United States v. Frank Murinko ( 2010 )

FILED
NOT FOR PUBLICATION SEP 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30430
Plaintiff - Appellee, D.C. No. 2:09-cr-00027-JLQ-1
v.
MEMORANDUM *
FRANK MURINKO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior District Judge, Presiding
Argued and Submitted August 4, 2010
Seattle, Washington
Before: NOONAN, THOMPSON and BERZON, Circuit Judges.
Frank Murinko (“Murinko”) plead guilty to possession of child
pornography, 18 U.S.C § 2252(a)(4)(B), transportation of child pornography, 18
U.S.C. § 2252(a)(1), and forfeiture, 18 U.S.C § 2253. He appeals the district
court’s denial of his motion to suppress evidence of child pornography obtained
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
from his computer and incriminating statements he made to law enforcement. We
review the district court’s denial of a motion to suppress de novo and its factual
findings for clear error. United States v. Diaz, 491 F.3d 1074, 1077 (9th Cir.
2007). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Consent
Murinko contends his consent to the search and seizure of his computer was
invalid because it was not voluntary or knowing. We disagree. Murinko concedes
that the FBI agents did not engage in any explicit coercion during the in-home
interview. He also concedes that the agents repeatedly advised him that he was not
under arrest, was not obligated to talk, could ask them to leave, and did not have to
consent to any search. See United States v. Brown, 563 F.3d 410, 414 (9th Cir.
2009). Murinko was also advised that a forensic search of his computer would be
made and he signed a written consent form acknowledging that he gave his consent
“freely and voluntarily.”
When Murinko asked whether consenting to the search of his computer
could place him in jail, the FBI Agents answered truthfully that it could. Murinko
also asked if he could retrieve his family photos from his computer and was told
that he could not. Murinko consented to the search and seizure anyway. There is
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no credible evidence that Murinko’s consent was anything other than voluntary and
knowing.
Search
We reject Murinko’s contention that the FBI’s delay in obtaining a search
warrant and forensically searching his computer violated his Fourth Amendment
possessory interest. Murinko’s reliance on United States v. Mitchell, 565 F.3d
1347 (11th Cir. 2009) and United States v. Dass, 849 F.2d (9th Cir. 1988) is
misplaced. Mitchell and Dass both involved warrantless seizures based on
probable cause, not consent.
Murinko consented to a forensic search of his computer and never revoked
his consent. That Murinko may have called the FBI asking again for his family
photos from his computer makes no difference in this case. Murinko initially
consented to the search of his computer knowing full well that he could not retrieve
his family photos. And he admitted that he did not actually ask for his computer
back when the FBI denied his request for the photos a second time. Murinko
suffered no Fourth Amendment violation.
Statements
Murinko contends that his incriminating statements should have been
suppressed because he was in custody for Miranda purposes during the initial
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interview at his home and the subsequent interview at the FBI office. The record,
however, shows that neither interview was custodial.
Murinko voluntarily agreed to both interviews. He invited the FBI agents
into his home for the first interview and suggested that the second interview take
place at the FBI office rather than his home. At both interviews, Murinko was
repeatedly told that he was not under arrest, did not have to answer questions, and
was free to leave or end the interview at anytime.
During the in-home interview, the FBI agents did not show force, brandish
their weapons, or isolate Murinko in any part of his home. Cf. United States v.
Craighead, 539 F.3d 1073 (9th Cir. 2008). During the second interview, Murinko
sat near the exit door of the FBI interview room and the agents demonstrated that
the door was unlocked and reiterated that he was free to leave anytime. See United
States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001).
Nothing in the record suggests that the duration of the interviews was
excessive or that any undue pressure was exerted on Murinko. A reasonable
person would have felt free to leave or terminate either interview. Id. at 1066-67.
The district court did not err in denying Murinko’s request to suppress his
incriminating statements.
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Interrogation Technique
In this appeal, Murinko contends for the first time that the agents
deliberately employed the two-step interrogation method condemned by Missouri
v. Seibert, 542 U.S. 600 (2004). We have discretion to consider this new argument
only if it involves plain error that affects substantial rights. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732-35 (1993).
As a threshold matter, Murinko failed to address the plain error requirement
in his briefing and has, therefore, abandoned the argument. Independent Towers of
Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Even if this were
not the case, Murinko’s attempt to transform three interviews over a two-year
period into one continuos interview with an ineffective midstream Miranda
warning lacks merit. There is no evidence that the agents employed an unlawful
two-step interrogation method, or any other improper strategy, to diminish the
effectiveness of Miranda.
As discussed above, Murinko was not entitled to Miranda warnings during
his first and second interviews because they were not custodial. And while the
third and final interview at the FBI office was custodial, Murinko immediately
received Miranda warnings before he was questioned. Murinko’s incriminating
statements were voluntary and not coerced.
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We conclude that the district court did not err in denying Murinko’s motion
to suppress.
AFFIRMED.
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