United States v. Robert L. Berrios ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1871
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT L. BERRIOS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 853-1 — Matthew F. Kennelly, Judge.
____________________
ARGUED SEPTEMBER 30, 2020 — DECIDED MARCH 5, 2021
____________________
Before SYKES, Chief Judge, and WOOD and BRENNAN, Circuit
Judges.
WOOD, Circuit Judge. During much of the year 2012, Robert
Berrios and his associates engaged in a spree of armed rob-
beries in Chicago, targeting cellphone stores, currency ex-
changes, dollar stores, and retail pharmacies. Berrios was
eventually caught and convicted on numerous Hobbs Act
counts. See 18 U.S.C. § 1951(a). He raises one issue on appeal:
whether the district court erred when it denied his motion to
2 No. 19-1871
suppress evidence that the government found through a war-
rantless search of his cellphone. If the evidence collected dur-
ing the search was to be admitted, he contends, it was only
through the application of the good-faith exception recog-
nized in Davis v. United States, 564 U.S. 229, 241 (2011), and he
argues that his case does not fit within Davis. We all agree that
this was a close call. In the end, however, we conclude that
although there was no binding precedent that would have ex-
empted this search from the exclusionary rule, the independ-
ent-source rule allowed the admission of the limited evidence
the government used. We therefore affirm Berrios’s convic-
tion.
I
Berrios’s prosecution began with the issuance of a criminal
complaint on November 5, 2012, in the Northern District of
Illinois, charging him with Hobbs Act robbery in connection
with an armed robbery of an AT&T Wireless store in Chicago.
See 18 U.S.C. § 1951. The next day, as Berrios and his associ-
ate, David Revis, were getting ready to rob a currency ex-
change, the FBI conducted a traffic stop of the white Lexus
that Berrios was driving and arrested him without a warrant.
During a search incident to that arrest, the agents recovered a
Samsung flip phone. They also recovered several other items
from the car, including some winter outerwear; a car dealer-
ship receipt bearing the name of another associate, Julio Ro-
driguez, and showing Berrios’s phone number; and a black
BB gun that the group had used in the robberies.
In connection with the arrest, the FBI conducted a warrant-
less search of the flip phone they had seized. This included
downloading the contacts stored in the phone, call logs, text
messages, and photographs. Some of the photos showed
No. 19-1871 3
Berrios with his co-defendants. During his post-arrest inter-
views, Berrios waived his Miranda rights. After hearing what
the agents had to say, he commented that he was “f***ed.” At
that point, he asked to speak with a lawyer.
The grand jury returned a superseding indictment on Oc-
tober 15, 2013, charging Berrios, Revis, Rodriguez, and Luis
Diaz with various Hobbs Act offenses, as well as some fire-
arms offenses. The case moved slowly, but after going
through a couple of lawyers, in early 2016 Berrios filed a mo-
tion to suppress the evidence that the FBI had obtained
through the warrantless search of his phone. The government
admitted that the search was illegal under Riley v. California,
573 U.S. 373 (2014), and that Riley applied retroactively. None-
theless, it argued, the law at the time of the search did not
prohibit it, and thus the good-faith exception to the exclusion-
ary rule recognized in Davis v. United States, 564 U.S. 229, 241
(2011), applied.
The district court accepted the government’s position and
denied Berrios’s motion. Berrios proceeded to jury trial on
nine counts of Hobbs Act robbery in December 2017, acting
pro se with standby counsel. The details of those robberies
need not detain us, because at this point the only thing that
matters is the court’s handling of Berrios’s suppression mo-
tion. Before turning to that point, however, it is important to
note that the evidence from the phone did not stand alone. Far
from it: the government presented evidence from a number of
sources, including:
 Rodriguez’s testimony;
 Berrios’s post-arrest statements;
4 No. 19-1871
 A recorded call that Berrios made from jail to his
girlfriend, in which he admitted that he committed
at least one robbery;
 Surveillance videos from the victim stores;
 Testimony from robbery victims;
 Testimony from Jose Hernandez, an employee of
one of the victim stores;
 Testimony from Sabrina Couvee, who was Rodri-
guez’s girlfriend at the time;
 A car dealership receipt showing the purchase of
the white Lexus, with Berrios’s telephone number
on it;
 Agents’ testimony about the October 12, 2012, traf-
fic stop of Berrios and Revis; and
 Clothing and guns recovered from the Lexus on the
date of Berrios’s arrest.
The additional evidence the government culled from Berrios’s
cellphone included Berrios’s own phone number, his contacts
list, photographs, text messages, call records between Berrios
and his co-conspirators, and cell-site information.
The government used a forensic extraction tool known as
Cellbrite to search Berrios’s phone. The initial search revealed
Berrios’s phone number, which he already had given to the
police during the October 12, 2012, traffic stop. Berrios con-
firmed the number during cross-examination at trial. The con-
tacts list showed numbers and nicknames for each co-con-
spirator, while the call records documented incoming and
outgoing calls around the times of the robberies. FBI Special
Agent Joseph Raschke introduced historical cell site
No. 19-1871 5
information, which placed Berrios’s phone in the vicinity of
each of the robberies.
As noted earlier, the jury convicted Berrios on all counts.
The court sentenced him to a total term of 360 months, which
represented 240 months for the conspiracy count and the nine
substantive robbery counts, a concurrent sentence of 276
months for possession of a firearm by a convicted felon, and
a consecutive sentence of 84 months for brandishing a firearm
during one of the robberies.
Berrios filed a notice of appeal. He initially indicated to his
appellate counsel that he was not interested in the suppres-
sion issue. After reviewing the remainder of the record, coun-
sel concluded that there were no non-frivolous issues that
could be raised and filed an Anders brief. Berrios changed his
tune in his response to that brief, however, and indicated that
he did want to challenge the court’s decision. We therefore re-
jected counsel’s motion to dismiss the appeal and ordered
briefing.
II
Two sets of legal rules are relevant here: (1) the standard
under which we should assess cellphone searches, and (2) the
effect that a good-faith but mistaken view of the law has on a
suppression motion. We address these issues in turn.
In Riley v. California, 573 U.S. 373 (2014), the Supreme
Court recognized that modern cellphones are not your grand-
father’s landline. Indeed, the Court said, modern cellphones
“are now such a pervasive and insistent part of daily life that
the proverbial visitor from Mars might conclude they were an
important feature of human anatomy.” Id. at 385. Responding
to the government’s argument that a search of all the data on
6 No. 19-1871
a cellphone is “materially indistinguishable” from searching
a zipper bag or a wallet, the Court said “[t]hat is like saying a
ride on horseback is materially indistinguishable from a flight
to the moon. Both are ways of getting from point A to point B,
but little else justifies lumping them together.” Id. at 393. And,
given the data-storage capabilities of even the phones on the
market in 2014, when Riley was decided, the Court pointed
out that these devices are “cameras, video players, rolodexes,
calendars, tape recorders, libraries, diaries, albums, televi-
sions, maps, or newspapers.” Id.All this and more led the Court to hold in Riley that the
police normally need a warrant to search the contents of a cell-
phone that has been seized incident to an arrest. Id. at 401. The
search of Berrios’s phone took place almost two years before
Riley was decided, but the general rule is that it applies in this
case, which was pending at the time Riley was handed down.
Griffith v. Kentucky, 479 U.S. 314, 328 (1987). That does not nec-
essarily win the day for Berrios, however, because there are a
few more moving pieces here. Not every violation of the
Fourth Amendment’s warrant requirement leads to the sup-
pression of evidence. Relying on that fact, the government
contends that although the FBI’s search of Berrios’s phone
may have been illegal under Riley, any illegality did not re-
quire the exclusion of the evidence because the agents were
acting in good faith, in reliance on then-binding precedents.
The leading case for this good-faith exception to the exclu-
sionary rule is Davis v. United States, 564 U.S. 229 (2011), in
which the Supreme Court held that “[e]vidence obtained dur-
ing a search conducted in reasonable reliance on binding prec-
edent is not subject to the exclusionary rule.” Id. at 241. Key
to that decision, however, is the idea of binding precedent. As
No. 19-1871 7
Justice Sotomayor pointed out in her opinion in Davis concur-
ring in the judgment, “[t]his case does not present the mark-
edly different question whether the exclusionary rule applies
when the law governing the constitutionality of a particular
search is unsettled.” Id. at 249. We acknowledged the distinc-
tion between established law and unsettled law in our deci-
sions in United States v. Martin, 712 F.3d 1080 (7th Cir. 2013),
and United States v. Jenkins, 850 F.3d 912 (7th Cir. 2017), where
we declined to apply Davis to “mistaken efforts to extend con-
trolling precedents.” 712 F.3d at 1082; 850 F.3d at 920.
The question we must address is whether our circuit’s law
was established in the government’s favor before Riley, or if it
was unsettled. We begin with United States v. Flores-Lopez, 670
F.3d 803 (7th Cir. 2012). The issue there will sound familiar:
under what circumstances is the warrantless search of a cell-
phone permitted by the Fourth Amendment? Id. at 804. The
facts were straightforward: a drug dealer was setting up a sale
of methamphetamine, and he made a call using his cellphone
to set up the exchange. Unbeknownst to him, the police inter-
cepted that call and were ready when the deal went down.
They arrested the defendant and a co-conspirator, and they
seized some cellphones, including the one from which the de-
fendant had placed his call. Still on the scene, and with no
warrant, the officers searched that phone, which they had
taken directly from the defendant, and obtained its number.
Later, using that number, they subpoenaed the telephone
company and obtained its call records. Those records con-
firmed that the seized phone was used for the intercepted call.
The defendant argued that the evidence of the phone
number, along with the call-log evidence derived from it, had
to be suppressed, but both the district court and this court
8 No. 19-1871
ruled against him. The government’s theory was that any cell-
phone is nothing more than a container, just like a diary or a
briefcase, and its number is functionally nothing more than
an item inside that container. Recognizing the vast body of
data that a cellphone normally contains, we hesitated to em-
brace that analogy without qualification. Instead, we stayed
close to the facts, which showed nothing more than a minimal
intrusion on the defendant’s privacy—no more than would
have occurred if the defendant had been carrying an old-fash-
ioned diary and the police had simply opened it to its first
page. In that type of situation, where the intrusion is no worse
than it would have been in the pre-Internet age, we saw no
reason to require suppression where it would not have been
required before.
Our closing remarks reflect the careful path we were fol-
lowing. We cautioned that “[w]e need not consider what level
of risk to personal safety or to the preservation of evidence
would be necessary to justify a more extensive search of a cell
phone without a warrant … .” Id. at 810. Our holding, we
stressed, was limited: “the police did not search the contents
of the defendant’s cell phone, but were content to obtain the
cell phone’s phone number.” Id. Thus, the only point clearly
established by Flores-Lopez was that a search limited to those
items was constitutional. It was not a binding precedent that
purported to authorize a search as comprehensive as the one
the agents conducted on Berrios’s phone.
Next in line is United States v. Gary, 790 F.3d 704 (7th Cir.
2015), on which the district court expressly relied. Like Flores-
Lopez, Gary was a case involving a search incident to an arrest.
Gary was detained in 2009 by the police after a traffic stop
(whose validity the court upheld). The police seized his
No. 19-1871 9
cellphone and, back at the station, searched it to obtain the
number and a log of calls it had received. Relying on Riley,
which had been decided by the time Gary’s case reached this
court, Gary argued that the fruits of the search had to be sup-
pressed. We found otherwise. We noted that United States v.
Robinson, 414 U.S. 218 (1973), authorized searches of personal
effects when such a search is incident to a valid arrest, and
that the qualification Riley added to that rule was five years in
the future at the time Gary was arrested. We also observed
that as of 2009, we had never differentiated between searches
of physical items and searches of digital data. 790 F.3d at 710.
The search of Gary’s phone, we concluded, was materially in-
distinguishable from the ones in United States v. Ortiz, 84 F.3d
977 (7th Cir. 1996), and Flores-Lopez, and so the officers were
entitled to rely on Davis’s good-faith rule.
Neither Flores-Lopez nor Gary authorized a wholesale
search of a cellphone, beyond the limits that were present in
those two cases. In keeping with our approach in a number of
earlier decisions, which have followed the caveat in Justice So-
tomayor’s opinion in Davis, we decline again to apply Davis
“to excuse mistaken efforts to extend controlling precedents.”
Jenkins, 850 F.3d at 920. We thus conclude that the good-faith
exception recognized by Davis does not overcome the exclu-
sionary rule on these facts.
Recognizing this possibility, the government argues that
even if Davis does not rescue this evidence, any error was
harmless. It acknowledges that Berrios preserved his objec-
tion to the admission of the evidence in the district court, and
so he does not face the enhanced burden of showing plain er-
ror. But Federal Rule of Criminal Procedure 52(a) directs us to
consider the possibility of harmless error. See United States v.
10 No. 19-1871
Rivera, 817 F.3d 339, 343–44 (7th Cir. 2016) (harmless-error
rule applies to searches and arrests); United States v. Nance, 236
F.3d 820, 825–26 (7th Cir. 2000) (list of errors that Neder v.
United States, 527 U.S. 1, 8 (1999), indicates are not subject to
harmless-error analysis does not include failure to suppress
evidence).
Whatever else the government found in Berrios’s phone,
the fact remains that the only evidence that was admitted at
trial was his telephone number and the names and numbers
of his co-conspirators included in his saved contacts list. The
flip phone that Berrios was carrying contained much less in-
formation than a standard smart phone normally does. Fur-
thermore, virtually all of the evidence the government found
on the phone had an independent source and was thus admis-
sible on that ground. See Murray v. United States, 487 U.S. 533,
537 (1988) (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)).
Berrios and his co-conspirator Revis had provided their
phone numbers to the police during a traffic stop in October
2012. Berrios confirmed his number during cross-examination
at trial, and the number appeared on the car dealership re-
ceipt that the agents seized from the car that Berrios was driv-
ing at the time of his arrest. And there was other evidence of
the identity of the co-conspirators. Notably, Berrios admitted
in his testimony to the grand jury—testimony that the petit
jury heard—that he was the leader of a robbery crew that in-
cluded Revis, Diaz, and Delacruz. Berrios testified about 24
armed robberies that he committed, nine of which formed the
basis for the charges he faced. And, as we recounted above,
there was other independent evidence.
No. 19-1871 11
III
On this record, therefore, we conclude that had there been
no independent source, it would have been error to admit the
evidence that the government found, with the help of the Cell-
brite technology, on Berrios’s flip phone. But the particular
items of evidence the government used did have an inde-
pendent source, and so any mistake in the application of Riley
and Davis was harmless. We therefore AFFIRM the judgment
of the district court.