                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JULY 13, 2009
                               No. 08-11941                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 04-00018-CR-3-DHB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

TYRONE BOYNTON,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                               (July 13, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Tyrone Boynton, who conditionally pleaded guilty to possessing with intent
to distribute fifty grams or more of cocaine base, 21 U.S.C. § 841(a)(1), appeals

the denial of his motion to suppress. Boynton argues that police officers violated

the Fourth Amendment when they searched his residence without a warrant. We

affirm.

                                 I. BACKGROUND

      In 1998, Boynton was sentenced in a Georgia court to ten years of

supervised probation following his conviction for two counts of possessing cocaine

with intent to distribute. As a term of his probation, Boynton agreed to attend a

boot camp and undergo a period of intensive supervision that required him to

“submit to a search of his person, residence, papers, and/or effects . . . at any time

of the day or night with or without a search warrant whenever requested to do so

by a Probation Supervisor or any law enforcement officer.” Boynton also agreed

that after he completed the intensive supervision, he would abide by general

conditions of probation. The general conditions included the following search

clause:

      Defendant shall submit his person, place of residence, vehicle or any
      area in which he claim[ed] a reasonable expectation of privacy, to
      search and seizure at any time of the day or night without regard to
      existence or non-existence of probable cause, with or without a search
      warrant, whenever requested to do so by a Probation Supervisor, a
      Probation Surveillance Officer or any law enforcement officer.

      In 2004, after Boynton had tested positive for cocaine, officers in the

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Sheriff’s Department of Treutlen County, Georgia, received complaints that

Boynton was involved in drug activities. Police officers and Boynton’s probation

officer observed a large number of people, including known drug users, visiting a

house at 807 Wells Street, and Sheriff Thomas Corbin was told that drugs were

being sold at the residence. Boynton’s probation officer later learned that Boynton

was living at 807 Wells Street, although Boynton had provided the officer a

different home address. When questioned, Boynton told the probation officer that

he stayed at the Wells Street residence on weekends. Sheriff Corbin also received

complaints that Boynton was traveling to Atlanta on a weekly basis to purchase

large quantities of cocaine. In March 2004, a police officer stopped Boynton’s

father and brother as they left the Wells Street residence and discovered in the

father’s possession a crack pipe and crack cocaine. Based on his belief that

Boynton was selling crack cocaine, Sheriff Corbin decided to search Boynton’s

residence.

      At 2:30 a.m. on April 2, 2004, officers knocked on the front door of 807

Wells Street. When they received no response, Sheriff Corbin walked inside and

saw Boynton walk out of a bedroom in the back of the house. Sheriff Corbin read

to Boynton the search clause in the general conditions of his probation. Sheriff

Corbin searched the bedroom and discovered a black tote bag that contained crack



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cocaine. Officers searched the whole house and discovered large quantities of

cocaine and currency.

      Boynton was indicted for possessing with intent to distribute 50 grams or

more of crack cocaine. 21 U.S.C. § 841(a)(1). Boynton moved to suppress the

evidence seized during the search of the house. He argued that officers conducted

an illegal search of the Wells Street residence without a warrant and without

Boynton’s consent. Boynton argued that the search clause was “invalid” and did

not “operate as a waiver of [his] Fourth Amendment rights.” Boynton interpreted

the clause to require him to “make . . . a waiver [of his rights under the Fourth

Amendment] in the future if so requested” for which he would face a revocation of

his probation if he “fail[ed] to make the waiver.” Boynton also argued that he was

no longer subject to the search clause after he was released from intensive

probation.

      After an evidentiary hearing, a magistrate judge recommended that the

district court deny Boynton’s motion to suppress. The magistrate found that

Boynton had agreed that he would be subject to the search clause for the duration

of his probation. The magistrate ruled that Boynton had waived the protections of

the Fourth Amendment and, in the alternative, that the search was valid because the

officers had a reasonable suspicion that Boynton was engaged in criminal activity.



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Boynton objected to the recommendation.

      The district court adopted the recommendation of the magistrate judge. The

district court ruled that the “Fourth Amendment only protects objectively

reasonable expectations of privacy” and Boynton had diminished expectations so

long as he was “on probation” and “ subject to a search clause.” The district court

rejected as “spurious” Boynton’s “argument that he was either unaware of the

search clause or that the search clause was no longer in effect at the time of the

search.”

                           II. STANDARD OF REVIEW

      On denial of a motion to suppress, we review findings of fact for clear error

and the application of law to those facts de novo. United States v. Ramirez, 476

F.3d 1231, 1235 (11th Cir. 2007). We construe all facts in the light most favorable

to the government. Id. at 1235–36.

                                 III. DISCUSSION

      The Fourth Amendment provides that “[t]he right of the people to be secure

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

seizures, shall not be violated.” U.S. Const. Amend. IV. Because “[t]he

touchstone of the Fourth Amendment is reasonableness, . . . the reasonableness of a

search is determined ‘by assessing, on the one hand, the degree to which it intrudes



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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, 122 S. Ct. 587, 591 (2001) (quoting Wyoming v. Houghton,

526 U.S. 295, 300, 119 S. Ct. 1297 (1999)). The Supreme Court has recognized

that a probationer may be subject to restrictions that diminish his reasonable

expectations of privacy. Id. at 119–20, 122 S. Ct. at 591–92.

      Boynton agreed to a term of probation that “significantly diminished [his]

reasonable expectation of privacy[,]” id. at 120, 122 S. Ct. at 592, and made him

subject to warrantless searches of his place of residence. The information acquired

by officers gave them reason to suspect that Boynton was trafficking in crack

cocaine. The district court did not err when it denied Boynton’s motion to

suppress.

      Boynton’s conviction is AFFIRMED.




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