United States v. Nunzio Guadagni , 583 F. App'x 778 ( 2014 )


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  •                                                                               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    NOT FOR PUBLICATION                                 JUL 24 2014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)
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    (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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