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United States v. Stefanyuk

United States District Court, D. South Dakota, Southern Division

June 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MAKSIM STEFANYUK, Defendant.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Defendant Maksim Stefanyuk is before the court on an indictment charging him with receipt and distribution of child pornography and with failure to register as a sex offender. See Docket No. 1. Mr. Stefanyuk has filed a motion to suppress certain evidence. See Docket No. 45. The United States (“government”) resists the motion. See Docket No. 51. This matter has been referred to this magistrate judge for holding an evidentiary hearing and recommending a disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district judge.

         FACTS

         An evidentiary hearing was held on June 14, 2018. Mr. Stefanyuk was there in person along with his lawyer, Jason Tupman. The government was represented by its Assistant United States Attorney, Jeffrey Clapper. Two witnesses testified and five exhibits were received into evidence. From this testimony and these exhibits, the court makes the following findings of fact.

         Special Agent Charla Aramayo of the Department of Homeland Security received a referral on January 20, 2017, from a state police officer on the Internet Crimes Against Children Task Force. The officer forwarded to Agent Aramayo a disc containing his reports and evidence showing a person at a specified Internet Protocol (“IP”) address was downloading child pornography. The street address the IP address was linked to was identified as a home in Sioux Falls. This same home had been Mr. Stefanyuk's home address at the time of a prior federal prosecution. Furthermore, the Internet Service Provider listed Mr. Stefanyuk as the customer for the suspect IP address. Finally, Mr. Stefanyuk had listed this same address in paperwork on file with his employer.

         Agent Aramayo's office was approximately one mile from the suspected Stefanyuk home. During the investigation, Agent Aramayo would frequently drive past the subject home on her way to work and on her way home. On January 24, 2017, Agent Aramayo wrote down the license plate numbers of three vehicles at the subject home and later researched who were the registered owners of those vehicles. Agent Aramayo described the housing area as a residential “pocket” and stated people would likely not be found driving in the neighborhood unless their destination was one of the houses in the neighborhood. Agent Aramayo felt that physical surveillance was impractical because her presence would have been of note in the lightly-traveled neighborhood. The roads in this neighborhood had no curb and gutter and there were no sidewalks.

         On February 8, 2017, Agent Aramayo applied for and received from the South Dakota Division of Criminal Investigation (DCI) a pole camera to aid her investigation. The main purpose she requested the camera was in order to verify that Mr. Stefanyuk was living at the subject house. The DCI mounted the disguised camera in an area approximately 15 feet off the ground in a right-of-way directly opposite the subject home.

         DCI Special Agent Chad Carpenter testified to the camera's capabilities. The camera had approximately a 30-degree view and could pan slightly from side to side, tilt slightly up and down, zoom in up to 30x, and was high definition up to 1080 pixels. Footage from the camera could be viewed on a mobile device, on the internet, or through software installed on a computer. The image on the camera was somewhat grainy due to the camouflage that disguised the camera. The camera had limited ability to show images at night depending on the ambient lighting around the camera. This was, in turn, affected by factors such as whether there was a full moon, whether it was cloudy, and how many streetlights and other sources of light were nearby.

         The camera in question ran continuously for two weeks from February 8 to 22, 2017. The footage could be viewed live, or recorded footage could be reviewed with rewind and fast forward capabilities. Although the video footage was saved, it is no longer available due to a system upgrade by the DCI. After this upgrade, Agent Carpenter could no longer access the video footage.

         The subject home was in a suburban part of Sioux Falls. The subject home was on a corner with a street running along its northern perimeter and another street running along its west perimeter. Another house sat directly across the street from the subject home, facing the subject house. The front door, garage, and driveway of the subject home were all in clear and open view from the house across the street to the west. Another house sat immediately to the south of the subject house.

         Agent Aramayo accessed the video feed from the camera remotely via a laptop computer. A few times she watched footage live; approximately twice she reviewed previously-recorded footage. She testified she obtained Mr. Stefanyuk's work schedule and then reviewed footage from the camera from February 9 and 10 to see if Mr. Stefanyuk could be seen coming and going from the subject home at the approximate times he had to go to work and got off from work. Agent Aramayo described viewing a person who matched the general description of Mr. Stefanyuk drive into the driveway of the subject house and enter the house shortly after Mr. Stefanyuk's work schedule indicated he had just gotten off work. The image was recorded at approximately 5:30 a.m. (Mr. Stefanyuk had worked the night shift), which at that time of the year was still several hours before sunrise. It was, therefore, dark.

         Another time, viewing live footage from the camera, Agent Aramayo observed a fourth vehicle parked at the subject home that she had not previously seen. She got in her own vehicle and physically drove to the subject house to obtain further description of this new vehicle. Upon arriving at the house, she viewed Mr. Stefanyuk with her own eyes in the yard along with another young man she assumed to be Mr. Stefanyuk's brother.

         Agent Aramayo believed Mr. Stefanyuk was driving a Nissan vehicle. Armed with his work schedule, she drove by the house sometime between February 15 and 19 and observed the Nissan was gone from the house. She then went to Mr. Stefanyuk's place of employment and observed the Nissan parked in the employer's parking lot.

         Agent Aramayo described the view from the camera as showing only the front of the house as in Government's Exhibit 1, but more of an angle from the north instead of head-on. She stated she could not see into the house or on either side of the house. If the garage door was up, she testified you could see a little ways into the garage.

         The pole camera ceased filming on February 22, 2017. Agent Aramayo subsequently applied for a search warrant for the subject home and vehicles located there.

         Mr. Stefanyuk now moves to suppress the evidence from the pole camera, arguing that it was a warrantless search prohibited by the Fourth Amendment. The government responded with three arguments: (1) no warrant was required by the Fourth Amendment for the pole camera; (2) if the pole camera did violate Mr. Stefanyuk's rights, the subsequent search warrant provided probable cause for the search of Mr. Stefanyuk's home even if the evidence from the pole camera is excised from the search warrant application; and (3) if the search warrant was not supported by probable cause, the fruits of the search should still be admissible pursuant to the Leon[1] good faith exception to the exclusionary rule. See Docket No. 52.

         In response, in oral argument before this court at the evidentiary hearing, Mr. Stefanyuk conceded the government's second and third arguments. To clarify, Mr. Stefanyuk only seeks to suppress the fact of the existence of the pole camera, any testimony or evidence as to views from the pole camera, and to suppress identification of the fourth motor vehicle observed initially via the camera at Mr. Stefanyuk's residence. Accordingly, the court addresses ...


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