07/13/12
On Thursday, the 2
nd U.S. Circuit Court of Appeals tossed out the conviction of a medical researcher, because the child pornography found in his home had been improperly seized. The facts are: The agents had a warrant to search a first floor apartment – they found the suspect living on the second floor when they arrived. Without completing the procedural steps of obtaining a new warrant for searching the exact apartment of the suspect, the agents searched the apartment of the convicted researcher and found the child pornography.
Even though the court admitted that there were “thousands of files containing child pornography on computers and hard drives” in the suspects apartment, they should have been suppressed because the search warrant was for a different apartment, and hence the search and seizure was improper.
Writing for the panel, Judge Rosemary Pooler wrote, “they could have obtained a warrant to search Voustianiouk's second-floor home instead of deciding, without any judicial oversight, that the evidence in their possession provided probable cause to do so.”
The court further said, “Agents had obtained information from an Internet service provider that suggested that a computer located in that apartment contained child pornography … And for all they knew, Voustianiouk might have been a landlord who paid the Internet bill on behalf of a tenant.”
Voustianiouk had been convicted after a bench trial that proceeded on stipulated facts. Voustianiouk may have conceded his guilt, but he proceeded to trial to preserve a right to appeal the suppression decision of the judge. Voustianiouk's lawyer Kerry Lawrence said, “We're very pleased for Dr. Voustianiouk that the court reversed his conviction, and we hope that this will result in the charges being dropped and his release from custody.”
Andrei Voustianiouk, 43, had been sentenced to five years in prison in September 2010 by U.S. District Judge Robert Patterson.
Though the appeals court has reversed the conviction and the lawyer of the convict is happy, it is difficult to envisage the blatant disregard of real evidence, just because it has been obtained improperly. The charges did not fail due to lack of evidence, but because evidence was improperly obtained the conviction was reversed.
The case is USA v. Andrei Voustianiouk, 2nd U.S. Circuit Court of Appeals, No. 10-4420.
