           Case: 13-15490   Date Filed: 09/26/2014   Page: 1 of 10


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15490
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:13-cr-10017-JLK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JASON TIMOTHY WASSER,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 26, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Jason Timothy Wasser appeals his conviction for possession of a firearm and

ammunition by a conviction felon. We affirm.

                                 I. BACKGROUND

      In February 2012, Wasser entered a no-contest plea to a state charge of

carrying a concealed firearm in Indian River County, Florida. He was sentenced to

18 months of probation. He was subject to the following conditions of probation:

(1) he must not possess, carry, or own any firearm or weapon without first

procuring the consent of his probation officer; and (2) he must “promptly and

truthfully answer all inquiries directed to [him] by the court or the officer, and

allow [his] officer to visit in [his] home, at [his] employment site or elsewhere,”

and he must comply with his probation officer’s instructions. ROA at 114.

      On May 5, 2013, the Federal Bureau of Investigation (“FBI”) received an

anonymous tip that Wasser may be in possession of firearms and narcotics. The

FBI informed Florida probation officers of the tip. Wasser’s probation officer,

Cheryl Blyth, planned a probation compliance visit and warrantless search of

Wasser’s residence based on the anonymous tip. Probation Officer Blyth was

concerned about the tip, because she knew of Wasser’s prior firearms offense and

that he was not to possess any firearms, drugs, or weapons. She also knew Wasser

was a member of the Pagan Motorcycle Club, a gang involved in extortion, drug

sales, prostitution, and other crimes.


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      Probation Officer Blyth requested additional probation officers to assist her

with the search, and she asked Special Agent Todd Blyth of the Department of

Homeland Security and Key West Detective Michael Chaustit to provide security

during the visit. On May 7, 2013, they visited Wasser’s residence. When Wasser

opened the door, Probation Officer Blyth informed him they were there for a

probation visit and asked to enter the home. Wasser consented. Upon entering the

residence, probation officers and law enforcement observed in plain view swords,

combat knives, and what appeared to be a firearm in a display case. 1 Wasser’s

possession of those items constituted a violation of his probation conditions.

      The probation officers subsequently began to search the residence. Special

Agent Blyth and Detective Chaustit did not participate in the search. Special

Agent Blyth guarded Wasser and other occupants of the residence, who were

seated on a couch, while Detective Chaustit provided security outside. During the

search, probation officers found numerous additional knives, a bulletproof vest,

and marijuana. Upon the discovery of the marijuana, Detective Chaustit asked the

probation officers to stop the search so he could apply for a search warrant.

Meanwhile, Special Agent Blyth informed Wasser he was under arrest and read

Wasser his Miranda 2 warnings.



      1
          The firearm later was determined to be a replica.
      2
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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      Several hours later, Detective Chaustit returned with a warrant. Law

enforcement officers then searched Wasser’s residence and found 3 firearms, over

200 rounds of ammunition, and 2 sets of brass knuckles, among other items.

Wasser purportedly admitted owning one firearm, which had been found in his

bedroom closet.

      On May 22, 2013, a federal grand jury charged Wasser with possession of a

firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). Wasser pled not guilty to the charge and moved to suppress all physical

evidence and statements obtained from the search of his residence. In his motion

to suppress, Wasser argued his conditions of probation did not require him to

submit to warrantless searches of his home. Rather, his conditions required he

consent only to visits. He further argued the Fourth Amendment’s protection

against unreasonable searches and seizures applied to him, even though he was on

probation, and probation officers needed at least reasonable suspicion to search his

residence without a warrant. Wasser argued probation officers lacked reasonable

suspicion, however, because they planned the warrantless search of his home based

on an unreliable, anonymous tip. He also asserted law enforcement officers

actually controlled the initial search of his home, rather than probation officers,

which required a higher level of suspicion to conduct the search. He contended all

evidence obtained from the unlawful probation search must be suppressed. He


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argued all evidence discovered after the issuance of the search warrant, which was

obtained based on evidence discovered during the allegedly illegal search, likewise

must be suppressed as fruit of the poisonous tree.

       Following a hearing on the motion to suppress, a magistrate judge

recommended denying the motion. The magistrate judge rejected Wasser’s

argument that probation officers needed reasonable suspicion to search his home

and concluded, under the totality of the circumstances, the probation officers’

initial search was constitutional under the Fourth Amendment and as interpreted by

the Supreme Court of Florida in Grubbs v. State, 373 So. 2d 905 (Fla. 1979).3

Because probation officers were entitled to be in Wasser’s residence and to gather

evidence, they also were entitled to give that evidence to law enforcement officers

to apply for a search warrant. The magistrate judge also rejected Wasser’s

contention that law enforcement officers controlled the initial search, finding the

officers were present merely to provide security for probation.

       The district judge adopted the magistrate judge’s report and

recommendation, over Wasser’s objections. The judge agreed the initial search

was controlled and conducted by probation officers, with law enforcement officers


       3
         In Grubbs, the Supreme Court of Florida held that a probation officer may conduct a
warrantless search of a probationer’s residence without reasonable suspicion, as long as any
evidence discovered is used only in probation violation proceedings. 373 So. 2d at 907. The
court elaborated that probation officers and law enforcement officers must comply with
customary Fourth Amendment requirements to use evidence seized from a probationer’s
residence in a new criminal proceeding. Id.
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acting in a supporting role. The judge also agreed the probation officers lawfully

were permitted to conduct a warrantless search without probable cause or

reasonable suspicion.

      Thereafter, Wasser entered a conditional guilty plea to the charge, pursuant

to a written plea agreement, and he reserved the right to appeal the denial of his

motion to suppress. The district judge accepted the plea and adjudicated Wasser

guilty of possession of a firearm and ammunition by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1). The judge sentenced Wasser to a term of imprisonment

of one year and one day, followed by a one-year term of supervised release.

                                  II. DISCUSSION

      On appeal, Wasser argues the district judge erred by denying his motion to

suppress and asserts the investigative search of his home by probation officers

lacked the requisite reasonable suspicion. He argues the initial search of his home

was not supported by reasonable suspicion, because the anonymous,

uncorroborated tip that led to the search was not reliable. In addition, he argues

probation officers conducted the search on behalf of law enforcement officers, and

thus, the search was actually a criminal investigation that must be supported by

reasonable suspicion or probable cause.

      In reviewing the denial of a motion to suppress, we review the district

judge’s findings of fact for clear error and application of law to those facts de


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novo. United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir.), cert. denied, 134

S. Ct. 342 (2013). Further, all facts are construed in the light most favorable to the

prevailing party below—in this case, the government. Id. We may affirm the

district judge’s judgment on any ground supported by the record. United States v.

Smith, 742 F.3d 949, 952 (11th Cir. 2014).

       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 unquestionably applies to probationers. Owens

v. Kelley, 681 F.2d 1362, 1367 (11th Cir. 1982). Probationers, however, have a

diminished expectation of privacy and “are subject to limitations to which ordinary

citizens are free.” Id. at 1367-68. For instance, Wasser was subject to a limitation

requiring him to submit to visits in his home by his probation officer.

       We have not considered whether a probation condition so completely

diminished a probationer’s reasonable expectation of privacy that a search without

reasonable suspicion would have satisfied the reasonableness requirement of the

Fourth Amendment. 4 Nevertheless, we need not address this issue at this time,


       4
          Rather, we have discussed whether probation officers and law enforcement officers
need more than reasonable suspicion to conduct warrantless searches of probationers’ homes.
See, e.g., United States v. Knights, 534 U.S. 112, 114, 121-22, 122 S. Ct. 587, 589, 592-93
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because we conclude the probation officers had reasonable suspicion to search

Wasser’s residence.

       “Reasonable suspicion consists of 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) (citation and internal quotation marks omitted). 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. (citation and

internal quotation marks omitted). 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.



(2001) (holding warrantless search of probationer’s home by law enforcement officer for
investigatory purposes was reasonable, when conditions of probation included a search term and
the search was supported by reasonable suspicion); United States v. Carter, 566 F.3d 970,
973-73 (11th Cir. 2009) (per curiam) (holding a warrantless search of a probationer’s home by
probation officers and based on reasonable suspicion was constitutionally permissible, when
conditions of probation required the probationer to submit to home visits, but not searches);
United States v. Yuknavich, 419 F.3d 1302, 1310-11 (11th Cir. 2005) (holding search of
probationer’s computer by probation officers was reasonable, even in the absence of a search
provision, when conditions on probationer’s computer use reduced his expectation of privacy in
his computer).
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2007) (citation and internal quotation marks omitted). “The issue is whether the

tip, as corroborated by independent police work, exhibited sufficient indicia of

reliability to provide reasonable suspicion . . . .” Id. (citation and internal quotation

marks omitted).

      Probation officers were permitted to enter Wasser’s home for a compliance

visit without having reasonable suspicion of probation violations. A standard

condition of Wasser’s supervision directed him to allow his probation officer to

visit in his home, at his employment site or elsewhere, and to comply with all

instructions the officer may give. ROA at 114. Accordingly, Probation Officer

Blyth was authorized, pursuant to Wasser’s terms of probation, to enter Wasser’s

home on May 7, 2013, without having reasonable suspicion.

      Although probation officers did not have reasonable suspicion to search

Wasser’s home based on the anonymous tip alone, see Lindsey, 482 F.3d at 1291

(stating an anonymous tip must be reliable and corroborated by independent police

work to provide reasonable suspicion), they acquired reasonable suspicion of

criminal activity as soon as they lawfully entered Wasser’s residence. Upon

entering the residence, they saw numerous swords and knives in plain view, and

Wasser’s possession of such weapons violated his conditions of probation. At that

moment, the probation officers were aware of the following: (1) Wasser’s prior

weapons charge, (2) his involvement in the Pagans gang, (3) the anonymous tip


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stating Wasser possessed drugs and guns, and (4) the presence of weapons in plain

view. Under the totality of the circumstances, probation officers had reasonable

suspicion that Wasser had violated the terms of his probation and likely possessed

additional prohibited items. Yuknavich, 419 F.3d at 1311. Therefore, they were

permitted to search the residence to look for additional violations. See Smith, 742

F.3d at 952 (stating we may affirm on any grounds supported by the record).

      We also reject Wasser’s contention that probation officers needed reasonable

suspicion or probable cause to search his home, because they were conducting an

investigatory search on behalf of law enforcement for use in a separate criminal

proceeding. Special Agent Blyth and Detective Chaustit did not participate in the

probation officers’ initial search. Rather, they guarded Wasser and the other

occupants of the house. Law enforcement did not tell the probation officers to look

for particular items or direct them to search in particular places. The probation

officers had reasonable suspicion to search the premises upon entering the

residence. Accordingly, the district judge did not err by denying Wasser’s motion

to dismiss, and we affirm.

      AFFIRMED.




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