United States v. Michael Lustig

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50549 Plaintiff-Appellee, D.C. No. v. 3:13-cr-03921-BEN-

MICHAEL LUSTIG, AKA

George, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted January 8, 2016 Pasadena, California

Filed July 29, 2016

Before: Paul J. Watford and Michelle T. Friedland, Circuit Judges and J. Frederick Motz,* Senior District Judge.

Opinion by Judge Friedland; Concurrence by Judge Watford

* The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation. SUMMARY**

Criminal Law

The panel affirmed the district court in part, reversed in part, and remanded, in a case in which an officer conducted warrantless searches, incident to arrest, of cell phones found in the defendant’s pockets two years before the Supreme Court held that the Fourth Amendment requires law enforcement officers to obtain a…

Concurrence by Judge WATFORD

OPINION

The United States Supreme Court held in Riley v. California, — U.S. -, 134 S.Ct. 2473 , 189 L.Ed.2d 430 (2014), that the Fourth Amendment requires law enforcement officers to obtain a warrant before they may search an arrestee’s cell phone. Approximately two years before that decision, an officer arresting Michael Lustig conducted warrantless searches, incident to the arrest, of cell phones found in Lustig’s pockets. We must determine whether pre-Riley precedent provided a reasonable basis to believe such searches were constitutional. Because we hold that binding appellate precedent at the time of the searches did provide a reasonable basis to believe the searches were constitutional, the good-faith exception to the exclusionary rule applies to the evidence obtained from those searches. In addition, we must determine the effect of a concededly erroneous denial of a motion to suppress evidence obtained from separate searches of other cell phones found in Lustig’s car. To do so, we first adopt our sister circuits’ test for evaluating harmlessness in the context of a conditional guilty plea. Because the Government has not met its burden of…

concurring:

I join the court’s opinion but write separately to highlight one aspect of the court’s reasoning that I cannot fully embrace. The court holds that, even though we are reversing in part the district court’s denial of Lustig’s motion to suppress, he’s not automatically entitled to withdraw his guilty plea. Instead, the court concludes that we must engage in “harmless error review” to determine whether the district court’s partially erroneous denial of the motion “contributed to [Lustig’s] decision to plead guilty.” Maj. op. at 1087, 1090.

I do not think Federal Rule of Criminal Procedure 11(a)(2) — or basic principles of contract law, which govern plea agreements — permit any such inquiry. In my view, if our court does anything other than affirm in full the district court’s denial of Lustig’s suppression motion, he is entitled to withdraw his guilty plea without more. The harmless error analysis the court engages in has no place in this context.

That conclusion is dictated by the plain language of Rule 11(a)(2), a short, two-sentence provision added in 1983. The first sentence authorizes a new type of guilty plea — the “conditional” plea — that had not previously been…