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.

Background

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.” 

Dread Herring

United States v. Rosa, No. 09-0636-cr (2d Cir. October 27, 2010) (Walker, Livingston, CJJ, Kaplan, DJ)

Back in June, in a case called Julius, after finding a Fourth Amendment violation, the circuit remanded the case so that the district court could perform a cost-benefit analysis in deciding whether to apply the exclusionary rule. See Julius’ Seizure, posted June 19, 2010. According to Julius, such an analysis is now required under the Supreme Court’s decision in Herring v. United States, 129 S. Ct. 695 (2009). Here, the court took Julius one step further, performing its own Herring analysis and concluding that the exclusionary rule should not apply.

Background

Defendant Rosa was suspected by upstate police officers of molesting local children. Before arresting him, the officers obtained a search warrant for his apartment. While the materials supporting the warrant specified the kinds of offenses of which Rosa was suspected and the particular items sought, the warrant itself did not contain those details and did not incorporate the supporting materials.

Rosa was ultimately charged in federal court with producing child pornography, based on materials recovered from the search. He moved to suppress based, inter alia, on a claim that the search warrant lacked particularity. After the district court denied the motion, he pled guilty pursuant to a conditional plea agreement, and was sentenced to 120 years’ imprisonment.

The Circuit’s Opinion

1. The Warranted Was Invalid

The search warranted here did indeed violate the Fourth Amendment’s particularity requirement. It “lacked the requisite specificity to allow for a tailored search of [Rosa's] electronic media” because it “failed to link the items to be searched and seized to the suspected criminal activity.” As a result, the “warrant directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought.” Nor did it matter that the warrant application was sufficiently particular; the warrant itself was facially invalid - “unincorporated, unattached supporting documents” do not “cure an otherwise defective search warrant.”

2. The Exclusionary Rule Does Not Apply

Nevertheless, however, the circuit affirmed, after performing a Herring cost-benefit analysis. First, the court concluded that a “reasonably well trained officer” would not be “chargeable with knowledge that this search was illegal” under the circumstances present here. Moreover, the unincorporated, unattached supporting documents indicated that the officers acted in good faith. Those materials were put together during a short time period, and make clear the purpose of the search. The affiant officer also helped execute the search and was therefore “intimately familiar with the contemplated limits of the search.” Finally, there was no evidence that the officers searched for or seized any items that were unrelated to the crimes for which probable cause had been shown, or that the affiant “somehow misled the town justice regarding the facts of the investigation and intended scope of the search.” Thus, applying the exclusionary rule would “serve little deterrent purpose in this case.”

Julius’ Seizure

United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)

Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government's appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).

In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.

The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the bed to see if Julius had discarded any contraband. He partially lifted the mattress and found a gun. With that, the officers contacted the local police department for assistance. Local police arrived and secured consent to search the entire apartment; returning to the same mattress, they lifted it completely and found ammunition.

The district court held that the ammunition was properly obtained as the product of a consent search, but that the gun was improperly seized - the marshal's the initial search under the mattress was not an incident search because Julius was already handcuffed and the mattress was plainly beyond his control. It also held that Julius’ status as a parolee did not legitimize the search because the marshal lacked even reasonable suspicion.

On appeal, the circuit began by surveying the current state of the law with respect to the Fourth Amendment rights of parolees and identifying the central area of dispute here: Julius’ expectation of privacy as a parole absconder.

Having identified the issue, however, the court declined to resolve it. Instead, it remanded the case for reconsideration under Herring. In Herring, the defendant was erroneously arrested after “negligent bookkeeping” by the police department resulted in an officer’s erroneous belief that there was an outstanding warrant for his arrest. The Supreme Court held that this violated the Fourth Amendment, but that the exclusionary rule should not apply because it would not serve the purpose of “deterring Fourth Amendment violations in the future.” According to the circuit, Herring requires a district court to conduct a “cost/benefit analysis” in deciding whether “the deterrent effect of applying the exclusionary rule outweighs the cost of the rule’s application.” This balance should consider “whether the degree of police culpability in this case rose beyond mere administrative negligence such that application of the rule is necessary to compel respect for the Fourth Amendment’s guarantees.”