[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 19

- 13704

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus RASHID TURNER,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18

- cr

- 00080

- WFJ

- JSS

- 2

____________________ USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 1 of 132 Opinion of the Court 19

- 13704

Before L AGOA , B RASHER , and T JOFLAT , Circuit Judges.
PER CURIAM : Rashid Turner was convict ed of bank robbery, Hobbs Act robbery, and the use of firearms in relation to those robberies. Among other things, Turner appeals the denial of his motion to suppress evidence obtained from a warrantless search of hi s cellphone

. We conclude that this evidence was correctly admitted based on the good

- faith exception to the exclusionary rule

. B ecause Turner’s other arguments also fail, we affirm the conviction and

sentence.
I. BACKGROUND In July of 2017, Rashid Turner met Petrie Addison in Fort Myers , Florida, where they commiserated over their financial problems and set off on a months

- long robbery spree

. On November 18, 2017, they drove to a Wells Fargo bank in a Hyundai rented by a third party

. While waiting in the Hyundai for the bank to open
, Turne r answered a call on his LG cellphone. Turner left his phone in the car while he and Addison rob bed the bank.
After robbing the bank , Addison and Turner tried to flee in the rented Hyundai. But Addison had left the car keys inside the bank

. When Addison went back inside to retrieve the keys
, Turner fled in another vehicle , leaving his LG Phone in the rented Hyundai

. USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 2 of 1319

- 13704 Opinion of the Court 3 Turner got away, but the p olice pursued Addison . After a chase, Addison crash ed the Hyundai and was apprehended

. Addison confessed shortly after he was arrested. The next day, Turner replaced his phone using the same phone number as the LG phone

. The police took possession of t he Hyundai , with the LG phone still inside. Upon executing a warrant to search the car, the p olice seized the locked, password

- protected LG phone that was still inside. The phone was put into evidence but was not searched. Several days after the robbery, Detective Thomas Breedlove prepared an affidavit for a warrant to search the LG phone

. H is supervisor approved the warrant application, but Detective Breedlove put it back in the case file without presenting it to a judge

. Nonetheless, apparently assum ing that a search war rant had been iss ue d
, the police extracted data from the phone using a special machine

. A few days later , Detective Breedlove realized that he had never obtained a warrant to search the phone. He then brought the affidavit to a state court judge
, explainin g what had happened. Satisfied with Detective Breedlove’s representations, the judge issued the warrant. No one ever claimed ownership of the phone or asked for its return.

A federal grand jury indicted Turner with conspiracy to commit Hobbs Act robbery in violation of 18 U.S .C. § 1951(a) ( C ount O ne); four counts of Hobbs Act robbery, in violation of S ection 1951(a) and 18 U.S.C. § 2 ( C ounts T wo, F our, S ix, and N ine); two counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 3 of 134 Opinion of the Court 19

- 13704
2 ( C ounts S even and T en); and four counts of using , carrying, andbrandishing a firearm during and in relation to the robberies, in violation of 18 U.S.C. §§ 924(c) and 2 ( C ounts T hree, F ive, E ight, and E leven). Turner moved to dismiss some of the robbery counts under the Double Jeopardy Clause
, contending that two of the Hobbs Act robbery charges addressed the same conduct as the two bank robbery charges. After conducting a hearing, the district court denied the motion

. Turner also moved to suppress cell

- site location information that law enforc ement had obtained via court order, and evidence obtained from search ing the phone. The district court denied both motions. As to the first motion, the district court held that , at the time of the search, our caselaw established that no warrant was required to obtain cell

- site information . As to the second motion, the district court held that the officers had acted in good faith and that Turner had abandoned the phone in the rental car. At trial, Turner objected to the district court’s admission of

t estimony f rom Special Agent Loretta Bush regarding her use of a software called PenLink to map out Turner’s locations using cell

tower data. He argued that Agent Bush lacked credibility because she had no formal training in the software

. The district court reserved ruling at that time but noted that the objection had been preserved. USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 4 of 1319

- 13704 Opinion of the Court 5 Following a five

- day trial, a jury found Turner guilty of all charges except one of the robbery charges and its accompanying firearm charge ( C ounts T wo and T hree). Turner later moved to strike the jury’s verdicts on the S ection 924(c) counts on the ground that the y were premised on crimes that qualified as crimes of violence only under S ection 924(c)’s unconstitutionally vague residual clause. The district cou rt denied the motion.
Turner was sentenced to concurrent terms of 240 months’ imprisonment on the conspiracy, Hobbs Act robbery, and bank robbery convictions, and three consecutive seven

- year terms of imprisonment on the S ection 924(c) convictions, for a t otal of 492 months’ imprisonment. Turner timely appealed.
II. STANDARD S OF REVIEW

“ We review a district court’s denial of a motion to suppress evidence as a mixed question of law and fact, with rulings of law reviewed de novo and findings of fact reviewed for clear error, in the light most favorable to the prevailing party in district court.” United States v. Lindsey , 482 F.3d 1285, 1290 (11th Cir. 2007).
We review de novo whether the good

- faith exception to the exclusionary rule applies to a search, but “‘ the underlying factsupon which that determination is based are binding on appeal unless clearly erroneous. ’ ” United States v. Martin , 297 F.3d 1308, 1312 (11th Cir. 2002) (quoting United States v. Norton, 867 F.2d 1354, 1360 (11th Cir. 1989) )

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- 13704

We review t he d istrict c ourt’s evidentiary rulings for abuse of discretion. See United States v. Barsoum , 763 F.3d 1321, 1338 (11th Cir. 2014). For jury instructions generally, the standard of review “ is simultaneously de novo and deferential. ” Bhogaita v. Altamonte Heights Condo. Ass ’ n, Inc. , 765 F.3d 1277, 1285 (11th Cir. 2014).

We generally review claims of double jeopardy de novo

. United States v. Bobb , 577 F.3d 1366, 1371 (11th Cir. 2009).

III. DISCUSSION

Turner makes five arguments on appeal. He argues that the district court erred in denying 1) his motion to suppress the contents of his cellphone; 2) his motion to suppress his cell

- site records;
3 ) his motion to strike the jury’s verdicts on the Section 924(c)

c ounts; 4 ) his motion to dismiss based on double jeopardy ; and 5 ) his motion to strike Agent Bush ’s testi mony at trial. We address each of these arguments in turn.
A. Motion to S uppress P hone C ontents We turn first to the district court’s decision to deny Tur ner’s motion to suppress the contents of his cellphone. 1 Turner contends

1 The government argues that Turner waived his challenge to the district court’s order because he “has not identified the specific evidence that the district court supposedly admitted in violation of his Fourth Amendment rights.” Although he does not includ e record cites in his brief , Turner makes clear that he is challenging the search of the contents of his phone, including, the “text USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 6 of 1319

- 13704 Opinion of the Court 7

that the government lacked good faith in searching the phone before securing a warrant. He also argues that he did not abandon his phone because it was password protected

. Because we disagree with Turner’s first argument, we need not address his second.
The Fourth Amendment ’ s warrant requirement contains a good

- faith exception, and evidence should not be suppressed where it was obtained by law enforcement who act on a good

- f aith belief that their conduct does not violate the Fourth Amendment. United States v. Leon , 468 U.S. 897, 922 (1984). Turner argues that the good

- faith exception does not apply here because the warrant affidavit “ inaccurate[ly]” stated that “the LG cellp hone was not claimed by Addison.” B ecause the police did not question Addison about the phone, Turner contends that the fact that the phone was not claimed “misle [d] ” the judge into believing Addison denied ownership

. We disagree. Stating that Addison did not claim ownership of the phone does not imply that he was specifically asked about the phone or that he denied ownership

. Nor would Addison’s denial have changed the probable cause required to issue the warrant. Regardless of whether Addison was questioned about the phone
, the phone was found in the getaway car of a bank robbery.

evidence, cell phone calls, cell site pickup, Google Searches, [and] photographs.” Accordingly, we conclude that Turner has properly preserved and raised this issue

. See Mendoza v. U.S. Att’y Gen. , 327 F.3d 1283, 1286 n.4 (11th Cir. 2003)

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- 13704 Turner also argues the good

- faith exception is inapplicable here because Detective Breedlove “recklessly” asked Sergeant Power to search the phone without a valid warran t. But the district

court found that Detective Breedlove “made a mistake and attempted to rectify it.” Thus, the court concluded that police acted in “good faith” and “the Fourth Amendment exclusionary rule [did not] require[] any further activity to incen t these police officers who know quite well how to conduct themselves.” Reviewing thisfinding for clear error and in the light most favorable to the government, we agree. Upon realizing that he had failed to have the warrant signed by a judge, Detective B reedlove immediately notified Sergeant Power of the mistake. The same day, he explained what happened before a state court judge who then signed the warrant. Thus, we agree that Detective Breedlove acted in good faith rather than “some sort of strategic ac tion.” Based on this finding, we affirm the district court’s denial of Turner’s motion to suppress. See Leon , 468 U.S. at 922

. B. Motion to S uppress C ell

- S

ite D ata Turner argues that the district court erred in denying his motion to suppress his cell

- site records. U nder the Stored Communications Act, 18 U.S.C. § 2703(d)
, police can acquire cell

- site records from cellular providers if they have “reasonable grounds to believe that the contents of a wire or electronic communication, or the recor ds or other information sough t , are relevant and material to an ongoing criminal investigation.” In Carpenter v. United States , the Supreme Court held that “[t]he G overnment’s USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 8 of 1319

- 13704 Opinion of the Court 9 acquisition of

. . . cell

- site records was a search within the meaning of the Fo urth Amendment,” and that “the Government must generally obtain a warrant supported by probable cause before acquiring such records.” 138 S. Ct. 2206 , 2220

- 21 (2018). In United States v. Joyner , we held that searches of cell

- site records obtained under Sec tion 2703(d) trigger the good faith exception to the warrant requirement if they were conducted before Carpenter was decided

. 899 F.3d 1199
, 1204

– 05 (11th Cir. 2018) (citing United States v. Leon , 468 U.S. 897 (1984) ).

Here, the Section 2703(d) order for T urner’s cell

- site records was issued on March 9, 2018, almost three months before Carpenter was decided. Turner argues that the government, while not required to be omniscient with regards to future rulings of the Supreme Court, “should have exercised caution and sought a warrant instead of taking any risks especially considering the seriousness of the crimes alleged.” Tu rner cites no authority, persuasive or otherwise, for this proposition. And b ecause Joyner squarely forecloses Turner’s argument, the district court did not err in denying his motion to suppress the cell

- site records.
C. Testimony of Special Agent Bush

Turne r argues that the district court abused its discretion by allowing Special Agent Bush to testify about the cell

- site data because she was not an expert in the PenLink software. But Special Agent Bush never used the PenLink software to produce the data. Ins tead, she took the data to another detective who was USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 9 of 1310 Opinion of the Court 19

- 13704 experienced with PenLink to put it in a “user

- friendly” format. Thus, the fact that Special Agent Bush lacked specialized training in PenLink would have had no bearing on the admissibility of her testimo ny. And Special Agent Bush testified that her use of the PenLink dat a consisted of entering location points into Google Earth. Accordingly, permitting this testimony was not an abuse of discretion.

D. Motion to Strike Portions of the Verdict Turner also argue s that the district court erred in denying his motion to strike C ounts F ive, E ight, and E leven of the jury’s verdict. He asserts that the verdict form for those counts contained the same language as Section 924(c)’s residual clause , which the Supreme Court held to be unconstitutionally vague in United States v. Davis , 139 S. Ct. 2319, 2336 (2019)

. So, he argues, the jury’s guilty verdict on those counts was based on an unconstitutional statute. But T urner concedes that his argument is foreclosed by our decision in United States v. St. Hubert , 909 F. 3d 335 (11 th Cir. 2018), in which we held that Hobbs Act robbery “independently qualifies as a crime of violence under § 924(c)(3)(A)’s use

- of

- force claus e.” Id. at 345. Because he raises the issue only “to preserve it in case the Supreme Court overrules [ St. Hubert ] , ” we decline to address it further.Turner’s motion is also procedurally defective since he explicitly approved of the verdict form. See Unit ed States v. Silvestri
, 409 F.3d 1311, 1337 (11th Cir. 2005) (holding that, by expressly USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 10 of 1319

- 13704 Opinion of the Court 11 accepting jury instructions, a party invites any error therein). Thus, he has failed to properly preserve any challenge to it.

E. Double Jeopardy Turner argues that the Second Superseding Indictment violated the Double Jeopardy Clause with regards to C ounts S ix, S even, N ine, and T en. The Indictment twice charged Turner with the same act of robbing the Wells Fargo on November 18, 2017: C ount S ix charged Turner under the Hobbs Act, 18 U.S.C. § 1951, and C ount S even charged him under the Federal Bank Robbery Act, 18 U.S.C. § 2113. Likewise, the Indictment charged Turner twice with the same a ct of robbing a Seacoast Bank on December 4, 2017 : C ount N ine charged Turner under the Hobbs Act and C ount T en charged him under the Bank Robbery Act

. The Fifth Amendment’s Double Jeopardy Clause provides that no person may be “twice put in jeopardy” “for the same offence.” U.S. C onst

. a mend . V. “‘ Where the same conduct violatestwo statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature . . . intended that each violation be a separate offense. ’ ” United States v. Smith , 532 F.3d 1125, 1128 (11th Cir. 2008) (quoting Williams v. Singletary , 78 F.3d 1510, 1512 (11th Cir. 1996)). If the legislative intent is unclear, we apply the same elements test set forth in Blockburger v. United States , 284 U.S. 299, 304 (1932). Id.
T he Blockburger test “is one of statutory interpretation in which we examine the elements of each offense to determine USCA11 Case: 19-13704 Date Filed: 09/13/2022 Page: 11 of 1312 Opinion of the Court 19

- 13704whether Congress intended to authorize cumulative punishments.” United States v. Williams , 527 F.3d 1235, 1240 (11th Cir.2008). Under that test, two offenses are different for double jeopardy purposes “if each ‘requires proof of an additional fact which

t he other does not.’” Smith , 532 F.3d at 1128 (quoting Cole v. United States Dep ’ t of Agric. , 133 F.3d 803, 805 (11th Cir. 1998)). Comparing criminal statutes for purposes of Double Jeopardy “ requires a strictly textual comparison. ” United States v. Bobb , 5 77 F.3d 1366, 137 3 (11th Cir. 2009) (citing Carter v. United States , 530 U.S. 255, 260

- 61 (2000)). T he key question is whether “ a scenario exist [s] where the hypothetical defendant might violate one section without violating the other. ” United States v. Ha ssoun , 476 F.3d 1181, 118 9 (11th Cir. 2007)

.Turner’s double jeopardy argument rests primarily on legislative intent. He contends that the legislative history of the Bank Robbery Act “ clearly imported ” that bank robberies should be prosecuted solely under the Bank Robbery Act to the exclusion of the Hobbs Act. But we are limited to a “strictly textual comparison” when comparing criminal statutes for double jeopardy purposes

. Bobb , 577 F.3d at 137 3. Thus , Turner’s argument rel ying on legislative history is unpersuasive. Looking at the text of the statutes, w e conclude that they satisfy Blockburger because each requires proof of a fact that the other does not. In pertinent part, the Bank Robbery Act criminalizes the forceful taking of property from “ any bank , credit union, or any savings and loan association

. ” 18 U.S.C. § 2113 (a)

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contrast, the H obbs Act provides criminal penalties for anyone who “ obstructs, delays, or affects commerce

. . . by robbery

. ” 18 U.S.C. 1951(a). Thus, u nder t he Hobbs Act
, a robbery or attempted robbery must affect commerce, an element not required for the Bank Robbery Act. On the other hand, the Bank Robbery Act, but not the Hobbs Act, requires that the crime be perpetrated against a “bank, credit union, or any savings and loan association

. ” 18 U.S.C. 2113.Finally, to the extent Turner argues that the current prosecution is unconstitutional because one act simultaneously violates two different statutes
, that argument is meritless. “[D]ouble jeopardy is not implicated simply because a factual situation might exist where a defendant could commit one act that satisfies the elements of two distinct offenses.” Hassoun , 476 F.3d at 1188

- 89. Thus, the district court was correct in denying Turner’s motion to dismiss on double jeopardy grounds.
IV. CONCLUSION

For the for egoing reasons, we conclude that all of Turner’s arguments on appeal are without merit. Accordingly, we AFFIRM

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