USCA11 Case: 21-12173 Date Filed: 10/13/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12173
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DUEL WAYNE POPE, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:20-cr-00052-AKK-JHE-1
____________________
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2 Opinion of the Court 21-12173
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Duel Pope, Jr. appeals the denial of his motion to suppress
evidence found when Alabama Bureau of Pardons and Paroles pro-
bation officers entered his home to address his violation of a pro-
bation condition and subsequently found a shotgun inside an open
closet. The district court denied Pope’s motion to suppress, finding
that the search was reasonable under the Fourth Amendment, and
that the gun was in plain view. For the following reasons, we af-
firm the district court.
I.
At the time of the relevant events, Pope was on probation
for two separate felony convictions in Alabama. Pope’s orders of
probation included several conditions with which he agreed to
comply, including the following relevant conditions:
4. Report to the Probation Officer as di-
rected.
5. Permit the Probation Officer to visit
defendant at home or elsewhere.
...
11. Submit to searches by the Probation
Officer of his person, residence, vehicle,
or any property under his/her control.
...
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21-12173 Opinion of the Court 3
13. Do not possess, receive, or transport
firearms.
Pope was to report monthly to Officer Lucretia Battles at her office.
Pope was later reassigned to Officer Kenneth Thornton. Both Of-
ficer Battles and Officer Thornton were assigned to St. Clair
County, Alabama. Pope was compliant with his reporting for sev-
eral months, but he failed to report to Officer Thornton in July and
August 2019. Pope had called Officer Thornton advising that he
was having car troubles one month, but Officer Thornton heard
nothing further after that phone call.
On August 28, 2019, Officer Battles and Officer Thornton
visited Pope’s home in Jefferson County—just over the St. Clair
County line—to address the violation of Pope’s probation orders.
When they arrived, Pope’s wife informed the officers that he was
not home. However, Pope’s young daughter stated that Pope was
inside. The officers also observed two males inside the garage.
Given the conflicting accounts of Pope’s whereabouts and the of-
ficers’ belief that one of the men in the garage could be Pope, they
decided to enter the home. The officers attempted to enter
through the front door but found it had been deadbolted from the
inside—despite observing Pope’s wife exit through the front door
when they initially pulled up—so they entered through the garage.
The officers located Pope lying face down on a bed in an up-
stairs room. Pope was unresponsive, but the officers eventually
woke him up. At the evidentiary hearing on the motion to
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4 Opinion of the Court 21-12173
suppress in the district court, the officers testified that Pope’s
speech was slurred, and he appeared to be under the influence of
something. They handcuffed Pope and searched his room for con-
traband or paraphernalia, examining objects on a desk and opening
drawers and boxes. After several minutes, Officer Thornton shone
his flashlight into an open closet, which revealed a “16-guage
pump-action shotgun.” The officers seized the gun, took Pope out-
side, read him his Miranda 1 rights, and transported him to the St.
Clair County Jail.
Pope filed a motion to suppress the evidence found as a re-
sult of the search and challenging his arrest, arguing that the search
and arrest violated the Fourth Amendment and Alabama state law.
The magistrate judge held an evidentiary hearing on the motion
and heard testimony from Officer Battles and Officer Thornton.
The magistrate judge recommended denying Pope’s motion to
suppress, and the district judge adopted the report and recommen-
dation. Pope pled guilty to being a felon in possession of a firearm
but reserved the right to appeal the denial of his suppression mo-
tion.
II.
Denial of a motion to suppress presents mixed questions of
fact and law. United States v. Barber,
777 F.3d 1303, 1304 (11th Cir.
2015). We review the district court’s factual findings for clear error,
1 Miranda v. Arizona,
384 U.S. 436 (1966).
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21-12173 Opinion of the Court 5
and legal conclusions de novo.
Id. We may affirm the denial of a
motion to suppress on any ground that the record supports. United
States v. Caraballo,
595 F.3d 1214, 1222 (11th Cir. 2010). We con-
strue the facts “in the light most favorable to the prevailing party
below,” affording substantial deference to the factfinder’s explicit
and implicit credibility determinations. United States v. Lewis,
674 F.3d 1298, 1303 (11th Cir. 2012) (internal quotation marks
omitted). We will not reverse a factual finding concerning credi-
bility unless the finding is “contrary to the laws of nature, or is so
inconsistent or improbable on its face that no reasonable factfinder
could accept it.” United States v. Cavallo,
790 F.3d 1202, 1227 (11th
Cir. 2015) (internal quotation marks omitted).
The Fourth Amendment guarantees “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. Rea-
sonableness is “[t]he touchstone of the Fourth Amendment.”
United States v. Knights,
534 U.S. 112, 118 (2001). Without a war-
rant issued upon probable cause, a search is unreasonable—unless
it falls into a specifically established exception. Katz v. United
States,
389 U.S. 347, 357 (1967).
The Supreme Court has recognized an exception to the war-
rant and probable cause requirements for a probationer who has
agreed to submit to searches as a condition of his probation. United
States v. Knights,
534 U.S. 112, 121–22 (2001). “[T]he reasonable-
ness of a search is determined by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and, on
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6 Opinion of the Court 21-12173
the other, the degree to which it is needed for the promotion of
legitimate governmental interests.”
Id. at 118–19 (internal quota-
tion marks omitted). An individual’s “status as a probationer sub-
ject to a search condition informs both sides of that balance.”
Id.
at 119. Probationers have a diminished expectation of privacy be-
cause they “do not enjoy the absolute liberty to which every citizen
is entitled.”
Id. at 119 (internal quotation marks omitted). The
government has an interest in probationers successfully complet-
ing probation and in apprehending those who violate the criminal
law.
Id. at 120–21. Balancing these interests, the Supreme Court
held that “no more than reasonable suspicion” is required for law
enforcement to search a probationer’s home without a warrant
when a probation condition authorizes such searches.
Id. at 121.
III.
On appeal, Pope makes one overarching argument: that the
district court committed reversible error by denying his motion to
suppress because the probation officers’ entry, search, and arrest
violated the Fourth Amendment and Alabama state law. Pope
raises five distinct sub-arguments challenging the district court’s
findings that (1) the officers needed reasonable suspicion of only a
probation violation—not of criminal activity—to enter and search
his home; (2) the officers had jurisdiction to search his home out-
side of their assigned county; (3) the shotgun found in his home
was in plain view; (4) the orders of probation and their conditions
were valid; and (5) the officers did not need a written statement
explaining Pope’s violation of his probation conditions.
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21-12173 Opinion of the Court 7
First, regarding the requisite standard for the search, the of-
ficers needed only reasonable suspicion of a probation violation to
conduct a warrantless search of Pope’s home given his probationer
status and the search condition in his probation orders. Knights,
534 U.S. at 121–22. We have held that “[r]easonable suspicion con-
sists of a sufficiently high probability that criminal conduct is oc-
curring to make the intrusion on the individual’s privacy interest
reasonable.” United States v. Yuknavich,
419 F.3d 1302, 1311 (11th
Cir. 2005) (internal quotation marks omitted). To determine
whether a probation officer has reasonable suspicion to search a
probationer’s property, we “must take stock of everything [the of-
ficer] knew before searching.”
Id.
Here, prior to entering the home, Officers Battles and
Thornton knew that Pope had been noncompliant with his
monthly reporting, they received conflicting accounts as to
whether Pope was inside, and they observed two men in the gar-
age. These facts were sufficient to establish reasonable suspicion
that Pope was evading his probation officers. A probation officer
needs “no more than reasonable suspicion” of a probation violation
to conduct a search. Yuknavich, 419 F.3d at 1309, 1311. Moreover,
Pope was subject to a search condition. Given the reasonable sus-
picion of Pope’s probation violation, and the fact that Pope’s pro-
bation orders included a search condition, it was reasonable for the
officers to enter and search Pope’s residence. Once the officers lo-
cated Pope and observed his unresponsiveness and slurred speech,
they formed reasonable suspicion that he was under the influence
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8 Opinion of the Court 21-12173
of drugs—which would be another violation of his probation or-
ders. At that point in time, it was reasonable for the officers to
search Pope’s room for contraband. Applying the Knights balanc-
ing test, Pope’s privacy interest was diminished given his proba-
tionary status, and the officers had an interest in apprehending
Pope for violating his probation orders. Accordingly, the trial court
was correct in concluding that the officers’ search was reasonable
under the Fourth Amendment.
Second, Pope’s argument that the probation officers acted
outside their geographical jurisdiction would not affect the reason-
ableness of the search under the Fourth Amendment. Generally,
federal law governs the admissibility of evidence obtained by state
officers in federal court. United States v. Malekzadeh,
855 F.2d
1492, 1496 (11th Cir. 1988) (regarding admissibility in federal court
of wiretapped conversations). Therefore, whether state law au-
thorizes a given search is irrelevant for our Fourth Amendment
analysis. Virginia v. Moore,
553 U.S. 164, 171 (2008); see also
Cooper v. California,
386 U.S. 58, 61 (1967) (noting that the ques-
tion presented was not whether the search at issue was authorized
by state law, but whether it was reasonable under the Fourth
Amendment). As such, this argument lacks merit.
Third, Pope’s argument that the search which revealed the
gun was unreasonable is also meritless. As previously discussed,
the officers’ entry and search was reasonable under the Fourth
Amendment. Moreover, under the “plain view doctrine,” an of-
ficer may conduct a warrantless seizure when “(1) an officer is
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21-12173 Opinion of the Court 9
lawfully located in the place from which the seized object could be
plainly viewed and must have a lawful right of access to the object
itself; and (2) the incriminating character of the item is immediately
apparent.” United States v. Smith,
459 F.3d 1276, 1290 (11th Cir.
2006). Here, the officers were lawfully located in Pope’s residence
pursuant to the conditions of his probation orders, and the officers
testified at the evidentiary hearing that the shotgun was in plain
view in the open closet. The incriminating character of the shot-
gun was immediately apparent, given that Pope was not permitted
to possess firearms as a condition of his probation. The district
court implicitly credited the probation officers’ testimony that the
gun was in plain view, and that determination is afforded substan-
tial deference. United States v. Lewis,
674 F.3d 1298, 1303 (11th
Cir. 2012). Pope even admitted in the statement of facts accompa-
nying his guilty plea that the gun was in plain view. Thus, we find
no basis for reversing the district court’s finding that the gun was
in plain view.
Fourth, Pope challenges the validity of the probation orders
and their conditions because the two orders were signed by judges
a few days after they were presented to and signed by Pope. Under
Alabama law, “[a]ll conditions of probation must be incorporated
into a court’s written order of probation, and a copy thereof must
be given to the probationer.” Ala. R. Crim. P. 27.1. The orders as
signed by the St. Clair County judges were identical to the versions
that Pope had reviewed and signed a few days earlier. The proba-
tion orders were signed in April 2018, at which time they became
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10 Opinion of the Court 21-12173
court-imposed orders, and Pope complied with the conditions for
several months. The orders were still in effect in August 2019 at
the time of the relevant events. Pope has not provided any author-
ity to support his argument that the timing of the judges’ signatures
after Pope’s review and signing of the orders, rather than before,
renders them invalid.
Fifth, Pope argues that under Section 15-22-54(d), Ala. Code
1975, the officers needed a written statement of his probation vio-
lation. However, a written statement is necessary under Section
15-22-54(d) “only where the supervising probation officer does not
personally make the arrest.” Estes v. State,
690 So. 2d 512, 514 (Ala.
Crim. App. 1996). Officer Thornton, Pope’s supervising probation
officer, personally made the arrest. Therefore, a written statement
of Pope’s probation violation was not needed.
The district court correctly concluded that the probation of-
ficers needed only reasonable suspicion of a probation violation to
enter and search Pope’s home. Further, the district court did not
clearly err in implicitly crediting the probation officer’s testimony
that the gun was in plain view. Accordingly, we affirm.
AFFIRMED.
