UNITED STATES OF AMERICA v. ROBERT L. BERRIOS
No. 19-1871
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 30, 2020 – DECIDED MARCH 5, 2021
Bеfore 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 robberies in Chicago, targeting cellphone stores, currency exchanges, dollar stores, and retail pharmacies. Berrios was eventually caught and convicted on numerous Hobbs Act counts. See
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
In connection with the arrest, the FBI conducted a warrantless search of the flip phone they had seized. This included downloading the contacts stored in the phone, call logs, text messagеs, and photographs. Some of the photos showed
The grand jury returned a superseding indictment on October 15, 2013, charging Berrios, Revis, Rodriguez, and Luis Diaz with various Hobbs Act offenses, as well as some firearms offenses. The case moved slowly, but after going through a couple of lawyers, in early 2016 Berrios filed a motion 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. Nonetheless, it argued, the law at the time of the search did not prohibit it, and thus the good-faith exception to the exclusionary rule recognized in Davis v. United States, 564 U.S. 229, 241 (2011), applied.
The district court accepted the government‘s position and denied Bеrrios‘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 motion. Before turning to that point, howevеr, 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;
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 Rodriguez‘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, traffic stop of Berrios and Revis; and
- Clоthing 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, аnd 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 confirmed the number during cross-examination at trial. The contacts list showed numbers and nicknames for each co-conspirator, while the call records documented incoming and outgoing calls around the times of the robberies. FBI Special Agent Joseph Raschke introduced historical cell site
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 suppression issue. After reviewing the remainder of the record, counsel 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 rejected 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 addrеss these issues in turn.
In Riley v. California, 573 U.S. 373 (2014), the Supreme Court recognized that modern cellphones are not your grandfather‘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
All this and more led the Court to hold in Riley that the police normally need a warrant to search the contents of a cellphone 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 necessarily 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 suppression 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 require 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 exclusionary rule is Davis v. United States, 564 U.S. 229 (2011), in which the Supreme Court held that “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Id. at 241. Key to that decision, however, is the idea of binding рrecedent. As
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 cellphone permitted by the Fourth Amendment? Id. at 804. The facts were straightforward: a drug dealer was setting up a sale of mеthamphetamine, and he made a call using his cellphone to set up the exchange. Unbeknownst to him, the police intercepted 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 defendant 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 confirmed 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
Our closing remarks reflect the careful path we were following. We cautioned that “[w]e need not consider what level оf 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
Neither Flores-Lopez nor Gary authorized a wholesаle 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 Sotomayor‘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 exclusionary 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 objection to the admission of the evidence in the district сourt, and so he does not face the enhanced burden of showing plain error. But
Whatever else the government found in Berrios‘s рhone, 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 information than a standard smart phone normally doеs. Furthermore, virtually all of the evidence the government found on the phone had an independent source and was thus admissible 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 receipt that the agents seized from the car that Berrios was driving 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—testimоny that the petit jury heard—that he was the leader of a robbery crew that included 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.
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 Cellbrite technology, on Berrios‘s flip phone. But the particular items of evidence the government used did have an independent source, and so any mistake in the application of Riley and Davis was harmless. We therefore AFFIRM the judgment of the district court.