United States v. Nunzio Guadagni

FILED
NOT FOR PUBLICATION JUL 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50282
Plaintiff - Appellee, D.C. No. 3:12-cr-03186-MMA-1
v.
MEMORANDUM*
NUNZIO GUADAGNI,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted July 10, 2014
Pasadena, California
Before: BENAVIDES,** WARDLAW, and CLIFTON, Circuit Judges.
Nunzio Guadagni appeals his conviction for receipt and possession of child
pornography. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
1. The district court did not err in denying the motion to suppress
physical evidence. Because the affidavit in support of the warrant application was
not so deficient that reliance on the magistrate judge’s probable cause
determination was unreasonable, the good faith exception to the exclusionary rule
applies. See United States v. Needham, 718 F.3d 1190, 1194-95 (9th Cir. 2013).
No existing precedent holds that the use of an unsecured wireless network vitiates
the probable cause that would otherwise exist to search the home of an Internet
subscriber whose IP address is used to access child pornography. See United
States v. Hay, 231 F.3d 630, 634-35 (9th Cir. 2000); accord United States v. Perez,
484 F.3d 735, 740 (5th Cir. 2007). Moreover, the information in the affidavit was
not obviously stale. See United States v. Schesso, 730 F.3d 1040, 1047 (9th Cir.
2013). Accordingly, the affidavit makes “at least a colorable argument” for
probable cause. United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006).
Exercising our “informed discretion,” we decline to decide whether probable cause
actually existed. United States v. Leon, 468 U.S. 897, 925 (1984).
Nor did the district court clearly err in finding that law enforcement’s
decision to obtain a search warrant was independent of its prior ruse entry into
Guadagni’s home. See Murray v. United States, 487 U.S. 533, 543 (1988). The
only information obtained solely from the ruse entry – that Guadagni had a shared,
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unsecured wireless network – was more exculpatory than inculpatory. Excising it
from the affidavit would not have affected the probable cause determination. See
United States v. Heckenkamp, 482 F.3d 1142, 1149 (9th Cir. 2007).
2. The district court did not err in denying a Franks hearing. Guadagni
did not make a substantial preliminary showing that the affidavit contained an
intentionally or recklessly false statement or omission necessary to the finding of
probable cause. See United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004). The
affidavit’s reference to a range of dates was not misleading, as it did not suggest
that Guadagni visited the website throughout that period. Any potentially
misleading statement concerning the quantity of images obtained from the child
pornography website was not material to the probable cause determination. See id.
at 717.
3. The district court did not err in denying the motion to suppress
Guadagni’s incriminating statements. Though Guadagni was physically restrained
when law enforcement took his keys and parked his car into his driveway, and was
isolated from others in his house, he had voluntarily returned to his home at the
officers’ request to answer questions and was interrogated in a cordial manner in a
physically open setting. See United States v. Craighead, 539 F.3d 1073, 1084-89
(9th Cir. 2008); see also United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002)
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(considering whether the suspect “willingly agree[d] to submit to an encounter
with the police”). In context, the interrogating agent’s clear and repeated warnings
that Guadagni was free to leave “greatly reduce[d]” the chance that he would
reasonably believe he was in custody. Craighead, 539 F.3d at 1087. Analyzing
the totality of the circumstances, we conclude that a reasonable person would have
felt free to terminate the interrogation and that Miranda warnings were not
required.
AFFIRMED.
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