United States v. Robert L. Berrios

990 F.3d 528

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 5, 2021
• Docket: 19-1871
• Status: Published

Opinion

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.