United States v. Lustig

• Decision Date: 29 July 2016
• Docket Number: No. 14-50549,14-50549
• Citation: 830 F.3d 1075
• Parties: United States of America, Plaintiff–Appellee, v. Michael Lustig, AKA George, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

830 F.3d 1075

United States of America, Plaintiff–Appellee

v.Michael Lustig, AKA George, Defendant–Appellant.

No. 14-50549

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 8, 2016 Pasadena, California

Filed July 29, 2016

Timothy A. Scott (argued) and Nicolas O. Jimenez, Coleman, Balogh & Scott LLP, San Diego, California, for Defendant–Appellant.

Helen H. Hong (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff–Appellee.

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

Concurrence by Judge Watford

OPINION

FRIEDLAND, Circuit Judge:

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 establishing harmlessness under that test, Lustig must be given an opportunity to vacate his guilty plea if he so wishes. We thus affirm in part, reverse in part, and remand.¹

I

In June 2012, a task force consisting of local and federal law enforcement agencies conducted a sting operation to obtain evidence of prostitution offenses. To effectuate the operation, an undercover officer posed as a prostitute and placed listings on a classified advertisements website. Defendant-Appellant Michael Lustig responded to the advertisements and agreed to meet the undercover officer at a hotel in Encinitas, California. Lustig was arrested at the hotel for soliciting prostitution in violation of California law. Upon the arrest, Deputy Sheriff Chase Chiappino seized and searched cell phones found on Lustig's person and in his car.

Two cell phones were seized from Lustig's pockets incident to his arrest (the “Pocket Phones”). One was an Apple iPhone, which Chiappino, upon its seizure, unlocked by swiping across the screen. Chiappino observed that the phone opened to the website where the fake advertisement was posted, and he located the phone's number on its settings page. The other Pocket Phone was a Kyocera flip phone. Chiappino searched the Kyocera phone by viewing its call history and text messages and identifying its phone number. The search revealed text messages suggesting further involvement with prostitution.

Officers seized additional cell phones from Lustig's car, which was in the parking lot of the hotel (the “Car Phones”). At the scene, Chiappino searched those phones and found additional text messages regarding prostitution.

Four days later, Chiappino returned to searching the phones. He downloaded content from the phones and searched the phones' contacts in law enforcement databases. The parties dispute whether Chiappino searched the Car Phones or the Pocket Phones first, and whether evidence discovered in one set of phones motivated searches of the other.

In one of the Car Phones, Chiappino found text message exchanges suggesting prostitution activity with a contact named “Dominick.” He searched that contact's phone number in law enforcement databases but found no match. He also found a contact named “Dominick” in one of the Pocket Phones (the iPhone), searched that phone number, and discovered a match to a twelve-year-old minor female, whom the officers thereafter referred to as “MF1.”

In his investigation of the Kyocera Pocket Phone, Chiappino found a series of messages discussing libraries and bookstores with a contact named “Andrew.” He searched for that contact's phone number in law enforcement databases and matched it to a fourteen-year-old minor female, “MF2.”

Officers then located and interviewed MF1 and MF2 separately, and both confirmed that they had engaged in commercial sex activity with Lustig. According to a declaration filed by Chiappino but disputed by Lustig, MF2 also directed officers to a motel, where the officers eventually obtained video surveillance of Lustig entering and leaving a room with a female whom officers identified as MF1.

No warrants were obtained prior to any of these cell phone searches. Sixteen months later, however, the officers did obtain warrants to search two of the already searched Car Phones.

Lustig was indicted in the United States District Court for the Southern District of California on two counts of child sex trafficking in violation of 18 U.S.C. §§ 1591(a) and (b), based on his conduct with MF1 and MF2. During pretrial proceedings, Lustig moved to suppress the evidence found through the searches of the phones. He argued that the seizure of the Car Phones, and the searches of both the Car Phones and Pocket Phones, violated the Fourth Amendment.² The district court, after declining to hold a hearing, denied the motion approximately three months before the Supreme Court issued its decision in Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

Regarding the Pocket Phones, the district court held that the searches were unconstitutional. It reasoned that “searching an arrestee's phone [without a warrant], beyond what is in plain view, is an unreasonable search under the Fourth Amendment ... where the crime charged is a misdemeanor,” as Lustig's charge was at the time of arrest.³ Nevertheless, the district court went on to conclude that the evidence found in the searches was admissible pursuant to the good-faith exception to the exclusionary rule. The court explained that at the time of the searches, the California Supreme Court in People v. Diaz , 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (2011), had held that warrantless searches of cell phones seized from an arrestee's person incident to arrest did not violate the Fourth Amendment. The district court also noted that there were “no binding decisions to the contrary from the federal courts.”

As to the Car Phones, the district court held that they were constitutionally seized, but that the warrantless searches of the phones' content were unconstitutional. The district court nevertheless declined to suppress evidence obtained from the Car Phones. Because the Government eventually attained—16 months later—a search warrant for the Car Phones, the district court reasoned that the evidence would inevitably have been discovered.

Lustig filed two motions to reconsider these suppression rulings, each of which the district court denied. Lustig subsequently entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). Under the plea agreement, Lustig pled guilty to three counts of violating 18 U.S.C. § 1952(a)(3) by using a cell phone to facilitate a prostitution offense under 18 U.S.C. § 1591, involving only MF2, rather than the original indictment's two counts for child sex trafficking involving both MF1 and MF2. The conditional guilty plea preserved Lustig's right to appeal the Fourth Amendment issues related to his motions to suppress.

After the plea was entered, the Government filed as part of its sentencing submissions the aforementioned declaration from Chiappino, which asserted that evidence concerning MF2 “was wholly untainted by” evidence from the Car Phones, and that officers “would have inevitably discovered” MF1 even if not for the Car Phone searches.

Lustig now appeals the denial of his suppression motions.

II

We review a district court's denial of a motion to suppress evidence de novo. United States v. Fowlkes , 804 F.3d 954, 960 (9th Cir. 2015). We review a district court's factual findings for clear error and its application of the good-faith exception de novo. United States v. Camou , 773 F.3d 932, 937 (9th Cir. 2014).

III

Lustig advances two primary contentions on appeal. First, he argues that pre-Riley authority provided no reasonable basis for Chiappino to search without a warrant the contents of the Pocket Phones, and that the district court therefore erred in holding that the fruit of those searches was admissible under the good-faith exception to the exclusionary rule. Second, Lustig argues that the district court erred in declining to suppress the Car Phone evidence. On appeal, the Government concedes that the district court erred as to the Car Phone evidence, but argues that the error was harmless because it did not affect Lustig's counts of conviction. We address each issue in turn.

A

In Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), the Supreme Court unanimously held that warrantless searches of cell phones seized incident to arrest violate the Fourth Amendment. Id. at 2495. There is thus no question that the searches of Lustig's Pocket Phones were unconstitutional. The question on appeal is instead whether the good-faith exception to the exclusionary rule nevertheless makes admissible the evidence found in the Pocket Phone searches. We hold that it does.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const....