                             NOT FOR PUBLICATION                           FILED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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