                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2009

                                                                       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. 09-50174

             Plaintiff - Appellee,               D.C. No. 2:07-cr-00544-CAS-1

  v.
                                                 MEMORANDUM *
JASON AZZARA,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                     Argued and Submitted November 3, 2009
                              Pasadena, California

Before: SCHROEDER, SILER, ** and IKUTA, Circuit Judges.

       Jason Azzara appeals his conviction and sentence after a conditional guilty

plea to one count of possessing child pornography. He challenges the district

court’s denial of his motions to suppress (1) statements he made to ICE agents


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
during an in-home interview, and (2) evidence of child pornography found on his

computer during the execution of a search warrant after a previous warrantless

search of his computer indicated the potential presence of the child pornography.

He also contends the district court abused its discretion by imposing special

conditions of supervised release.

      We find no error in the denial of the motion to suppress the statements, and

no error in the imposition of the special conditions. With respect to the evidence

found on the computer itself, we agree with the district court that the seizure of the

computer was not consensual. The district court found there was probable cause,

independent of the contents of the computer as revealed by the warrantless search,

to support admission of the evidence found on the computer. The court made no

further finding with respect to whether the agents would have obtained a warrant

without the original illegal search. We remand for further findings on that issue.

      Agents arrived at Azzara’s apartment on October 18, 2006, with information

from an investigation of a pornographic website, including bank records of its

customers, that Azzara had purchased a subscription to the site. Following the

administration of the Miranda warnings, Azzara told the agents that they would

probably find child pornography on his computer. Azzara claims he was in

custody and therefore the agents were required to administer Miranda warnings at


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the beginning of the interview. See Stansbury v. California, 511 U.S. 318, 322

(1994).

      The district court found that he was never in custody, and the agents did

administer Miranda warnings midway through the interview. Azzara voluntarily

invited the agents in and agreed to answer their questions, and the agents did not

use physical force or restrain him in any way. At no time was Azzara isolated

within his apartment. The agents repeatedly told him he did not have to speak with

them and he was free to leave; they also told him that he could terminate the

interview at any time. Under the applicable factors outlined in our recent decision

in United States v. Craighead, 539 F.3d 1073, 1084 (9th Cir. 2008), the district

court’s finding of noncustodial questioning was fully supported. Accordingly,

Azzara’s speculation about the need for a lawyer was not even arguably an

invocation of his right to counsel during custodial interrogation. See Davis v.

United States, 512 U.S. 452, 458-59 (1994). Nor could there have been a

deliberate two-step interrogation in violation of Missouri v. Seibert, 542 U.S. 600

(2004). See United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir. 2006).

The district court did not err in denying the motion to suppress his statements.

      After the administration of the Miranda warnings, Azzara signed a form

consenting to a search of the premises and removal of items from the premises. As


                                          3
the questioning continued, however, he became agitated and talked about suicide.

To calm him, the agents said they would not take his computer. The SMART team

eventually arrived after being summoned by the ICE agents and Azzara was taken

for mental evaluation. At that point, the agents seized the computer and took it to

the forensic lab. Prior to obtaining a warrant, an agent examined the computer and

confirmed that it had files containing child pornography. The agents later obtained

a warrant to search the computer before these criminal proceedings were instituted.

      Although the agents may have been proceeding under the assumption that

the seizure of the computer was consensual, the district court correctly found that

because Azzara indicated that he did not want the computer taken and the agents

falsely told Azzara they would not take it, the seizure was not consensual. Thus,

the results of the lab “sneak peak” at the contents of the computer could not

establish probable cause for the warrant that was issued days later.

      The district court nevertheless denied the motion to suppress because it

concluded that there were grounds wholly independent of the contents of the

computer that established probable cause to issue the warrant. Indeed, the warrant

was issued without any mention in the supporting affidavit of the results of the

“sneak peak.” The controlling standard for the independent source doctrine,

however, is established by Murray v. United States, 487 U.S. 533, 542-43 (1988),


                                          4
which holds that the district court must explicitly find both that the information

obtained during the illegal search was not presented to the magistrate, and that the

agents would have sought a warrant even if they had not performed the illegal

search. The district court did not expressly make the second finding. Therefore,

we reverse the district court’s denial of the motion to suppress evidence obtained

from the computer, and remand for the district court to consider whether “the

agents’ decision to seek the warrant was prompted by what they had seen during

the [illegal search].” Id. at 542; see also United States v. Duran-Orozco, 192 F.3d

1277, 1281 (9th Cir. 1999) (as amended); United States v. Hill, 55 F.3d 479, 481

(9th Cir. 1995) (per curiam).

      We finally deal with the sentencing issues, which are relevant to the appeal

in the event that the district court resolves the suppression issue in favor of the

government. A district court may impose discretionary conditions of supervised

release “only if they are reasonably related to the goal of deterrence, protection of

the public, or rehabilitation of the offender.” United States v. Weber, 451 F.3d

552, 558 (9th Cir. 2006) (quoting United States v. T.M., 330 F.3d 1235, 1240 (9th

Cir. 2003)) (internal quotation marks omitted). Here, the conditions restricted

Azzara’s ability to live near or be in the presence or proximity of minors. The

district court imposed the conditions after careful review of the materials in the


                                           5
probation office’s report and the nature of the child pornography at issue in the

case. See United States v. Stoterau, 524 F.3d 988, 1008-10 (9th Cir. 2008). There

was no abuse of discretion.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.




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