United States v. Berrios, 19-1871

• Decision Date: 05 March 2021
• Docket Number: No. 19-1871,19-1871
• Citation: 990 F.3d 528
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert L. BERRIOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

990 F.3d 528

UNITED STATES of America, Plaintiff-Appellee,

v.Robert L. BERRIOS, Defendant-Appellant.

No. 19-1871

United States Court of Appeals, Seventh Circuit.

Submitted September 30, 2020

Decided March 5, 2021

Grayson Sang Walker, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff - Appellee.

Michelle L. Jacobs, Vanessa K. Eisenmann, Attorneys, BISKUPIC & JACOBS, S.C., Mequon, WI, for Defendant - Appellant.

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 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 18 U.S.C. § 1951(a). He raises one issue on appeal: whether the district court erred when it denied his motion to suppress evidence that the government found through a warrantless search of his cellphone. If the evidence collected during the search was to be admitted, he contends, it was only through the application of the good-faith exception recognized in Davis v. United States , 564 U.S. 229, 241, 131 S.Ct. 2419, 180 L.Ed.2d 285 (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 exempted this search from the exclusionary rule, the independent-source rule allowed the admission of the limited evidence the government used. We therefore affirm Berrios's conviction.

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 associate, David Revis, were getting ready to rob a currency exchange, 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 dealership receipt bearing the name of another associate, Julio Rodriguez, 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 warrantless 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 Berrios with his co-defendants. During his post-arrest interviews, 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 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, 134 S.Ct. 2473, 189 L.Ed.2d 430 (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, 131 S.Ct. 2419, 180 L.Ed.2d 285 (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 motion. 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;

• 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

• 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 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 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 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 address these issues in turn.

In Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (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, 134 S.Ct. 2473. Responding to the government's argument that a search of all the data on 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, 134 S.Ct. 2473. 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, televisions, 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 cellphone that has been seized incident to an arrest. Id. at 401, 134 S.Ct. 2473. 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, 107 S.Ct. 708, 93 L.Ed.2d 649 (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, 131 S.Ct. 2419, 180 L.Ed.2d 285 (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, 131 S.Ct. 2419. Key to that decision, however, is the idea of binding precedent. As Justice Sotomayor pointed out in her opinion in Davis concurring in the judgment, "[t]his case does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled." Id. at 249, 131 S.Ct. 2419. We acknowledged the distinction between established law and unsettled law in our decisions 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 controlling precedents." 712 F.3d...