                                                                           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withdrawn.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withdrawn Memorandum Disposition.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                           NOT FOR PUBLICATION                              OCT 22 2010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


                                          2
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


                                           3
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




                                          4
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


                                           5
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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