             Case: 15-12098    Date Filed: 12/29/2015   Page: 1 of 18


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-12098
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 1:14-cr-00009-WLS-TQL-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

WILLIAM C. HARRIS,

                                                             Defendant-Appellant.

                          ________________________

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

                               (December 29, 2015)

Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      William Harris appeals his conviction and 26-month sentence for possession

of a firearm by a convicted felon, pursuant to 18 U.S.C. §§ 922(g)(1) and
               Case: 15-12098       Date Filed: 12/29/2015      Page: 2 of 18


924(a)(2). Harris contends that the district court erred by denying his motion to

suppress the guns found inside his residence and a safe therein following a

warrantless search. After careful review, we affirm.

                                   I. BACKGROUND

A.     Harris’s Probationary Sentence

       In 2006, Harris pled guilty to attempted burglary in Georgia state court. He

received a two-year custodial sentence followed by eight years’ probation. One of

the conditions of Harris’s probation was that he “[s]hall, at the request of Probation

Supervisor, consent to a search, without necessity or benefit of a search warrant, of

person, residence, or motor vehicle under [his] control by Probation Supervisor or

any Law Enforcement Officer for detection of alcohol or controlled substances.”

B.     Indictment for Firearms Offense and Motion to Suppress

       Harris was serving his probationary sentence on April 9, 2012, when a

probation officer and Georgia Bureau of Investigation (“GBI”) agents searched his

residence. The law enforcement officials discovered 12 firearms. In March 2014,

the government indicted Harris for possession of a firearm by a convicted felon. 1

       Harris filed a motion to suppress his statements and the firearms discovered

at his residence. Harris claimed that the officers violated his Fourth Amendment

rights for multiple reasons, including that: (1) there was no reasonable suspicion to

       1
         The government waited two years to indict Harris because Harris was imprisoned for a
probation violation until March 2014 as a result of the events described in this opinion.
                                              2
                 Case: 15-12098       Date Filed: 12/29/2015      Page: 3 of 18


search his residence for controlled substances; (2) the terms of his probation

allowed searches for the detection of controlled substances, not firearms, and the

law enforcement officials did not have reasonable suspicion to believe that there

were controlled substances within a gun safe; and (3) a GBI agent made statements

that contradicted his Miranda 2 warnings, and it was only after this point that he

divulged the gun safe’s combination and opened it.

C.     Evidence Related to April 9, 2012 Search

       Harris submitted an affidavit in support of his motion. The district court

held a suppression hearing at which two law enforcement agents testified.

According to the evidence adduced at the hearing and from the affidavit, 3 agents

began investigating Harris when the post office contacted the GBI in reference to a

package that broke during transportation. The package contained a hydroponic

light that could be used to grow marijuana. An undamaged second package

bearing the same address contained a liquid substance, which Harris later asserted

was plant nutrients.

       GBI agents matched the address on the packages to the residence in which

Harris was living. They discovered through a records search that Harris was on

       2
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
       3
         We include material from Harris’s affidavit in order to provide a complete account of
the search. We do not rely on any statements from the affidavit, that were not corroborated
during the suppression hearing, in our analysis. The government objected to the affidavit being
considered because it did not have the opportunity to cross-examine Harris. The district court
never addressed the objection and the government does not raise the objection again on appeal.
                                                 3
               Case: 15-12098    Date Filed: 12/29/2015    Page: 4 of 18


probation and had prior charges for drug violations, including possession of

marijuana with intent to distribute. The agents confirmed with Harris’s

supervising probation officer that Harris had a “search clause” in his conditions of

supervision.

      On April 9, 2012, Agent Stripling Luke and other GBI agents observed a

postal employee deliver the packages to Harris’s residence and hand the packages

to Harris. The residence belonged to Harris’s father, and Harris was living in the

pool house. After Harris took possession of the packages, he placed the plant

nutrients in a greenhouse on the property and returned to the pool house. When his

dog began barking, he walked back to the front of the property where Agent Luke,

a probation officer, and approximately three other agents were standing in the

driveway.

      The probation officer asked why Harris had failed to report to his probation

officer. Harris replied that he was only one day late and was to be placed on “non-

reporting status.” A GBI agent then asked Harris what use he had for a hydroponic

light, and Harris responded that he was building his stepmother a hydroponic

system in the greenhouse. The agent asked if he could see the greenhouse, and the

probation officer interjected to say that, due to Harris’s probationary status, the

agents had a right to search the residence. After searching the greenhouse, the

agents told Harris that they were going to search the rest of the property and asked


                                           4
              Case: 15-12098     Date Filed: 12/29/2015   Page: 5 of 18


Harris whether there was anything on the property they should know about. Harris

admitted that there was a marijuana plant in the pool house and then accompanied

the agents to the pool house.

      Harris had a marijuana plant with a fluorescent light over it, two ballasts,

two light reflectors, nutrients, and rock wool hidden in a closet in the pool house.

Luke described this closet setup as a “grow room.” One of the agents observed a

gun safe in the pool house and asked Harris what was inside and whether he had

the combination. Harris said he did not know what was inside, and only his father

and brother knew the combination. The agents continued to press him about the

contents of the safe until he stated that he was “pretty sure” there were guns inside.

      At some point, Agent Luke questioned Harris about how the marijuana grow

equipment worked. Harris asked Agent Luke whether his statements were “off the

record,” and Agent Luke stated, “Yes.” With this understanding, Harris “talked for

some time.” In his affidavit, Harris indicated that he would not have continued

talking had he understood that the statements could be used against him in a

federal prosecution.

      Agent Jeff Reed, of the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”), arrived on the scene about an hour after the other law

enforcement personnel. Agent Reed questioned Harris about the gun safe and the

guns that were inside and repeatedly asked for the safe’s combination. According


                                          5
              Case: 15-12098     Date Filed: 12/29/2015   Page: 6 of 18


to Harris, Agent Reed became belligerent and stated: “We’re not leaving here until

we get into that safe,” and, “We are going to get into this safe if we have to cut

the . . . door off!” At this point, Harris decided to provide the combination and

open the safe. The agents found guns inside.

      The agents also found a gun in a dresser or set of drawers in the pool house.

Harris stated that the agents did not find that gun until after they had opened the

safe. The master report of the incident allegedly stated the same. However, both

Agent Luke and Agent Reed testified that they discovered the gun before opening

the safe.

      Throughout the search, the GBI agents maintained a recording device to

capture Harris’s statements. Agent Luke, however, deactivated the device for a

period of time when he was processing evidence rather than speaking to Harris.

He turned it back on when he needed to consult with Harris again.

      The government played the recording for the district court. The tape

confirmed that the agents questioned Harris about his failure to report to probation.

Harris admitted that he had failed to report, citing a number of reasons, and

admitted that he had a marijuana plant. A female agent also read Harris his

Miranda rights. Later, Agent Luke told Harris that their conversation was off the

record. The recording contained no mention of the handgun that was found in the

drawer. The tape established that Agent Reed told Harris twice that he did not


                                          6
              Case: 15-12098    Date Filed: 12/29/2015   Page: 7 of 18


want to cut the safe open and once that he was planning to cut it open if he could

not get the combination.

      The agents also took photographs of what they discovered at the scene. The

photograph of the firearm from Harris’s drawer was timestamped 2:02 p.m., and

the photograph of the items in the safe was timestamped 2:50 p.m.

      Agent Luke testified that (1) items related to the hydroponic manufacture of

marijuana could have fit in the safe; (2) he was not sure what was in the safe; and

(3) he felt that the search terms in Harris’s conditions of probation allowed him to

access the safe. In the past, he had found drugs, currency, and ledgers in similar

safes and believed that Harris could have had anything inside. No one repeated the

Miranda rights to Harris after the off-the-record comments.

      Agent Reed testified that, when he arrived at Harris’s home, agents briefed

him on the discovery of the hydroponic system and showed him the marijuana

grow area in Harris’s closet. The agents also pointed out a revolver that they had

discovered and placed on a table in the pool house. Agent Reed began questioning

Harris and, at some point, Harris indicated that he had placed guns in the safe.

This prompted Reed to ask Harris directly for the combination to the safe. Harris

eventually opened the safe and gave the agents the combination. Agent Reed did

not advise Harris of his Miranda rights.




                                           7
              Case: 15-12098     Date Filed: 12/29/2015    Page: 8 of 18


      Agent Reed further testified that he believed that he would have had the

authority to cut the safe open if Harris had not unlocked it and he intended to do

so. In Reed’s experience, such safes could contain drugs, ledgers, “growing

books,” guns, or “anything of that nature.” Having already found marijuana and

one firearm, Reed believed there was reason to suspect that there was additional

contraband in the safe.

D.    District Court’s Ruling on Motion to Suppress

      The district court granted Harris’s motion to suppress in part and denied it in

part. The court concluded that all of Harris’s statements, made after the time that

Agent Luke agreed to talk off the record, had to be suppressed. The court reasoned

that Agent Luke’s comments contradicted the Miranda warnings such that Harris’s

statements were involuntary. There is no challenge to this ruling on appeal.

      As to the firearms, the court resolved the factual dispute concerning the

discovery of the revolver by finding that the agents discovered the gun before any

unlawful interrogation and before Agent Reed arrived at the residence and

convinced Harris to open the safe. Furthermore, even though the safe was opened

after the unlawful interrogation, the court stated that the firearms contained in the

safe were admissible under the inevitable discovery doctrine, as the agents would

have, and lawfully could have, broken open the safe, had Harris not opened it. The

district court also noted that the fruits of the search were lawful because the law


                                           8
               Case: 15-12098     Date Filed: 12/29/2015    Page: 9 of 18


enforcement officers had reasonable suspicion to search Harris’s residence for

controlled substances.

E.    Guilty Plea, Sentence, and Appeal

      After he was unable to exclude the firearms from evidence, Harris pled

guilty to possession of a firearm by a convicted felon, pursuant to a written plea

agreement. Harris reserved his right to appeal the district court’s order denying his

motion to suppress. The district court then sentenced Harris to serve a 26-month

prison term.

      Harris appealed. He claims that the search of his residence was

unconstitutional because (1) the agents lacked reasonable suspicion to initiate the

search and circumvented the Fourth Amendment, and (2) the inevitable discovery

exception to the exclusionary rule was inapplicable.

                         II. REASONABLE SUSPICION

A.    Standard of Review

      When reviewing the denial of a motion to suppress, this Court reviews 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). All

facts are construed in the light most favorable to the prevailing party below–here,

the government. Id.




                                            9
             Case: 15-12098      Date Filed: 12/29/2015   Page: 10 of 18


B.     Reasonable Suspicion Principles

       Normally, law enforcement officers need a warrant supported by probable

cause to search a suspect’s home. Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.

Ct. 3164, 3168 (1987). However, there are exceptions to this requirement,

including an exception for “special needs.” Id. The Supreme Court has held that a

state’s operation of a probation system creates the type of “special needs” that

“justify departures from the usual warrant and probable-cause requirements.” Id.

at 873-74, 107 S. Ct. at 3168. The state has an interest in supervising probationers,

id. at 874-75, 107 S. Ct. at 3168-69, and probationers have a reduced expectation

of privacy, United States v. Knights, 534 U.S. 112, 119-21, 122 S. Ct. 587, 591-93

(2001).

       Balancing these interests and expectations, the Supreme Court has

concluded that officers need “no more than reasonable suspicion to conduct a

search of [a] probationer’s house” when the probationer is subject to a search

condition. Knights, 534 U.S. at 121, 122 S. Ct. at 592-93. As probable cause is

not necessary, it also follows that a warrant is not required. Id. at 121, 122 S. Ct. at

593.

       A search rests on reasonable suspicion when there is a “sufficiently high

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

individual’s privacy interest reasonable.” Id. Based on the totality of the


                                          10
             Case: 15-12098     Date Filed: 12/29/2015    Page: 11 of 18


circumstances, law enforcement must have “a particularized and objective basis for

suspecting legal wrongdoing.” United States v. Yuknavich, 419 F.3d 1302, 1311

(11th Cir. 2005) (quotation marks omitted). The officers must “be able to point to

specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” Id. (quotation marks omitted). A

“hunch” or “unparticularized suspicion” is insufficient. Id. (quotation marks

omitted).

C.    Analysis

      Here, the government did not violate Harris’s Fourth Amendment rights by

searching his residence. Harris had a search clause in his conditions of probation

that authorized a probation supervisor or law enforcement officer to search his

residence for controlled substances. When the GBI agents and parole officer

staked out Harris’s home, they knew that Harris had ordered hydroponic

equipment, that such hydroponic equipment, while legal, was commonly used to

grow marijuana, that Harris had a prior marijuana-related charge, and that Harris

had recently failed to report to his probation officer. Before initiating the search,

the officials also confirmed that Harris accepted delivery of the hydroponic

equipment.

      Based on these observations, the law enforcement officers had “specific and

articulable” facts that gave them reasonable suspicion that Harris was in possession


                                          11
             Case: 15-12098     Date Filed: 12/29/2015    Page: 12 of 18


of marijuana. See id. Taking together his criminal background, his acquisition of

an item related to marijuana production, and that he recently failed to report to his

probation officer, there was a sufficiently high probability that Harris unlawfully

possessed a controlled substance to justify searching his private residence pursuant

to the controlled-substance search condition. See Knights, 534 U.S. at 120-21, 122

S. Ct. at 592-93 (stating that a “probationer is more likely than the ordinary citizen

to violate the law” and has “even more of an incentive to conceal [his] criminal

activities” (quotation marks omitted)). This was much more than a hunch that

criminal activity was afoot and satisfied the reasonable suspicion standard. See

Yuknavich, 419 F.3d at 1311.

      This Court has upheld warrantless probationary searches based on

comparable or less direct evidence than this in the past. For example, in United

States v. Carter, 566 F.3d 970, 975 (11th Cir. 2009), this Court concluded that

probationer Carter’s record of drug crimes, extravagant lifestyle despite having

little income, association with another drug offender, and creation of business

cards that featured what appeared to be a gang symbol, taken together, created

reasonable suspicion to search his residence.

      Similarly, in Yuknavich, 419 F.3d at 1304, the probationer was convicted of

a child-pornography offense and as a condition of his probation he was not allowed

to use the Internet, except for work during work hours. This Court determined that


                                          12
             Case: 15-12098     Date Filed: 12/29/2015   Page: 13 of 18


probation officers had reasonable suspicion to search a computer in probationer

Yuknavich’s residence due to his criminal history, pattern of pushing or crossing

the boundaries of permissible behavior while on probation, including

impermissibly accessing the Internet outside of his home on two occasions,

nervous appearance and delay in answering the door, and the fact that there was a

modem connected to one of his computer. Yuknavich, 419 F.3d at 1306-07, 1311.

      Here, the district court did not err by denying suppression in the instant case,

when Harris was already known to be in possession of marijuana-related

equipment by the time of the search.

                           III. “STALKING HORSE”

A.    Argument

      For the first time on appeal, Harris argues that the government used the

search provision in his terms of probation to circumvent the Fourth Amendment.

He claims that the search of his residence had a law-enforcement, rather than

probationary, purpose. Harris asserts that it is unconstitutional for a probation

officer to act as a “stalking horse” by conducting a search based on the prior

request of, and in concert with, law enforcement officers, in an effort to allow the

law enforcement officers to evade the usual warrant and probable-cause

requirements.




                                          13
              Case: 15-12098     Date Filed: 12/29/2015    Page: 14 of 18


B.    Standard of Review

      We review issues not raised in the district court for plain error. United

States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). For this Court to correct

plain error, (1) there must be an error (2) that is plain and (3) affects substantial

rights. Id. “Where the explicit language of a statute or rule does not specifically

resolve an issue, there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it.” United States v. Hesser, 800

F.3d 1310, 1325 (11th Cir. 2015) (alteration omitted) (quotation marks omitted).

C.    Analysis

      Harris has shown no plain error. This Court has never recognized the

“stalking horse” theory, nor has the Supreme Court. Harris cites only extra-circuit

precedent in support of his argument. Moreover, many circuits have overruled

their “stalking horse” decisions after the Supreme Court’s decision in Knights,

which suggested that it is impermissible to examine the purpose of a probationary

search. See United States v. Williams, 417 F.3d 373, 377-78 (3d Cir. 2005)

(stating that the Third Circuit was joining the Eighth, Ninth, and Tenth Circuits in

holding that “stalking horse” claims are precluded by Knights); see also Knights,

534 U.S. at 122, 122 S. Ct. at 593 (clarifying that “there is no basis for examining

official purpose” and that the Supreme Court has “been unwilling to entertain




                                           14
                Case: 15-12098      Date Filed: 12/29/2015       Page: 15 of 18


Fourth Amendment challenges based on the actual motivations of individual

officers”).

      In any event, as there is no binding precedent controlling Harris’s claim, the

district court did not plainly err by failing to suppress the guns based on a

“threshold” “stalking horse issue.” See Hesser, 800 F.3d at 1325.

                       IV. INEVITABLE DISCOVERY RULE

      In order for evidence otherwise subject to suppression to be admissible

under the inevitable discovery rule, “there must be a reasonable probability that the

evidence in question would have been discovered by lawful means, and the

prosecution must demonstrate that the lawful means which made discovery

inevitable were being actively pursued prior to the occurrence of the illegal

conduct.” Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004). Thus,

there are three requirements for application of the inevitable discovery exception:

(1) the evidence’s discovery was inevitable, (2) by lawful means, and (3) the

government was already actively pursuing the lawful alternative method of

discovery. See id. We examine each requirement in turn as applied to the firearms

discovered in Harris’s safe. 4




      4
          Our review is de novo. See Gibson, 708 F.3d at 1274.
                                              15
             Case: 15-12098     Date Filed: 12/29/2015    Page: 16 of 18


A.    Inevitability

      During the evidentiary hearing, Agent Reed testified that he intended to cut

into the safe if he could not obtain the combination and believed that he had the

authority to do so. Agent Luke also stated that he felt that the search clause gave

the officers the ability to force open the safe. Based on these statements, there was

a reasonable probability that Agent Reed and the GBI agents would have broken

into the safe had Harris not opened it after the illegal interrogation. See id.

Moreover, there was no indication that Harris’s family members were home during

the search, and there was nothing suggesting that the agents were planning to leave

Harris alone with the safe. Therefore, the guns would still have been inside the

safe when the officers broke the lock. The discovery of the guns was inevitable.

See id.

B.    Lawful Means

      The inquiry now turns to whether it would have been lawful for the agents to

break into the safe without a warrant. As we stated above, police can search a

probationer’s residence based on reasonable suspicion. See Knights, 534 U.S. at

121, 122 S. Ct. at 592-93. When police are lawfully searching an area, they are

authorized “to break open locked containers which may contain the objects of the

search.” United States v. Martinez, 949 F.2d 1117, 1120 (11th Cir. 1992).




                                          16
             Case: 15-12098       Date Filed: 12/29/2015   Page: 17 of 18


      As outlined above, the agents had reasonable suspicion to search Harris’s

pool house for controlled substances. In addition, the degree of suspicion

drastically increased during the time period between the start of the search and

Agent Reed’s arrival. During that time, Harris admitted that he had a marijuana

plant and agents found a marijuana grow station in his closest and a firearm in his

drawer.

      Furthermore, both Agent Reed and Agent Luke testified that the safe could

contain drugs. Agent Luke stated that items related to the hydroponic manufacture

of marijuana could have fit in the safe and that, in the past, he had found drugs

inside similar safes. Agent Reed added that, in his experience as well, such safes

could contain drugs. Indeed, the safe was about five feet tall and easily could have

stored a quantity of marijuana.

      Accordingly, as there was reasonable suspicion to search Harris’s pool house

for controlled substances, and the safe was inside the pool house and drugs could

easily fit in the safe, the agents had the authority to break open the safe to access

its contents. See id. As the district court properly found, the officers had a lawful

alternate method of opening the safe.

C.    Active Pursuit of Alternate Means of Discovery

      The district court was also correct in concluding that the government met the

final prong of the inevitable discovery rule. The agents were already in the same


                                           17
                Case: 15-12098        Date Filed: 12/29/2015        Page: 18 of 18


room as the safe, and it is clear from Agent Reed’s testimony that he only delayed

breaking into the safe in the hope that Harris would divulge the combination.

Thus, efforts to access the safe lawfully were sufficiently underway by the time

that Harris opened the safe as a result of the unlawful portion of his interrogation.

See Jefferson, 382 F.3d at 1296; cf. United States v. Brookins, 614 F.2d 1037,

1048 (5th Cir. 1980) (holding that police are sufficiently “actively pursuing”

evidence in a witness’s possession when they have evidence that would have led to

the witness’s discovery had the witness not first been discovered through unlawful

means).5

       The government met its burden under the inevitable discovery rule, and the

district court did not err by denying Harris’s motion to suppress, so far as he

sought exclusion of the physical evidence discovered at his residence. See

Jefferson, 382 F.3d at 1296. Accordingly, for all of the foregoing reasons, we

affirm the district court’s denial of Harris’s motion to suppress as to the firearms

and affirm Harris’s conviction and sentence. 6

       AFFIRMED.

       5
         This Court has adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
       6
         Harris’s reply brief argues that the involvement of the ATF and Agent Reed were
outside the scope of the search condition, and that the GBI agents unlawfully prolonged the
search so that Agent Reed could arrive and participate. However, this Court does not review
claims raised for the first time in the reply brief and thus will not address these final arguments.
See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999).
                                                 18
