                                                                           FILED
                            NOT FOR PUBLICATION                             APR 30 2013

                                                                        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. 12-50184

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01144-AHM-1

  v.
                                                 MEMORANDUM *
EARL ROY HARVEY,

              Defendant - Appellant.



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

                         Argued and Submitted April 8, 2013
                                Pasadena, California

Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.

       We review de novo the denial of a motion to suppress, and may affirm on

any ground fairly supported by the record. United States v. Mayer, 560 F.3d 948,

956 (9th Cir. 2009).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Harvey’s probation officer saw a computer and broadband card in Harvey’s

bedroom; Harvey admitted to using the computer, accessing the Internet, and

communicating with another convicted felon, all in violation of his terms of

supervised release; and a forensic review of the computer indicated that Harvey

had replaced the hard drive before turning it over to the Probation Office: there was

a non-factory hard drive and all the files on it had been loaded after the probation

officer saw the computer. These facts established probable cause to believe that

Harvey was in violation of his terms of supervised release, and, therefore, probable

cause to search his residence for further evidence related to these violations,

including the original hard drive. In light of the facts of the case, the information

supporting the search was not stale when the search was conducted, about two

months after the initial sighting of the laptop and one month after the forensic

review. See United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997).

      Because the residential search was valid, the evidence seized during that

search need not be excised from the affidavit supporting the search warrant for

Harvey’s email account. Therefore, the email warrant was also supported by

probable cause.




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         We need not decide any of the other issues urged by the parties, including

whether the residential search could have been justified by less than probable

cause.

         AFFIRMED.




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