NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50549
Plaintiff-Appellee, D.C. No. 3:13-cr-03921-BEN-1
v.
MEMORANDUM*
MICHAEL LUSTIG, AKA George,
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
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,** District
Judge.
In a concurrently filed opinion in this case, we address Lustig’s primary
contentions on appeal and affirm in part, reverse in part, and remand for further
proceedings. We address here Lustig’s other arguments, none of which we find
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable J. Frederick Motz, District Judge for the U.S. District
Court for the District of Maryland, sitting by designation.
availing.
In addition to the arguments discussed in our opinion, Lustig advances
several meritless arguments against application of the good-faith exception to the
exclusionary rule. Contrary to Lustig’s vague contentions, the fact that this
Circuit and the Supreme Court had indicated that changes in modern technology
might affect Fourth Amendment analysis did not render it unreasonable to follow
the blanket holding of United States v. Robinson, 414 U.S. 218, 235 (1973). See
Davis v. United States, 564 U.S. 229, 232 (2011) (“[S]earches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to
the exclusionary rule.”).
Nor do Lustig’s accusations that the officers here engaged in “recurring or
reckless misconduct” in the course of the sting operation say anything about
whether the officers could reasonably have relied on Robinson in conducting cell
phone searches incident to arrest. Applicability of the good faith exception is an
objective legal question, see Davis, 564 U.S. at 239 (“The question in this case is
whether to apply the exclusionary rule when the police conduct a search in
objectively reasonable reliance on binding judicial precedent.”) (emphasis added).
Whether the officers searched two phones or twenty does not change whether
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Robinson provided a reasonable basis to believe such searches were constitutional.
Lustig also suggests that the searches “may have” violated federal statutes
governing wiretaps and stored electronic communications, but he fails to explain
this argument sufficiently to place it before us. See Maldonado v. Morales, 556
F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and
inadequately briefed are waived.”).
We also deny Lustig’s request to remand this case for an evidentiary hearing
with regard to the “the timing and breadth” of the searches of the Pocket Phones
and “the joint federal/state nature of the operation.” The Government does not
contest the facts alleged by Lustig—that the Pocket Phones were searched once at
the time of arrest and again four days later, and that the officers were cross-
designated as federal-state agents—and we have assumed these allegations to be
true for purposes of our analysis.
Finally, we reject Lustig’s contention that United States v. Burnette, 698
F.2d 1038 (9th Cir. 1983), does not apply to the stationhouse searches of the
Pocket Phones. Lustig argues that Burnette is inapplicable because the
Government failed to show that the phones remained in the police’s uninterrupted
custody for those four days. There is no indication, however, that the officers,
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after lawfully seizing the phones and knowing that the phones contained evidence
of prostitution activity, relinquished custody only to retrieve them four days later.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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