United States v. Anthony Buster

USCA4 Appeal: 21-4101 Doc: 46 Filed: 02/22/2022 Pg: 1 of 28

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 21-4101

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY R. BUSTER, a/k/a Anthony Raymond Buster, a/k/a Blue Brown Harlem,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., Senior District Judge. (3:20-cr-00034-JAG)

Argued: December 7, 2021 Decided: February 22, 2022

Before GREGORY, Chief Judge, RICHARDSON and HEYTENS, Circuit Judges.

Reversed, vacated, and remanded by published opinion. Judge Heytens wrote the opinion,
in which Chief Judge Gregory joined. Judge Richardson wrote a dissenting opinion.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Aidan Taft Grano-Mickelsen, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Geremy C. Kamens, Federal Public Defender, Nia Ayanna Vidal, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Heather Hart
Mansfield, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
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TOBY HEYTENS, Circuit Judge:

The Fourth Amendment forbids “unreasonable searches and seizures.” A search is

constitutionally reasonable if it is justified to protect police officers from threats posed by

those who “may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 30 (1968).

The question here is whether that doctrine can be stretched to cover a warrantless search

of a bag recently possessed by a person who was—by the time the bag was opened—

handcuffed and face-down on the ground. At least on these facts, the answer is no.

I.

Because this appeal arises from the denial of a motion to suppress, we view the facts

in the light most favorable to the government. United States v. Black, 707 F.3d 531, 534

(4th Cir. 2013). Although we review the district court’s “findings of historical fact for clear

error,” “[w]e review de novo the ultimate legal conclusion of whether reasonable suspicion

existed to justify police action.” United States v. McCoy, 513 F.3d 405, 410 (4th Cir. 2008).

II.

A.

At 11:18 p.m. on September 22, 2019, two officers in a patrol car approached

Anthony Buster as he walked along Fairfield Avenue in Richmond, Virginia. About 30

minutes earlier, the officers had responded to a report of “a domestic assault where a

firearm discharged in the air” and had been looking for the assailant ever since. JA 40. The

officers approached Buster for two reasons: they believed he matched witness descriptions

of the assailant and that he was the person they had seen outside the victim’s apartment

earlier that evening.

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After getting out of the patrol car, one officer said “Yo! Let me talk to you real

quick” and motioned for Buster to come over. JA 233. Buster said “Nah,” and continued

walking. JA 233. The same officer said “Yo! Hey!” and continued toward Buster. JA 234.

At that point, Buster took off running but tripped and fell almost immediately.

The officers caught up with Buster while he was still on the ground and tackled him.

Buster was wearing “a single-strap bag that goes across your body” whose pouch had

“ended up in front of ” Buster when he fell. JA 56–57. Perceiving that Buster was clutching

or reaching for the bag, the officers pulled Buster’s arm away from the bag, pulled the bag

to the rear of Buster’s body, and handcuffed him. Buster said the bag’s strap was choking

him, so one of the officers cut the strap, grabbed the bag, and removed it from Buster’s

person. The bag felt “[h]ard to the touch,” which in the officer’s “experience . . . indicates

. . . a weapon.” JA 136. The officer opened the bag and found a gun and a box of

ammunition.

The officers also peppered Buster with questions without giving him the familiar

Miranda warnings. After discovering additional ammunition in Buster’s pants pocket, an

officer asked if Buster had anything else on his person. Buster responded that the only

items he had were “that gun and my knife.” U.S. Ex. 1B at 11:24:40–45 p.m. The officers

took Buster to the police station, where they asked more questions. Eventually, an officer

realized “he had neglected to read Buster his Miranda rights” and left the room. JA 234.

About ten minutes later, the officer came back, gave Buster the Miranda warnings, and

elicited “‘essentially’ the same material discussed in the pre-Miranda interview.” JA 235.

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B.

Buster was charged with one count of possessing a firearm after having been

convicted of a felony. Soon after, he filed a motion to suppress the firearm, the ammunition,

and his various statements as having been obtained in violation of the Fourth and Fifth

Amendments. The district court held a hearing where the officers testified and video from

their body-worn cameras was admitted into evidence.

The district court granted Buster’s motion in part and denied it in part. By then, the

government had agreed it would not seek to use many of the pre-Miranda statements,

rendering moot Buster’s request to suppress them. The court granted Buster’s request to

suppress his post-Miranda statements, concluding they were “the product of an

impermissible two-step interview tactic” and thus barred by Missouri v. Seibert, 542 U.S.

600 (2004), and United States v. Mashburn, 406 F.3d 303 (4th Cir. 2005). JA 243.

The district court denied Buster’s motion to suppress in all other respects. The court

concluded the initial stop was valid because “the officers had reasonable suspicion that

Buster was the suspect in a reported domestic assault incident potentially involving a gun”

and that “the pat-down of Buster’s person and the search of his bag were reasonable”

because “the officers had reason to believe they were dealing with an armed and dangerous

person.” JA 240. The court also declined to suppress Buster’s on-the-scene statement

referencing the already discovered firearm, concluding it fell within the public-safety

exception of New York v. Quarles, 467 U.S. 649 (1984).

After the district court’s ruling, Buster and the government reached a plea

agreement. The written agreement stated that Buster was “pleading guilty conditionally

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under United States v. Bundy, 392 F.3d 641 (4th Cir. 2004),” and that it “preserve[d]”

Buster’s “right to appeal the denial of his motion to suppress.” JA 249. The district court

accepted the plea and sentenced Buster to 51 months of imprisonment.

III.

Before turning to the merits of Buster’s appeal, we must address the government’s

assertion that we are powerless to do so. We disagree.

The general rule is that a valid guilty plea “waives all nonjurisdictional defects in

the proceedings conducted prior to entry of the plea.” Bundy, 392 F.3d at 644. Since 1983,

however, the Federal Rules of Criminal Procedure have codified a practice—known as a

conditional guilty plea—allowing some defendants to “enter a plea of guilty . . . while

preserving certain pretrial issues for appeal.” Id. at 645. Specifically, Rule 11(a)(2)

provides that “[w]ith the consent of the court and the government, a defendant may enter a

conditional plea of guilty or nolo contendere, reserving in writing the right to have an

appellate court review an adverse determination of a specified pretrial motion.”

In Bundy, this Court confronted a situation where a defendant attempted to use the

conditional guilty plea mechanism to appeal the denial of “a motion for production of

certain documents.” 392 F.3d at 648. The Court rejected that effort, reasoning that the

“discovery issue” raised by Bundy’s motion to compel was “not case-dispositive” because

a ruling in his favor would do nothing more than allow him to “see certain documents and

decide whether they help his defense.” Id. And even though Bundy’s plea agreement also

purported to preserve his ability to appeal two other issues that were “the proper subjects

of a conditional guilty plea”—a Fourth Amendment unreasonable search claim and a Fifth

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Amendment compelled self-incrimination claim—the Court concluded that the presence

of the discovery issue so “taint[ed] the entire plea” as to “render[ ] the entire plea invalid.”

Id. at 648–49. Accordingly, the Court vacated Bundy’s convictions and remanded without

reaching the merits of any of Bundy’s claims. Id. at 649–50.

Bundy does not preclude us from considering Buster’s claims. For one thing, unlike

the discovery dispute that troubled the Court in that case, each issue preserved by Buster’s

written plea agreement satisfies Bundy’s definition of “case-dispositive.” Echoing

language from Rule 11’s advisory committee notes, Bundy stated that an issue is “case-

dispositive if . . . a ruling in the defendant’s favor would require dismissal of the charges

or suppression of essential evidence.” 392 F.3d at 648 (emphasis added); see also Fed. R.

Crim. P. 11 advisory committee’s note to 1983 amendments (contemplating conditional

guilty pleas will occur “only when the decision of the court of appeals will dispose of the

case either by allowing the plea to stand or by such action as compelling dismissal of the

indictment or suppressing essential evidence”). The advisory committee notes repeatedly

identify the denial of “suppression motions” as the quintessential situation where

conditional guilty pleas are appropriate—to the point of including language underscoring

that “Rule 11(a)(2) is not limited to” such circumstances. And here, suppressing evidence

is exactly—and exclusively—what Buster seeks.

The government responds that the un-Mirandized statement Buster made about the

firearm at the scene is not truly essential evidence because (the government maintains) it

would have prevailed at trial even without that statement. The government would thus have

a reviewing court ask—before reaching the merits of any Fourth or Fifth Amendment issue

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preserved via Rule 11—whether a defendant who in reality chose to plead guilty after

having failed to suppress a particular piece of evidence would have been convicted at a

hypothetical trial where the government was unable or chose not to use the very evidence

it had previously and successfully fought to keep in. Neither Bundy, the text of Rule 11,

nor the advisory committee notes charge appellate courts with conducting that sort of odd

counterfactual inquiry as a necessary prelude to considering an otherwise-proper appeal. 1

And there is more. Bundy specifically acknowledged its result may have been

different had the various issues the defendant sought to preserve been “inextricably

intertwined,” 392 F.3d at 649 (quotation marks omitted)—a description fitting this

situation to a T. In Bundy, the defendant sought to plead guilty while preserving for

appellate review three issues with little overlap in underlying facts or law that had been

raised in three different pretrial motions requesting three different forms of relief

(production of documents, suppression of evidence, and dismissal of certain counts). Id. at

644. Here, in contrast, Buster’s written plea agreement preserved his ability to appeal the

1
Although such an approach finds support in certain non-precedential opinions, see,
e.g., United States v. Stinson, 765 Fed. Appx. 941 (4th Cir. 2019), we expressly disclaim it
here. We also make clear that whether a particular conditional guilty plea comports with
Bundy has no impact on our appellate jurisdiction because Bundy is simply a gloss on Rule
11 and “any jurisdictional requirements found in [federal rules] exist by virtue of the
Constitution and statutes, not the rules themselves.” United States v. Castillo, 496 F.3d
947, 955 (9th Cir. 2007) (en banc); accord Arbaugh v. Y.H. Corp., 546 U.S. 500, 510 (2006)
(stressing the need to avoid “profligate” use of the term “jurisdiction”—“a word of many,
too many, meanings” (quotation marks omitted)); Skevofilax v. Quigley, 810 F.2d 378, 388
(3d Cir. 1987) (Becker, J., concurring) (explaining that “[t]he issue of jurisdiction is
separate from the issue . . . of whether the rules provide a procedural mechanism by which”
a court may decide a particular issue).

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denial of a single motion requesting a single form of relief (suppression), and all the

arguments that Buster sought to preserve for appeal depend on the same basic evidence

and involve closely related legal doctrines. Neither of the primary aims cited in Bundy—

“judicial economy” and ensuring “that the conditional guilty plea not be employed in a

manner that renders appellate review difficult or impossible,” 392 F.3d at 646—would be

served by artificially separating our consideration of Fourth and Fifth Amendment issues

that are inextricably intertwined.

Although our resolution of this case is fully consistent with Bundy’s holding and

result, we acknowledge tension with broad language in the Court’s opinion about what

constitutes a case-dispositive issue. As Chief Justice Marshall reminded us long ago,

however, “general expressions, in every opinion, are to be taken in connection with the

case in which those expressions are used,” Cohens v. Virginia, 19 U.S. 264, 399 (1821),

and this Court has directly—and recently—disclaimed the notion “that everything said in

a panel opinion binds future panels,” Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021).

The broad language on which the government relies was not “necessary to the outcome”

(id.) in Bundy—which, as noted earlier, involved an attempt to use a conditional guilty plea

to obtain appellate review of a pretrial discovery motion and flagged denials of suppression

motions as situations where conditional guilty pleas may be used. For that reason, we read

Bundy’s “general language” the same way courts “often read general language in judicial

opinions—as referring in context to circumstances similar to the circumstances then before

the Court and not referring to quite different circumstances that the Court was not then

considering.” Illinois v. Lidster, 540 U.S. 419, 424 (2004).

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IV.

Buster raises several objections to the district court’s denial of his motion to

suppress, but we reach only one of them. We hold that the district court erred in denying

Buster’s motion to suppress the firearm because the sole theory the government has pressed

in support of that result does not apply here.

Because suppression of relevant evidence is always a “last resort, not [a] first

impulse,” Hudson v. Michigan, 547 U.S. 586, 591 (2006), the Supreme Court has identified

numerous grounds on which a given search may be deemed constitutionally reasonable or

suppression may otherwise be denied. If officers have probable cause to believe a particular

place or item contains contraband or evidence of a crime, they can get a warrant to search

it. See, e.g., Riley v. California, 573 U.S. 373, 381–82 (2014). Nor is a warrant always

required, including “when the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is objectively reasonable under the

Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 394 (1978) (quotation marks

omitted). In addition, officers who make “a lawful arrest” may conduct a warrantless search

of an “arrestee’s person and the area within his immediate control” as an “incident to” that

arrest, United States v. Davis, 997 F.3d 191, 195 (4th Cir. 2021) (quotation marks omitted),

and later may conduct an “inventory search” of the arrestee’s possessions so long as it is

done “according to standardized criteria, such as a uniform police department policy” and

is “performed in good faith,” United States v. Seay, 944 F.3d 220, 223 (4th Cir. 2019)

(quotation marks omitted).

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Even when a search was constitutionally unreasonable, the government still may

have arguments for why any resulting evidence should not be suppressed. It may argue, for

example, that the challenged search was conducted in good-faith reliance on a facially valid

warrant or then-binding judicial precedent. See, e.g., United States v. Leon, 468 U.S. 897,

922 (1984); Davis v. United States, 564 U.S. 229, 232 (2011). The government also may

argue that “evidence gathered in an otherwise unreasonable search” would have been

“ultimately or inevitably discovered . . . by lawful means,” including a search incident to

arrest or an inventory search. Seay, 944 F.3d at 223 (quotation marks omitted).

Here, however, the district court identified only one basis for denying Buster’s

motion to suppress the firearm found during the search of his bag, and the government has

never offered any other. Specifically, the district court concluded that the “search of

[Buster’s] bag” was constitutionally reasonable under the protective search doctrine

associated with Terry v. Ohio, 392 U.S. 1 (1968). JA 240. On the facts of this case, we

respectfully disagree.

The Supreme Court has repeatedly emphasized that “[t]he purpose of ” the “limited

search” authorized by Terry “is not to discover evidence of crime, but to allow the officer

to pursue his investigation without fear of violence.” Minnesota v. Dickerson, 508 U.S.

366, 373 (1993) (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)); accord Terry, 392

U.S. at 29. Indeed, Terry itself states that such searches may lawfully be conducted as part

of an investigatory stop only when an officer “reasonably . . . conclude[s] in light of his

experience” that “the persons with whom he is dealing may be armed and presently

dangerous.” 392 U.S. at 30 (emphasis added). For that reason, “a protective search—

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permitted without a warrant and on the basis of reasonable suspicion less than probable

cause—must be strictly limited to that which is necessary for the discovery of weapons

which might be used to harm the officer or others nearby.” Dickerson, 508 U.S. at 373

(quotation marks omitted).

Although the parties dispute many things about the events of the evening, there is

no disagreement about one critical fact: When the officer opened Buster’s bag (thus

beginning a “search” of the bag), Buster was handcuffed on the ground and had no access

to it. Indeed, the record is clear that the officers opened the bag and examined its contents

after they had tackled Buster, handcuffed him, cut the bag off his body, and “move[d] it

away from his person.” U.S. Br. 9. The government offers no explanation for how the

contents of the bag presented any credible threat to the officers’ safety at the time they

searched it, and quickly frisking an unsecured suspect or a bag during a Terry stop is simply

not the same as methodically searching the contents of a bag to which a suspect no longer

has access—particularly where the suspect remained restrained and under the officers’

physical control. “Having already used significant force to secure the scene for safety

purposes, the officers cannot leverage the safety rationale into a justification for a full-scale

search.” United States v. Miles, 247 F.3d 1009, 1015 (9th Cir. 2001).

In arguing to the contrary, the government relies on the searching officer’s

testimony that, when she removed the bag from Buster’s body, she noticed it “was hard to

the touch,” which, “[i]n [her] experience . . . indicates . . . a weapon.” JA 135–36. But even

assuming the officer had reasonable suspicion that the bag contained a weapon (a point we

need not decide), that fact alone could not generate reasonable suspicion that Buster was

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“presently dangerous” after he was already restrained and no longer had access to the bag.

Terry, 392 U.S. at 30. 2

The government’s reliance on the officers’ suspicion that Buster may have

discharged a firearm earlier in the evening fails for the same reason. Even if the officers

had reasonable suspicion that was true (another point we need not decide), the likelihood

that the officers would find a firearm or other weapon in the bag has no bearing on the

justification for a protective frisk after Buster had been separated from the bag and no

longer had access to it. Cf. Davis, 997 F.3d at 200 (search incident to arrest doctrine did

not justify search of a backpack “not within reaching distance of ” the arrestee when the

officer searched it).

We emphasize the limits of our holding. We do not address situations where a

firearm was found on a suspect’s person or a bag was opened before a suspect was subdued

or while they were still within reach of the bag. Cf. United States v. Walker, 615 F.3d 728,

730, 733–34 (6th Cir. 2010) (approving limited Terry search of bag where armed robbery

suspect was not restrained and officers “by no means had the scene under control or their

safety secure”). This case does not present (and the parties have not raised) any question

about whether or when officers may search a bag before returning it once a Terry stop

concludes. Cf. id. at 734 (describing situation where the “only alternative” to a protective

2
Although the “plain feel” doctrine may be relevant when an officer “discovers
contraband through the sense of touch during an otherwise lawful search,” Dickerson, 508
U.S. at 375, the officer never testified that she had reason to believe the bag contained
contraband (as opposed to a weapon) and the government acknowledges that it has never
made any such argument here. Oral Arg. 36:00–36:16.

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frisk was “to give a suspect access to a potential weapon” located “in an un-searched bag”).

Because the government has never so argued, we do not consider whether at some point

the officers might have acquired probable cause to arrest Buster for assault or some other

offense and, if they did, whether the district court’s decision not to suppress the firearm

could have been justified on some other ground. We hold only—but importantly—that a

doctrine authorizing a limited warrantless search to protect officer safety cannot be

stretched to cover situations where there is no realistic danger to officer safety.

Accordingly, we reverse the district court’s denial of Buster’s motion to suppress the

firearm.

That leaves only the issue of remedy. Although the government argues that any error

in denying Buster’s motion to suppress his on-the-scene statement about the firearm would

have been harmless, it makes no such claim about the district court’s failure to suppress

the firearm itself. The government’s silence on this point makes sense given the

circumstances of this case, where the underlying charge is predicated on Buster possessing

a firearm we now hold must be suppressed. For that reason, we need not address whether—

and, if so, how—harmless-error analysis applies in the context of conditional guilty pleas.

Compare United States v. Lustig, 830 F.3d 1075, 1087 (9th Cir. 2016) (court reviewing a

conditional guilty plea may deem an error harmless if “the government has proved beyond

a reasonable doubt that the erroneously denied suppression motion did not contribute to

the defendant’s decision to plead guilty”), with id. at 1092 (Watford, J., concurring)

(arguing that “harmless error analysis . . . has no place in this context” and that if a

reviewing court “does anything other than affirm in full the district court’s denial of [the

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defendant’s] suppression motion, he is entitled to withdraw his guilty plea without more”).

Instead, we hold only that this firearm should have been suppressed and that Buster must

be given an opportunity to withdraw his guilty plea. See Fed. R. Crim. P. 11(a)(2) (“A

defendant who prevails on appeal may . . . withdraw the plea.”). 3

* * *

The government’s motion to vacate the guilty plea and remand for further

proceedings without reaching the merits is denied. The district court’s order denying

Buster’s motion to suppress the firearm is reversed, the judgment of conviction is vacated,

and the case is remanded for further proceedings consistent with this opinion.

SO ORDERED

3
Should the government choose to forge ahead with this case, the district court may
need to address whether today’s holding affects the admissibility of Buster’s on-the-scene
statement about “that gun and my knife.” Because of its resolution of the threshold Terry
questions, the district court did not consider whether that statement would be admissible if
the gun itself were suppressed, and the parties have not briefed that issue on appeal.
“[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005), we leave any such questions to the court of first instance.

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RICHARDSON, Circuit Judge, dissenting:

In United States v. Bundy, this court held that conditional guilty pleas are valid under

Rule 11(a)(2) only if all the issues they preserve are “case-dispositive”—so central to the

government’s case that a ruling for the defendant would effectively require dismissal of the

charges against him. 392 F.3d 641, 648 (4th Cir. 2004). Bundy’s rule is textually baseless,

pragmatically unjustified, and entirely binding on this panel. And it commands that

Buster’s attempt to preserve a non-dispositive Miranda issue for appeal renders his entire

conditional plea invalid. But rather than apply Bundy faithfully to the facts before us, the

majority warps Bundy’s core holding and adds to it a new “inextricably-intertwined”

exception that promises to vex litigants for decades to come. While I would fully support

abandoning Bundy through the proper channel—an en banc rehearing—I cannot condone

the majority’s sly revision of it here. I respectfully dissent.

I.

For most of our nation’s history, a defendant’s guilty plea would waive his right to

appeal the resolution of pretrial motions. See Tollett v. Henderson, 411 U.S. 258, 267

(1973). This, when coupled with the defendant’s inability to bring an interlocutory appeal

on such issues, see Di Bella v. United States, 369 U.S. 121, 131–32 (1962), meant that “a

defendant who has lost one or more pretrial motions will often go through an entire trial

simply to preserve the pretrial issues for later appellate review.” Fed. R. Crim. P. 11

advisory committee note to 1983 Amendment. To combat this waste of judicial resources,

some (but not all) circuits permitted defendants to plead guilty conditionally. Id.; compare

United States v. Burke, 517 F.2d 377, 379 (2d Cir. 1975) (permitting conditional pleas so

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long as the prosecutor does not object to their entry), with United States v. Matthews, 472

F.2d 1173, 1174 (4th Cir. 1973) (holding that a guilty plea “swallows up” pretrial errors).

But in 1983, Federal Rule of Criminal Procedure 11(a)(2) was amended to expressly

allow conditional guilty pleas: “With the consent of the court and the government, a

defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing

the right to have an appellate court review an adverse determination of a specified pretrial

motion.” The Rule’s text does not limit the issues that the government and the defendant—

with district court’s consent—may preserve via a conditional plea.

Nonetheless, we imposed such a requirement (and a strict one at that) in Bundy.

There we held that “a valid guilty plea preserves for appellate review only case-dispositive

pretrial issues.” Bundy, 392 F.3d at 647. Therefore, “[a] district court should reject any

conditional guilty plea that purports to preserve for appellate review pretrial issues that, in

the district court’s own judgment, are not fully case-dispositive.” Id. Bundy then strictly

defined “case-dispositive”: “The disposition of a pretrial issue is case-dispositive if (1) a

ruling in the defendant’s favor would require dismissal of the charges or suppression of

essential evidence, or (2) a ruling in the Government’s favor would require affirming the

conviction. In short, there should be no trial after the specified issues are resolved by the

court of appeals.” Id. at 648.

One searches in vain for any textual basis for Bundy’s strict limitation on conditional

pleas. Instead, Bundy appears to have derived its rule from decisions in other circuits that

either predate the 1983 enactment of Rule 11(a)(2) or are themselves devoid of any textual

analysis. See id. at 646–47. In doing so, it advanced two policy justifications for its

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atextual creation: judicial economy and adequacy of review. But even on their own terms

neither support the rule Bundy imposed.

First, the Bundy court worried that permitting a conditional plea on minor issues

might stall the case, citing concerns expressed in Rule 11’s advisory committee note. Id.

at 645–46. But the advisory committee did not say that a judicial case-dispositive rule was

necessary to address that concern; instead, it concluded that the government-approval

requirement was adequate to avoid a deluge of dilatory conditional pleas. Fed. R. Crim. P.

11 advisory committee note to 1983 Amendment. That reasoning makes sense. It may be

true that the government does not have a direct incentive to protect judicial economy. But

it does have strong parallel incentives to avoid excessive appeals. In most cases, the

government’s interest in preserving its own resources and avoiding unjustified delay will

motivate it to not sanction appeals over trivial issues.

There may be exceptions. And mistakes may be made. But vacating and remanding

when the government, the defendant, and the court agree to permit a conditional plea fails

to promote judicial economy. To the contrary, rejecting this conditional plea appears to

demand unnecessary proceedings below and, likely, a second appeal. When a non-

dispositive issue is intentionally preserved (like in Bundy), it is likely because the issue is

salient to the defendant, perhaps irrationally so. In that instance, Bundy’s rule requires the

defendant to go to trial solely to preserve the issue, leading to a considerable waste of

resources to put on an unnecessary trial.

Second, Bundy worried that, unless our appellate court restricts the permissible

subjects of a conditional appeal, we may be forced to pass on an issue not yet adequately

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developed. 392 F.3d at 646–47. But it is unclear why our self-doubt about resolving some

issues justifies setting aside pleas authorized by Rule 11, agreed to by both parties, and

blessed by the district court. 1 After all, we have a “virtually unflagging” obligation to

decide cases properly before us, even if they might be hard sometimes. Lexmark Int’l, Inc.

v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). If a party or the district

court doesn’t think we will be able to reach an adequate decision based on the record as it

exists, they don’t have to agree to the plea. 2 But once they have, we have a duty to do our

best to resolve the preserved issues.

And even if adequacy of review were a real concern, it is unclear why case-

dispositiveness is a reasonable proxy for adequate-reviewability. For example, the Rule

11 advisory committee identified a speedy trial violation as an issue that is “best considered

only after the relevant facts have been developed at trial.” Fed. R. Crim. P. 11 advisory

1
A district court exercising a discretionary power may, at times, abuse that
discretion, including by failing to recognize “judicially-recognized factors limiting its
discretion.” United States v. Henry, 673 F.3d 285, 291 (4th Cir. 2012). But that does not
give us carte blanche to impose any limitations we feel like on the district court. “Courts
are the mere instruments of the law, and can will nothing. When they are said to exercise a
discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course
prescribed by law; and, when that is discerned, it is the duty of the Court to follow it.”
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Marshall, C.J.).
Here, Rule 11(a)(2) opens our doors to conditional pleas predicated on pretrial rulings; we
cannot close those doors to all but a select few defendants.
2
Indeed, is it our general rule that a party who has knowingly and voluntarily
requested the district court to take a particular action cannot later complain to us that the
action it requested was an abuse of discretion. See Wilson v. Lindler, 8 F.3d 173, 175 (4th
Cir. 1993) (en banc); Ridge v. Cessna Aircraft Co., 117 F.3d 126, 129 (4th Cir. 1997).
Bundy created a seemingly unprecedented exception to this “invited-error doctrine,” in
which we must reverse an action that both parties requested the district court take as an
abuse of that court’s discretion.

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committee note to 1983 Amendment. Yet a speedy trial violation requires the automatic

dismissal of the indictment, meaning that it is case-dispositive. See Barker v. Wingo, 407

U.S. 514, 522 (1972). On the other hand, motions to suppress evidence may be resolved

based on undisputed facts, yet not be case-dispositive.

One particularly puzzling argument advanced by Bundy is that “[t]he adequacy of

the factual record is especially important for harmless-error analysis” and therefore,

“[p]ermitting conditional guilty pleas to preserve non-case-dispositive pretrial issues for

appeal would undermine harmless-error analysis.” 392 F.3d at 647. But it is unclear why

we are in a better position to determine whether an issue is case-dispositive than we are to

determine whether an issue is harmless. The two are basically the same question, just with

different thresholds. Bundy’s standard is essentially a harmful-error test, where we must

determine whether the exclusion of the evidence would be fatal to the government’s case,

as compared to a harmless-error test where we determine whether it was inconsequential

to that case. In that sense, I agree with the majority that the government is asking us to

engage in a bizarre “hypothetical trial where the government was unable or chose not to

use the very evidence it had previously and successfully fought to keep in.” Majority Op.

7. But the majority is wrong to place the fault with the government; Bundy itself requires

that “odd counterfactual inquiry.” Majority Op. 7. 3

3
This argument for limiting conditional pleas was also considered and rejected by
the advisory committee. It acknowledged that applying harmless error analysis absent a
full trial record would be difficult. Fed. R. Crim. P. 11 advisory committee note to 1983
Amendment. But it concluded that this cost did not justify barring conditional pleas. Id.

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In short, Bundy created a judicial doctrine unsupported by either the text of Rule 11

or sound policy. And that doctrine is binding on this panel. One panel of this court cannot

overrule another. McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc).

Panels may well disagree. But we have decided that an opinion produced by a panel states

rules of law that can—indeed must—be followed. So we must adhere to prior panel

decisions no matter how strongly we disagree: “We must follow a prior panel decision

even if it had abysmal reasoning, put forward unworkable commands, engendered no

reliance interests, lacked consistency with other decisions, and has been undermined by

later developments.” Payne v. Taslimi, 998 F.3d 648, 654 n.2 (4th Cir. 2021).

And adhering to Bundy here produces a clear result: Buster’s plea must be vacated.

Buster sought to preserve two issues for appeal: (1) a motion to suppress the gun and

ammunition found during the stop based on the Fourth Amendment; and (2) a motion to

suppress his un-Mirandized statement that he had “that gun and my knife” based on the

Fifth Amendment. The first issue involves the “suppression of essential evidence” and is

case-dispositive; the government cannot possibly prove that Buster possessed a firearm

that had travelled in interstate commerce that night if the gun and ammunition are

suppressed. 4 The second issue is not case-dispositive. Even if it the statement about the

4
One might even argue that the motion to suppress the gun and ammunition is not
case-dispositive. The government might try to prove its case based on Buster’s confession
that he possessed “that gun”—a statement he did not seek to suppress as part of his Fourth
Amendment motion. But the government could not introduce the gun itself or any evidence
obtained from it, so there would be no way to prove that the referenced “gun” met the legal
definition of a firearm or that it had moved in interstate commerce, essential elements under
§ 922(g).

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gun is suppressed, the gun itself provides the evidence necessary to prove that Buster

possessed a firearm that had travelled in interstate commerce, and other evidence from that

night provides strong proof that he did so knowingly. The statement might be icing on the

prosecution’s cake, but it is not essential to a conviction and so is not case-dispositive.

Bundy is also clear on the effect of preserving both dispositive and non-dispositive

issues in a conditional plea: “the presence of one non-case-dispositive issue in this

conditional plea renders the entire plea invalid.” 392 F.3d at 649. So, because Buster’s

plea tried to preserve a non-dispositive Miranda issue, his entire plea is invalid under

Bundy and must be vacated.

II.

The majority reaches the contrary outcome, holding that Buster’s conditional plea

was valid. In doing so, the majority purports to follow Bundy. But it does so by twisting

the language of Bundy to reach the answer it wants, rather than faithfully applying it.

The majority’s analysis starts out well enough, identifying Bundy’s core holding

that only “case-dispositive” issues may be preserved, and that an issue is “case-dispositive

if . . . a ruling in the defendant’s favor would require dismissal of the charges or suppression

of essential evidence.” 392 F.3d at 648. The obvious next question for someone truly

interested in discerning the meaning of Bundy’s holding would be: What is “essential

evidence”? That is a question the majority never bothers to ask, probably because it doesn’t

like Bundy’s answer. That answer can be found, in fact, in the very next sentence of the

Bundy opinion: “In short, there should be no trial after the specified issues are resolved by

the court of appeals.” Consistent with that explanation, the concluding sentence of that

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paragraph summarizes: “The question for the district court [on whether to approve a

conditional plea] is whether the court of appeals’ resolution of the issue specified in the

plea would end the case one way or the other.” Id. These statements leave no doubt: when

the court said that denial of suppression motions could be preserved only if they involved

“essential evidence,” it meant that they must involve essential evidence. Not any evidence.

Not material evidence. Not important evidence. Essential evidence—evidence so

“absolutely necessary” or “indispensable” that its suppression would force the government

to dismiss the charge, thus disposing of the case. Essential, Random House Webster’s

College Dictionary (2000).

Instead, the majority implies (though it doesn’t expressly hold) that any suppression

motion necessarily involves essential evidence and so is case-dispositive. Majority Op. 6

(holding that Bundy is satisfied because “suppressing evidence is exactly—and

exclusively—what Buster seeks”). That interpretation amazingly manages to redefine

“essential” as “nonessential” and “dispositive” as “non-dispositive.” And it requires the

majority to dismiss as dicta all of Bundy’s language clarifying what “case-dispositive” and

“essential evidence” mean.

But Bundy’s “broad language” defining its case-dispositive rule is far from dicta. It

is true, of course, that not every word in a panel decision is binding; “peripheral” remarks

that do not represent the court’s “full and careful consideration” are dicta and are not

controlling. Payne, 998 F.3d at 654. But we aren’t dealing here with peripheral remarks

detached from Bundy’s holding. We are dealing with language defining what Bundy’s

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holding actually means. That definition is no doubt broader than the majority would like.

But that doesn’t transform those statements into dicta.

The only statements strictly “necessary” to resolve a case are “affirmed” and

“reversed.” Yet all agree that a court’s holding encompasses more than this judgment; it

includes the court’s ratio decidendi—the chain of reasoning necessary to tie the facts of

the case to the decision reached. Dicta is what remains: those statements that “could have

been deleted without seriously impairing the analytical foundation of the holding.” Payne,

998 F.3d at 654 (citations omitted). Though that distinction is often difficult to make, see

generally Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953

(2005), it is essential that we exercise care in doing so. If we simply dismiss any statement

we disagree with as ‘mere dicta,’ we are no longer acting as judges, but as policymakers—

deciding which words from precedent we like and selectively applying them. See Michael

C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2029–30 (1994).

So let us carefully consider the decision in Bundy. That defendant entered a

conditional plea preserving for appeal certain pretrial decisions, including the denial of a

discovery motion. Bundy, 392 F.3d at 644. The result of Bundy was the vacatur of that

plea. Id. at 650. So what reasoning linked those facts to that result? First, the court held

that only “fully case-dispositive” issues could be preserved for appeal. Id. at 647. Second,

the court defined case-dispositive: a ruling favorable to the defendant must “require

dismissal of the charges or suppression of essential evidence,” such that there would be

“no trial after the specified issues are resolved.” Id. at 648. Third, it applied this definition

of “case-dispositive” to the discovery issue, observing that a “favorable ruling on this issue

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will not guarantee dismissal of Count Two.” Id. 5 Finding that the discovery issue was

therefore not “case-dispositive” under its definition of that term, the court vacated the plea.

Id. at 650.

The majority seeks to redefine that second step out of existence, narrowing Bundy

to a case about “a pretrial discovery motion.” Majority Op. 8. The Bundy court could have

done that. It could have limited its decision to discovery issues. But it didn’t. To the

contrary, it held that “a valid conditional guilty plea preserves for appellate review only

case-dispositive pretrial issues.” Id. at 647. We cannot now substitute a narrower holding

Bundy could have advanced for the one it actually did. Brown v. Board of Education is

about more than a school in Kansas. 347 U.S. 483, 495 (1954) (holding that “in the field

of public education the doctrine of ‘separate but equal’ has no place”). Marbury v. Madison

is about more than William Marbury’s commission. 5 U.S. (1 Cranch) 137, 180 (1803)

(holding that “a law repugnant to the Constitution is void”). And Bundy is about more than

a discovery dispute. 392 F.3d at 648 (holding that the resolution of an issue in a conditional

plea must “end the case one way or the other”). Bundy stated a rule of law applicable to

all conditional pleas: they must preserve only issues that would dispose of the case. The

5
The court also considered two other pretrial motions preserved by Bundy—who
pleaded guilty to possession of an unregistered firearm. 392 F.3d at 648. The first was a
motion to dismiss because the gun-registration law was unconstitutional, which the court
observed would mandate dismissal as a matter of law. Id. The second was a motion to
suppress all evidence seized from a search of Bundy’s house, including the firearm at issue.
Id. Notably, the court did not decide that this motion was automatically case-dispositive
merely because it was a suppression motion. Rather, it held that the motion was case-
dispositive only after determining that “a favorable ruling on these issues would require
suppression of essential evidence and would likely lead to dismissal of the firearms charge
in Count Two.” Id. (emphasis added).

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Miranda issue preserved here would not dispose of the case. And so Bundy prohibits

including it in the plea.

The majority also puts forth an alternative rationale for its decision: a postulated

exception to the Bundy rule that permits us to review non-case-dispositive issues that are

“inextricably intertwined” with case-dispositive ones. Ironically, while casting aside

Bundy’s core holding as dicta, the majority relies heavily on Bundy’s discussion of this

possible exception, which was dicta. Bundy never held that the exception exists, but simply

found that if it exists it did not apply under the facts presented there. 392 F.3d at 649. Yet

the majority today affirms the exception’s existence and concludes that it is satisfied.

Unlike its attempt to redefine Bundy’s holding, the majority has the authority to mint

this new exception. Bundy left the door open, and we may walk through it if we wish. But

I think it unwise. Because, as a practical matter, the majority’s approach only makes

Bundy—already a trap for unwary defendants and prosecutors—even more complex and

hazardous. Future parties to an incipient plea agreement now need to embark on a multi-

step test to decide what they can and cannot preserve for appeal. First, they need to decide

whether each issue is “case-dispositive.” 6 Then, the parties must proceed to the new

Bundy-Buster Step 2: Are the issues that are not “case-dispositive” nonetheless

“inextricably intertwined” with those that are? The majority does not say what it means

for two issues to be “inextricably intertwined.” At best, litigants may look to the four

6
Even applying that first step will be daunting, since the majority opinion makes
clear that “case-dispositive” no longer means “dispositive of the case,” yet what it does
mean remains elusive.

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probative factors identified by the majority in this case: (1) the two issues appealed were

raised in the same motion; (2) they would warrant the same general type of remedy; (3)

they rest on the “same basic evidence”; and (or?) (4) they involve “closely related legal

doctrines.”

But this “standard” raises even more questions. What does it mean for two issues

to turn on “the same basic evidence”? Here, the only “basic evidence” relevant to the

majority’s Fourth Amendment ruling is that Buster was handcuffed and on the ground at

the time of the search. The Miranda issue, by contrast, depends on whether the question

eliciting Buster’s incriminating statement was justified by the officer’s need to protect

himself while searching a now-standing Buster. So the evidence pertinent to each issue is

not really the same. I suppose the two events occurred during the same police interaction—

is that what it takes for two issues to depend on the “same basic evidence”?

And what counts as “closely related legal doctrines”? Here, Buster seeks to

suppress two different types of evidence based on different provisions of the U.S.

Constitution—the Fourth and Fifth Amendments. Are those two doctrines “closely

related” just because they both involve constitutional rules of criminal procedure? What if

Buster’s appeal also involved a deprivation of post-indictment counsel in violation of the

Sixth Amendment? Is that doctrine also “closely related”? What about warrant defects?

Speedy trial violations? Double jeopardy? We don’t know. And neither, more

importantly, do defendants, prosecutors, or district courts.

If the Bundy-Buster doctrine were based on the text of Rule 11 or the common law,

litigants and district courts might have some way of predicting the answers to these thorny

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questions. But because both Bundy’s rule and the majority’s judicial exception were

created from whole cloth, litigants and courts can only guess the answers and hope that we

agree with them on appeal. 7 While the majority, like Bundy before it, justifies its decision

as in the interest of “judicial economy,” in truth it will only create more confusion and

waste for future defendants, prosecutors, and judges.

* * *

All of this is not to say that we should be stuck with Bundy’s stringent judge-created

rule forever. Though one panel of our court cannot overrule another, the entire court, sitting

en banc, can. Jones v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996). But in the meantime,

Bundy remains binding law we should faithfully apply. So I would apply Bundy to these

facts, bar Buster’s appeal, and give a full-throated endorsement for overturning Bundy

during reconsideration en banc. 8 Instead, the majority goes to great lengths to refashion

the Bundy rule to suit its own liking. But just as in Bundy, there is nothing in Rule 11 to

justify the majority’s redefinition of “case-dispositive” or its new inextricably intertwined

exception. So its decision today simply adds made-up alterations and exceptions to a made-

7
Until today, those parties could at least rely on some of our unpublished decisions
for guidance. See, e.g., United States v. Stinson, 765 F. App’x 941, 942–43 (4th Cir. 2019).
But the majority expressly disavows those decisions.
8
Because Buster’s attempt to preserve the non-dispositive Miranda issue voids his
entire plea, I would not reach the merits of the case-dispositive Fourth Amendment issue.
Yet I note that our circuit has held that a search of a suspect’s bag much like the one here
was a valid Terry frisk. See United States v. Hernandez-Mendez, 626 F.3d 203, 213 (4th
Cir. 2010). I also emphasize the majority’s comment that the government might have
succeeded if it sought to justify the search on another theory; the government should now
be on notice that it needs to put forth all the alternative theories that justify a search.

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up rule. I decline to join in this tailoring of the emperor’s new clothes, and respectfully

dissent.

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