                                                                              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                           NOT FOR PUBLICATION                                 JUL 24 2014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)


                                          3
(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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