United States v. Frank Murinko

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 10, 2010
• Docket: 09-30430
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 10 2010

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. 09-30430

Plaintiff - Appellee, D.C. No. 2:09-cr-00027-JLQ-1

v. MEMORANDUM * FRANK MURINKO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Justin L. Quackenbush, Senior District Judge, Presiding

Argued and Submitted August 4, 2010 Seattle, Washington

Before: NOONAN, THOMPSON and BERZON, Circuit Judges.

Frank Murinko (“Murinko”) plead guilty to possession of child

pornography, 18 U.S.C § 2252(a)(4)(B), transportation of child pornography, 18

U.S.C. § 2252(a)(1), and forfeiture, 18 U.S.C § 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. § 1291, and we affirm.

Consent

Murinko contends his consent to the search and seizure of his computer was

invalid because it was not voluntary or knowing. We disagree. Murinko 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 talk, could ask 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). Murinko was also advised that a forensic search of his computer would be

made and he signed a written consent form acknowledging that he gave his consent

“freely and voluntarily.”

When Murinko asked whether consenting to the search of his computer

could place him in jail, the FBI Agents answered truthfully that it could. Murinko

also asked if he could retrieve his family photos from his computer and was told

that he could not. Murinko consented to the search and seizure anyway. There is

2 no credible evidence that Murinko’s consent was anything other than voluntary and

knowing.

Search

We reject Murinko’s contention that the FBI’s delay in obtaining a search

warrant and forensically searching his computer violated his Fourth Amendment

possessory interest. Murinko’s reliance on United States v. Mitchell, 565 F.3d

1347 (11th Cir. 2009) and United States v. Dass, 849 F.2d (9th Cir. 1988) is

misplaced. Mitchell and Dass both involved warrantless seizures based on

probable cause, not consent.

Murinko consented to a forensic search of his computer and never revoked

his consent. That Murinko may have called the FBI asking again for his family

photos from his computer makes no difference in this case. Murinko initially

consented to the search of his computer knowing full well that he could not retrieve

his family photos. And he admitted that he did not actually ask for his computer

back when the FBI denied his request for the photos a second time. Murinko

suffered no Fourth Amendment violation.

Statements

Murinko contends that his incriminating statements should have been

suppressed because he was in custody for Miranda purposes during the initial

3 interview at his home and the subsequent interview at the FBI office. The record,

however, shows that neither interview was custodial.

Murinko voluntarily agreed to both interviews. He invited the FBI agents

into his home for the first interview and suggested that the second interview take

place at the FBI office rather than his home. At both interviews, Murinko 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 Murinko in any part of his home. Cf. United States v.

Craighead, 539 F.3d 1073 (9th Cir. 2008). During the second interview, Murinko

sat near the exit door of the FBI interview room and the agents demonstrated that

the door was unlocked 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 Murinko. 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 Murinko’s request to suppress his

incriminating statements.

4 Interrogation Technique

In this appeal, Murinko 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, Murinko 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, Murinko’s attempt to transform three interviews over a two-year

period into one continuos interview with an ineffective midstream Miranda

warning lacks merit. There is no evidence that the agents employed an unlawful

two-step interrogation method, or any other improper strategy, to diminish the

effectiveness of Miranda.

As discussed above, Murinko 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, Murinko immediately

received Miranda warnings before he was questioned. Murinko’s incriminating

statements were voluntary and not coerced.

5 We conclude that the district court did not err in denying Murinko’s motion

to suppress.

AFFIRMED.