CA2: SW for first floor apt. could not be construed to permit search of second floor apt. too; suppression required for officer’s misconduct

In a child pornography search involving an IP address at an apartment building, the officers obtained a search warrant for a specific apartment on the first floor that supposedly belonged to the defendant, whose name was omitted from the affidavit. In fact, the defendant had moved out a couple of years earlier. The officers searched the first floor apartment, realized that defendant didn’t live there, and then went to the second floor and searched his apartment based on the warrant for the first floor apartment. When they realized the mistake, Rule 41 permitted them to call the magistrate for guidance and even possible amendment of the search warrant, but they didn’t do that. Suppression was required to deter the police from doing this again. United States v. Voustianiouk, 685 F.3d 206 (2d Cir. 2012):

In determining the permissible scope of a search that has been authorized by a search warrant, however, we must look to the place that the magistrate judge who issued the warrant intended to be searched, not to the place that the police intended to search when they applied for the warrant. See Groh v. Ramirez, 540 U.S. 551, 561 (2004) (“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’s request.”); Ybarra v. Illinois, 444 U.S. 85, 90 n.2 (1979) (“Had the issuing judge intended that the warrant would or could authorize a search of every person found within the tavern, he would hardly have specifically authorized the search of ‘Greg’ alone.”); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.5 (4th ed. 2004) (“One of the specific commands of the Fourth Amendment is that no warrants shall issue except those ‘particularly describing the place to be searched.’ Quite obviously, the primary purpose of this limitation is to minimize the risk that officers executing search warrants will by mistake search a place other than the place intended by the magistrate.” (emphasis added)).

We conclude that these agents searched an apartment other than the one that the magistrate intended to authorize them to search. Indeed, we have no reason to believe that the magistrate judge who signed the warrant at issue intended for the scope of the search to cover any apartment in the building other than the one on the first floor. The search warrant and accompanying affidavit explicitly authorize the search of the first-floor apartment and make no mention of the second-floor apartment or even of Voustianiouk’s name. The government concedes as much on appeal, acknowledging that “Agent Raab did not disclose Voustianiouk’s name to the judge who issued the warrant.” Indeed, the affidavit submitted by Raab in support of his application for a search 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.

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Accordingly, given the specific facts of this case, we conclude that the evidence seized as a result of this unconstitutional search must be suppressed in order “to deter police misconduct in these circumstances.” Davis v. United States, 131 S. Ct. 2419, 2423 (2011). Indeed, we believe that suppression is necessary in this case “to compel respect for the constitutional guaranty.” Id. at 2426 (quoting Elkins v. United States, 264 U.S. 206, 217 (1960)) (internal quotation marks omitted).