Criminal Practice – Police’s search of defendant’s bag was unlawful

Where the defendant was handcuffed on the ground and had no access to his bag at the time it was searched by officers, the search was unlawful. Neither the bag nor the defendant posed any danger to the officers at the time of the search.

Background

After Anthony R. Buster was charged with one count of possessing a firearm after having been convicted of a felony, 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 government agreed it would not seek to use many of the pre-Miranda statements. The district court granted Buster’s request to suppress his post-Miranda statements, but denied Buster’s motion to suppress in all other respects.

Buster and the government then reached a plea agreement. The written agreement stated that Buster was “pleading guilty conditionally under United States v. Bundy, 392 F.3d 641 (4th Cir. 2004),” and that it “[preserved]” Buster’s “right to appeal the denial of his motion to suppress.”

Jurisdiction

In Bundy, a defendant attempted to use the conditional guilty plea mechanism to appeal the denial of “a motion for production of certain documents.” This 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.” Here, unlike in Bundy, each issue preserved by Buster’s written plea agreement satisfies Bundy’s definition of “case-dispositive.”

The government responds that the un-Mirandized statement Buster made about the firearm at the scene is not truly essential evidence because 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 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. Moreover, Bundy specifically acknowledged its result may have been different had the various issues the defendant sought to preserve been “inextricably intertwined”—a description fitting this situation to a T.

Merits

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). On the facts of this case, this court respectfully disagrees.

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 “[moved] it away from his person.” 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.

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, “in [her] experience … indicates … a weapon.” But even assuming the officer had reasonable suspicion that the bag contained a weapon, that fact alone could not generate reasonable suspicion that Buster was “presently dangerous” after he was already restrained and no longer had access to the bag. The officers’ suspicion that Buster may have discharged a firearm earlier in the evening fails for the same reason.

This firearm should have been suppressed and Buster must be given an opportunity to withdraw his guilty plea. 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.

Dissent

(Richardson, J.): In 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.” 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.

United States v. Buster (Lawyers Weekly No. 001-037-22, 28 pp.) (Toby J. Heytens, J.) Case No. 21-4101. Feb. 22, 2022. From E.D. Va. at Richmond (John A. Gibney Jr., S.J.) Caroline Swift Platt for Appellant. Aidan Taft Grano-Mickelsen for Appellee. 4th Cir.