United States v. Michael Lustig
2016 U.S. App. LEXIS 13807
| 9th Cir. | 2016Background
- In June 2012 Lustig was arrested for solicitation; officers seized cell phones from his pockets (Pocket Phones) and from his car (Car Phones) and searched them without warrants.
- Immediate on-scene searches and later stationhouse downloads produced contacts and messages linking Lustig to two minors (MF1 and MF2); warrants were only obtained for two Car Phones 16 months later.
- Lustig was indicted on child-sex-trafficking counts; he moved to suppress phone-derived evidence; the district court denied suppression (finding some searches unconstitutional but admitting evidence under the good-faith or inevitable-discovery doctrines).
- Lustig entered a conditional guilty plea under Fed. R. Crim. P. 11(a)(2) to counts related to MF2, preserving his right to appeal suppression rulings.
- On appeal the Ninth Circuit affirmed denial as to the Pocket Phones (applying the Davis good-faith exception based on Robinson and Ninth Circuit precedents) but reversed as to the Car Phones (finding the 16-month warrant delay unreasonable) and remanded to allow Lustig the opportunity to withdraw his plea because the government failed to prove harmlessness under the Rule 11(a)(2) standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-Riley precedent made warrantless searches of Pocket Phones objectively reasonable (so good-faith exception applies) | Lustig: Robinson didn’t cover cell phones; reliance on Robinson was unreasonable given technological differences and existing contrary lower-court decisions | Government: Robinson announced a categorical search-incident-to-arrest rule; officers reasonably relied on binding appellate precedent | Held: Affirmed — good-faith exception applies because Robinson furnished a reasonable basis to search Pocket Phones and later stationhouse searches were authorized by Burnette or were reasonably relied upon in good faith |
| Whether delayed (4-day) stationhouse searches of Pocket Phones were unlawful even if initial on-scene searches were allowed | Lustig: Delay made later searches unconstitutional | Government: Burnette permits more detailed subsequent searches of already-seized items; delay was reasonable | Held: Affirmed — Burnette supports subsequent searches; four-day delay did not render stationhouse searches unlawful or unreasonable reliance |
| Whether the 16-month delay between seizure and warrant for Car Phones was reasonable | Lustig: Long delay violated Fourth Amendment; suppression required | Government: District court’s error was harmless because evidence concerning MF2 (basis for plea) came from Pocket Phones, not Car Phones | Held: Reversed — 16-month delay was unreasonable; district court erred in denying suppression of Car Phone evidence |
| Whether Lustig is entitled to withdraw his conditional plea after partial reversal of suppression rulings | Government: Error harmless because Car Phone evidence immaterial to counts of conviction | Lustig: Any erroneous ruling forming basis for conditional plea requires opportunity to withdraw plea | Held: Remand — adopted sister-circuits’ Rule 11(a)(2) harmlessness test: government must prove beyond a reasonable doubt that the error did not contribute to the decision to plead guilty; government failed to meet burden, so Lustig may withdraw plea |
Key Cases Cited
- Riley v. California, 134 S. Ct. 2473 (2014) (Supreme Court held warrant required to search cell phones incident to arrest)
- Robinson, 414 U.S. 218 (1973) (established categorical rule authorizing full search of person incident to lawful custodial arrest)
- Davis v. United States, 564 U.S. 229 (2011) (good-faith exception applies when officers rely on binding appellate precedent)
- United States v. Leon, 468 U.S. 897 (1984) (established reasonable-good-faith exception to exclusionary rule)
- United States v. Burnette, 698 F.2d 1038 (9th Cir. 1983) (subsequent stationhouse searches of an item already lawfully seized and briefly searched may be conducted without a warrant)
- United States v. Camou, 773 F.3d 932 (9th Cir. 2014) (addressed timing/contiguity of search incident to arrest; distinguished here)
- United States v. Benard, 680 F.3d 1206 (10th Cir. 2012) (adopted the ‘‘reasonable possibility’’ harmlessness standard for Rule 11(a)(2) conditional-plea appeals)