United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
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.
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.
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
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.
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
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.
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.
pole camera ceased filming on February 22, 2017. Agent
Aramayo subsequently applied for a search warrant for the
subject home and vehicles located there.
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 good faith exception to the
exclusionary rule. See Docket No. 52.
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