in Apartment 2. Raab concluded that there was ʺprobable
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cause to believe that there is kept and concealed within THE PREMISES
KNOWN AND DESCRIBED AS 2462 GERRITSEN AVENUE, APT. #2,
BROOKLYN, NY 11229 . . . evidence or instrumentalities of . . . sexually explicit
material relating to children.ʺ G. App. at 168.
In fact, records from Con Edison ‐‐ obtained after the search warrant
was issued ‐‐ indicated that Bershchanskyʹs service address was ʺ2462 Gerritsen
Ave 1FL.ʺ The Con Edison records also indicated that ʺ2462 GERRITSEN AVE
2FLʺ was assigned to ʺSvedlana Klishina.ʺ4 The Cablevision records obtained
before the search indicated ‐‐ erroneously ‐‐ that Bershchansky resided in
Apartment 2.
The magistrate judge (Azrack, J.) reviewed the warrant application
and Raabʹs supporting affidavit and issued the requested warrant authorizing
the search of 2462 Gerritsen Avenue, Apartment 2. Thereafter, Raab prepared
and distributed an Enforcement Operation Plan to apprise the search team of the
place to be searched, the target of the investigation, and any potential safety
hazards. The Enforcement Operation Plan repeatedly identified ʺ2462 Gerritsen
Avenue #2, Brooklyn, NYʺ as the place to be searched and included no other
4 Raab later testified that he could not recall the ʺexact wordingʺ of his conversation with a Con Edison representative, but he admitted that the representative did not, in fact, tell him which apartment Bershchansky lived in. G. App. at 126‐27. ‐7‐
physical descriptions of the residence. Raab also held a pre‐search briefing with
the search team and circulated a copy of the search warrant.
C. The Execution of the Search Warrant
On January 28, 2011, approximately eight HSI agents ‐‐ including
Raab and Cerutti ‐‐ assembled to execute the search warrant. Upon arriving at
2462 Gerritsen Avenue, Raab knocked on the door to the right, Apartment 1.
Bershchanskyʹs mother answered and the agents informed her of the search
warrant. Raab and the other agents then entered the apartment to conduct the
search, finding and seizing computer equipment, including a desktop computer
and two external hard drives. Photographs of the doors received into evidence
at the suppression hearing show that both the outer and inner doors to the
apartment to the left were clearly marked ʺ2,ʺ and that the inner door to the
apartment on the right ‐‐ the apartment that was searched ‐‐ was clearly marked
ʺ1.ʺ5
5 The record is unclear as to when the photographs were taken. They apparently were taken by the defense, but they were received into evidence at the behest of the government. While the record is silent as to whether the photographs accurately depict the doors as they appeared in January 2011 (the hearing took place in December 2012), the inner wooden doors in the photographs appear worn and old and both doors prominently display apartment numbers. The two outer screen doors appear to be newer. The outer screen door to Apartment 2 is clearly marked ʺ2,ʺ while the outer screen door to Apartment 1 does not appear to bear the apartment number. ‐8‐
Bershchansky was present during the search and the agents
proceeded to interview him. He admitted receiving and possessing child
pornography. The government would later, through forensic review, determine
the presence of more than 100 electronic files containing child pornography in
the seized computer equipment. On December 21, 2011, Bershchansky was
arrested and charged with possession of child pornography, in violation of 18
U.SC. §§ 2252(a)(4)(B) and 2252(b)(2).
D. Proceedings Below
On March 30, 2012, Bershchansky moved to suppress the computer
evidence and admissions in question. Bershchansky argued, inter alia, that the
search warrant was not supported by probable cause and that Raab knowingly
misled the magistrate judge by omitting material information in the warrant
application. On May 15, 2012, the district court held a hearing on the motion and
reserved judgment. On August 10, 2012, Bershchansky filed a supplemental
brief arguing that this Courtʹs intervening decision in United States v.
Voustianiouk, 685 F.3d 206 (2d Cir. 2012), required suppression of the evidence.
On December 12, 2012, the district court held a second evidentiary hearing.
On July 19, 2013, the district court issued a well‐reasoned and
carefully‐considered thirty‐page memorandum and order, ordering the
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suppression of the evidence seized and statements made during the execution of
the warrant. United States v. Bershchansky, 958 F. Supp. 2d 354 (E.D.N.Y. 2013).
The district court concluded that the agents exceeded the scope of the search
warrant by searching premises other than the one they were authorized to
search, and it also determined that the good faith exception to the exclusionary
rule did not apply. Hence, it suppressed the evidence. Id. at 383. This appeal
followed.6
DISCUSSION
We consider three areas of dispute: (a) the standard of review; (b)
the scope of the search warrant; and (c) the good faith exception to the
exclusionary rule.
A. Standard of Review
On appeal from a district courtʹs ruling on a motion to suppress
evidence, ʺwe review legal conclusions de novo and findings of fact for clear
error.ʺ United States v. Freeman, 735 F.3d 92, 95 (2d Cir. 2013). We also review de
novo mixed questions of law and fact. Id. (citing United States v. Lucky, 569 F.3d
101, 105‐06 (2d Cir. 2009)). We ʺpay special deference to the district courtʹs
6 We have jurisdiction over this interlocutory appeal pursuant to 18 U.S.C. § 3731. ‐10‐
factual determinations going to witness credibility.ʺ United States v. Jiau, 734 F.3d
147, 151 (2d Cir. 2013).
Bershchansky contends further that, as the prevailing party below,
he is entitled to have the evidence viewed in the light most favorable to him.
Indeed, in a number of our decisions we have held that, when reviewing a
district courtʹs decision on a motion to suppress, we view the evidence in the
light most favorable to the prevailing party, e.g., the defendant where the motion
is granted. See, e.g., United States v. Andino, 768 F.3d 94, 98 (2d Cir. 2014); United
States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012); United States v. Jackson, 652 F.2d
244, 246 (2d Cir. 1981); United States v. Oates, 560 F.2d 45, 49 (2d Cir. 1977). The
government, however, argues that where a defendantʹs motion to suppress is
granted, the evidence should be viewed in its favor even though it did not
prevail below, and, to be sure, there is authority to support that proposition. See,
e.g., United States v. Barner, 666 F.3d 79, 82 (2d Cir. 2012); United States v. Julius,
610 F.3d 60, 64 (2d Cir. 2010).7 In yet other decisions, we simply reviewed factual
findings for clear error, without viewing the evidence in favor of either party,
prevailing or not, and we reviewed conclusions of law and mixed questions of
7 We recognized this apparent conflict in United States v. Wilson, but we declined to resolve it ʺbecause the outcome would [have been] the same under each standard of review.ʺ 699 F.3d 235, 242 n.3 (2d Cir. 2012).
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fact and law de novo. See, e.g., United States v. Raymonda, 780 F.3d 105, 113 (2d Cir.
2015); Jiau, 734 F.3d at 151; United States v. Lopez, 547 F.3d 397, 399 (2d Cir. 2008);
United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006). Hence, we have taken
three different approaches in reviewing decisions granting motions to suppress.8
The governmentʹs position ‐‐ that we should view the evidence in
the light most favorable to it even when it is not the prevailing party ‐‐ does not
make sense and we reject it. Only a few of our decisions have held as such, the
first of which was United States v. Howard, 489 F.3d 484, 490 (2d Cir. 2007). In
Howard, we reviewed a district courtʹs grant of a motion to suppress and held
that we view the district courtʹs factual findings ʺin the light most favorable to
the government,ʺ even though the government was not the prevailing party. Id.
In support of this proposition, the Howard panel cited United States v. Casado, 303
F.3d 440, 443 (2d Cir. 2002). In Casado, however, we reviewed a district courtʹs
denial of the defendantʹs motion to suppress, and accordingly we viewed the
8 We note that a fourth approach ‐‐ to view the evidence in the light most favorable to the district courtʹs decision ‐‐ has been adopted by some courts. See, e.g., United States v. Yeary, 740 F.3d 569, 579 n. 25 (11th Cir. 2014) (ʺWe consider the evidence in the light most favorable to the District Courtʹs judgment.ʺ); United States v. Santistevan, 701 F.3d 1289, 1292 (10th Cir. 2012) (ʺUpon review of an order granting a motion to suppress, we accept the district courtʹs factual findings unless clearly erroneous, viewing the evidence in the light most favorable to the district court.ʺ). This approach, however, has never been adopted by this Court.
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evidence in the governmentʹs favor. Casado, 303 F.3d at 443 (holding that, where
district court denied motion to suppress, ʺwe view [the district courtʹs factual
findings] in the light most favorable to the governmentʺ). 9 Howardʹs inadvertent
misapplication of Casado spawned a pair of cases that diverged from our
longstanding precedent. See Barner, 666 F.3d at 82 (citing Howard and Julius);
Julius, 610 F.3d at 64 (citing Howard). We conclude that these decisions applied
the incorrect standard in reviewing a district courtʹs grant of a motion to
suppress, and that they are inconsistent with our long‐established precedent.10
We think the better approach is to review the district courtʹs findings
of fact for clear error without viewing the evidence in favor of either party, and
to review its conclusions of law and mixed questions of law and fact de novo, as
we did in, e.g., Raymonda, 780 F.3d at 113; Jiau, 734 F.3d at 151; Lopez, 547 F.3d at
399; and Irving, 452 F.3d at 123 .11 Generally, our cases have applied the light
9 In turn, Casado cited United States v. Peterson, 100 F.3d 7, 11 (2d Cir. 1996), which also involved the denial of a motion to suppress.
10 We have, on occasion, clarified prior decisions to address purported conflicts. See United States v. Pujana‐Mena, 949 F.2d 24, 27‐28 (2d Cir. 1991) (clarifying ʺseemingly contradictory rulings from this courtʺ); United States v. Ingredient Technology Corp., 698 F.2d 88, 99 (2d Cir. 1983) (clarifying prior holdings that were ʺsimply pure oversightʺ).
11 Many of our sister circuits similarly employ this standard of review. See, e.g., United States v. Thurmond, 782 F.3d 1042, 1044 (8th Cir. 2015) (ʺIn an appeal of a district courtʹs denial of a motion to suppress, we review the courtʹs findings of fact for ‐13‐
most favorable standard in three situations: (1) review of a grant of a motion to
dismiss under Fed. R. Civ. P. 12 (b)(6), where we assume the facts alleged in the
complaint to be true and we draw all reasonable inferences in favor of the
plaintiff; (2) review of a grant of a motion for summary judgment under Fed. R.
Civ. P. 56, where we resolve all factual disputes and draw all reasonable
inferences in favor of the non‐moving party; and (3) review of a general verdict
rendered by a jury, which entitles the prevailing party to have the evidence and
reasonable inferences drawn therefrom viewed in its favor. See Patane v. Clark,
508 F.3d 106, 111 (2d Cir. 2007) (per curiam) (reviewing district courtʹs decision to
dismiss a complaint for failure to state a claim); Kosmynka v. Polaris Indus., Inc.,
462 F.3d 74, 77 (2d Cir. 2006) (reviewing jury verdict); Island Software & Computer
Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 260 (2d Cir. 2005) (reviewing district
courtʹs grant of summary judgment). In the first two scenarios, the trial court has
not made factual findings and the decision is based on one sideʹs factual
assertions or evidence, and in the third scenario, the jury likewise has not made
specific factual findings but has rendered only a general verdict.
clear error and its legal determinations de novo.ʺ); United States v. Carrigan, 724 F.3d 39, 45 (1st Cir. 2013) (ʺIn reviewing the denial of a motion to suppress, we will review findings of fact for clear error and legal conclusions de novo.ʺ); United States v. Rodgers, 656 F.3d 1023, 1026 (9th Cir. 2011) (ʺWe review de novo the district courtʹs denial of the motion to suppress, but review the courtʹs underlying findings of fact for clear error.ʺ). ‐14‐
Where a district court has made factual findings and drawn
reasonable inferences in granting or denying a motion to suppress, it does not
make sense for us to view the evidence in favor of either side on appeal. Indeed,
it would be difficult to review a finding of fact for clear error while viewing the
evidence underlying that fact in favor of either party. When reviewing for clear
error, we may reverse only if we are ʺleft with the definite and firm conviction
that a mistake has been committed,ʺ Andino, 768 F.3d at 98, and ʺ[w]here there
are two permissible views of the evidence, the factfinderʹs choice between them
cannot be clearly erroneous,ʺ United States v. Murphy, 703 F.3d 182, 188 (2d Cir.
2012). A requirement that the evidence be viewed in favor of one side or the
other would be at odds with the notion that deference must be given to the
factfinderʹs view of the evidence, and, for example, where there are two
permissible views of the evidence, the less favorable of the two would not be
clearly erroneous.
In the end, however, in this case we need not decide whether, when
reviewing a district court’s factual findings on a motion to suppress, we should
view the evidence in the light most favorable to the prevailing party or we
should simply review for clear error without construing the evidence in favor of
the prevailing party, for Bershchansky would prevail under either standard of
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review. Accordingly, while we reject the government’s position that the
evidence should be viewed in its favor even though it did not prevail below, we
need not decide between the two remaining views.
B. The Scope of the Search Warrant
i. Applicable Law
The Fourth Amendment protects the ʺright of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.ʺ U.S. Const. amend. IV. Police officers must first obtain a
warrant before they search a personʹs home, unless exigent or other
circumstances justify a warrantless search. Andino, 768 F.3d at 98. Search
warrant procedures are not mere formalities; they protect against ʺindiscriminate
searches and seizures.ʺ Payton v. New York, 445 U.S. 573, 583 (1980); see also
McDonald v. United States, 335 U.S. 451, 455 (1948). Indeed, the Fourth
Amendment requires that the search warrant describe with particularity the
place to be searched and the items to be seized. Kentucky v. King, 131 S. Ct. 1849,
1856 (2011); accord United States v. Clark, 638 F.3d 89, 102 (2d Cir. 2011). This
particularity requirement protects individuals from ʺexploratory rummagingʺ
not supported by probable cause. United States v. Galpin, 720 F.3d 436, 445 (2d
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Cir. 2013) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)); accord
United States v. McCargo, 464 F.3d 192, 196 (2d Cir. 2006).
ʺIn determining the permissible scope of a search that has been
authorized by a search warrant . . . we must look to the place that the magistrate
judge who issued the warrant intended to be searched [and] not to the place that
the police intended to search when they applied for the warrant.ʺ United States v.
Voustianiouk, 685 F.3d 206, 211 (2d Cir. 2012). We look directly to the text of the
search warrant to determine the permissible scope of an authorized search. See
Groh v. Ramirez, 540 U.S. 551, 561 (2004) (ʺThe mere fact that the Magistrate
issued a warrant does not necessarily establish that he agreed that the scope of
the search should be as broad as the affiantʹs request.ʺ).
ii. Application
It is apparent from the face of the warrant, as well as Raabʹs
supporting affidavit, that the magistrate judge authorized the search of
Apartment 2 and no other apartment. The finding of probable cause was
predicated on evidence that child pornography was being made available on a
computer with an IP address that Raab believed was associated with a user in
Apartment 2. Raab repeatedly referred to Apartment 2 in his affidavit, and he
represented that he received confirmation from Cablevision, Con Edison, and
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Anna Klishina that Apartment 2 was the apartment in question. Indeed,
Apartment 2 was the only apartment that the magistrate judge could have
authorized because the warrant application submitted by Raab referenced no
other apartment and did not provide probable cause to search any other
apartment. We conclude, as did the district court, that when the agents searched
Apartment 1 rather than Apartment 2, they searched an apartment that the
magistrate judge did not authorize them to search. When they did so, they
conducted a warrantless search in violation of the Fourth Amendment.
The government contends that the warrant authorized the search of
Bershchanskyʹs apartment, notwithstanding the erroneous apartment number,
because the physical description of Bershchanskyʹs apartment was partially
correct. We reject the argument. First, the warrant did not authorize a search of
Bershchanskyʹs apartment, but rather it authorized the search of Apartment 2.
Indeed, the warrant itself makes no reference to Bershchansky at all. Second,
although the warrant described the apartment ʺto the right,ʺ it clearly specified
Apartment 2. The designation of the apartment number, under the
circumstances, was a marker at least as specific and meaningful as the words ʺto
the right.ʺ
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This case differs from those in which courts have held warrants
valid despite erroneous address numbers. E.g., United States v. Brobst, 558 F.3d
982, 992 (9th Cir. 2009); United States v. Turner, 770 F.2d 1508, 1510‐11 (9th Cir.
1985); United States v. McCain, 677 F.2d 657, 660‐61 (8th Cir. 1982); State v.
Blackburn, 511 P.2d 381, 385 (Or. 1973). In those cases, other information in the
warrant (or the executing officersʹ knowledge) strongly indicated a particular
location other than the misidentified address. Here, in contrast, the warrant
could be read by a reasonable officer as indicating either of two apartments ‐‐
ʺ[A]partment 2ʺ or the apartment ʺto the right.ʺ Significantly, most of the
governmentʹs evidence in the warrant application pointed to ʺ[A]partment 2.ʺ12
Under the circumstances and in light of the warrant application, therefore, the
apartment number was the more salient descriptor of the location to be searched.
We have previously noted that it may be ʺenough if the description
is such that the officer[s] armed with a search warrant can with reasonable effort
ascertain and identify the place intended.ʺ Velardi v. Walsh, 40 F.3d 569, 576 (2d
Cir. 1994) (internal quotation marks omitted). Even if the likelihood of error was
12 See Bershchansky, 958 F. Supp. 2d at 379 (ʺGiven that the governmentʹs showing of probable cause in Agent Raabʹs affidavit derived from the identification of a specific computerʹs IP address at [A]partment 2, and a neighborʹs purported statement that the defendant resided in [A]partment 2, this court finds that [the magistrate] necessarily intended for the government to search [A]partment 2.ʺ). ‐19‐
roughly 50%, however, that is too great a risk under the law, which requires ʺno
reasonable probability of searching another premises in error.ʺ Id. (emphasis
omitted). Here, however, based on the information known to Raab, the agents
could not have reasonably concluded that Bershchansky actually lived in
Apartment 1 and that they were authorized to search Apartment 1.
Our conclusion is supported by our decision in Voustianiouk, which
involved similar facts. Indeed, the same agent ‐‐ Raab ‐‐ was at the center of that
case. In Voustianiouk, Raab obtained a warrant to search the first floor apartment
at a location, but when he discovered that the suspect lived on the second floor,
he instead searched the second floor apartment without obtaining further
authorization to do so. 685 F.3d at 208. We held that, consequently, the agents
conducted a warrantless search of the second floor apartment, in violation of the
Fourth Amendment. See id. at 208, 211, 214.
C. Good Faith
We turn to the good faith exception to the exclusionary rule.
To safeguard Fourth Amendment rights, the Supreme Court created
ʺan exclusionary rule that, when applicable, forbids the use of improperly
obtained evidence at trial.ʺ Herring v. United States, 555 U.S. 135, 139 (2009). The
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exclusionary ruleʹs ʺprime purpose is to deter future unlawful police conduct and
thereby effectuate the guarantee of the Fourth Amendment against unreasonable
searches and seizures.ʺ United States v. Calandra, 414 U.S. 338, 347 (1974). The
rule specifically deters ʺdeliberate, reckless, or grossly negligent conduct, or in
some circumstances recurring or systemic negligence.ʺ Herring, 555 U.S. at 144.
Exclusion extends to both physical evidence and indirect products of unlawful
searches, including ʺverbal evidence which derives so immediately from an
unlawful entry.ʺ Wong Sun v. United States, 371 U.S. 471, 485 (1963). A
determination that a Fourth Amendment violation occurred, however, does not
automatically require the suppression of all physical evidence seized or
statements derived from that illegal search. Suppression is ʺour last resort, not
our first impulse.ʺ Hudson v. Michigan, 547 U.S. 586, 591 (2006).
In United States v. Leon, the Supreme Court set out an exception to
the exclusionary rule for a search conducted in good faith reliance upon an
objectively reasonable search warrant. 468 U.S. 897, 925 (1984). The good faith
reliance exception recognizes that if ʺthe officer is acting as a reasonable officer
would and should act in similar circumstances,ʺ id. at 920 (citation omitted),
excluding the evidence would serve little deterrent purpose. Thus, the good‐
faith inquiry here ʺis confined to the objectively ascertainable question whether a
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reasonably well trained officer would have known that the search was illegal in
light of all of the circumstances.ʺ Herring, 555 U.S. at 145 (internal quotation
marks omitted). ʺThe burden is on the government to demonstrate the objective
reasonableness of the officersʹ good faith relianceʺ on an invalidated warrant.
United States v. George, 975 F.2d 72, 77 (2d Cir. 1992); accord United States v. Santa,
180 F.3d 20, 25 (2d Cir. 1999). Additionally, evidence should be suppressed only
ʺwhere the benefits of deterring the [g]overnmentʹs unlawful actions appreciably
outweigh the costs of suppressing the evidence.ʺ United States v. Ganias, 755 F.3d
125, 136 (2d Cir. 2014).
We conclude that the search of Bershchanskyʹs apartment was not
objectively reasonable and that the agents could not have relied on the warrant in
good faith. We also hold that the benefits of deterring the agentsʹ unlawful
conduct outweigh the costs of suppressing the evidence obtained.
First, the warrant clearly authorized the search of Apartment 2, and
yet the agents searched Apartment 1. As the district court observed, ʺ[t]he
evidence suggests that the officers ignored the warrantʹs clear authorization to
search only [A]partment 2 and searched an apartment they were not authorized
to search.ʺ Berschchansky, 958 F. Supp. 2d at 381. A reasonable police officer
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would have recognized that the warrant authorized a search only of Apartment
2, he would not have proceeded to search an unauthorized apartment, and he
would have called the magistrate judge for permission to search Apartment 1.
Rather than obtain authorization to search Apartment 1, the agents bypassed
constitutionally‐mandated procedure and took a shortcut. See Groh, 540 U.S. at
563 (ʺIt is incumbent on the officer executing a search warrant to ensure the
search is lawfully authorized and lawfully conducted.ʺ).
Second, the governmentʹs assertion that the agents acted in good
faith is undercut by Raabʹs repeated erroneous and conflicting statements. He
claimed to have confirmed with Anna Klishina that Bershchansky and his
mother lived in Apartment 2. Yet, Svetlana Klishina ʺcredibly testified that she
only heard her teenage daughter tell agents that ʹdownstairs live a mother with a
sonʹʺ and, as the district court found, it would have made ʺno sense for Ms.
Klishinaʹs daughter, who live[s] in [A]partment 2, to tell Agent Raab that Mr.
Bershchansky lived in [A]partment 2.ʺ Berschchansky, 958 F. Supp. 2d at 381.
Raab also asserted that he orally confirmed with Con Edison that the bill for
Apartment 2 was in Bershchanskyʹs name, when the Con Edison records later
showed that Bershchansky was not, in fact, listed as living in Apartment 2.
Further, Raab confirmed that when he executed the warrant, he did not ʺnotice
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any numbers on the door that were inconsistent with the warrant.ʺ G. App. at
83. Yet, in his warrant application, he stated unequivocally that the door to the
right bore ʺthe number ʹ2462 2.ʹʺ G. App. at 171. Moreover, the photographs ‐‐
which were received into evidence at the governmentʹs request ‐‐ show that the
door to Bershchanskyʹs apartment was clearly marked with a large numeral ʺ1.ʺ13
Third, the governmentʹs suggestion that the description of the
apartment in the warrant was sufficient to have permitted the agents to believe
in good faith that they were authorized to search Bershchanskyʹs apartment, in
essence without regard to the apartment number, fails. The warrant did not
mention Bershchansky by name, and while it provided some limited physical
description of the premises, the apartment to be searched was not otherwise
described with ʺsufficient particularity so that there was no reasonable
probability that an incorrect premises might be accidentally searched.ʺ
Bershchansky, 958 F. Supp. 2d at 381. And, of course, the most prominent part of
the description was the apartment number. Therefore, the agents could not have
13 In his hearing testimony, Raab steadfastly insisted that he could not recall whether there was a number on the door of the apartment they searched; he could not recall where he got the number ʺ2ʺ from to put into the search warrant application, and he could not recall what he thought in terms of the apartment number as he entered. Of course, the apartment number was critical to the agents as they were executing a warrant to search a particular apartment, and Raabʹs purported failure to recall these critical facts is telling. ‐24‐
ʺreasonably relied on the description in conducting a searchʺ of what turned out
to be Apartment 1. Voustianiouk, 685 F.3d at 212 n.1.
We agree with the district court that the agentsʹ ʺsignificant errors
constitute the type of ʹconduct that is sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth the
[price] paid by the justice system.ʹʺ Bershchansky, 958 F. Supp. 2d at 381 (quoting
Voustianiouk, 685 F.3d at 216). We underscore that Raab was the agent who
prepared the warrant. Because Raab was also the effectuating officer, he cannot
now claim that he reasonably relied on the deficient warrant he submitted. See
Groh, 540 U.S. at 564 (2004) (ʺMoreover, because petitioner himself prepared the
invalid warrant, he may not argue that he reasonably relied on the Magistrateʹs
assurance that the warrant contained an adequate description of the things to be
seized and was therefore valid.ʺ).
Moreover, as noted above, Raab was also the lead agent in
Voustianiouk, where the agents took a ʺshortcutʺ instead of obtaining a new
search warrant for the defendantʹs actual apartment. 685 F.3d at 208. Raabʹs
ʺrecurringʺ conduct further supports the application of the exclusionary rule to
the circumstances of this case. Herring, 555 U.S. at 144 (ʺ[T]he exclusionary rule
serves to deter deliberate, reckless, or grossly negligent conduct, or in some
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circumstances recurring or systemic negligence.ʺ). Exclusion is proper here ʺto
compel respect for the constitutional guaranty.ʺ Elkins v. United States, 364 U.S.
206, 217 (1960). We agree with the district court that the benefits of deterring the
governmentʹs conduct here appreciably outweigh the costs of suppression.
CONCLUSION
For the reasons set forth above, the order of the district court is
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