United States v. Robert Lewis Morgan

Case: 17-10582 Date Filed: 10/24/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-10582
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20652-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT LEWIS MORGAN,
a.k.a. Albert Johnson,
a.k.a. Arthur Wilson,
a.k.a. Edward Jones,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(October 24, 2017)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
Case: 17-10582 Date Filed: 10/24/2017 Page: 2 of 6

PER CURIAM:

Robert Morgan appeals his convictions, entered upon a conditional guilty

plea, for conspiracy to import flakka, in violation of 21 U.S.C. § 963; aggravated

identity theft, in violation of 18 U.S.C. § 1028A(a)(1); and money laundering, in

violation of 18 U.S.C. § 1956(a)(2)(A). He makes several arguments claiming that

the district court erred in denying his motion to suppress evidence. After careful

consideration of the parties’ briefs and the record, we affirm.

As an initial matter, Morgan’s conditional guilty plea waived several of his

arguments on appeal. We review de novo whether a guilty plea waives the ability

to appeal the rulings on a particular pre-trial motion. United States v. Patti, 337

F.3d 1317, 1320 n.4 (11th Cir. 2003). “Generally, a voluntary, unconditional

guilty plea waives all nonjurisdictional defects in the proceedings.” Id. at 1320. In

order to preserve a non-jurisdictional challenge, a defendant may enter a

conditional plea that reserves the right to have an appellate court review an adverse

determination of a specified pretrial motion. Fed. R. Crim. P. 11(a)(2). A

challenge to a district court's refusal to suppress evidence is non-jurisdictional.

United States v. McCoy, 477 F.2d 550, 551 (5th Cir. 1973) (per curiam). 1 Thus,

the challenge is waived if not preserved in a conditional plea. See, e.g., United

1
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (holding that
all decisions of the “old Fifth” Circuit handed down prior to the close of business on September
30, 1981, are binding precedent in the Eleventh Circuit).
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States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir. 1997) (per curiam) (declining to

discuss a suppression issue where it was not one of the grounds upon which

appellant was granted leave to appeal after pleading guilty).

Here, several of Morgan’s arguments are outside the scope of his conditional

plea agreement. Morgan reserved the right to challenge the district court's denial

of his motion to suppress evidence on two limited grounds: (1) that the fourteen

false Florida driver licenses were not lawfully discovered by law enforcement and

(2) that law enforcement unreasonably delayed obtaining a warrant to search

Morgan's cellular telephone. His arguments regarding the seizure of the cellphone,

the legality of his arrest, and the legality of his statements do not have any relation

to either ground reserved by the plea, and thus they were waived. Similarly,

Morgan waived his argument regarding his girlfriend’s consent because it is

entirely different from the argument he made in the district court. See id.; see also

United States v. Armstrong, 546 F. App'x 936, 939 (11th Cir. 2013) (per curiam)

(unpublished) (“[T]he specific argument that Mr. Armstrong raises on appeal

regarding the search of the Cadillac is not the argument he made in the district

court regarding the motion to suppress and thus, we cannot consider it.”).

Accordingly, we only consider Morgan’s argument that the government

acted unreasonably and thus violated the Fourth Amendment when it took

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seventeen days to obtain a search warrant while holding Morgan’s cellphone based

on probable cause. 2

“We review a district court's denial of a motion to suppress evidence as a

mixed question of law and fact, with rulings of law reviewed de novo and findings

of fact reviewed for clear error, in the light most favorable to the prevailing party

in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).

“A temporary warrantless seizure supported by probable cause is reasonable

as long as ‘the police diligently obtained a warrant in a reasonable period of time.’”

United States v. Laist, 702 F.3d 608, 613 (11th Cir. 2012) (quoting Illinois v.

McArthur, 531 U.S. 326, 334, 121 S. Ct. 946, 951–52 (2001)). To determine if the

intrusion was reasonable under the Fourth Amendment, courts must evaluate the

totality of the circumstances presented in each case, balancing the privacy-related

and law-enforcement-related concerns. Id. Notably, a defendant’s admission that

his property contains contraband enhances the government’s legitimate interest in

maintaining custody of the property as substantial evidence of a serious federal

crime. See id. at 616.

In balancing the competing interests to determine the reasonableness of the

government’s actions, we must also consider whether the government diligently

2
Morgan, in his conditional plea, reserved the right to challenge the district court's denial of his
motion to suppress the contents of his cellphone on the limited grounds that the government
unreasonably delayed obtaining a warrant to search the cellphone. Thus, Morgan cannot
challenge the denial based on a delay in execution of the warrant.
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pursued their investigation. Id. at 614; see also United States v. Place, 462 U.S.

696, 709, 103 S. Ct. 2637, 2645 (1983). Relevant factors in this inquiry include

the nature and complexity of the investigation, whether circumstances arose that

required the diversion of government personnel, the amount of time we expect

such a warrant would take to prepare, and any other evidence proving or

disproving law enforcement's diligence in obtaining the warrant. Laist, 702 F.3d at

614.

Here, there is no doubt that Morgan retained a possessory interest in his

cellphone. The interference with his possessory interest was substantial, as the

government held his cellphone for seventeen days without his consent.

But Morgan's interest in the cellphone was diminished for several reasons.

He admitted that the cellphone had been used to conduct illegal activity and had

evidence of that activity on it. Morgan also admitted that he allowed another

individual to use the cellphone to conduct illegal activity. These facts both reduce

Morgan's interest and enhance the government's legitimate interest in keeping the

cellphone as substantial evidence of a serious federal crime. See id. at 616.

Additionally, there is no evidence that Morgan ever asked for the cellphone to be

returned. See United States v. Johns, 469 U.S. 478, 487, 105 S. Ct. 881, 887

(1985) (stating that failing to request return of seized property undermined the

argument that a delay adversely affected Fourth Amendment rights).

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Further, the government diligently pursued the investigation. Agent Acosta

began drafting the search warrant the first day after seizing the evidence. Though

Acosta was leaving town on another work assignment, he did not delay the warrant

signing until his return. Rather, he enlisted another agent to present the warrant to

the magistrate judge and a third agent to deliver the evidence to the forensic

analyst. This weighs in favor of the government’s reasonableness. See United

States v. Mitchell, 565 F.3d 1347, 1352–53 (11th Cir. 2009) (“[I]f the assistance of

another law enforcement officer had been sought, we would have been sympathetic

to an argument that some delay in obtaining that assistance was reasonable.”).

As the balance of interests weighs in favor of the government, and the

government diligently pursued the investigation, the totality of the circumstances

in this case confirms the district court's conclusion that the government's actions

were reasonable. Accordingly, we affirm.

AFFIRMED.