United States v. Jason Timothy Wasser , 586 F. App'x 501 ( 2014 )


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  •            Case: 13-15490   Date Filed: 09/26/2014   Page: 1 of 10
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-15490
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 4:13-cr-10017-JLK-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JASON TIMOTHY WASSER,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (September 26, 2014)
    Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
    PER CURIAM:
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    Jason Timothy Wasser appeals his conviction for possession of a firearm and
    ammunition by a conviction felon. We affirm.
    I. BACKGROUND
    In February 2012, Wasser entered a no-contest plea to a state charge of
    carrying a concealed firearm in Indian River County, Florida. He was sentenced to
    18 months of probation. He was subject to the following conditions of probation:
    (1) he must not possess, carry, or own any firearm or weapon without first
    procuring the consent of his probation officer; and (2) he must “promptly and
    truthfully answer all inquiries directed to [him] by the court or the officer, and
    allow [his] officer to visit in [his] home, at [his] employment site or elsewhere,”
    and he must comply with his probation officer’s instructions. ROA at 114.
    On May 5, 2013, the Federal Bureau of Investigation (“FBI”) received an
    anonymous tip that Wasser may be in possession of firearms and narcotics. The
    FBI informed Florida probation officers of the tip. Wasser’s probation officer,
    Cheryl Blyth, planned a probation compliance visit and warrantless search of
    Wasser’s residence based on the anonymous tip. Probation Officer Blyth was
    concerned about the tip, because she knew of Wasser’s prior firearms offense and
    that he was not to possess any firearms, drugs, or weapons. She also knew Wasser
    was a member of the Pagan Motorcycle Club, a gang involved in extortion, drug
    sales, prostitution, and other crimes.
    2
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    Probation Officer Blyth requested additional probation officers to assist her
    with the search, and she asked Special Agent Todd Blyth of the Department of
    Homeland Security and Key West Detective Michael Chaustit to provide security
    during the visit. On May 7, 2013, they visited Wasser’s residence. When Wasser
    opened the door, Probation Officer Blyth informed him they were there for a
    probation visit and asked to enter the home. Wasser consented. Upon entering the
    residence, probation officers and law enforcement observed in plain view swords,
    combat knives, and what appeared to be a firearm in a display case. 1 Wasser’s
    possession of those items constituted a violation of his probation conditions.
    The probation officers subsequently began to search the residence. Special
    Agent Blyth and Detective Chaustit did not participate in the search. Special
    Agent Blyth guarded Wasser and other occupants of the residence, who were
    seated on a couch, while Detective Chaustit provided security outside. During the
    search, probation officers found numerous additional knives, a bulletproof vest,
    and marijuana. Upon the discovery of the marijuana, Detective Chaustit asked the
    probation officers to stop the search so he could apply for a search warrant.
    Meanwhile, Special Agent Blyth informed Wasser he was under arrest and read
    Wasser his Miranda 2 warnings.
    1
    The firearm later was determined to be a replica.
    2
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    (1966).
    3
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    Several hours later, Detective Chaustit returned with a warrant. Law
    enforcement officers then searched Wasser’s residence and found 3 firearms, over
    200 rounds of ammunition, and 2 sets of brass knuckles, among other items.
    Wasser purportedly admitted owning one firearm, which had been found in his
    bedroom closet.
    On May 22, 2013, a federal grand jury charged Wasser with possession of a
    firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §
    922(g)(1). Wasser pled not guilty to the charge and moved to suppress all physical
    evidence and statements obtained from the search of his residence. In his motion
    to suppress, Wasser argued his conditions of probation did not require him to
    submit to warrantless searches of his home. Rather, his conditions required he
    consent only to visits. He further argued the Fourth Amendment’s protection
    against unreasonable searches and seizures applied to him, even though he was on
    probation, and probation officers needed at least reasonable suspicion to search his
    residence without a warrant. Wasser argued probation officers lacked reasonable
    suspicion, however, because they planned the warrantless search of his home based
    on an unreliable, anonymous tip. He also asserted law enforcement officers
    actually controlled the initial search of his home, rather than probation officers,
    which required a higher level of suspicion to conduct the search. He contended all
    evidence obtained from the unlawful probation search must be suppressed. He
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    argued all evidence discovered after the issuance of the search warrant, which was
    obtained based on evidence discovered during the allegedly illegal search, likewise
    must be suppressed as fruit of the poisonous tree.
    Following a hearing on the motion to suppress, a magistrate judge
    recommended denying the motion. The magistrate judge rejected Wasser’s
    argument that probation officers needed reasonable suspicion to search his home
    and concluded, under the totality of the circumstances, the probation officers’
    initial search was constitutional under the Fourth Amendment and as interpreted by
    the Supreme Court of Florida in Grubbs v. State, 
    373 So. 2d 905
    (Fla. 1979).3
    Because probation officers were entitled to be in Wasser’s residence and to gather
    evidence, they also were entitled to give that evidence to law enforcement officers
    to apply for a search warrant. The magistrate judge also rejected Wasser’s
    contention that law enforcement officers controlled the initial search, finding the
    officers were present merely to provide security for probation.
    The district judge adopted the magistrate judge’s report and
    recommendation, over Wasser’s objections. The judge agreed the initial search
    was controlled and conducted by probation officers, with law enforcement officers
    3
    In Grubbs, the Supreme Court of Florida held that a probation officer may conduct a
    warrantless search of a probationer’s residence without reasonable suspicion, as long as any
    evidence discovered is used only in probation violation 
    proceedings. 373 So. 2d at 907
    . The
    court elaborated that probation officers and law enforcement officers must comply with
    customary Fourth Amendment requirements to use evidence seized from a probationer’s
    residence in a new criminal proceeding. 
    Id. 5 Case:
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    acting in a supporting role. The judge also agreed the probation officers lawfully
    were permitted to conduct a warrantless search without probable cause or
    reasonable suspicion.
    Thereafter, Wasser entered a conditional guilty plea to the charge, pursuant
    to a written plea agreement, and he reserved the right to appeal the denial of his
    motion to suppress. The district judge accepted the plea and adjudicated Wasser
    guilty of possession of a firearm and ammunition by a convicted felon, in violation
    of 18 U.S.C. § 922(g)(1). The judge sentenced Wasser to a term of imprisonment
    of one year and one day, followed by a one-year term of supervised release.
    II. DISCUSSION
    On appeal, Wasser argues the district judge erred by denying his motion to
    suppress and asserts the investigative search of his home by probation officers
    lacked the requisite reasonable suspicion. He argues the initial search of his home
    was not supported by reasonable suspicion, because the anonymous,
    uncorroborated tip that led to the search was not reliable. In addition, he argues
    probation officers conducted the search on behalf of law enforcement officers, and
    thus, the search was actually a criminal investigation that must be supported by
    reasonable suspicion or probable cause.
    In reviewing the denial of a motion to suppress, we review the district
    judge’s findings of fact for clear error and application of law to those facts de
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    novo. United States v. Gibson, 
    708 F.3d 1256
    , 1274 (11th Cir.), cert. denied, 
    134 S. Ct. 342
    (2013). Further, all facts are construed in the light most favorable to the
    prevailing party below—in this case, the government. 
    Id. We may
    affirm the
    district judge’s judgment on any ground supported by the record. United States v.
    Smith, 
    742 F.3d 949
    , 952 (11th Cir. 2014).
    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 unquestionably applies to probationers. Owens
    v. Kelley, 
    681 F.2d 1362
    , 1367 (11th Cir. 1982). Probationers, however, have a
    diminished expectation of privacy and “are subject to limitations to which ordinary
    citizens are free.” 
    Id. at 1367-68.
    For instance, Wasser was subject to a limitation
    requiring him to submit to visits in his home by his probation officer.
    We have not considered whether a probation condition so completely
    diminished a probationer’s reasonable expectation of privacy that a search without
    reasonable suspicion would have satisfied the reasonableness requirement of the
    Fourth Amendment. 4 Nevertheless, we need not address this issue at this time,
    4
    Rather, we have discussed whether probation officers and law enforcement officers
    need more than reasonable suspicion to conduct warrantless searches of probationers’ homes.
    See, e.g., United States v. Knights, 
    534 U.S. 112
    , 114, 121-22, 
    122 S. Ct. 587
    , 589, 592-93
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    because we conclude the probation officers had reasonable suspicion to search
    Wasser’s residence.
    “Reasonable suspicion consists of a sufficiently high probability that
    criminal conduct is occurring to make the intrusion on the individual’s privacy
    interest reasonable.” United States v. Yuknavich, 
    419 F.3d 1302
    , 1311 (11th Cir.
    2005) (citation and internal quotation marks omitted). 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. (citation and
    internal quotation marks omitted). 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.
    (2001) (holding warrantless search of probationer’s home by law enforcement officer for
    investigatory purposes was reasonable, when conditions of probation included a search term and
    the search was supported by reasonable suspicion); United States v. Carter, 
    566 F.3d 970
    ,
    973-73 (11th Cir. 2009) (per curiam) (holding a warrantless search of a probationer’s home by
    probation officers and based on reasonable suspicion was constitutionally permissible, when
    conditions of probation required the probationer to submit to home visits, but not searches);
    United States v. Yuknavich, 
    419 F.3d 1302
    , 1310-11 (11th Cir. 2005) (holding search of
    probationer’s computer by probation officers was reasonable, even in the absence of a search
    provision, when conditions on probationer’s computer use reduced his expectation of privacy in
    his computer).
    8
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    2007) (citation and internal quotation marks omitted). “The issue is whether the
    tip, as corroborated by independent police work, exhibited sufficient indicia of
    reliability to provide reasonable suspicion . . . .” 
    Id. (citation and
    internal quotation
    marks omitted).
    Probation officers were permitted to enter Wasser’s home for a compliance
    visit without having reasonable suspicion of probation violations. A standard
    condition of Wasser’s supervision directed him to allow his probation officer to
    visit in his home, at his employment site or elsewhere, and to comply with all
    instructions the officer may give. ROA at 114. Accordingly, Probation Officer
    Blyth was authorized, pursuant to Wasser’s terms of probation, to enter Wasser’s
    home on May 7, 2013, without having reasonable suspicion.
    Although probation officers did not have reasonable suspicion to search
    Wasser’s home based on the anonymous tip alone, see 
    Lindsey, 482 F.3d at 1291
    (stating an anonymous tip must be reliable and corroborated by independent police
    work to provide reasonable suspicion), they acquired reasonable suspicion of
    criminal activity as soon as they lawfully entered Wasser’s residence. Upon
    entering the residence, they saw numerous swords and knives in plain view, and
    Wasser’s possession of such weapons violated his conditions of probation. At that
    moment, the probation officers were aware of the following: (1) Wasser’s prior
    weapons charge, (2) his involvement in the Pagans gang, (3) the anonymous tip
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    stating Wasser possessed drugs and guns, and (4) the presence of weapons in plain
    view. Under the totality of the circumstances, probation officers had reasonable
    suspicion that Wasser had violated the terms of his probation and likely possessed
    additional prohibited items. 
    Yuknavich, 419 F.3d at 1311
    . Therefore, they were
    permitted to search the residence to look for additional violations. See 
    Smith, 742 F.3d at 952
    (stating we may affirm on any grounds supported by the record).
    We also reject Wasser’s contention that probation officers needed reasonable
    suspicion or probable cause to search his home, because they were conducting an
    investigatory search on behalf of law enforcement for use in a separate criminal
    proceeding. Special Agent Blyth and Detective Chaustit did not participate in the
    probation officers’ initial search. Rather, they guarded Wasser and the other
    occupants of the house. Law enforcement did not tell the probation officers to look
    for particular items or direct them to search in particular places. The probation
    officers had reasonable suspicion to search the premises upon entering the
    residence. Accordingly, the district judge did not err by denying Wasser’s motion
    to dismiss, and we affirm.
    AFFIRMED.
    10