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, andWOOD 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 
2 No. 19-1871 

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 (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 
No. 19-1871 3

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 (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 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; 
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 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 
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 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 (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 
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, 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. 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 precedent. As 
No. 19-1871 7

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. 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 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 cellphone 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 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 
8 No. 19-1871 

ruled against him. The government’s theory was that any cellphone 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 embrace 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-fashioned 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 following. 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 FloresLopez, 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 suppressed. 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 indistinguishable 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 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 court, and 

so he does not face the enhanced burden of showing plain error. 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 information than a standard smart phone normally does. 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—testimony 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. 
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 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.