United States of America v. Ernest Kyle Dyer

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3087
_______________
United States of America
v.
Ernest Kyle Dyer,
Appellant
_____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No.: 1:17-cr-00226-001)
District Judge: Hon. Sylvia H. Rambo
_____________________________________
Submitted: September 16, 2022
(Filed: November 29, 2022)
Before: KRAUSE, BIBAS, RENDELL, Circuit Judges.

-- 1 of 15 --

2
Kenneth W. Mishoe
Tucker Arensberg
300 Corporate Center Drive
Suite 200
Camp Hill, PA 17011
Counsel for Appellant
Stephen R. Cerutti, II
Michael A. Consiglio
Carlo D. Marchioli
Office of the United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Ernest Dyer pleaded guilty to one count of possession
of a firearm as a convicted felon under 18 U.S.C. § 922(g),
preserving the right to challenge on appeal the District Court’s
refusal to suppress certain evidence under Federal Rule of
Criminal Procedure 11.

-- 2 of 15 --

3
Because the only evidence Dyer contends should have
been suppressed was immaterial to his case, and admitting it
was at most harmless error, we will affirm the District Court’s
suppression ruling. Therefore, we hold that Dyer has not
prevailed on appeal for the purposes of Rule 11(a)(2) and will
not be entitled to withdraw his plea. We will affirm.
I. Facts
Over the course of several weeks in the summer of
2017, a York, Pennsylvania woman told local officers and
federal agents that her boyfriend, Ernest Dyer, had attacked her
with a handgun, trafficked women, and sold drugs from the
house both she and Dyer lived in, on Queen Street in York,
Pennsylvania.
Based on these statements, Detective Mark Baker of the
Northern York County Regional Police Department applied for
a warrant to search Dyer’s home for “[f]irearms, illegal drugs,
[and] cell phones possessed or belonging to Ernest Dyer” after
a search of his criminal history revealed that he, a felon, may
have possessed a firearm in violation of 18 Pa. Cons. Stat.
§ 6105. App. 257-59. In the affidavit supporting the
application, Detective Baker listed the information Dyer’s
purported girlfriend had provided to police about her
altercation with Dyer, including the description of the firearm
used to strike her. He also noted that, “during [the girlfriend’s]
interview [with the agents, the woman] disclosed there may be
illegal drugs located in the residence.” App. 259. A magisterial
district court judge approved the search warrant for the
aforementioned items.
Detective Baker and other law enforcement officers
executed the search warrant the following day. In the

-- 3 of 15 --

4
residence, they found Dyer, along with an alleged victim of
Dyer’s sex trafficking, Dyer’s mother, and Dyer’s son or
stepson. The officers arrested Dyer, and, after some initial
questioning, he directed the officers to a firearm that matched
the description the girlfriend had provided. The officers
continued to search the residence and seized, among other
things, a “[b]ox containing green pills, drug packing material
and ID” found on a shelf in Dyer’s son’s bedroom1 (the “Box”).
App. 297.
A few days later, based on information obtained during
an interview with the alleged trafficking victim, Special Agent
Ryan Anderson of the Bureau of Alcohol, Tobacco, Firearms
and Explosives applied for and obtained another search
warrant for Dyer’s residence, garage, and the surrounding
curtilage for drugs and drug paraphernalia, among other things.
During the search, Special Agent Anderson found an unlabeled
pill bottle that contained capsules, which were later identified
as bath salts, in the location previously described to them. He
searched the garage and seized digital scales with residue,
which was later identified as cocaine, and plastic bags
commonly used to package narcotics.
A few weeks after the second search, a grand jury
returned a one-count indictment against Dyer for knowingly
possessing a firearm as a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). Several months later, the
grand jury returned a superseding indictment that charged Dyer
with three additional counts: possession of a firearm in
1 Although neither the police nor FBI ever identified the nature
of these pills, the trafficking victim told local and federal law
enforcement officials that she believed they were iron
supplements.

-- 4 of 15 --

5
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A); criminal conspiracy to distribute and possess
pentylone2 with the intent to distribute in violation of 21 U.S.C.
§ 846; and possession of pentylone with the intent to distribute
in violation of 21 U.S.C. § 841(a)(1).
Before trial, Dyer moved to suppress the evidence
seized during both searches of his residence. He claimed that
these searches violated the Fourth Amendment because
Detective Baker’s and Special Agent Anderson’s affidavits did
not provide a sufficient basis for the magistrates to issue the
respective warrants. After the District Court conducted an
evidentiary hearing on the motion, it granted the motion in part
and denied it in part.
Considering the first search, the District Court held that,
although Detective Baker’s initial affidavit provided probable
cause to search Dyer’s residence for firearms and cell phones,
it did not establish probable cause to search for drugs.
Accordingly, the Court determined that the warrant did not
authorize the seizure of several pieces of evidence, including
the Box. It next concluded that the Government could not
invoke the good-faith exception to the warrant requirement
because Detective Baker’s affidavit was so devoid of facts
suggesting the house contained drugs that the officers could not
have reasonably relied on the warrant. Finally, the District
Court considered whether the officers could have seized any of
this evidence under the plain view doctrine. Although it
2 Pentylone is a type of synthetic cathinone, a category of
narcotics often called “bath salts.” See Joseph A. Cohen, The
Highs of Tomorrow: Why New Laws and Policies Are Needed
to Meet the Unique Challenges of Synthetic Drugs, 27 J.L. &
HEALTH 164, 165 (2014).

-- 5 of 15 --

6
determined that this doctrine did not permit the officers to seize
several pieces of evidence during the first search, the seizure
of the Box did fall under the plain view doctrine, and so the
officers’ seizure of it was lawful.
The District Court declined to suppress any evidence
seized during the second search, concluding that Special Agent
Anderson’s affidavit provided probable cause for the search,
and that this affidavit did not rely on any of the excluded
evidence from the first search, as it was based on an interview
with a victim. Accordingly, the District Court refused to
exclude the firearm and firearm accessories properly seized
during the first search as well as the drugs, digital scales, and
drug packaging material seized during the second search.
After the District Court’s resolution of his motion to
suppress, Dyer agreed to plead guilty. Under the plea
agreement, he would plead guilty to the first count of his
indictment, the violation of 18 U.S.C. § 922(g) (felon in
possession of a firearm), and the Government would move to
dismiss his indictment’s remaining counts. Dyer also agreed to
“waive[] the right to appeal [his] conviction and sentence, on
the express condition that [he] reserve[d] the right to appeal the
adverse suppression ruling issued by [the District Court].”
App. 210.
The District Court accepted Dyer’s conditional guilty
plea and entered a judgment of guilty on the indictment’s first
count. After conducting a sentencing hearing, it sentenced
Dyer to a term of imprisonment of 110 months on this count
and dismissed the remaining charges.
Dyer timely appealed. The parties’ initial briefing
focused primarily on the propriety of the admission of the Box,

-- 6 of 15 --

7
and we then requested, and the parties filed, supplemental
briefing on the issues of materiality and harmless error.
II. Jurisdiction
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. §§ 1291 and
3742(a). We review a district court’s order denying a motion
to suppress under a mixed standard of review. United States v.
Tracey, 597 F.3d 140, 146 (3d Cir. 2010). We review findings
of fact for clear error, but exercise plenary review over legal
determinations. Id. “Because the District Court denied the
suppression motion, we view the facts in the light most
favorable to the Government.” United States v. Garner, 961
F.3d 264, 269 (3d Cir. 2020).
III. Analysis
A. Motion to Suppress
The sole issue raised by Dyer on appeal is whether the
District Court erred when it held that the plain-view exception
to the warrant requirement permitted law enforcement to seize
the Box from a shelf in Dyer’s residence. In general, the Fourth
Amendment requires that law enforcement officers seize
evidence pursuant to a “warrant based on probable cause.”
United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002).
This requirement, however, is subject to several exceptions,
including the plain view doctrine. See Horton v. California,
496 U.S. 128, 133-37 (1990). Under the plain view doctrine,
officers may seize incriminating evidence they come across if
(1) they have not “violated the Fourth Amendment in arriving
at the place from which the evidence could be plainly viewed”;
(2) “the incriminating character of the evidence [is]

-- 7 of 15 --

8
immediately apparent”; and (3) they “have a lawful right of
access to the object itself.” United States v. Menon, 24 F.3d
550, 559 (3d Cir. 1994) (cleaned up). The Government bears
the burden of establishing that the plain view doctrine applies
to the seizure in question. See United States v. Bey, 911 F.3d
139, 145 (3d Cir. 2018) (“Warrantless searches and seizures
are presumptively unreasonable unless the Government
satisfies its burden of establishing that one of the exceptions to
the warrant requirement applies.”). Regarding the contents of
the Box, the police may search any container within a home as
long as “it is reasonable to believe that the container could
conceal items of the kind portrayed in the warrant.” United
States v. Crooker, 688 F.3d 1, 8 (1st Cir. 2012) (internal
quotation marks omitted); accord United States v. Newman,
685 F.2d 90, 92 (3d Cir. 1982); United States v. Ross, 456 U.S.
798, 821 (1982).
The District Court held that the seizure fell within the
plain view doctrine. Regarding the plain view doctrine’s first
requirement, the Court determined that the valid search warrant
for Dyer’s residence authorized law enforcement officers’
presence in Dyer’s home. With respect to the second
requirement, the District Court credited testimony of the law
enforcement officers involved with the search that the
incriminating nature of the Box and its contents “was
immediately apparent.” App. 44. Turning to the third
requirement, the Court noted that the evidence in the record,
although it lacked detail, indicated that the Box was on a shelf
when the officers came across it. Based on this location, the
Court determined that “it was more likely than not that the
[officers] were able to spot [the Box and its contents] merely
by conducting a quick scan” of the bedroom. App. 45.
Therefore, it found that the officers had a right to access the

-- 8 of 15 --

9
Box and its contents during a protective sweep incident to
Dyer’s arrest.
Before us, Dyer argues that the District Court erred in
determining that law enforcement officers could lawfully
access the Box and its contents. In essence, he contends that
since the record lacked any specific information about the
Box—what it looked like, what the officers thought it might
contain, how they came across it, and whether they
manipulated it in any way to view its contents—there was not
sufficient evidence for the Court to conclude that the officers
had a right to seize or access the Box. The Government in turn
argues that because the officers had a valid warrant to search
for cell phones and firearms, they were permitted to search in
any location where these items might be found—and a box that
contained packaging material, a container of pills, and an ID
could have instead contained a cell phone.
We agree that there is insufficient evidence in the record
to support the District Court’s conclusion that the Box and its
contents were seized as part of a cursory protective sweep. The
record indicates that the Box was located on a “shelf” in Dyer’s
son’s bedroom. App. 297. But that is all. It does not indicate,
for instance, where on the shelf the Box was located—and as
such, whether it would have been spotted during a “quick and
limited search” of the premises for safety purposes. See
Maryland v. Buie, 494 U.S. 325, 327 (1990). Nor does it
indicate whether the officers could see inside the box—and
thus, the incriminating material within—from a quick scan.
There is more evidence in the record, however, to
support a different theory for why the officers had “a lawful
right of access” to the Box and its contents. Menon, 24 F.3d at
559. That is because the District Court properly determined

-- 9 of 15 --

10
that the first warrant authorized a search for firearms and cell
phones, so the officers had a right to search the bedroom in
which the Box was found for those items. This theory has some
force: although the record leaves many questions unanswered,
it does indicate that the Box was large enough to fit “green
pills, drug packaging material, and [an] ID.” See App. 297. One
might reasonably infer from this that the Box was large enough
to fit a cell phone, and whatever the officers’ subjective intent,
the plain view doctrine only requires that the Box could have
contained an item, such as a phone, for which the officers had
a valid warrant to search. See Horton, 496 U.S. at 129
(application of plain view doctrine does not “depend upon the
officer’s subjective state of mind”).
Fortunately, we need not reach this question or rest on
inference, because assuming the Box should have been
suppressed, Dyer is not entitled to relief. In his brief, he urges
that if we agree with him that the District Court erred in not
suppressing the Box—the only issue he has raised on appeal—
he has prevailed under Rule 11 and would be entitled on
remand to withdraw his plea. But the Government counters
that, because the Box was not material to the charges against
him, we should adopt the approach of the Ninth Circuit in
Lustig, which applied harmless error principles in the Rule
11(a)(2) context. United States v. Lustig, 830 F.3d 1075, 1087
(9th Cir. 2016). The Lustig approach requires us to ask whether
an erroneous ruling was material to the defendant’s decision to
plead guilty, and if the answer is no, then we would not reverse
the District Court’s order, and the defendant would not be
permitted to withdraw his plea. See id. at 1091. Under this
theory, the defendant does not “prevail” under Rule 11 unless
evidence wrongly admitted had a material effect on his
decision to plead guilty.

-- 10 of 15 --

11
Both of these arguments have visceral appeal. Dyer is
right that when a defendant makes a conditional plea and
challenges a ruling, then he has prevailed—at least in some
sense—if the reviewing court agrees. And the Government is
correct that applying a harmless error test in assessing whether
a defendant has prevailed makes sense. But the important
question is: Will we affirm or reverse the District Court? Only
if we reverse has Dyer prevailed, and we will reverse only if
the evidence erroneously admitted was material to the
defendant’s decision to plead guilty, such that the District
Court’s error was not harmless.
Some of the cases that bear on this issue refer to the
materiality of the evidence as relevant in assessing whether the
defendant has “prevailed.” See, e.g., United States v. Leake, 95
F.3d 409, 420 n.21 (6th Cir. 1996); United States v. Peyton,
745 F.3d 546, 557 (D.C. Cir. 2014). And some also discuss
whether the District Court’s error was harmless—which puts a
slightly different, yet jurisprudentially common, twist on the
issue—and brings materiality back into play. See, e.g., United
States v. Benard, 680 F.3d 1206, 1213-14 (10th Cir. 2012);
United States v. Mikolon, 719 F.3d 1184, 1188 (10th Cir.
2013); Lustig, 830 F.3d at 1086.
In the context of a conditional guilty plea, the harmless
error standard is “whether 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.” Id. at 1087; accord United States v. Molina-Gomez,
781 F.3d 13, 25 (1st Cir. 2015); Peyton, 745 F.3d at 557;
Benard, 680 F.3d at 1213-14; Leake, 95 F.3d at 420 n.21;
United States v. Burns, 684 F.2d 1066, 1076 (2d Cir. 1982).
This is essentially the other side of the materiality coin.

-- 11 of 15 --

12
None of the evidence contained in the Box pertains to
the count to which Dyer pleaded guilty, being a felon in
possession of a firearm, nor did it add anything to the
Government’s case. It did not support the charges in any
meaningful way. The Government has never asserted that the
seized pills were narcotics—the record suggests they were iron
supplements. Detective Baker testified that the ID was possible
evidence of a crime, but it is unclear how it provides evidence
of Dyer’s criminal activities. The drug packaging material has
the most obvious relationship to the offenses for which Dyer
was charged, but the Government had significantly more
relevant and probative evidence that Dyer committed drug
trafficking offenses, namely the bath salts, digital scales with
residue from narcotics, and branded drug packaging materials
seized during law enforcement’s second search, which were
clearly going to be presented to jury, and which Dyer did not
challenge on appeal. The Box added absolutely nothing to the
Government’s case. It could not reasonably have contributed
to Dyer’s decision to plead guilty.
B. Applicability of Federal Rule 11 of Criminal
Procedure
Recently, some courts have agonized over the concept
of harmless error in the context of guilty pleas, urging that
courts cannot assess the defendant’s mindset and thus should
not attempt to determine harmlessness in the guilty plea
setting. See, e.g., Molina-Gomez, 781 F.3d at 25; Benard, 680
F.3d at 1213-14. Dyer urges us to adopt this view, but we
cannot.
In Benard, the Tenth Circuit grappled with whether a
court could ever presume to know, in the case of erroneously
admitted evidence, whether a defendant would have made the

-- 12 of 15 --

13
same calculation to plead guilty absent such a ruling, where the
record did not reflect “why Defendant decided to plead guilty,
what other defenses or evidence he might have produced on his
behalf, or how the altered bargaining positions of the parties
might have affected his decision if [the erroneously admitted
evidence] had been properly suppressed.” 680 F.3d at 1214.
The court cited approvingly and at length to two state supreme
court decisions, People v. Grant, 380 N.E.2d 257 (N.Y. 1978),
and People v. Hill, 528 P.2d 1 (Cal. 1974); specifically, for the
proposition that “[t]here simply is no intelligent means of
assessing the impact of a particular erroneous refusal to
suppress evidence.” 680 F.3d at 1213 (citing Hill, 528 P.2d at
29).3
But, as then-Judge Gorsuch pointed out in his partial
dissent in Benard, these courts relied on state court reasoning
that preceded Federal Rule 52 of Criminal Procedure, which
incorporated the harmless error standard analysis in all federal
criminal proceedings. “[T]he Supreme Court has repeatedly
told us that Rule 52(a) must be respected,” and “has even more
specifically directed us to apply harmless error analysis when
a district court fails to inform a defendant of all his legal rights
before accepting his guilty plea—a circumstance sharing the
very same sort of epistemological challenges as this case.” Id.
at 1216 (Gorsuch, J., concurring in part and dissenting in part)
(citing United States v. Dominguez Benitez, 542 U.S. 74, 81
(2004)).
3 Tellingly, the Tenth Circuit retreated from its majority
position in Benard just one year later, in Mikolon, when it
found “that the record in this case permits us to conclude
beyond a reasonable doubt that any error did not contribute to
[Defendant’s] decision to plead guilty.” 719 F.3d at 1188.

-- 13 of 15 --

14
Far from requiring an assessment of the actual mental
state of a defendant, harmless error employs a reasonable,
objective examination of the evidence as it related to the
charges against the defendant. Thus, Judge Gorsuch proceeded
to analyze the materiality of the evidence that was wrongly
admitted, finding that even without the wrongly admitted
evidence, the Government had ample other evidence to prove
its case, and the defendant had “rejoin[ed] with no reason—
rational or even irrational—why the admission of [the evidence
that should have been suppressed was] at all relevant to him in
making his plea decision.”4 Id. at 1217. Judge Gorsuch then
concluded, “on the evidence and argument before us, the
government has met its high burden of showing harmless error
and I would affirm.” Id.
The Sixth Circuit has reached a similar conclusion,
albeit without explicitly employing a harmless error analysis.
In Leake, the court considered “the effect of a partially
successful appeal” on a defendant’s right to withdraw a
conditional guilty plea when the defendant was “successful in
excluding what appear[ed] to be the most damning evidence
against him.” 95 F.3d at 420. The court held that he was
entitled to withdraw his plea because the evidence that he
managed to suppress on appeal “would have had a material
effect on the defendant’s decision to plead guilty.” See id. at
420 n.21.
4 Similarly, here, too, as the Government points out in its
supplemental briefing, Dyer has not advanced any argument as
to how the allowance of the Box into evidence could have
influenced his decision to plead guilty.

-- 14 of 15 --

15
If Rule 52(a) is to mean what it says, in the context of
Rule 11, the Defendant cannot prevail if the error in admitting
the challenged evidence was harmless. In Dominguez Benitez,
the Supreme Court noted that only “certain structural errors
undermining the fairness of a criminal proceeding as a whole”
require automatic reversal. 542 U.S. at 81. “Otherwise, relief
for error is tied in some way to prejudicial effect.” Id.
Prejudicial effect incorporates the consideration of
harmlessness.
So, here, because the Box did not support the charges
against Dyer in any meaningful way, and we can reasonably
conclude that it could have had no effect on the Defendant’s
decision to plead guilty, the District Court’s error in admitting
it was harmless and we will affirm. Therefore, Dyer has not
prevailed on appeal and is not entitled to withdraw his plea
under Rule 11.

-- 15 of 15 --