Case: 16-14950 Date Filed: 08/25/2017 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14950
Non-Argument Calendar
________________________
D.C. Docket No. 6:15-cr-00242-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DWAYNE RILEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 25, 2017)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 16-14950 Date Filed: 08/25/2017 Page: 2 of 17
John Dwayne Riley appeals his conviction for possession of a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), as well as the
court’s denial of his motion to suppress evidence found during a probationary
search of his house, the court’s refusal to declare a mistrial, and the court’s reliance
on non-binding authority. Riley was also convicted of possession with the intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(ii). Riley was on community control, a form of probation akin to house
arrest, when his probation officer received an anonymous tip indicating that Riley
was selling drugs from his house. Probation officers visited Riley’s house, where
they saw what appeared to be cocaine in plain sight in the garage.
Riley raises four issues on appeal. First, he argues that the district court
erred by concluding that there was reasonable suspicion to search his house.
Second, he contends that the court erred by refusing to declare a mistrial after a
witness provided testimony that violated the court’s pretrial ruling on the exclusion
of certain evidence. Third, Riley argues that the court erred by relying on
unpublished decisions of this Court to support its evidentiary rulings. Fourth,
Riley contends that the evidence adduced at trial was insufficient to support his
§ 924(c) conviction. We address each of the arguments below.
I.
2
Case: 16-14950 Date Filed: 08/25/2017 Page: 3 of 17
Riley first contends that the court erred by concluding that there was
reasonable suspicion to search his house and subsequently denying his motion to
suppress the evidence found during that search because an uncorroborated
anonymous tip, which merely provided information identifying him as the target of
the tip, formed the basis of reasonable suspicion.
In reviewing the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its application of law to those facts de
novo. United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir. 2013). Further, we
construe all facts in the light most favorable to the prevailing party below—in this
case, the government. Id. We may affirm the denial of a motion to suppress on
any ground supported by the record. United States v. Caraballo, 595 F.3d 1214,
1222 (11th Cir. 2010).
The Fourth Amendment guarantees: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV. The Fourth Amendment’s protection against
unreasonable searches and seizures applies to probationers, but probationers have a
diminished expectation of privacy and “are subject to limitations to which ordinary
citizens are free.” Owens v. Kelley, 681 F.2d 1362, 1367–68 (11th Cir. 1982).
3
Case: 16-14950 Date Filed: 08/25/2017 Page: 4 of 17
In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court held
that the warrantless search of a probationer’s home by a law enforcement officer
for investigatory purposes was permissible, even though it was supported by only a
reasonable suspicion, rather than probable cause, that criminal conduct was
occurring. 534 U.S. at 121–22. The probationer was subject to a condition
requiring him to submit to searches of his residence by any probation officer or law
enforcement officer at any time, with or without a search warrant, warrant of
arrest, or reasonable cause. 534 U.S. at 114. A sheriff’s detective decided to
search the probationer’s apartment after observing suspicious objects in the
probationer’s trunk, and, aware of the probationer’s search condition, did not apply
for a warrant. Id. at 115.
The Court stated that “the reasonableness of a search is determined by
assessing, on the one hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for the promotion of
legitimate governmental interests.” Id. at 118–19 (quotation omitted). Balancing
these competing considerations, the Supreme Court noted that a probationer does
not enjoy the same amount of liberty as other citizens. Id. at 119. It further noted
that probationers are more likely to commit crimes than other citizens, and the
government therefore has an interest in keeping close watch over them. Id. at 120.
Furthermore, probationers have a greater incentive to conceal the evidence of their
4
Case: 16-14950 Date Filed: 08/25/2017 Page: 5 of 17
crimes, because they are subject to greater scrutiny than the average citizen. Id.
The Supreme Court determined that “the balance of these considerations requires
no more than reasonable suspicion to conduct a search of th[e] probationer’s
house.” Id. at 121.
In United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005), we followed
Knights and concluded that reasonable suspicion was all that was required to
search a probationer’s computer, even where the probation agreement limited his
internet use to work related purposes during work hours but did not require him to
submit to warrantless searches. Yuknavich, 419 F.3d at 1309–11. We reasoned
that the conditions on the probationer’s computer use reduced his expectation of
privacy in his computer; thus, the search of the computer was permissible based
only on reasonable suspicion. Id. at 1310–11.
In United States v. Carter, 566 F.3d 970 (11th Cir. 2009), we followed the
reasoning in Yuknavich and again found that a warrantless search of a
probationer’s home by probation officers and based on reasonable suspicion was
constitutionally permissible, even in the absence of a condition of probation
permitting such a search. Carter, 566 F.3d at 973–75. We applied the balancing
test articulated in Knights and concluded that reasonable suspicion was the correct
standard for analyzing the reasonableness of the search at issue in that case. Id. at
974. Examining the probationer’s privacy interests, we noted that Carter did not
5
Case: 16-14950 Date Filed: 08/25/2017 Page: 6 of 17
enjoy the absolute liberty to which every citizen is entitled. Id. In addition, he was
required to submit to visits by the probation officer at his home, workplace, or
elsewhere, and the government had a competing interest in preventing him from
committing further crimes. Id.
We held that, although the probationer possessed a higher expectation of
privacy than the defendants in Knights and Yuknavich because he lacked an
express search condition or a condition limiting his computer use, a condition of
probation requiring him to submit to home visits by his probation officer
nevertheless reduced his expectation of privacy. Id. at 975. We concluded that
when “a probationer has a condition of probation reducing his expectation of
privacy, and the government has a higher interest in monitoring the probationer
due to the nature of his criminal history, a search can be permissible when
supported only by reasonable suspicion.” Id. The probation officers had
reasonable suspicion to search Carter’s home due to evidence of a pattern of
conduct over a two-year period that indicated Carter was engaged in criminal
activity, including just two weeks before the search occurred. Id.
Based on Carter, probation officers are required to have reasonable
suspicion of criminal conduct in order to search a probationer’s residence when the
terms of probation do not require him to submit to warrantless searches. See id. at
974–75. Reasonable suspicion consists of a sufficiently high probability that
6
Case: 16-14950 Date Filed: 08/25/2017 Page: 7 of 17
criminal conduct is occurring to make the intrusion on the individual’s privacy
interest reasonable. Yuknavich, 419 F.3d at 1311. We must examine the totality of
the circumstances of each case to determine whether the officer has a particularized
and objective basis for suspected legal wrongdoing. Id. An “inchoate and
unparticularized suspicion or hunch of criminal activity is not enough to satisfy the
minimum level of objectivity required.” Id. (quotation omitted). Thus, to
determine whether officers had reasonable suspicion to conduct a search, we must
“take stock of everything they knew before searching.” Id. “To have reasonable
suspicion based on an anonymous tip, the tip must be reliable in its assertion of
illegality, not just in its tendency to identify a determinate person.” United States
v. Lindsey, 482 F.3d 1285, 1291 (11th Cir. 2007) (quotation omitted). The issue is
whether the tip, as corroborated by independent police work, exhibited sufficient
indicia of reliability to provide reasonable suspicion. Id.
Here, the district court did not err by denying Riley’s motion to suppress.
Before entering Riley’s house, the probation officers were aware of the following:
(1) Riley had a prior cocaine-related conviction, 1 (2) the anonymous tip indicated
1
Citing to Carter, Riley asserts for the first time on appeal that his prior cocaine conviction
could not have supported a finding of reasonable suspicion for the probationary search because it
preceded the search by a decade and thus was stale. Because Riley did not object to the reliance
on the decade-old cocaine conviction before the district court, we review the issue only for plain
error. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). We developed a staleness
doctrine in the context of whether probable cause exists for a warrant. United States v. Bervaldi,
226 F.3d 1256, 1264 (11th Cir. 2000). However, no binding precedent from this Court or the
Supreme Court exists indicating that the staleness doctrine applies in the context of warrantless
7
Case: 16-14950 Date Filed: 08/25/2017 Page: 8 of 17
that Riley was selling drugs from the house, (3) Riley’s community control
prohibited him from possessing any drugs or visiting places where drugs were sold
or used, (4) the anonymous tip indicated that Riley was driving a white Audi, and
(5) Riley was placed on community control because he had been driving without a
license; hence, he could not legally drive. Armed with all of this information,
probation officers had reasonable suspicion to suspect that Riley was in violation
of his probation and that there were possibly drugs or other prohibited items at his
residence. See Yuknavich, 419 F.3d at 1311. This provided the probation officers
with a basis to lawfully conduct the probationary search, which included the ability
to enter Riley’s garage, where probation officers observed what appeared to be
cocaine in plain view in the Audi. Once the probation officers discovered the
contraband, they stopped their search and turned it over to law enforcement to
procure a search warrant. Thus, the probation officers acted lawfully, and the court
did not err by denying Riley’s motion to suppress the fruits of the lawful search.
II.
Riley argues that the court erred by refusing to declare a mistrial after his
probation officer violated the court’s pretrial ruling excluding evidence that the
probationary searches subject to the reasonable suspicion standard. In Carter, we only stated
that there was no staleness problem in that case, and did not announce a rule applying the
staleness doctrine to probationary searches for which there must be reasonable suspicion. See
Carter, 566 F.3d at 975. Because no precedent from the Supreme Court or this Court directly
resolves the issue, there is no plain error. See United States v. Lejarde-Rada, 319 F.3d 1288,
1291 (11th Cir. 2003).
8
Case: 16-14950 Date Filed: 08/25/2017 Page: 9 of 17
tipster mentioned the sale of drugs at Riley’s house, as it concerned the ultimate
issue of whether Riley distributed cocaine. Riley contends that the violation of the
pretrial ruling violated his Sixth Amendment right of confrontation.
We review de novo the scope of constitutional rights. United States v.
Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). However, we review the denial
of a motion for a mistrial for abuse of discretion. United States v. Ramirez, 426
F.3d 1344, 1353 (11th Cir. 2005). That standard recognizes that the district court
possesses a range of choices; thus, so long as its decision does not amount to a
clear error of judgment, we will not disturb the decision, even if we would have
chosen differently. United States v. Lopez, 649 F.3d 1222, 1236 (11th Cir. 2011).
The Confrontation Clause prohibits the admission of testimonial hearsay
evidence at trial unless the declarant is unavailable and the defendant had a prior
opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,
68 (2004); U.S. Const. amend. VI. The Confrontation Clause does not, however,
bar the use of non-hearsay testimonial statements. See Crawford, 541 U.S. at 59
n.9 (“The Clause . . . does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.”). The Federal Rules of
Evidence define hearsay as a statement that a party offers in evidence to prove the
truth of the matter asserted in the statement. Fed. R. Evid. 801(c). We previously
held that “[s]tatements by out of court witnesses to law enforcement officials may
9
Case: 16-14950 Date Filed: 08/25/2017 Page: 10 of 17
be admitted as non-hearsay if they are relevant to explain the course of the
officials’ subsequent investigative actions, and the probative value of the
evidence’s non-hearsay purpose is not substantially outweighed by the danger of
unfair prejudice caused by the impermissible hearsay use of the statement.” United
States v. Baker, 432 F.3d 1189, 1208 n.17 (11th Cir. 2005), abrogated in part on
other grounds by Davis v. Washington, 547 U.S. 813 (2006) (holding, contrary to
Baker, that the Confrontation Clause does not apply to non-testimonial hearsay).
Here, the testimony regarding the anonymous tip was admitted to explain the
reason that probation officers conducted a visit of Riley’s house, and not for the
truth of the matter asserted. Thus, it was not hearsay. Furthermore, it did not
implicate the Confrontation Clause because the probative value of the statement’s
non-hearsay purpose—explaining why the probation officer conducted the home
visit—was not substantially outweighed by the danger of unfair prejudice, where
the other trial evidence included far more incriminatory descriptions of the
extensive drugs found at Riley’s house. See Baker, 432 F.3d at 1208 n.17;
Crawford, 541 U.S. at 59 n.9.
Furthermore, when the court denied Riley’s motion for a mistrial, it noted
that the statement violated its pretrial ruling limiting testimony of the tip to reports
of unlawful activity in the home. However, the statement did not address the
ultimate issue in the case, as the probation officer never stated the tipster accused
10
Case: 16-14950 Date Filed: 08/25/2017 Page: 11 of 17
Riley of selling drugs, or even personally possessing the drugs. Given the limited
nature of the violation of the pretrial ruling, especially considering that the court
permitted mention of unlawful conduct, the court’s decision to deny Riley’s
motion did not amount to a clear error of judgment. See Lopez, 649 F.3d at 1236.
Hence, it was within the court’s discretion to deny Riley’s motion for a mistrial.
III.
Riley also argues that the district court erred as a matter of law by relying on
unpublished decisions of this Court in making three evidentiary rulings: (1)
concluding that reasonable suspicion existed for the probationary search, relying
on Wasser, 586 F. App’x at 504-05; (2) allowing the admission of evidence of
drugs found in his house other than cocaine, relying on United States v. Caton, 294
F. App’x 490, 494-95 (11th Cir. 2008); and (3) allowing a law enforcement agent
to testify as a lay witness regarding the relationship between firearms and drugs,
relying on United States v. Jones, 218 F. App’x 916, 917 (11th Cir. 2007).
Regarding the third ruling, Riley contends that reliance on Jones prejudiced him,
because his counsel indicated that he would have prepared differently if he had
known that an expert witness would testify. Further, Riley argues that it prejudiced
him because the officer’s testimony regarding the street value of the cocaine and
drug dealers’ use of firearms as protection invaded the province of the jury by
11
Case: 16-14950 Date Filed: 08/25/2017 Page: 12 of 17
speaking to an ultimate issue in the case—a factual determination of whether
Riley’s gun was used in furtherance of his drug offense.
We review rulings regarding the admissibility of lay opinion testimony for
abuse of discretion. United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.
2011). A non-expert witness may give opinion testimony if the testimony is: “(a)
rationally based on the witness’s perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701. Subsection (c) was added to the Rule in 2000 to prevent expert
testimony from being offered nominally as lay opinion testimony. United States v.
Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). Federal Rule of Evidence 702
governs the testimony of a witness qualified as an expert. Fed. R. Evid. 702.
In United States v. Novaton, 271 F.3d 968 (11th Cir. 2001), we held that the
district court did not abuse its discretion in permitting agents to give opinion
testimony under pre-amendment Rule 701 regarding the meaning of code words
based on their experience as police officers. Novaton, 271 F.3d at 1009. However,
we noted that after the 2000 amendments to Rule 701, the admissibility of such
testimony under Rule 701 was an open question. Id. at 1009 n.9. We later noted
that the 2000 amendments did not alter our Rule 701 jurisprudence where law
enforcement officers testify as lay witnesses. See Tampa Bay Shipbuilding &
12
Case: 16-14950 Date Filed: 08/25/2017 Page: 13 of 17
Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1223 & n.17 (11th Cir.
2003) (civil case holding that, like the police officers in Novaton, Tampa Bay’s
witnesses testified based upon their particularized knowledge garnered from years
of experience within the field, and noting that we found no basis to determine that
Novaton required a different finding under Rule 701’s amendment). Thus, lay
witnesses may testify based upon their particularized knowledge garnered from
years of experience within a field. Id. at 1223.
Eleventh Circuit Rule 36-2 provides that unpublished opinions are not
considered binding precedent, but may be cited as persuasive authority. 11th Cir.
R. 36-2. Unpublished opinions are persuasive only insofar as their legal analysis
warrants. Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th
Cir. 2007) (citing United States v. Rodriguez-Lopez, 363 F.3d 1134, 1138 n.4 (11th
Cir. 2004)).
We may decline to address an argument where a party fails to provide
arguments on the merits of an issue or provide legal support, because the issue is
deemed waived without such argument. United States v. Gupta, 463 F.3d 1182,
1195 (11th Cir. 2006). Unlike forfeited claims, waived claims are not reviewed on
appeal. United States v. Lewis, 492 F.3d 1219, 1220–21 (11th Cir. 2007) (en
banc); see Fed. R. Crim. P. 52(b).
13
Case: 16-14950 Date Filed: 08/25/2017 Page: 14 of 17
As an initial matter, Riley does not make any arguments on the merits as to
how reliance on Wasser or Caton was erroneous, nor does he provide any legal
support for his contentions that such reliance was reversible error. Thus, we
decline to address those issues, as they have been waived. See Gupta, 463 F.3d at
1195; Lewis, 492 F.3d at 1220-21.
The court did not err by relying on Jones as persuasive authority in
permitting the officer to testify as a lay witness. The court’s reliance on
unpublished opinions of this Court was not improper, because the court understood
the persuasive nature of the unpublished decisions, and Riley does not show that
the court’s analyses were erroneous. Further, the officer’s lay testimony, based on
particularized knowledge garnered from years of experience within the field of
narcotics investigations, was not prohibited by Rule 701(c).
IV.
Riley argues that the evidence was insufficient to support his conviction for
the § 924(c) charge. He first contends that there was insufficient evidence for the
jury to reasonably infer that he constructively possessed the gun. Second, he
asserts that a reasonable juror would not be able to make the series of inferential
leaps to establish the “in furtherance” prong without resorting to speculation.
When the defendant challenged the sufficiency of the evidence by an
appropriate motion for judgment of acquittal, we review de novo whether sufficient
14
Case: 16-14950 Date Filed: 08/25/2017 Page: 15 of 17
evidence supports a conviction. United States v. Jiminez, 564 F.3d 1280, 1284
(11th Cir. 2009).
In reviewing the sufficiency of the evidence, we view the record in the light
most favorable to the government, resolving all reasonable inferences in favor of
the verdict. United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010).
Accordingly, we sustain a defendant’s conviction as long as it is supported by a
reasonable basis in the record. Id. Whether the evidence is direct or only
circumstantial, we will accept all reasonable inferences that tend to support the
government’s case. United States v. Williams, 390 F.3d 1319, 1324 (11th Cir.
2004). It is not required that the evidence exclude every reasonable hypothesis of
innocence in order for a reasonable jury to find guilt beyond a reasonable doubt.
United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc).
Thus, the jury is free to choose among alternative, reasonable interpretations of the
evidence. Id.
Section 924(c) provides enhanced penalties for possessing a firearm in
furtherance of any drug trafficking crime for which a defendant is prosecuted. 18
U.S.C. § 924(c)(1)(A). To establish a § 924(c) violation, the government must
show that the defendant (1) knowingly (2) possessed a firearm (3) in furtherance of
any drug trafficking crime for which he could be prosecuted in a court of the
United States. United States v. Williams, 731 F.3d 1222, 1232 (11th Cir. 2013).
15
Case: 16-14950 Date Filed: 08/25/2017 Page: 16 of 17
Possession may be actual or constructive. United States v. Gunn, 369 F.3d 1229,
1234 (11th Cir. 2004). To establish constructive possession, the government must
show that the defendant exercised ownership, dominion, or control over the
firearm. Id.
A firearm is possessed in furtherance of a drug trafficking offense when the
firearm aided, advanced, or promoted the underlying offense. Williams, 731 F.3d
at 1232. The presence of a gun within the defendant’s dominion and control
during a drug-trafficking offense is not sufficient, by itself, to sustain a § 924(c)
conviction. United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)
(holding that evidence was sufficient to sustain a guilty verdict where agents found
two loaded firearms on top of an oven, an empty ammunition box inside the oven,
a bullet-proof vest in a closet, $350 in a stove drawer, and a total of 35.67 grams of
crack cocaine). In order to prove the “in furtherance” element, the government
must show some nexus between the gun and the drug trafficking offense. Id. at
1253. This nexus can be established by: the type of drug activity being conducted,
the accessibility of the gun, the type of gun, whether the gun was stolen, whether
the gun was possessed legally, whether the gun was loaded, the gun’s proximity to
drugs or drug profits, and the time and circumstances under which the gun is
found. Id.
16
Case: 16-14950 Date Filed: 08/25/2017 Page: 17 of 17
Viewed in the light most favorable to the government, the evidence was
sufficient to support Riley’s § 924(c) conviction. The jury could have reasonably
inferred that Riley had constructive possession of the gun because it was found
next to his hands and Riley was the only resident of the house when the gun was
found. Furthermore, there was a reasonable basis in the record from which the jury
could conclude that Riley possessed the gun in furtherance of the drug crime, given
that the gun was found near more than 1000 grams of cocaine, the gun was not
possessed legally, and the gun was loaded.
In conclusion, upon review of the record and consideration of the parties’
briefs, we affirm.
AFFIRMED.
17