### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1871
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

R OBERT L. B ERRIOS , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division. No. 12 CR 853-1 — Matthew F. Kennelly, Judge

.

____________________
A RGUED S EPTEMBER 30, 2020

— D ECIDED M ARCH 5, 2021

____________________

Before S YKES , Chief Judge, and W OOD and B RENNAN , Circuit Judges

. W OOD , Circuit Judge . During much of the year 2012, RobertBerrios 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 to2 No. 19-1871

suppress evidence that the go vernment found through a warrantless search of his cellphone. If the evidence collected during the search was to be admi tt ed, he contends, it was onlythrough 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 fi t within Davis . We all agree that this was a close call. In the end, however, we conclude thatalthough there was no binding precedent that would have exempted this search from the exclusionary rule, the independent-source rule allowed the admi ssion of the limited evidence the government used. We therefore a ffi rm Berrios’s conviction.
I Berrios’s prosecution began with the issuance of a criminal complaint on November 5, 2012, inthe Northern District of Illinois, charging him with Hobb s 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 ge tt ing ready to rob a currency exchange, the FBI conducted a tra ffi c 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 fl ip phone. They also recovered several other itemsfrom 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 fl ip phone they had seized. This included downloading the contacts stored in the phone, call logs, text messages, and photographs. Some of the photos showedNo. 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 su perseding indictment on October 15, 2013, charging Berrios, Revis, Rodriguez, and Luis Diaz with various Hobbs Act o ff enses, as well as some fi rearms o ff enses. The case moved slowly, but after going through a couple of lawyers, in early 2016 Berrios fi led a motion to suppress the evidence that the FBI had obtained through the warrantless search of his phone. The government admi tt ed that the search was illegal under Riley v. California , 573 U.S. 373 (2014), and that Rileyapplied retroactively. Nonetheless, it argued, the law at the time of the search did not prohibit it, and thus the good-fa ith exception to the exclusionary rule recognized in Davis v. United States , 564 U.S. 229, 241 (2011), applied. The district court accepted th e government’s position and denied Berrios’s motion. Berrios proceeded to jury trial on nine counts of Hobbs Act robb ery 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

ma tt ers is the court’s handling of Berrios’s suppression motion. Before turning to that poin t, however, it is important to note that the evidence from th e 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 admi tt ed that he commi tt ed at least one robbery;

 Surveillance videos from the victim stores;

 Testimony from robbery victims;

 Testimony from Jose Hern andez, 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, traffi c 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, tra ffi c stop. Berrios confi rmed the number during cross- examination at trial. The contacts list showed numbers and nicknames for each co-conspirator, while the call record s documented incoming and outgoing calls around the times of the robberies. FBI Special Agent Joseph Raschke introduced historical cell siteNo. 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 fi rearm by a convicted felon, and a consecutive sentence of 84 months for brandishing a fi rearm during one of the robberies.

Berrios fi led a notice of appeal. He initially indicated to hisappellate 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 fi led an Anders brief. Berrios changed his tune in his response to that brief, however, and indicated thathe did want to challenge the court’s decision. We therefore rejected counsel’s motion to dismiss the appeal and ordered brie fi ng. II Two sets of legal rules are relevant here: (1) the standard under which we should assess cellphone searches, and (2) the

e ff ect 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 SupremeCourt 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 on6 No. 19-1871

a cellphone is “materially indistinguishable” from searching a zipper bag or a wallet, the Cour t said “[t]hat is like saying a ride on horseback is materially indistinguishable from a fl ight to the moon. Both are ways of ge tt ing from point A to point B, but li tt le else justi fi es 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 “camer as, 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 thepolice 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. Gri ffi th 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 re quirement leads to the suppression of evidence. Relying on that fact, the government contends that although the FB I’s search of Berrios’s phone may have been illegal under Riley, any illegality did not require the exclusion of the evid ence because the agents were acting in good faith, in relia nce 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), inwhich 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. AsNo. 19-1871 7

Justice Sotomayor pointed out in her opinion in Davis concurring in the judgment, “[t]his ca se does not present the markedly di ff erent question whether the exclusionary rule applies when the law governing the cons titutionality of a particular search is unse tt led.” Id. at 249. We acknowledged the distinction between established law and unse tt led 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 e ff orts 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 unse tt led. 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 permi tt ed by the Fourth Amendment? Id. at 804. The facts were straightforward: a drug dealer was se tt ing up a sale of methamphetamine, and he made a call using his cellphoneto set up the exchange. Unbeknownst to him, the police intercepted that call and were read y when the deal went down. They arrested the defendant an d a co-conspirat or, and theyseized some cellphones, including the one from which the defendant had placed his call. St ill on the scene, and with no warrant, the o ffi cers searched that phone, which they had taken directly from the defendant, and obtained its number. Later, using that number, they subpoenaed the telephonecompany and obtained its call records. Those records confi rmed 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 court8 No. 19-1871

ruled against him. The governme nt’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 quali fi cation. Instead, we stayed close to the facts, which showed nothing more than a minimal intrusion on the defendant’s privacy—no more than wouldhave occurred if the defendant had been carrying an old-fashioned diary and the police had simply opened it to its fi rst page. In that type of situation, where the intrusion is no worse than it would have been in th e pre-Internet age, we saw no reason to require suppression where it would not have been required before. Our closing remarks re fl ect 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 , Garywas a case involving a search incident to an arrest. Gary was detained in 2009 by the police after a tra ffi c stop (whose validity the court upheld). The police seized hisNo. 19-1871 9

cellphone and, back at the stat ion, searched it to obtain the number and a log of calls it had received. Relying on Riley, which had been decided by the ti me Gary’s case reached thiscourt, 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

e ff ects when such a search is incident to a valid arrest, and that the quali fi cation Riley added to that rule was fi ve years in the future at the time Gary wa s arrested. We also observed that as of 2009, we had never di ff erentiated between searches of physical items and searches ofdigital 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 o ffi cers were entitled to rely on Davis ’s good-faith rule.
Neither Flores-Lopez nor Gary authorized a wholesale search of a cellphone, beyond th e limits that were present in those two cases. In keeping with our approach in a number ofearlier decisions, which have followed the caveat in Justice Sotomayor’s opinion in Davis , we decline again to apply Davis “to excuse mistaken e ff orts 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 washarmless. It acknowledges that Berrios preserved his objection to the admission of the evid ence in the district court, and so he does not face the enhanc ed 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 on ly evidence that was admi tt ed at trial was his telephone number and the names and numbers of his co-conspirators included in his saved contacts list. The fl ip 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 independen t 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 tra ffi c stop in October 2012. Berrios con fi rmed his number during cross-examination at trial, and the number appe ared 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 admi tt ed 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 testi fi ed about 24 armed robberies that he commi tt ed, 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 fo und, with the help of the Cellbrite technology, on Berrios’s fl ip phone. But the particularitems of evidence the government used did have an independent source, and so any mi stake in the application of Riley and Davis was harmless. We therefore A FFIRM the judgment of the district court.