Published July 23, 2013
A man facing child pornography charges may reportedly walk free after a New York judge threw out more than 100 pornographic videos seized from his home computer because the search warrant listed the wrong address.
The New York Daily News reports that Yuri Bershchansky, 29, of Brooklyn, was targeted by U.S. Department of Homeland Security agents who searched his apartment in the two-family dwelling in Gerritsen Beach, court documents indicate.
An affidavit signed by U.S. Magistrate Judge Joan Azrack said there were two front doors to the Gerritsen Avenue residence and accurately indicated that the suspect lived in the apartment “to the right.” But before executing the search warrant, agents spoke with a woman who lived in the upstairs apartment — the door to the left, which is actually Apt. 2 — and she confirmed Bershchansky lived downstairs with his mother, according to court papers.
Cablevision officials, however, told federal investigators that the Internet subscriber who downloaded the sickening images was located in Apt. 2.
Prosecutor Kristin Mace argued that Agent Robert Raab “accidentally switched” the apartment numbers on the affidavit and transposed the apartment numbers without realizing his error. U.S. District Judge Kiyo Matsumoto did not buy the government’s explanation that the “technical error” should not invalidate the warrant and the evidence.
“The agents did not take every step that could reasonably be expected of them,” Matsumoto wrote in a 71-page decision, the Daily News reports.
A spokesman for the Brooklyn U.S. Attorney’s Office told the newspaper that the ruling was being reviewed and that prosecutors are considering their options. The government can appeal the decision to the U.S. Court of Appeals.
Bershchansky, who has admitted downloading the child pornography according to court documents, is free on $60,000 bail. He is due in Brooklyn federal court on Tuesday.
Attorney Gary Farrell said he would seek removal of the electronic bracelet confining Bershchansky to his home.
“It sounds corny, but the constitutional prohibition against unreasonable search and seizures has to mean something,” Farrell told the newspaper.