13

‐ 3145

United States v. Bershchansky



### U NITED 

### S TATES 

### C OURT OF 

### A PPEALS



### F OR THE 

### S ECOND 

### C IRCUIT

August Term 2014

(Argued: September 29, 2014 Decided: June 5, 2015)

Docket No. 13

‐ 3145



### U NITED 

### S TATES OF 

### A MERICA



### ,

Appellant

,

v.



### Y URI 

### B ERSHCHANSKY



### ,

Defendant

‐ Appellee

.

O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT

FOR THE E ASTERN D ISTRICT OF N EW Y ORK

Before:

W INTER and C HIN

, Circuit Judges

, and O ETKEN

, District Judge

. *

* The Honorable J. Paul Oetken, of the Southern District of New York,

sitting by designation.‐ 2

‐ Interlocutory appeal by the government from an order of the United

States District Court for the Eastern District of New York (Matsumoto, J. ),

granting defendant ʹ s 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.

S ARITHA K OMATIREDDY

, 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

.

M EGAN W OLFE B ENETT

, New York, New York, and Gary

Farrell, New York, New York, for Defendant

‐ Appellee.

C HIN

, Circuit Judge :

In this case, the Department of Homeland Security ( ʺ DHS ʺ )

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‐ 3

‐ believed to be his residence. The agents searched Bershchansky ʹ s 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 court ʹ s findings and the record in the case,

we summarize the facts as follows:

In November 2010, an investigator in the Homeland Security

Investigations unit ( ʺ HSI ʺ ) of DHS identified a computer on a peer

‐ to

‐ peer

network that he believed was hosting digital files known to be associated with‐ 4

‐ child pornography. 1 The computer was logged in from Internet Protocol address

24.185.53.197 (the ʺ IP Address ʺ ). 2 The investigator ʺ direct connected ʺ 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 HSI ʹ s 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 ʺ Yuri

Bershchansky ʺ at address ʺ 2462 Gerritsen Av Apt 2 ʺ 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 ( ʺ IP ʺ ) 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).‐ 5

‐ 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

Bershchansky ʹ s name.

Next, Raab, along with Special Agent Steven Cerutti, visited 2462

Gerritsen Avenue to confirm Bershchansky ʹ s 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 ʺ Kim ʺ ‐‐ a fictitious name ‐‐

lived in the apartment to the right. Raab and Cerutti testified that they could not

remember the ʺ exact words ʺ of Anna ʹ s response, but Anna ʹ s mother, Svetlana

Klishina, overheard the conversation and testified that Anna told the agents that

ʺ Kim ʺ 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.‐ 6

‐ know who lived there, and they picked it ʺ just [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 ʺ 2462 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 ʺ 2462 2 ʺ

.

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 ʺ Yuri 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 ʺ probable‐ 7

‐ 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 Bershchansky ʹ s service address was ʺ 2462 Gerritsen

Ave 1FL. ʺ The Con Edison records also indicated that ʺ 2462 GERRITSEN AVE

2FL ʺ was assigned to ʺ Svedlana Klishina. ʺ 4 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 Raab ʹ s 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 ʺ 2462 Gerritsen

Avenue #2, Brooklyn, NY ʺ as the place to be searched and included no other

4 Raab later testified that he could not recall the ʺ exact wording ʺ 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.‐ 8

‐ 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.

Bershchansky ʹ s 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 ʺ 2, ʺ and that the inner door to the

apartment on the right

‐‐ the apartment that was searched

‐‐ was clearly marked

ʺ 1. ʺ 5

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 ʺ 2, ʺ while

the outer screen door to Apartment 1 does not appear to bear the apartment number.‐ 9

‐ 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 Court ʹ s 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‐ 10

‐ 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 court ʹ s ruling on a motion to suppress

evidence, ʺ we 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 ʺ pay special deference to the district court ʹ s

6 We have jurisdiction over this interlocutory appeal pursuant to 18 U.S.C.

§ 3731.‐ 11

‐ 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 court ʹ s 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 defendant ʹ s 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 ʺ because the outcome would [have been] the same under each

standard of review. ʺ 699 F.3d 235, 242 n.3 (2d Cir. 2012).‐ 12

‐ 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 government ʹ s 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 court ʹ s grant of a motion to suppress and held

that we view the district court ʹ s factual findings ʺ in 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 court ʹ s

denial of the defendant ʹ s 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 court ʹ s decision

‐‐ has been adopted by some courts. See, e.g.

, United States v. Yeary

, 740 F.3d 569, 579 n. 25 (11th Cir. 2014) ( ʺ We consider the evidence

in the light most favorable to the District Court ʹ s judgment. ʺ ); United States v.

Santistevan

, 701 F.3d 1289, 1292 (10th Cir. 2012) ( ʺ Upon review of an order granting a

motion to suppress, we accept the district court ʹ s 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.‐ 13

‐ evidence in the government ʹ s favor. Casado

, 303 F.3d at 443 (holding that, where

district court denied motion to suppress, ʺ we view [the district court ʹ s factual

findings] in the light most favorable to the government ʺ ). 9 Howard ʹ s 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 court ʹ s 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 court ʹ s 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

ʺ seemingly contradictory rulings from this court ʺ ); United States v. Ingredient Technology

Corp.

, 698 F.2d 88, 99 (2d Cir. 1983) (clarifying prior holdings that were ʺ simply pure

oversight ʺ ).

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) ( ʺ In an appeal of a

district court ʹ s denial of a motion to suppress, we review the court ʹ s findings of fact for‐ 14

‐ 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 court ʹ s 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

court ʹ s grant of summary judgment). In the first two scenarios, the trial court has

not made factual findings and the decision is based on one side ʹ s 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) ( ʺ In 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) ( ʺ We review de novo the district court ʹ s denial of the

motion to suppress, but review the court ʹ s underlying findings of fact for clear error. ʺ ).‐ 15

‐ 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 ʺ left 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 factfinder ʹ s 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

factfinder ʹ s 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‐ 16

‐ 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 ʺ right 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 person ʹ s 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 ʺ indiscriminate

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 ʺ exploratory rummaging ʺ

not supported by probable cause. United States v. Galpin

, 720 F.3d 436, 445 (2d‐ 17

‐ 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).

ʺ In 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) ( ʺ The 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 affiant ʹ s request. ʺ ).

ii. Application

It is apparent from the face of the warrant, as well as Raab ʹ s

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‐ 18

‐ 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

Bershchansky ʹ s apartment, notwithstanding the erroneous apartment number,

because the physical description of Bershchansky ʹ s apartment was partially

correct. We reject the argument. First, the warrant did not authorize a search of

Bershchansky ʹ s 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 ʺ to 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 ʺ to

the right. ʺ‐ 19

‐ 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 officers ʹ 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 2 ʺ or the apartment ʺ to the right. ʺ Significantly, most of the

government ʹ s evidence in the warrant application pointed to ʺ [A]partment 2. ʺ 12

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 ʺ enough 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 ( ʺ Given that the government ʹ s

showing of probable cause in Agent Raab ʹ s affidavit derived from the identification of a

specific computer ʹ s IP address at [A]partment 2, and a neighbor ʹ s 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 ).‐ 20

‐ roughly 50%, however, that is too great a risk under the law, which requires ʺ no

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.

i. Applicable Law

To safeguard Fourth Amendment rights, the Supreme Court created

ʺ an 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‐ 21

‐ exclusionary rule ʹ s ʺ prime 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 ʺ deliberate, 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 ʺ verbal 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 ʺ our 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 ʺ the 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 ʺ is confined to the objectively ascertainable question whether a‐ 22

‐ 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). ʺ The burden is on the government to demonstrate the objective

reasonableness of the officers ʹ good faith reliance ʺ 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

ʺ where the benefits of deterring the [g]overnment ʹ s unlawful actions appreciably

outweigh the costs of suppressing the evidence. ʺ United States v. Ganias

, 755 F.3d

125, 136 (2d Cir. 2014).

ii. Application

We conclude that the search of Bershchansky ʹ s 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 agents ʹ 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 warrant ʹ s 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‐ 23

‐ 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 ( ʺ It is incumbent on the officer executing a search warrant to ensure the

search is lawfully authorized and lawfully conducted. ʺ ).

Second, the government ʹ s assertion that the agents acted in good

faith is undercut by Raab ʹ s 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 ʺ credibly testified that she

only heard her teenage daughter tell agents that ʹ downstairs live a mother with a

son ʹʺ and, as the district court found, it would have made ʺ no sense for Ms.

Klishina ʹ s 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 Bershchansky ʹ s 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 ʺ notice‐ 24

‐ 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 ʺ the number ʹ 2462 2. ʹʺ G. App. at 171. Moreover, the photographs

‐‐

which were received into evidence at the government ʹ s request

‐‐ show that the

door to Bershchansky ʹ s apartment was clearly marked with a large numeral ʺ 1. ʺ 13

Third, the government ʹ s 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 Bershchansky ʹ s 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 ʺ sufficient 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 ʺ 2 ʺ 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 Raab ʹ s purported failure to recall these

critical facts is telling.‐ 25

‐ ʺ reasonably relied on the description in conducting a search ʺ of what turned out

to be Apartment 1. Voustianiouk

, 685 F.3d at 212 n.1.

We agree with the district court that the agents ʹ ʺ significant errors

constitute the type of ʹ conduct 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) ( ʺ Moreover, because petitioner himself prepared the

invalid warrant, he may not argue that he reasonably relied on the Magistrate ʹ s

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 ʺ shortcut ʺ instead of obtaining a new

search warrant for the defendant ʹ s actual apartment. 685 F.3d at 208. Raab ʹ s

ʺ recurring ʺ 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‐ 26

‐ circumstances recurring or systemic negligence. ʺ ). Exclusion is proper here ʺ to

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

government ʹ s conduct here appreciably outweigh the costs of suppression.

CONCLUSION

For the reasons set forth above, the order of the district court is

AFFIRMED.