           Case: 16-13204   Date Filed: 03/27/2017   Page: 1 of 9


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-13204
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:15-cr-00242-SCB-TBM-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

THEORIDOTES COLLINS,
a.k.a. Theodis Collins,

                                             Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (March 27, 2017)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Theoridotes Collins appeals his conviction and 120-month sentence for

possession of a firearm and ammunition by a felon in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Collins argues that the district court

improperly denied his motion to suppress evidence found during a probation

officers’ warrantless search of his house. Upon review of the record and

consideration of the parties’ briefs, we affirm.

                                               I

      On April 21, 2015, Mr. Collins was convicted in Florida of fraudulent use of

a credit card and personal information and was sentenced to a one-year term of

probation. Mr. Collins signed a temporary order of supervision and an instruction

sheet provided by the Florida Department of Corrections, each detailing the

conditions of his supervised release. The temporary order required Mr. Collins to

refrain from possessing firearms or associating with persons engaged in criminal

activity, and instructed him to cooperate with his probation officer and allow the

officer to visit his home. The instruction sheet gave Mr. Collins notice that

probation officers had the right to search his residence.

                                          A

      Probation Officer Alyssia Paul began supervising Mr. Collins in May of

2015. She was familiar with Mr. Collins’ criminal history, which included

numerous violations of previous terms of supervised release. Officer Paul visited


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Mr. Collins, who was cooperative and compliant, at his home twice in May and

once in early June without incident. On June 9, 2015, Agent Dino Balos with the

Bureau of Alcohol, Tobacco, Firearms, and Explosives, acting upon information he

received from the Manatee County Sheriff’s Office, informed Officer Paul that

Mr. Collins had been associating with suspects in a shooting.

      In response to this information, on June 11, 2015, Officer Paul, accompanied

by another probation officer, officers of the Sarasota Police Department, and the

ATF, conducted an unannounced compliance search of Mr. Collins’ home. An

unknown gentleman answered the door and told the officers that Mr. Collins did

not live at the residence. When the door opened, one of the probation officers,

Kristie Duff, smelled marijuana. Officer Paul asked to speak with Mr. Collins’

girlfriend, Amber Teed, who then came to the door and told the officers that

Mr. Collins did in fact stay there, but was out at the moment. While Officers Paul

and Duff were speaking to Ms. Teed, the other law enforcement officers saw

Mr. Collins flee out of the back of the house on foot. The officers apprehended

Mr. Collins shortly thereafter, and brought him back to his residence.

      At this point, the probation officers conducted a search of the house and

discovered a rifle in Mr. Collins’ bedroom. Mr. Collins was then arrested for

violating his supervised release conditions. The police officers returned at a later

time to search the home pursuant to a valid warrant, and found ammunition and


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other contraband. A federal grand jury later indicted Mr. Collins for possessing a

firearm and ammunition as a felon.

                                           B

       The district court denied Mr. Collins’ motion to suppress the rifle,

ammunition, and contraband. After conducting an evidentiary hearing, the district

court determined that the search was legal because the probation officers had a

basis to suspect that Mr. Collins was violating the conditions of his supervised

release. The district court then found Mr. Collins guilty following a bench trial. On

appeal Mr. Collins argues that the probation officers lacked reasonable suspicion to

justify their search.

                                               II

       Rulings on motions to suppress involve mixed questions of fact and law. See

United States v. Ransfer, 749 F.3d 914, 921 (11th Cir. 2014). “[W]e review the

district court’s factual findings for clear error, and its application of the law to the

facts de novo.” Id. All facts are construed in the light most favorable to the party

prevailing in the district court—here, the government. See id.

       “Clear error is a highly deferential standard of review.” Holladay v. Allen,

555 F.3d 1346, 1354 (11th Cir. 2009) (citation omitted). Generally, a finding of

fact is clearly erroneous “when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction


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that a mistake has been committed.” Id. (internal quotation marks and citation

omitted). “If the district court’s account of the evidence is plausible in light of the

record viewed in its entirety, [we] may not reverse it[.]” Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 573–74 (1985). We give “particular deference

to credibility determinations of a fact-finder who had the opportunity to see live

testimony.” Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983).

                                           III

      “The touchstone of the Fourth Amendment is reasonableness, and 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.” United

States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks and

citations omitted).

      “Inherent in the very nature of probation is that probationers do not enjoy the

absolute liberty to which every citizen is entitled.” Id. at 119 (internal quotation

marks and citations omitted). A probationer’s expectation of privacy is reduced

when he is subject to a probation condition requiring him to answer all inquiries

made by his probation officer and requiring him to submit to home visits by his

probation officer. See United States v. Carter, 566 F.3d 970, 974–75 (11th Cir.

2009). “In assessing the governmental interest side of the balance, it must be


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remembered that the very assumption of the institution of probation is that the

probationer is more likely than the ordinary citizen to violate the law.” Knights,

534 U.S. at 120 (internal quotation marks and citation omitted).

      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. See Carter, 566 F.3d at 975 (applying the

balancing test articulated in Knights).

      To establish reasonable suspicion, there must be “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) (internal quotation marks and citation omitted). The

court “must look at the totality of the circumstances of each case” to determine

whether the officer had a “particularized and objective basis for suspecting legal

wrongdoing.” Id. The officer must indicate “specific and articulable facts which,

taken together with rational inferences from those facts,” justify the search. Id.

      The totality of the circumstances shows that the search of Mr. Collins’

residence was supported by reasonable suspicion. The district court made several

findings of fact as to what the probation officers knew at the time of the search:

Mr. Collins had a criminal history of violating terms of supervised release; other


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law enforcement officers believed Mr. Collins was associating with persons who

were involved in criminal activity; on the day of the search, Ms. Teed and the other

man occupying the house misrepresented Mr. Collins’ whereabouts to the officers;

the probation officers smelled marijuana in the house; and Mr. Collins attempted to

flee the house, despite having previously complied with Officer Paul’s visits. See

D.E. 46 at 2–3. Mr. Collins failed to show that the district court clearly erred as to

any of these underlying factual findings.

      Several of these facts, even taken alone, can establish reasonable suspicion.

See, e.g., United States v. White, 593 F.3d 1199, 1203 (11th Cir. 2010) (explaining

that the smell of marijuana alone may provide reasonable suspicion justifying

further investigation of possible criminal conduct); United States v. Franklin, 323

F.3d 1298, 1302 (11th Cir. 2003) (stating that “flight is a relevant consideration for

a finding of reasonable suspicion” and is indicative of wrongdoing). Taken

together, the facts and the rational inferences that follow indicate the high

probability that Mr. Collins was violating the conditions of his supervised release

at the time of the search. In light of his criminal history, the information from the

ATF, and the events of the day of the search—especially given his previous

compliance with Officer Paul—the probation officers had a “particularized and

objective basis” to suspect that Mr. Collins was engaged in misconduct. See

Yuknavich, 419 F.3d at 1311.


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                                            IV

      “[I]t is fundamental error for a court to enter a judgment of conviction

against a defendant who has not been charged, tried, or found guilty of the crime

recited in the judgment.” United States v. James, 642 F.3d 1333, 1343 (11th Cir.

2011) (internal quotation marks and citation omitted). A court may remand with

instructions to correct a clerical error in a judgment. Id.

      The district court’s judgment incorrectly states that Mr. Collins was found

guilty of violating 18 U.S.C. §§ 922(g)(1) and 924(e). Although the indictment set

out the sentencing provision of § 924(e), the district court sentenced Mr. Collins to

the statutory maximum penalty of 120 months pursuant to 18 U.S.C. § 924(a)(2).

We therefore remand to correct the clerical error in the judgment referencing

§ 924(e).

                                               V

      The probation officers’ warrantless search of Mr. Collins’ home did not

violate the Fourth Amendment. The officers acted upon reasonable suspicion that

Mr. Collins was violating conditions of his supervised release, and the search was

therefore justified. Accordingly, the district court properly denied Mr. Collins’

motion to suppress and that decision is affirmed.




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      We remand for the limited purpose of correcting the clerical error found in

the district court’s judgment, which incorrectly states that Mr. Collins was

convicted under 18 U.S.C. § 924(e), rather than § 924(a)(2).

    AFFIRMED IN PART AND REMANDED IN PART WITH
DIRECTIONS.




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