               Case: 13-11757       Date Filed: 03/15/2016       Page: 1 of 21


                                                                                  [PUBLISH]
                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-11757
                              ________________________

                        D.C. Docket Nos. 9:12-cv-80164-DMM,
                               9:09-cr-80056-DMM-1


REYNALDO CASTILLO,

                                                                       Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                                                      Respondent-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                             _______________________

                                      (March 15, 2016)

Before WILLIAM PRYOR and FAY, Circuit Judges, and ROBRENO, * District
Judge.

WILLIAM PRYOR, Circuit Judge:



* Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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      This appeal requires us to decide whether the district court should have held

an evidentiary hearing before it denied Reynaldo Castillo’s motion to vacate his

sentence for his counsel’s failure to move to suppress the fruits of a warrantless

search and to dismiss his indictment. Before conducting the search, a pretrial

intervention officer received a tip that Castillo possessed a firearm in violation of

his pretrial intervention agreement. The officer searched Castillo’s house, over his

objection, and observed a bolt-action rifle in his bedroom. Based on that

information, the police obtained a search warrant for the house, where they found

13 guns. Federal authorities then convicted Castillo of illegally possessing and

making guns, 26 U.S.C. §§ 5861, 5871. He later filed a motion to vacate, 28 U.S.C.

§ 2255, which the district court denied without an evidentiary hearing. We

conclude that the warrantless search of Castillo’s house was reasonable because the

pretrial intervention officer had reasonable suspicion, because the supervision

permitted by the pretrial intervention agreement gave Castillo a diminished

expectation of privacy, and because the state has strong interests in the

effectiveness of its pretrial intervention program. We affirm the denial of Castillo’s

motion without an evidentiary hearing.

                                I. BACKGROUND

      In 2008, Reynaldo Castillo entered a pretrial intervention program as part of

a deferred prosecution agreement with the State of Florida. Florida offers the



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program to first-time offenders and some second-time offenders, Fla. Stat.

§ 948.08(2), who are then supervised by probation officers. Although Castillo did

not plead guilty in court, he confessed to five counts of burglary and one count of

dealing in stolen property. Castillo’s pretrial intervention agreement had several

conditions, including that he would “neither possess [nor] carry any firearm or

weapon,” that he would “truthfully answer all inquiries by [his] Pretrial

Intervention Officer,” that “the officer may visit [his] home . . . or elsewhere

without [his] prior approval,” that he would “comply with all instructions he or she

may give [him],” and that he would “submit to a urinalysis, breathalyzer, or blood

tests at any time requested by [his] Pretrial Intervention Officer.” If Castillo

violated any of these conditions during the 18 months of the program, Florida

reserved the right to prosecute him for the charges to which he had confessed.

      While Castillo was in the program, Kimberly Greene, the mother of his ex-

wife, informed the local probation office that Castillo had a gun. She faxed the

officer on duty a copy of a MySpace page with a photograph of a man who

appeared to be Castillo. In the photograph, the man held a gun, wore a mask and

goggles, and extended his middle finger. The page was entitled “To all you

Greene’s FUCK YOU! your’re [sic] all Reynaldo is having a great time with his

friends, cause I hang out with female friends.” It mentioned Castillo’s ex-wife by




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name and insulted her and her family members. At the bottom it announced, “I

promise i will get all of you before i go.”

      The probation officer on duty, Louis Kurtz, went to Castillo’s house to look

for the gun. A police officer who accompanied Kurtz for security felt the hood of

Castillo’s car, which was hot. Kurtz knocked loudly and called Castillo’s home and

cell phones, but it took about 15 minutes for Castillo to open the door. Castillo

denied that he had a gun and objected to the search. Kurtz nonetheless entered the

house and saw in Castillo’s bedroom a bolt-action rifle, gun cases, multiple

calibers of ammunition, Kevlar helmets, and a mask matching the one in the photo.

      Based on Kurtz’s observations, two police officers applied for a warrant to

search Castillo’s house. In their affidavit, they swore that Castillo unlawfully

possessed firearms “in violation of the laws of the State of Florida, to-wit: The

laws prohibiting the possession of firearms in violation of terms of probation

contrary to section 948.06.” They also stated the details of Kurtz’s search and that

the pretrial intervention agreement prohibited Castillo from having a firearm. After

a state judge issued the warrant, the police seized 13 firearms and over 7,000

rounds of ammunition from Castillo’s house.

      Federal agents later arrested Castillo, and a jury convicted him of possession

of an unregistered short-barreled rifle, 26 U.S.C. § 5861(d); possession of a short-

barreled rifle not identified by serial number, id. § 5861(i); possession of an



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unregistered machine-gun receiver, id. § 5861(d); making a machine-gun receiver,

id. § 5861(f); and making a machine gun, id. § 5861(f). The district court

sentenced Castillo to 96 months of imprisonment and 3 years of supervised release.

We upheld the convictions on appeal. United States v. Castillo, 409 F. App’x 250

(11th Cir. 2010).

      In 2012, Castillo moved to vacate his convictions on six grounds, only two

of which are before us now. First, he alleged that his trial counsel was ineffective

because he “failed to move the Court to suppress any and all evidence obtained by

or as a result of probation officer Louis Kurtz’s warrantless and demonstrably

illegal search of Castillo’s residence.” Second, he alleged that his trial counsel was

ineffective because he “failed to move the Court to dismiss the indictment based

upon Probation Officer Louis Kurtz’s illegal search of Castillo’s residence.” The

district court denied Castillo’s motion without an evidentiary hearing. We granted

a certificate of appealability limited to the following question: “Whether the

District Court erred in denying, without an evidentiary hearing, Mr. Castillo’s

claim that counsel rendered ineffective assistance by failing to move for

suppression of the evidence obtained through the fruits of a warrantless search of

his house, or for failing to move for dismissal of the indictment.”




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                            II. STANDARD OF REVIEW

       “We review the denial of an evidentiary hearing for abuse of discretion.”

Diveroli v. United States, 803 F.3d 1258, 1262 (11th Cir. 2015). “Unless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief, the court shall . . . grant a prompt hearing thereon . . . .” 28

U.S.C. § 2255(b). “We may affirm on any ground supported by the record.”

LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir. 2014).

                                   III. DISCUSSION

       Because Castillo’s motion failed to allege a constitutional violation, he was

not entitled to an evidentiary hearing. To prevail on a claim of ineffective

assistance of counsel, a prisoner must prove that his counsel rendered deficient

performance and that he was prejudiced by the deficient performance. Strickland v.

Washington, 466 U.S. 668, 687 (1984). If a search was constitutional, then counsel

is not obligated to move to suppress the evidence or dismiss the indictment and a

defendant is not prejudiced by counsel’s failure to do so. See Kimmelman v.

Morrison, 477 U.S. 365, 375 (1986); Zakrzewski v. McDonough, 455 F.3d 1254,

1260–61 (11th Cir. 2006).

       The warrantless search of Castillo’s home was constitutional. Counsel did

not perform deficiently, and Castillo suffered no prejudice.




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      The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. Amend. IV. “‘[U]nder [the] general Fourth Amendment

approach’ we ‘examin[e] the totality of the circumstances’ to determine whether a

search is reasonable within the meaning of the Fourth Amendment.” Samson v.

California, 547 U.S. 843, 848 (first and third alterations in original) (quoting

United States v. Knights, 534 U.S. 112, 118 (2001)). “Whether a search is

reasonable ‘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. (quoting

Knights, 534 U.S. at 118–19). Neither the Supreme Court nor this Court has

applied this standard in the context of a pretrial intervention program, but several

decisions about searches of probationers and parolees guide our review. See id. at

846 (upholding a suspicionless search of a parolee who was subject to searches as

a condition of parole); Knights, 534 U.S. at 122 (upholding a search based on

reasonable suspicion of a probationer who was subject to searches as condition of

probation); United States v. Carter, 566 F.3d 970, 971, 974 (11th Cir. 2009)

(upholding a search based on reasonable suspicion of a probationer who was

subject to unannounced home visits as a condition of probation).




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      We conclude that the warrantless search of Castillo’s home was reasonable.

Castillo had a diminished expectation of privacy because of his participation in

pretrial intervention. Moreover, Florida has important interests in rehabilitating

individuals in pretrial intervention and preventing them from offending again. And

Officer Kurtz had reasonable suspicion to conduct the search.

      Castillo’s participation in pretrial intervention reduced his expectation of

privacy. “The expectations of privacy of an individual taken into police custody

‘necessarily [are] of a diminished scope.’” Maryland v. King, 133 S. Ct. 1958,

1978 (2013) (alteration in original) (quoting Bell v. Wolfish, 441 U.S. 520, 557

(1979)). The law has long recognized that an arrestee released from custody may

remain subject to restraints on his liberty. See, e.g., Hensley v. Mun. Court, 411

U.S. 345, 348–49 (1973) (holding that a defendant released on recognizance was in

custody for purposes of habeas); 1 Joel Prentiss Bishop, Criminal Procedure

§ 248, at 148 (3d ed. 1880) (defining bail as “the delivery, in legal form, of one

under arrest to another or others who thereby become entitled to his custody”); 4

William Blackstone, Commentaries on the Laws of England *294 (1769)

(explaining that a person free on bail is “supposed to continue in [his sureties’]

friendly custody, instead of going to gaol”); 2 Matthew Hale, The History of the

Pleas of the Crown *124 (1736) (explaining that “he that is bailed, is in

supposition of law still in custody, and the parties that take him to bail are in law



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his keepers”); 2 William Hawkins, A Treatise of the Pleas of the Crown 88 (3d ed.

1739) (explaining that in the Court of King’s Bench, “a man’s Bail are looked

upon as his Gaolers of his own choosing and that the Person bailed is in the Eye of

the Law for many Purposes, esteemed to be as much in the Prison of the Court by

which he is bailed, as if he were in the actual Custody of the proper Gaoler”

(footnotes omitted)). Castillo agreed to conditions that allowed home visits from an

officer and required him to respond to all questions. Cf. 566 F.3d at 974. He even

accepted a condition that allowed suspicionless drug tests. Because he was subject

to supervision, we conclude that Castillo had a diminished expectation of privacy.

      Florida has interests in rehabilitating participants in pretrial intervention and

preventing them from reoffending. The Supreme Court has “repeatedly

acknowledged that a State’s interests in reducing recidivism and thereby promoting

reintegration and positive citizenship among probationers and parolees warrant

privacy intrusions that would not otherwise be tolerated under the Fourth

Amendment.” Samson, 547 U.S. at 853. This interest serves both offenders the

state hopes to rehabilitate and citizens the state seeks to protect from future crimes

committed by the offender. See id. at 853–54; Knights, 534 U.S. at 120–21.The

Supreme Court has also recognized that parolees and probationers convicted of a

crime are more likely to offend than the typical citizen. See Samson, 547 U.S. at

853; Knights, 534 U.S. at 120–21. Although an individual in pretrial intervention



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may not be as likely to reoffend as a parolee or probationer, Castillo entered

pretrial intervention to rehabilitate himself and prevent recidivism. And Florida

could expect that Castillo would be more likely than the average citizen to commit

a crime. As a result, Florida could make reasonable intrusions to deter him from

offending again.

      Warrantless searches of participants in pretrial intervention to ensure

compliance with the program can be reasonable under the Fourth Amendment. As

an initial matter, the threat of warrantless searches may deter wrongdoing before it

begins. Cf. United States v. Kincade, 379 F.3d 813, 838–39 (9th Cir. 2004)

(discussing the deterrent effect of DNA tests on supervised releasees). And if

deterrence fails, a warrantless search can help catch a wayward participant. After

Castillo told Officer Kurtz that he had no guns, a search led to the discovery of 13

guns. Participants in pretrial intervention, like parolees and probationers, have a

special incentive to cover up new crimes and violations of their agreements

because the close supervision in their programs makes it more likely that they will

be caught. See Knights, 534 U.S. at 120; Carter, 566 F.3d at 974. Unduly

restricting searches would allow participants to hide evidence of their misdeeds

and undermine the effectiveness of the program. Cf. Samson, 547 U.S. at 854.

      Officer Kurtz was entitled to conduct a warrantless search of Castillo’s

house so long as he had reasonable suspicion of a crime or a violation of the



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pretrial intervention program. “Although the Fourth Amendment ordinarily

requires the degree of probability embodied in the term ‘probable cause,’ a lesser

degree satisfies the Constitution when the balance of governmental and private

interests makes such a standard reasonable.” Knights, 534 U.S. at 121. The

Supreme Court required only reasonable suspicion to search the probationer in

Knights, and we likewise required only reasonable suspicion to search the

probationer in Carter. See id.; Carter, 566 F.3d at 975. Because the pretrial

intervention program reduced Castillo’s expectation of privacy and gave Florida

strong interests in conducting a search, we conclude that Kurtz too needed only

reasonable suspicion.

      Kurtz had reasonable suspicion based on the tip and Castillo’s behavior that

Castillo possessed a firearm in violation of his pretrial intervention agreement.

Castillo’s former mother-in-law, who served as a victim’s advocate for the county,

told Kurtz about the MySpace page and faxed him a copy of it. The page depicted

a man who appeared to be Castillo holding a gun and extending his middle finger

while wearing tactical gear. The author of the page told Castillo’s ex-wife and her

family, “FUCK YOU!” and threatened to “get all of [them].” When Kurtz arrived

at the house, it took about 15 minutes for Castillo to open the door. Taken together,

these facts gave Kurtz reasonable suspicion to search the house. Because the search

of Castillo’s house was constitutional, he cannot establish deficient performance or



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prejudice for his counsel’s failure to move to suppress the fruits of the search or

dismiss the indictment.

      We do not consider Castillo’s argument that the search warrant was invalid

because it failed to identify a crime, and we strike the portions of his briefs that

address this issue. Our review is limited to the issue specified in the certificate of

appealability. Murray v. United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998).

The certificate specified only the “claim that counsel rendered ineffective

assistance by failing to move for suppression of the evidence obtained through the

fruits of a warrantless search of his house, or for failing to move for dismissal of

the indictment.” The certificate does not encompass defects in the warrant that are

unrelated to the earlier search without a warrant.

                                 IV. CONCLUSION

      We AFFIRM the denial of Castillo’s motion to vacate his sentence.




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ROBRENO, District Judge, concurring:

      I agree that Castillo cannot establish deficient performance or prejudice for

his counsel’s failure to move to suppress the fruits of the search or dismiss the

indictment because the search of his house was not constitutionally infirm. Castillo

had a diminished expectation of privacy as a participant in the pretrial intervention

(“PTI”) program, and Officer Kurtz had reasonable suspicion to search the

premises.

      I write separately, however, to draw a limiting principle around the

majority’s extension of the Court’s decision in United States v. Carter, 566 F.3d

970 (11th Cir. 2009) (per curiam), to a PTI participant, because Carter addressed

only whether the warrantless search of a probationer’s home was reasonable. The

majority equates Castillo to the probationer in Carter because Castillo agreed to

conditions that allowed home visits from an officer. The majority also references

the Supreme Court’s recognition that parolees and probationers convicted of

crimes are more likely to offend, and the majority concludes that this logic applies

equally to individuals admitted to a PTI program.

      While I agree that Castillo’s participation in the PTI program reduced his

expectation of privacy, I disagree that it did so to the extent and degree that the

expectation of privacy is reduced for probationers and parolees. Similarly, I

disagree that the government’s interest in monitoring PTI participants is



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necessarily as high as its interest in monitoring probationers and parolees. The

Supreme Court in United States v. Knights, 534 U.S. 112 (2001), contemplated a

balancing test, not a litmus test.

      “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”

Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Reasonableness is defined “in

objective terms by examining the totality of the circumstances.” Ohio v. Robinette,

519 U.S. 33, 39 (1996). In considering the circumstances of a particular search, the

court balances “the degree to which it intrudes upon an individual’s privacy” and

“the degree to which it is needed for the promotion of legitimate governmental

interests.” Knights, 534 U.S. at 119 (quoting Wyoming v. Houghton, 526 U.S. 295,

300 (1999)). Both sides of the scale are important because the more reduced the

individual’s privacy interest, the less interest the government must show in order to

intrude upon the individual’s privacy.

      First, as to Castillo’s privacy interests, privacy rights under the Fourth

Amendment exist on a continuum. On one end of the continuum sit prisoners

whose privacy interests are extinguished by judgments placing them in custody.

Hudson v. Palmer, 468 U.S. 517, 526 (1984) (explaining that “the Fourth

Amendment proscription against unreasonable searches does not apply within the

confines of the prison cell”). On the opposite end of the continuum sits the general

population, consisting of individuals who have never been convicted of a felony.



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See, e.g., Green v. Berge, 354 F.3d 675, 679-81 (7th Cir. 2004) (Easterbrook, J.,

concurring) (discussing “at least four major categories” of persons with privacy

interests “potentially subject to differing legal analysis”).

      The Supreme Court has recognized that differing degrees of privacy interests

lie between the two margins. For example, in Knights, the Court held that a police

officer’s warrantless search of a probationer’s home was reasonable. 534 U.S. at

118. The Court found the defendant’s probationary status “salient” and observed

that “[p]robation is ‘one point . . . on a continuum of possible punishments ranging

from solitary confinement in a maximum-security facility to a few hours of

mandatory community service.’” Id. at 119 (quoting Griffin v. Wisconsin, 483 U.S.

868, 874 (1987)). Importantly, the probationer’s placement on the continuum of

possible punishments corresponded to the probationer’s placement on the

continuum of privacy rights, as the Court recognized that probationers “do not

enjoy ‘the absolute liberty to which every citizen is entitled.’” Id. (quoting Griffin,

483 U.S. at 874). Because the search in Knights was supported by reasonable

suspicion and authorized by a clear condition of the defendant’s probation, the

warrantless search of his apartment was reasonable. Id. at 122.

      The Supreme Court later made clear that “[o]n this continuum, parolees have

fewer expectations of privacy than probationers, because parole is more akin to

imprisonment than probation is to imprisonment.” Samson v. California, 547 U.S.



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843, 850 (2006). The Court concluded in Samson that a parolee “did not have an

expectation of privacy that society would recognize as legitimate.” Id. at 852. After

“[e]xamining the totality of the circumstances pertaining to petitioner’s status as a

parolee, ‘an established variation on imprisonment,’ including the plain terms of

the parole search condition,” the Court held that the suspicionless search of the

parolee did not violate the Fourth Amendment. Id. at 857 (quoting Morrissey v.

Brewer, 408 U.S. 471, 477 (1972)).

      Neither the Supreme Court nor this Court has previously addressed the

reasonableness of a search in the context of a pretrial intervention program. And

given the Supreme Court’s distinction between the privacy rights of probationers

and parolees in Samson, I am compelled to note a distinction between the scope

and extent of the privacy rights of a probationer or parolee and a PTI participant.

On the continuum of privacy rights, a PTI participant sits somewhere between the

general public and a probationer.

      As an offender without a serious criminal history, Castillo entered into the

PTI Agreement with the Palm Beach County State Attorney’s Office. To enter the

PTI Agreement, Castillo admitted to burglary and dealing in stolen property by use

of the internet, but he did not plead guilty to those crimes in a court of law. In

exchange for the state’s promise not to prosecute, Castillo agreed that a PTI officer

“may visit [Castillo’s] home, employment, school, or elsewhere without



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[Castillo’s] prior approval and comply with all instructions he or she might give

[Castillo].”

      Unlike the conditions of probation at issue in Knights, Castillo’s PTI

conditions were not “a form of criminal sanction” akin to incarceration that were

“imposed by a court upon an offender after verdict, finding, or plea of guilty.”

Knights, 534 U.S. at 119 (quoting Griffin, 483 U.S. at 874). In contrast to

probation or parole, the PTI program is not court imposed or subject to judicial

review. State v. Board, 565 So. 2d 880, 881 (Fla. Dist. Ct. App. 1990) (“A court

can no more compel the state to reinstate a defendant’s pretrial intervention status

than it can compel the state to place the defendant on pretrial intervention in the

first place.”). Rather, the PTI program is a creation of Florida law that grants the

state attorney the right to make a final determination as to whether the prosecution

will continue, Fla. Stat. § 948.08(5) (2013), and the Florida Supreme Court has

recognized that admission to the PTI program is within the state attorney’s sole

discretion. Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982) (“The pretrial

intervention program is merely an alternative to prosecution and should remain in

the prosecutor’s discretion.”).

      Additionally, a PTI participant waives important rights, such as the right to

speedy trial. Fla. Stat. § 948.08(2). But the waiver of these rights is not

“punishment[] for criminal convictions,” Knights, 534 U.S. at 119, because the PTI



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participant has not been convicted at all. If the participant does not satisfy the

program’s requirements, the program administrator can merely recommend that the

case “revert to the normal channels of prosecution,” “the offender is in need of

further supervision,” or the “dismissal of charges without prejudice . . . be

entered.” Fla. Stat. § 948.08(5)(a)-(c). The PTI Agreement is “essentially a

conditional decision not to prosecute [for a certain period of time] similar to the

nolle prosequi situation.” Cleveland, 417 So.2d at 654. This entire PTI Agreement

is formed and implemented without judicial oversight.

      Although I agree that a PTI participant has a diminished expectation of

privacy compared to the general public, the PTI participant cannot be considered

commensurate with a probationer or parolee on the continuum of Fourth

Amendment privacy rights in light of these patent differences.

      Second, on the other side of the Knights balancing test, the government’s

interest in monitoring PTI participants is not as demonstrably strong as the

government’s interest in monitoring probationers or parolees. In Knights and

Samson, the Court determined that the government has an “overwhelming interest”

in monitoring probationers and parolees, which warrants “privacy intrusions that

would not otherwise be tolerated under the Fourth Amendment.” Samson, 547 U.S.

at 853.




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      Specifically, the Court in Knights credited “the very assumption of the

institution of probation” that a probationer is “more likely than the ordinary citizen

to violate the law.” Knights, 534 U.S. at 119–21 (quoting Griffin, 483 U.S. at 880).

Likewise, in Samson, the Court considered the government’s interest to be

“substantial” in “reducing recidivism and thereby promoting reintegration and

positive citizenship” for parolees. Samson, 547 U.S. at 853. In both cases, the

government validated these assumptions and established its interest in regulating

individuals who had been previously convicted of crimes by relying on recognized

statistical rates concerning recidivism. See id. (discussing several statistical studies

that indicate a parolee’s higher propensity to offend); Knights, 534 U.S. at 120

(examining studies by the U.S. Department of Justice, Bureau of Justice Statistics

and concluding that the recidivism rate of probationers is significantly higher than

the general crime rate).

      Following Knights, this court in Carter stated that the government’s interest

in preventing a probationer from committing further crimes was “high.” 566 F.3d

at 974. It cited Knights for the proposition that “the government’s interest in

monitoring a probationer stems from a probationer’s propensity to commit more

crimes, as well as a probationer’s motivation to hide the evidence of his crimes.”

Id. The court pointed out that, unlike the defendant in Knights, the defendant in

Carter “was on probation for both a violent felony and a drug-related felony.” Id.



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(emphasis in original). As such, the court concluded that “where the probationer

has a history of drug and violence-related felonies, the government’s interest in

monitoring the probationer is particularly high.” Id.

      Although the propensity of a PTI participant to offend may exceed that of

the general public, it is unclear on this record whether that possible propensity is

identical to the verified proclivity of probationers that was presented in Knights or

of parolees that was presented in Samson. Participation in the PTI program is

available to only a “first offender” or “person previously convicted of not more

than one nonviolent misdemeanor.” Fla. Stat. § 948.08(2). As a PTI participant

without a serious criminal history, Castillo stands in contrast to the Carter

probationer, whose history of drug and violence-related felonies shaped the

government’s “particularly high” interest. Therefore, the government does not

necessarily have the same substantial interest in monitoring a PTI participant like

Castillo as it does in monitoring probationers and parolees.

      Without equating Castillo to a probationer or parolee, I nevertheless

conclude that the particular circumstances surrounding Castillo’s situation do “not

sway the Knights balancing test such that [Officer Kurtz] needed more than

reasonable suspicion to conduct a search.” United States v. Yuknavich, 419 F.3d

1302, 1311 (11th Cir. 2005). Reasonable suspicion consists of “a sufficiently high

probability that criminal conduct is occurring to make the intrusion on the



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individual’s privacy interest reasonable.” Knights, 534 U.S. at 121. “When making

a determination of reasonable suspicion, [this court] must look at the totality of the

circumstances of each case to see whether the detaining officer has a particularized

and objective basis for suspecting legal wrongdoing.” Yuknavich, 419 F.3d at 1311

(quoting United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003)).

      Here, before conducting the search, Officer Kurtz received information that

Castillo had an assault rifle and made specific threats to identifiable individuals. It

is this information, combined with Castillo’s participation in the PTI program--and

not his participation in the PTI program alone--that created reasonable and

sufficiently particularized suspicion to justify the search of Castillo’s house. I

therefore concur in the result reached by the majority.




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