United States v. Frank Murinko , 410 F. App'x 2 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS OCT 22 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
UNITED STATES OF AMERICA, No. 09-30430
Plaintiff - Appellee, D.C. No. 2:09-cr-00027-JLÏ-1
Eastern District of Washington,
v. Spoµane
FRANK MURINKO,
ORDER
Defendant - Appellant.
Before: NOONAN, THOMPSON and BERZON, Circuit Judges.
The Memorandum Disposition filed in this case on September 10, 2010 is
withdrawn. The Memorandum Disposition filed with this Order replaces the
withdrawn Memorandum Disposition.
The appellant's Petition for Rehearing is denied.
No further petitions for rehearing may be filed in this case.
FILED
NOT FOR PUBLICATION OCT 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30430
Plaintiff - Appellee, D.C. No. 2:09-cr-00027-JLÏ-1
v.
MEMORANDUM *
FRANK MURINKO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Ïuacµenbush, Senior District Judge, Presiding
Argued and Submitted August 4, 2010
Seattle, Washington
Before: NOONAN, THOMPSON and BERZON, Circuit Judges.
Franµ Murinµo ('Murinµo') plead guilty to possession of child
pornography, 18 U.S.C y 2252(a)(4)(B), transportation of child pornography, 18
U.S.C. y 2252(a)(1), and forfeiture, 18 U.S.C y 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. y 1291, and we affirm.
Consent
Murinµo contends his consent to the search and seizure of his computer was
invalid because it was not voluntary or µnowing. We disagree. Murinµo 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 talµ, could asµ 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). Murinµo was also advised that a forensic search of his computer would be
made, and he signed a written consent form acµnowledging that he gave his
consent 'freely and voluntarily.'
When Murinµo asµed whether consenting to the search of his computer
could place him in jail, the FBI Agents answered truthfully that it could. Murinµo
consented to the search and seizure anyway. When Murinµo asµed if he could
retrieve his family photos from his computer and was told that he could not, he did
not revoµe consent. Moreover, the district court found '[n]o evidence . . . of any
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coercion during the one and a half hours' that the agents were in Murinµo's home.
There is no credible evidence that Murinµo's consent was anything other than
voluntary and µnowing.
Search
We reject Murinµo's contention that the FBI's delay in obtaining a search
warrant and forensically searching his computer violated his Fourth Amendment
possessory interest. Murinµo's reliance on United States v. Mitchell, 565 F.3d
1347 (11th Cir. 2009) and United States v. Dass, 849 F.2d 414 (9th Cir. 1988) is
misplaced. Mitchell and Dass both involved warrantless seizures based on
probable cause, not consent.
Murinµo consented to a forensic search of his computer. That Murinµo
called the FBI asµing again for his family photos from his computer maµes no
difference in this case. Murinµo initially consented to the search of his computer
and did not revoµe his consent after being told, the first time, that he could not
retrieve his family photos. Although the record contains conflicting testimony
concerning the date of Murinµo's call to the FBI, the district court found that he
did not call to inquire about the status of the computer search and to request again
the return of his photos until after the FBI had already obtained a search warrant.
This finding by the district court is not clearly erroneous. There is testimony to
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support it, as well as reason to discount the conflicting testimony as mistaµen or
vague. Thus, whether Murinµo revoµed his consent at that time does not matter.
The search of his computer was 'conducted within the time period mandated by
the search warrant.' Murinµo suffered no Fourth Amendment violation.
Statements
Murinµo contends that his incriminating statements should have been
suppressed because he was in custody for Miranda purposes during the initial
interview at his home and the subsequent interview at the FBI office. The record,
however, shows that neither interview was custodial.
Murinµo voluntarily agreed to both interviews. He invited the FBI agents
into his home for the first interview and suggested that the second interview taµe
place at the FBI office rather than his home. At both interviews, Murinµo 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 Murinµo in any part of his home. Cf. United States v.
Craighead, 539 F.3d 1073 (9th Cir. 2008). During the second interview, Murinµo
sat near the exit door of the FBI interview room and the agents demonstrated that
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the door was unlocµed 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 Murinµo. 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 Murinµo's request to suppress his
incriminating statements.
Interrogation Technique
In this appeal, Murinµo 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, Murinµo 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, Murinµo's attempt to transform three interviews over a two-year
period into one continuous interview with an ineffective midstream Miranda
warning lacµs merit. There is no evidence that the agents employed an unlawful
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two-step interrogation method, or any other improper strategy, to diminish the
effectiveness of Miranda.
As discussed above, Murinµo 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, Murinµo immediately
received Miranda warnings before he was questioned. Murinµo's incriminating
statements were voluntary and not coerced.
We conclude that the district court did not err in denying Murinµo's motion
to suppress.
AFFIRMED.
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