United States of America v. Earl Roy Harvey

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EARL ROY HARVEY,
Defendant - Appellant.
No. 12-50184
D.C. No. 2:10-cr-01144-AHM-1
MEMORANDUM*
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).
FILED
APR 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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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