           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                                                         [DO NOT PUBLISH]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:
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      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unpublished decisions of this Court to support its evidentiary rulings.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.




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      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).




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      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


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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


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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


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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
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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).
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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


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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


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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




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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 &


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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).




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      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


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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).


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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.




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      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.




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