                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Chafin and O’Brien
PUBLISHED


            Argued at Norfolk, Virginia


            GEOFFREY NARCISCO RIVERA
                                                                                                 OPINION BY
            v.            Record No. 1931-14-1                                             JUDGE TERESA M. CHAFIN
                                                                                              NOVEMBER 10, 2015
            COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                                    Edward W. Hanson, Jr., Judge

                                         Afshin Farashahi for appellant.

                                         Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
                                         Attorney General, on brief), for appellee.


                          The Circuit Court of the City of Virginia Beach convicted Geoffrey Narcisco Rivera of

            possession of marijuana with the intent to distribute in violation of Code § 18.2-248.1 and

            conspiracy to distribute marijuana in violation of Code §§ 18.2-256 and 18.2-248.1. On appeal,

            Rivera contends that the circuit court erred by denying his motion to suppress evidence obtained

            from the warrantless search of his cell phone and incriminating statements that he made

            following the search. Rivera argues that the Supreme Court’s decision in Riley v. California,

            134 S. Ct. 2473 (2014),1 applied retroactively to his case and, pursuant to that decision, he argues

            that the warrantless search of his cell phone violated the Fourth Amendment. The

            Commonwealth concedes that the warrantless search of Rivera’s cell phone was illegal, but

            contends that the exclusionary rule does not mandate the suppression of the evidence obtained

            through the search under the circumstances of this case. For the reasons that follow, we agree

                                                                        
                          1
                      The opinion of the Supreme Court actually covers two cases, the other being United
            States v. Wurie.
with the Commonwealth that the exclusionary rule does not require the suppression of the

evidence at issue, and accordingly, we affirm the circuit court’s decision.

                                       I. BACKGROUND

       “When reviewing a denial of a suppression motion, we review the evidence ‘in the light

most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’”

Elliott v. Commonwealth, 61 Va. App. 48, 51, 733 S.E.2d 146, 148 (2012) (quoting Glenn v.

Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc), aff’d, 275 Va.

123, 654 S.E.2d 910 (2008)). So viewed, the evidence established that officers from the Norfolk

Police Department informed detectives from the Virginia Beach Police Department that a

package containing marijuana would be delivered to an apartment located in the City of Virginia

Beach on October 2, 2013. The Virginia Beach officers set up surveillance around the apartment

building on that day. Eventually, they saw an individual carrying a green case arrive at the

building and enter an apartment.

       Shortly after this individual arrived, a narcotics detective knocked on the door to the

apartment. When an individual who lived in the apartment answered the door, the detective

immediately smelled marijuana. He saw three men in the apartment: the individual that

answered the door, the individual that arrived with the case, and Rivera. He also saw marijuana

smoking paraphernalia in plain view. In light of these observations, the detective detained the

occupants of the apartment until the police could obtain a search warrant for the premises. The

individual that lived in the apartment, however, consented to a search of his residence and

officers found marijuana in the green case.

       During the search of the apartment, the police interviewed each of the detained suspects.

Detective Daniel Fogarty questioned Rivera, and he confiscated his cell phone before he started

the interview. Although Rivera initially claimed that he was unaware of the presence of

                                               -2-
marijuana in the apartment, he later admitted that he had intended to acquire eight ounces of

marijuana that day to sell to another individual.

              Following this confession, Detective Fogarty viewed the text messages on Rivera’s cell

phone to determine whether they referenced the drug transaction. He read several text messages

discussing the pricing and sale of marijuana. When confronted with these text messages, Rivera

made additional incriminating statements regarding marijuana transactions. Detective Fogarty

never obtained a warrant to search Rivera’s cell phone.

              Rivera moved to suppress the evidence obtained from his cell phone and the

incriminating statements that he made to Detective Fogarty regarding the text messages. On

April 9, 2014, the circuit court heard evidence on the suppression motion. After hearing the

evidence, the circuit court delayed its ruling on the motion until the Supreme Court of the United

States issued its decision in Riley. The Supreme Court issued its opinion on June 25, 2014.

              After considering additional briefing and argument from the parties addressing the impact

of the Riley decision, the circuit court denied Rivera’s motion to suppress. Although the

Commonwealth conceded that Detective Fogarty’s search of the cell phone violated the Fourth

Amendment under Riley, the circuit court concluded that the exclusionary rule did not warrant

the suppression of the evidence collected from the phone, explaining that “the police officers

were using the best practices in place at the time and thus using the exclusionary rule in this case

would not deter police misconduct.” Rivera entered conditional guilty pleas to the charges

against him and appealed the circuit court’s decision denying his motion to suppress to this

Court.2




                                                            
              2
         While Judge Glenn R. Croshaw presided over the suppression hearing and denied
Rivera’s motion to suppress, Judge Edward W. Hanson, Jr., convicted and sentenced him.
                                                               -3-
                                          II. ANALYSIS

       In reviewing a trial court’s denial of a motion to suppress, “we determine whether the

accused has met his [or her] burden to show that the trial court’s ruling, when the evidence is

viewed in the light most favorable to the Commonwealth, was reversible error.” Roberts v.

Commonwealth, 55 Va. App. 146, 150, 684 S.E.2d 824, 826 (2009). This Court is “bound by the

trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them

and we give due weight to the inferences drawn from those facts by resident judges and local law

enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc). “However, we consider de novo whether those facts implicate the Fourth

Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the

Fourth Amendment.” Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159

(2000) (en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261).

       In Riley, the Supreme Court held that police officers generally must obtain a warrant to

search a cell phone seized incident to an individual’s arrest. Riley, 134 S. Ct. at 2493. Although

the Supreme Court decided Riley after the search at issue in the present case was conducted, it

issued its opinion in Riley before Rivera was convicted of the charged offenses. On appeal,

Rivera argues that Riley retroactively applied to his case and that the warrantless search of his

cell phone violated the Fourth Amendment. We agree. “[A] new rule for the conduct of

criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct

review or not yet final . . . .” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). As Riley was

decided by the Supreme Court while Rivera’s case was pending before the circuit court, it

applied to his case.

       The Commonwealth conceded at trial, and now concedes on appeal, that Riley

retroactively applied to Rivera’s case and that the warrantless search of his cell phone violated

                                                -4-
the Fourth Amendment.3 Despite the unconstitutionality of the warrantless search, however, the

Commonwealth contends that the circuit court correctly concluded that the exclusionary rule did

not apply under the circumstances of this case. Accordingly, the crucial issue presented on

appeal involves the remedy available to Rivera rather than a substantive Fourth Amendment

argument. The issue that we must decide concerns the application of the exclusionary rule to the

evidence obtained from the search of Rivera’s cell phone rather than the retroactive application

of Riley. See Davis v. United States, 131 S. Ct. 2419, 2431 (2011) (“Retroactive application

does not . . . determine what ‘appropriate remedy’ (if any) the defendant should obtain. Remedy

is a separate, analytically distinct issue.” (citations omitted)).

              The Commonwealth cites Davis as the primary support for its appellate argument. Davis

involved the application of the exclusionary rule to evidence obtained prior to the change in

Fourth Amendment precedent brought about by Arizona v. Gant, 556 U.S. 332 (2009). In Gant,

the Supreme Court held that police officers may search an automobile without a warrant incident

to a recent occupant’s arrest only when (1) the arrestee is “within reaching distance of the

vehicle” during the search, or (2) “it is reasonable to believe the vehicle contains evidence of the

offense of arrest.” Gant, 556 U.S. at 346; see also Davis, 131 S. Ct. at 2425. Gant expressly

limited the Court’s prior decision in New York v. Belton, 453 U.S. 454 (1981), which held that

“when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may,

as a contemporaneous incident of that arrest, search the passenger compartment of that

automobile.” Belton, 453 U.S. at 459-60; see also Gant, 556 U.S. at 343.

              The Supreme Court began its analysis in Davis by noting that while “[t]he Fourth

Amendment protects the right to be free from ‘unreasonable searches and seizures,’ . . . it is
                                                            
              3
         Although we are generally precluded from accepting concessions of law made on
appeal, see Copeland v. Commonwealth, 52 Va. App. 529, 531-32, 664 S.E.2d 528, 529 (2008),
we agree with the Commonwealth’s concessions based on our independent review of the record.
                                                               -5-
silent about how this right is to be enforced.” Davis, 131 S. Ct. at 2423. “To supplement the

bare text, [the Supreme] Court created the exclusionary rule, a deterrent sanction that bars the

prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Id.

“Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’

occasioned by an unconstitutional search. The rule’s sole purpose . . . is to deter future Fourth

Amendment violations.” Id. at 2426 (emphasis added) (citations omitted) (quoting Stone v.

Powell, 428 U.S. 465, 486 (1976)).

       The Supreme Court further explained that “[f]or exclusion to be appropriate, the

deterrence benefits of suppression must outweigh its heavy costs.” Id. at 2427.

               [T]he deterrence benefits of exclusion “var[y] with the culpability
               of the law enforcement conduct” at issue. Herring v. United
               States, 555 U.S. 135, 143 (2009). When the police exhibit
               “deliberate,” “reckless,” or “grossly negligent” disregard for
               Fourth Amendment rights, the deterrent value of exclusion is
               strong and tends to outweigh the resulting costs. Id. at 144. But
               when the police act with an objectively “reasonable good-faith
               belief” that their conduct is lawful, United States v. Leon, 468 U.S.
               897, 909 (1984) (internal quotation marks omitted), or when their
               conduct involves only simple, “isolated” negligence, Herring, 555
               U.S. at 137, the “‘deterrence rationale loses much of its force,’”
               Leon, 468 U.S. at 919 (quoting United States v. Peltier, 422 U.S.
               531, 539 (1975)), and exclusion cannot “pay its way.” Id. at 908
               n6.

Davis, 131 S. Ct. at 2427-28.

       Applying these principles to the case before it, the Supreme Court concluded that the

exclusionary rule did not apply to evidence seized by police officers during the search of a

suspect’s automobile following his arrest. Although the search at issue violated the rule

announced in Gant, the Supreme Court noted that the search was legal at the time it was

conducted under Belton and Seventh Circuit precedent following that case. See id. at 2428. The

Court explained that “the officers who conducted the search did not violate [the suspect’s] Fourth


                                                 -6-
Amendment rights deliberately, recklessly, or with gross negligence,” but rather, were acting “in

strict compliance with binding precedent” when they conducted the search. Id. at 2428-29.

        The Court reasoned that “when binding appellate precedent specifically authorizes a

particular police practice, well-trained officers will and should use that tool to fulfill their

crime-detection and public-safety responsibilities.” Id. at 2429. The Court concluded that “the

harsh sanction of exclusion ‘should not be applied to deter objectively reasonable law

enforcement activity[,]’” and held that “[e]vidence obtained during a search conducted in

reasonable reliance on binding precedent is not subject to the exclusionary rule.” Id. (quoting

Leon, 478 U.S. at 919).

        In the present case, Rivera attempts to distinguish Davis by arguing that no binding

precedent supported the warrantless search of his cell phone. His argument, however, is

misplaced. In United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court established a

bright-line rule concerning the search of an individual incident to his or her arrest. In Robinson,

the Court explained:

                A custodial arrest of a suspect based on probable cause is a
                reasonable intrusion under the Fourth Amendment; that intrusion
                being lawful, a search incident to the arrest requires no additional
                justification. It is the fact of the lawful arrest which establishes the
                authority to search, and we hold that in the case of a lawful
                custodial arrest a full search of the person is not only an exception
                to the warrant requirement of the Fourth Amendment, but is also a
                “reasonable” search under that Amendment.

Id. at 235.

        The Supreme Court determined that the police officer conducting the search at issue in

Robinson was entitled to search the contents of a cigarette package that he found in the suspect’s

pocket while searching him incident to a lawful arrest. See id. at 236. Although the officer did

not search the suspect to ensure his own personal safety or to preserve evidence of the offense

for which the suspect was arrested, see Chimel v. California, 395 U.S. 752, 762-63 (1969), the
                                                  -7-
Court concluded that the arrest itself provided justification for the search. See Robinson, 414

U.S. at 236. Thus, under Robinson, an officer could search the contents of an object found on a

suspect’s person during a search incident to his or her lawful arrest.

              In Riley, the Supreme Court limited Robinson in the context of cell phone searches.4 See

Riley, 134 S. Ct. at 2484-85. Riley, however, was decided after Detective Fogarty conducted the

search at issue in the present case. Detective Fogarty searched Rivera’s cell phone on October 2,

2013, but the Supreme Court did not issue its decision in Riley until June 25, 2014, over eight

months after the search in question occurred. Accordingly, Robinson governed the scope of

permissible searches incident to arrest at the time the search was conducted in the present case,

and Detective Fogarty could have reasonably based his conduct on its precedent.5


                                                            
              4
          In Riley, the Supreme Court noted that cell phones “differ in both a quantitative and a
qualitative sense from other objects that might be kept on an arrestee’s person,” Riley, 134 S. Ct.
at 2489, in part because they “place vast quantities of personal information literally in the hands
of individuals,” id. at 2486. The Court also explained that modern cell phones “are based on
technology nearly inconceivable just a few decades ago, when . . . Robinson was decided.” Id. at
2484. In an effort to adapt Fourth Amendment jurisprudence to the pervasive and quickly-
evolving technology of cell phones, the Supreme Court concluded that police generally must
obtain a warrant before searching a cell phone incident to an individual’s arrest. Id. at 2493.
              5
          On appeal, Rivera contends that Detective Fogarty could not have reasonably believed
that the warrantless search of his cell phone was permissible because other Virginia Beach police
officers obtained warrants to search cell phones seized incident to arrest before Riley. At the
suppression hearing in this case, however, Rivera’s attorney conceded that he could only verify
that Virginia Beach police officers obtained warrants to search cell phones seized incident to
arrest in May 2014, one month before the Supreme Court issued the Riley decision. The fact that
officers sought warrants to search cell phones at a time when a decision in Riley was imminent
does not imply that officers sought similar warrants seven months earlier. At the time that
Detective Fogarty searched Rivera’s cell phone, the Supreme Court had not yet granted certiorari
in Riley or its companion case. See Riley v. California and United States v. Wurie, 134 S. Ct.
999 (2014) (granting certiorari on January 17, 2014).
         Additionally, we note that the subjective intent of the officers is not the relevant inquiry
in this case. We must determine whether a police officer acts “with an objectively ‘reasonable
good-faith belief’ that their conduct is lawful.” Davis, 131 S. Ct. at 2427 (emphasis added)
(citing Leon, 468 U.S. at 909); see also Herring, 555 U.S. at 145 (“The pertinent analysis of
deterrence and culpability is objective, not an inquiry into the subjective awareness of arresting
officers.” (citation omitted)).

                                                               -8-
       We acknowledge that Robinson did not expressly apply to the search of cell phones

incident to an individual’s arrest. In Riley itself, however, the Court acknowledged that

Robinson was the only decision from the Supreme Court that applied search incident to arrest

analysis “to a search of the contents of an item found on an arrestee’s person.” Id. at 2488.

Although the Court concluded that a deviation from Robinson was necessary to protect an

individual’s privacy interest in the voluminous information contained in his or her cell phone, the

Court expressly recognized that “a mechanical application of Robinson might well support the

warrantless searches at issue [in Riley].” Id. at 2484.

       Ample persuasive authority supported the warrantless search of a cell phone incident to a

lawful arrest before the Riley decision. Although no Virginia law expressly addressed the issue,

the Fourth Circuit upheld the warrantless search of a cell phone incident to arrest in United States

v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009). At the time that Officer Fogarty searched

Rivera’s cell phone, the Fifth, Seventh, Eighth, and Tenth Circuits had reached similar

conclusions. See United States v. Rodriguez, 702 F.3d 206, 209-10 (5th Cir. 2012); United

States v. Flores-Lopez, 670 F.3d 803, 809-10 (7th Cir. 2012); Silvan W. v. Briggs, 309 F. App’x.

216, 225 (10th Cir. 2009); United States v. Mendoza, 421 F.3d 663, 668 (8th Cir. 2005). In

addition, several state courts of last resort had upheld warrantless searches of at least some of the

digital content of cell phones incident to arrest. See, e.g., People v. Diaz, 244 P.3d 501, 511

(Cal. 2011); Hawkins v. State, 723 S.E.2d 924, 926 (Ga. 2012); Commonwealth v. Phifer, 979

N.E.2d 210, 216 (Mass. 2012). Several courts, however, questioned the validity of warrantless

searches of cell phones incident to arrest. See, e.g., United States v. Wurie, 728 F.3d 1 (1st Cir.

2013); Smallwood v. State, 113 So. 3d 724, 735-36 (Fla. 2013); State v. Smith, 920 N.E.2d 949,

953-56 (Ohio 2009).




                                                -9-
       While some courts had questioned the applicability of Robinson to the search of cell

phones incident to arrest before the Riley decision, Robinson stood in a similar position as the

overruled precedent at issue in Davis. Before Gant limited Belton, courts differed on specific

aspects of the searches of vehicles incident to arrest that Belton permitted. See Gant, 556 U.S. at

345-46. Courts were “at odds regarding how close in time to the arrest and how proximate to the

arrestee’s vehicle an officer’s first contact with the arrestee must be . . . and whether a search is

reasonable when it commences or continues after the arrestee has been removed from the scene.”

Id. Furthermore, at least eight states had declined to follow a broad reading of Belton before the

Supreme Court’s decision in Gant. See id. at 347 n.8. Nevertheless, the Supreme Court

concluded in Davis that Belton constituted precedent that “was widely understood to have set

down a simple, bright-line rule.” Davis, 131 S. Ct. at 2424.

       When we read Robinson in conjunction with Riley and the other persuasive authority

addressing the warrantless search of cell phones incident to arrest, we conclude that a police

officer could have reasonably believed that Robinson authorized the warrantless search at issue

in the present case. Robinson constituted the only authority from the Supreme Court of the

United States addressing the search of the contents of an item seized incident to an individual’s

arrest, and the Supreme Court acknowledged in Riley that Robinson could support the

warrantless search of cell phones. Additionally, ample persuasive authority from across the

nation supported the warrantless search of a cell phone incident to arrest.

       We conclude that the exclusion of the evidence obtained from Rivera’s cell phone in this

case would not deter future Fourth Amendment violations. Robinson provided binding

precedent that generally supported the warrantless search of Rivera’s cell phone incident to his




                                                - 10 -
arrest.6 While Robinson did not specifically apply to cell phones, persuasive authority from the

Fourth Circuit and other courts upheld warrantless searches of cell phones incident to arrest

when they expressly addressed the issue. Accordingly, in the present case police officers were

confronted with binding authority that generally authorized a practice and persuasive authority

that authorized the practice under a specific factual situation. Under these circumstances, we

conclude that an officer could have objectively believed that the search of Rivera’s cell phone

incident to his arrest was authorized by sufficient precedent.

              Like the police officers in Davis, Detective Fogarty acted with an “objectively reasonable

good-faith belief’” that his conduct was lawful. See id. at 2427; see also Leon, 468 U.S. at 909.

Detective Fogarty did not violate Rivera’s Fourth Amendment rights “deliberately, recklessly, or

with gross negligence.” Davis, 131 S. Ct. at 2428; see also Herring 555 U.S. at 144. When

Detective Fogarty searched Rivera’s cell phone, an officer could have reasonably believed that

Robinson and other precedent authorized the search. Applying the exclusionary rule to exclude

the evidence obtained from the search of Rivera’s cell phone under these circumstances would

not substantially deter future police misconduct. For these reasons, we conclude that the Fourth

Amendment violation in this case did not require the exclusion of the evidence obtained from the

warrantless search of Rivera’s cell phone.




                                                            
              6
          Applying Davis, the Court of Appeals of Maryland recently concluded that the
exclusionary rule did not apply when officers searched cell phones incident to arrest in reliance
on the binding authority of Robinson. See Spence v. State, 118 A.3d 864 (Md. 2015); Demby v.
State, 118 A.3d 890 (Md. 2015). The Seventh Circuit reached the same conclusion in United
States v. Gary, 790 F.3d 704 (7th Cir. 2015). We also note that the Fourth Circuit applied Davis
to evidence obtained through the warrantless search of a cell phone in United States v. Eccleston,
No. 13-4133, 2015 U.S. App. LEXIS 13376 (4th Cir. July 31, 2015), but based its decision on
the officer’s reliance on Murphy, 552 F.3d at 410-12.
                                                               - 11 -
                                       III. CONCLUSION

       When Detective Fogarty searched Rivera’s cell phone without a warrant incident to his

arrest, such a search was generally authorized by the binding authority of Robinson and

specifically authorized by ample persuasive authority. Under Davis, Herring, and other

precedent concerning the application of the exclusionary rule to evidence obtained under a

reasonable “good faith” belief that a search was authorized by law, we hold that the exclusionary

rule does not apply to the evidence obtained from the warrantless search of Rivera’s cell phone.

Accordingly, the circuit court’s decision denying Rivera’s motion to suppress the evidence

obtained from the warrantless search of his cell phone is affirmed.

                                                                                       Affirmed.




                                              - 12 -
