Kiddie-Porn Case Undone by Warrantless Search

     MANHATTAN (CN) – Abuse of a search warrant led the Second Circuit to let a Brooklyn man walk for distributing kiddie porn from his computers.
     U.S. District Judge Kiyo A. Matsumoto in Brooklyn Federal Court found in 2013 that federal agents went beyond their search warrant by canvassing a series of apartments to nab Yuri Bershchansky, based on allegations he was distributing child pornography from his computers.
     A three-judge panel of the Second Circuit backed Matsumoto last week.
     In 2010, the Department of Homeland Security had a warrant and went looking for Bershchansky in an apartment building, but then kept snooping around other apartments until they found the computer he used to send the smut.
     Authorities went to one apartment, found nothing and went to another after supposedly being tipped off by a neighbor.
     Agents eventually found 100 electronic files containing child pornography from a computer and two external drives. They formally arrested Bershchansky in 2011 and charged him with possession of child pornography.
     Bershchanesky won the right to suppress the evidence because the search “exceeded the scope of the search warrant” and violated his Fourth Amendment rights, Matsumoto ruled.
     The government appealed.
     But the appeal “does not make sense,” Circuit Judge Denny Chin wrote in his 26-page ruling for the circuit.
     The search of an apartment that a magistrate judge “did not authorize them to search” is illegal, Chin wrote. “When they did so, they conducted a warrantless search in violation of the Fourth Amendment.”
     Even the “good arm faith” of the law can’t hold, Chin said.
     “We conclude that the search of Berschanksy’s apartment was not objectively reasonable and that agents could not have relied on the warrant in good faith,” Chen wrote.
     “A reasonable police officer 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,” Chin continued. “Rather than obtain authorization to search Apartment 1, the agents bypassed constitutionally mandated procedure and took a shortcut.
     The panel also noted that the agent in charge gave “erroneous and conflicting statements” about how he ended up searching Bershchanesky’s apartment, and that another case involving the agent’s searching off-warrant had also been dismissed by the Second Circuit.
     “We agree with the district court that the benefits of deterring the government’s conduct here appreciably outweigh the costs of suppression,” the panel concluded.

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