Whether Yuri Bershchansky possessed child pornography in November 2010 in violation of Section 2252 (a) (4) (B) and (b) (2) of Title 28, United States Code, will never be truly known.
Why?
The Department of Homeland Security, in its procurement and execution of search warrant, bungled Bershchansky’s address. On June 5, 2015, the Second Circuit Court of Appeals outlined the facts of the case.
The Homeland Security’s Investigations unit (HSI) identified a computer located in Brooklyn, New York suspected of offering electronic files of child pornography on a peer-to-peer network. The HSI investigator identified the computer’s Internet Protocol (IP) address and “direct connected” to it, after which he discovered “numerous video and image files being downloaded, many of which contained titles indicative of child pornography. Using classified software, the investigator downloaded these electronic files.
At this juncture Special Agent Robert Raab, an investigator with HSI’s Child Exploitation Group, was assigned to the case. His task was to investigate the IP address.
That investigation determined that the downloaded files contained images of child pornography. Raab also learned that the IP address was assigned to the internet services provider (ISP), Cablevision. After requesting and securing an “administrative summons,” Raab was told by the ISP that “… during the relevant time period, the IP address was assigned to ‘Yuri Bershchansky’.” The ISP gave Raab’s address as “2462 Gerritsen Av Apt 2” in Brooklyn. Raab then contacted Con Edison, an electrical services provider, which informed the agent that the Gerritsen Avenue address provided by Cablevision was also in the name of Bershchansky.
Accompanied by Special Agent Steven Certutti, Raab visited the Gerritsen address residence to confirm if it was indeed Bershchansky’s address. The agents found a multi-family dwelling containing at least three apartments with two exterior doors facing Gerritsen Avenue—one on the left slightly above street level and another on the right slightly below street level. The left apartment was Apartment 2 and the right apartment was Apartment 1. The agents knocked on the door of Apartment 2 whereupon they were greeted by a young lady named Anna Klishina. When asked by the agents who resided at the apartment, Ms. Klishina responded she did, along with her mother and stepfather. The agents then asked the young lady if someone named Kim – a fictitious name – lived at Apartment 1. She responded that no one named Kim lived at the apartment which was occupied by a mother and her son.
Evidence at a pretrial motion to suppress revealed that when the agents initially went to Apartment 2, they did not know who lived there and had only decided to stop there first as “a place to start.” However, after speaking with Ms. Klishina, the agents could not “rule out that Bershchansky lived in the apartment with the Klishina family.”
Several weeks later, in January 2011, Raab requested and secured a search warrant for “2462 GERRITSEN AVENUE, APT. #2, BROOKLYN, NY 11229.” The agent’s affidavit in support of the warrant stated:
“The SUBJECT PREMISES is an apartment located within a two-story red brick multi-family dwelling, which is attached on one side. The front door 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 ‘2462 2’.” The Second Circuit then made these observations about Raab’s affidavit:
“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 ‘Yuri Bershchansky of 2462 Gerritsen Avenue, Apartment 2, Brooklyn, New York.’ Specifically, Raab represented that Cablevision, Con Edison, and Anna Klishina confirmed that Bershchansky lived in Apartment 2. Raab concluded that there was ‘probable cause to believe that there is kept and concealed with THE PREMISES KNOWN AND DESCRIBED AS 2462 GERRITSEN AVENUE, APT. #2, BROOKLYN, NY 11229 … evidence or instrumentalities of … sexually explicit material relating to children’.”
However, as evidence at the suppression hearing revealed, Con Edison actually had Bershchansky’s service address as “2462 Gerritsen Ave 1FL.” Con Edison’s records also disclosed that 2462 Gerritsen Ave, 2FL was assigned to “Svedlana Klishina.” It was also established that Cablevision records had erroneously listed Bershchansky as living in Apartment 2.
When the search plan was drawn up by HSI, it informed the “search team of the place to be searched, the target of the search, and any potential safety hazards.” The plan repeatedly referred to the place to be searched as 2462 Gerritsen Avenue Apartment 2. The plan did not indicate any physical description of the residence to be searched.
On January 28, 2011, the search team, comprised of 8 agents including Raab and Cerutti, executed the search warrant.
Upon arriving at the 2462 Gerritsen building, Raab knocked on the door to Apartment 1. Bershchansky’s mother opened the door. After showing the mother the warrant, the agents entered the apartment and seized a desktop computer, computer equipment, and two external hard drives. At the time the search was initiated, both the inner and outer doors to the apartment to the left were clearly marked “2” while the inner and outer doors of the apartment being searched were clearly marked “1.”
Bershchansky was present during the search. He was not taken into custody. An ensuring forensic investigation determined there were 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. Three months later Bershchansky’s counsel filed a motion to suppress the search because the warrant and its affidavit contained the wrong number of the apartment searched.
Over the next 19 months, the U.S. district court conducted two exhaustive evidentiary suppression hearings. Finally, on July 19, 2013, the district court, as stated by the Second Circuit, “issued a well-reasoned and carefully-considered thirty-page memorandum and order, ordering the suppression of the evidence and statements made during the execution of the warrant … 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.”
The Government appealed the district court’s ruling. The appeals court on June 5 upheld the district court’s ruling.
Law and order proponents will quickly say that Bershchansky “walked” on a technicality. The reality is that if Bershchansky walks, it is because of sloppy police work. HSI had numerous opportunities during the investigation process to get Bershchansky’s apartment number right. For whatever reason, its agents failed or neglected to do so. The result: Bershchansky will most likely walk away, and rightly so.