Thursday, August 16, 2012

Upstairs, Downstairs

United States v. Voustianiouk, No. 10-4420-cr (2d Cir. July 12, 2012) (McLaughlin, Pooler, Parker, CJJ)

In 2009, federal agents armed with a search warrant for the first-floor apartment of an apartment building in the Bronx, instead searched the second-floor apartment. The circuit agreed with the defendant that this search violated the Fourth Amendment’s warrant requirement.  It vacated his conviction and sentence.


This case began as an investigation by I.C.E. agents who learned of an IP address associated with a file-sharing network implicated in child pornography. Ultimately, the IP addressed was traced to Voustianiouk; the internet service provider indicated that his address was “2424 Cambreleng Avenue, Apartment 1,” in the Bronx. An agent, Raab, confirmed that Voustianiouk lived at that address, although he could not confirm which apartment. He eventually obtained a warranted to search “Apt. 1” in that building, which the warrant described as “a ground floor apartment inside a two-story white shingled house.”  None of the materials associated with the warrant identified Voutianiouk by name; the government deliberately withheld that from the magistrate who approved the warrant, later explaining that if often happens that many people live in a home and that the person named by the internet provider might not even the target. Consequently, there was “no indication that the magistrate judge who issued the search warrant was aware that the government even considered Voustianiouk a suspect, or know what evidence the government had to support its suspicions” of him.

When Raab and other agents executed the warrant, they rang both buzzers and alight went on in the second-floor window. Voustianiouk came to the front door, identified himself, and when the agents showed him their warrant, led them upstairs to the second floor, where he lived. The agents did not tell them that their warrant was for the first floor. The search revealed thousands of files containing child pornography on multiple devices. He was charged with receipt and possession of child pornography and, after his motion to suppress was denied, was convicted after a bench trial and sentenced to five years in prison. 

The Circuit’s Ruling 

The court had little trouble finding that the search was illegal. Its analysis began with  the Fourth Amendment’s particularity requirement.  This limitation curtails the discretion of the officers executing the warrant so that “the safeguard of having a magistrate determine the scope of the search is not lost.” The operative question is the place “that the magistrate judge who issued the warrant intended to be searched, not the place that the police intended to search when they applied for the warrant.” The police are not permitted to search a place other than the one intended by the magistrate.

But that is precisely what happened here. The magistrate did not intend for the search to cover any apartment in the building other than the one on the first floor. The warrant and accompanying papers explicitly authorized only the search of the first-floor apartment, made no mention of the second-floor apartment, and did not mention Voustianiouk’s name.  The affidavit in support of the application for the warrant “would not have provided probable cause to search Voustianiouk’s apartment on the second floor, because the information in the affidavit, by omitting any mention of Voustianiouk, does not provide any basis for concluding that he may have been involved in a crime.”

Irrespective of the warrant's particularity, however, her the circuit concluded that the search was conducted without the authorization of a warrant at all. This was not a case of a warrant that was simply inaccurate or incomplete; the warrant was “quite clear and specific” - the agents just chose to search a different place.  Nor did it matter that the agents might have had solid evidence linking Voustianiouk to a crime. “The mere fact that officials were in possession of evidence that would have provided probable cause for the search that they ultimately conducted is irrelevant.”

Having found a Fourth Amendment violation, the circuit closed with what is becoming a regular component of this type of legal analysis: an independent look at whether, under Herring v. United States, 555 U.S. 135 (2009), the exclusionary rule should apply. That rule is designed to deter police misconduct, and objectively reasonable reliance on a defective search warrant is not typically considered misconduct.

But here, the circuit could not conclude that the officers “reasonably relied on the warrant,” since it on its face authorized the search of the first-floor apartment, and they searched the second-floor apartment. “Indeed, there can be no doubt that a search warrant for one apartment in a building does not permit the police to enter apartments other than the one specified.” Here, the agents “did not stumble into the second floor apartment by accident.” They “knowingly ventured beyond the clear confines” of the warrant. This, coupled with the deliberate withholding of Vousianiouk’s name from the magistrate, in case he turned out not to be the person using the computer they wanted to search, constituted conduct that was “sufficiently deliberate that exclusion can meaningfully deter it.” 

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