[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-14950

Non-Argument Calendar

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D.C. Docket No. 6:15-cr-00242-CEM-TBS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JOHN DWAYNE RILEY, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(August 25, 2017)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM: 

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John Dwayne Riley appeals his conviction for possession of a firearm in 

furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), as well as the 

court’s denial of his motion to suppress evidence found during a probationary 

search of his house, the court’s refusal to declare a mistrial, and the court’s reliance 

on non-binding authority. Riley was also convicted of possession with the intent to 

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 

(b)(1)(B)(ii). Riley was on community control, a form of probation akin to house 

arrest, when his probation officer received an anonymous tip indicating that Riley 

was selling drugs from his house. Probation officers visited Riley’s house, where 

they saw what appeared to be cocaine in plain sight in the garage.

Riley raises four issues on appeal. First, he argues that the district court 

erred by concluding that there was reasonable suspicion to search his house. 

Second, he contends that the court erred by refusing to declare a mistrial after a 

witness provided testimony that violated the court’s pretrial ruling on the exclusion 

of certain evidence. Third, Riley argues that the court erred by relying on 

unpublished decisions of this Court to support its evidentiary rulings. Fourth,

Riley contends that the evidence adduced at trial was insufficient to support his 

§ 924(c) conviction. We address each of the arguments below.

I.

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Riley first contends that the court erred by concluding that there was 

reasonable suspicion to search his house and subsequently denying his motion to 

suppress the evidence found during that search because an uncorroborated 

anonymous tip, which merely provided information identifying him as the target of 

the tip, formed the basis of reasonable suspicion.

In reviewing the denial of a motion to suppress, we review 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). Further, we 

construe all facts in the light most favorable to the prevailing party below—in this 

case, the government. Id. We may affirm the denial of a motion to suppress on 

any ground supported by the record. United States v. Caraballo, 595 F.3d 1214, 

1222 (11th Cir. 2010).

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 applies to probationers, but probationers have a 

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

citizens are free.” Owens v. Kelley, 681 F.2d 1362, 1367–68 (11th Cir. 1982).

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In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court held 

that the warrantless search of a probationer’s home by a law enforcement officer 

for investigatory purposes was permissible, even though it was supported by only a 

reasonable suspicion, rather than probable cause, that criminal conduct was 

occurring. 534 U.S. at 121–22. The probationer was subject to a condition 

requiring him to submit to searches of his residence by any probation officer or law 

enforcement officer at any time, with or without a search warrant, warrant of 

arrest, or reasonable cause. 534 U.S. at 114. A sheriff’s detective decided to 

search the probationer’s apartment after observing suspicious objects in the 

probationer’s trunk, and, aware of the probationer’s search condition, did not apply 

for a warrant. Id. at 115. 

The Court stated that “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.” Id. at 118–19 (quotation omitted). Balancing 

these competing considerations, the Supreme Court noted that a probationer does 

not enjoy the same amount of liberty as other citizens. Id. at 119. It further noted 

that probationers are more likely to commit crimes than other citizens, and the 

government therefore has an interest in keeping close watch over them. Id. at 120. 

Furthermore, probationers have a greater incentive to conceal the evidence of their 

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crimes, because they are subject to greater scrutiny than the average citizen. Id. 

The Supreme Court determined that “the balance of these considerations requires 

no more than reasonable suspicion to conduct a search of th[e] probationer’s 

house.” Id. at 121.

In United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005), we followed 

Knights and concluded that reasonable suspicion was all that was required to 

search a probationer’s computer, even where the probation agreement limited his 

internet use to work related purposes during work hours but did not require him to 

submit to warrantless searches. Yuknavich, 419 F.3d at 1309–11. We reasoned 

that the conditions on the probationer’s computer use reduced his expectation of 

privacy in his computer; thus, the search of the computer was permissible based 

only on reasonable suspicion. Id. at 1310–11.

In United States v. Carter, 566 F.3d 970 (11th Cir. 2009), we followed the 

reasoning in Yuknavich and again found that a warrantless search of a 

probationer’s home by probation officers and based on reasonable suspicion was 

constitutionally permissible, even in the absence of a condition of probation 

permitting such a search. Carter, 566 F.3d at 973–75. We applied the balancing 

test articulated in Knights and concluded that reasonable suspicion was the correct 

standard for analyzing the reasonableness of the search at issue in that case. Id. at 

974. Examining the probationer’s privacy interests, we noted that Carter did not 

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enjoy the absolute liberty to which every citizen is entitled. Id. In addition, he was 

required to submit to visits by the probation officer at his home, workplace, or 

elsewhere, and the government had a competing interest in preventing him from 

committing further crimes. Id. 

We held that, although the probationer possessed a higher expectation of 

privacy than the defendants in Knights and Yuknavich because he lacked an 

express search condition or a condition limiting his computer use, a condition of 

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

nevertheless reduced his expectation of privacy. Id. at 975. We concluded that

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.” Id. The probation officers had 

reasonable suspicion to search Carter’s home due to evidence of a pattern of 

conduct over a two-year period that indicated Carter was engaged in criminal 

activity, including just two weeks before the search occurred. Id. 

Based on Carter, probation officers are required to have reasonable

suspicion of criminal conduct in order to search a probationer’s residence when the 

terms of probation do not require him to submit to warrantless searches. See id. at 

974–75. Reasonable suspicion consists of a sufficiently high probability that 

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criminal conduct is occurring to make the intrusion on the individual’s privacy 

interest reasonable. Yuknavich, 419 F.3d at 1311. 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. (quotation omitted). Thus, 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. 2007) (quotation omitted). The issue is 

whether the tip, as corroborated by independent police work, exhibited sufficient 

indicia of reliability to provide reasonable suspicion. Id.

Here, the district court did not err by denying Riley’s motion to suppress. 

Before entering Riley’s house, the probation officers were aware of the following: 

(1) Riley had a prior cocaine-related conviction,1 (2) the anonymous tip indicated 

 1 Citing to Carter, Riley asserts for the first time on appeal that his prior cocaine conviction 

could not have supported a finding of reasonable suspicion for the probationary search because it 

preceded the search by a decade and thus was stale. Because Riley did not object to the reliance 

on the decade-old cocaine conviction before the district court, we review the issue only for plain 

error. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). We developed a staleness 

doctrine in the context of whether probable cause exists for a warrant. United States v. Bervaldi, 

226 F.3d 1256, 1264 (11th Cir. 2000). However, no binding precedent from this Court or the 

Supreme Court exists indicating that the staleness doctrine applies in the context of warrantless 

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that Riley was selling drugs from the house, (3) Riley’s community control 

prohibited him from possessing any drugs or visiting places where drugs were sold 

or used, (4) the anonymous tip indicated that Riley was driving a white Audi, and 

(5) Riley was placed on community control because he had been driving without a 

license; hence, he could not legally drive. Armed with all of this information, 

probation officers had reasonable suspicion to suspect that Riley was in violation 

of his probation and that there were possibly drugs or other prohibited items at his 

residence. See Yuknavich, 419 F.3d at 1311. This provided the probation officers 

with a basis to lawfully conduct the probationary search, which included the ability 

to enter Riley’s garage, where probation officers observed what appeared to be 

cocaine in plain view in the Audi. Once the probation officers discovered the 

contraband, they stopped their search and turned it over to law enforcement to 

procure a search warrant. Thus, the probation officers acted lawfully, and the court 

did not err by denying Riley’s motion to suppress the fruits of the lawful search.

II.

Riley argues that the court erred by refusing to declare a mistrial after his 

probation officer violated the court’s pretrial ruling excluding evidence that the 

 

probationary searches subject to the reasonable suspicion standard. In Carter, we only stated 

that there was no staleness problem in that case, and did not announce a rule applying the 

staleness doctrine to probationary searches for which there must be reasonable suspicion. See 

Carter, 566 F.3d at 975. Because no precedent from the Supreme Court or this Court directly 

resolves the issue, there is no plain error. See United States v. Lejarde-Rada, 319 F.3d 1288, 

1291 (11th Cir. 2003).

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tipster mentioned the sale of drugs at Riley’s house, as it concerned the ultimate 

issue of whether Riley distributed cocaine. Riley contends that the violation of the 

pretrial ruling violated his Sixth Amendment right of confrontation.

We review de novo the scope of constitutional rights. United States v. 

Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). However, we review the denial 

of a motion for a mistrial for abuse of discretion. United States v. Ramirez, 426 

F.3d 1344, 1353 (11th Cir. 2005). That standard recognizes that the district court 

possesses a range of choices; thus, so long as its decision does not amount to a 

clear error of judgment, we will not disturb the decision, even if we would have 

chosen differently. United States v. Lopez, 649 F.3d 1222, 1236 (11th Cir. 2011).

The Confrontation Clause prohibits the admission of testimonial hearsay 

evidence at trial unless the declarant is unavailable and the defendant had a prior 

opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 

68 (2004); U.S. Const. amend. VI. The Confrontation Clause does not, however, 

bar the use of non-hearsay testimonial statements. See Crawford, 541 U.S. at 59 

n.9 (“The Clause . . . does not bar the use of testimonial statements for purposes 

other than establishing the truth of the matter asserted.”). The Federal Rules of 

Evidence define hearsay as a statement that a party offers in evidence to prove the 

truth of the matter asserted in the statement. Fed. R. Evid. 801(c). We previously

held that “[s]tatements by out of court witnesses to law enforcement officials may 

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be admitted as non-hearsay if they are relevant to explain the course of the 

officials’ subsequent investigative actions, and the probative value of the 

evidence’s non-hearsay purpose is not substantially outweighed by the danger of 

unfair prejudice caused by the impermissible hearsay use of the statement.” United 

States v. Baker, 432 F.3d 1189, 1208 n.17 (11th Cir. 2005), abrogated in part on 

other grounds by Davis v. Washington, 547 U.S. 813 (2006) (holding, contrary to 

Baker, that the Confrontation Clause does not apply to non-testimonial hearsay).

Here, the testimony regarding the anonymous tip was admitted to explain the 

reason that probation officers conducted a visit of Riley’s house, and not for the 

truth of the matter asserted. Thus, it was not hearsay. Furthermore, it did not 

implicate the Confrontation Clause because the probative value of the statement’s 

non-hearsay purpose—explaining why the probation officer conducted the home 

visit—was not substantially outweighed by the danger of unfair prejudice, where 

the other trial evidence included far more incriminatory descriptions of the 

extensive drugs found at Riley’s house. See Baker, 432 F.3d at 1208 n.17; 

Crawford, 541 U.S. at 59 n.9. 

Furthermore, when the court denied Riley’s motion for a mistrial, it noted 

that the statement violated its pretrial ruling limiting testimony of the tip to reports 

of unlawful activity in the home. However, the statement did not address the 

ultimate issue in the case, as the probation officer never stated the tipster accused 

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Riley of selling drugs, or even personally possessing the drugs. Given the limited 

nature of the violation of the pretrial ruling, especially considering that the court 

permitted mention of unlawful conduct, the court’s decision to deny Riley’s 

motion did not amount to a clear error of judgment. See Lopez, 649 F.3d at 1236. 

Hence, it was within the court’s discretion to deny Riley’s motion for a mistrial.

III.

Riley also argues that the district court erred as a matter of law by relying on 

unpublished decisions of this Court in making three evidentiary rulings: (1) 

concluding that reasonable suspicion existed for the probationary search, relying 

on Wasser, 586 F. App’x at 504-05; (2) allowing the admission of evidence of 

drugs found in his house other than cocaine, relying on United States v. Caton, 294 

F. App’x 490, 494-95 (11th Cir. 2008); and (3) allowing a law enforcement agent 

to testify as a lay witness regarding the relationship between firearms and drugs, 

relying on United States v. Jones, 218 F. App’x 916, 917 (11th Cir. 2007). 

Regarding the third ruling, Riley contends that reliance on Jones prejudiced him, 

because his counsel indicated that he would have prepared differently if he had 

known that an expert witness would testify. Further, Riley argues that it prejudiced 

him because the officer’s testimony regarding the street value of the cocaine and 

drug dealers’ use of firearms as protection invaded the province of the jury by 

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speaking to an ultimate issue in the case—a factual determination of whether 

Riley’s gun was used in furtherance of his drug offense. 

We review rulings regarding the admissibility of lay opinion testimony for 

abuse of discretion. United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 

2011). A non-expert witness may give opinion testimony if the testimony is: “(a) 

rationally based on the witness’s perception; (b) helpful to clearly understanding 

the witness’s testimony or to determining a fact in issue; and (c) not based on 

scientific, technical, or other specialized knowledge within the scope of Rule 702.” 

Fed. R. Evid. 701. Subsection (c) was added to the Rule in 2000 to prevent expert 

testimony from being offered nominally as lay opinion testimony. United States v. 

Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). Federal Rule of Evidence 702 

governs the testimony of a witness qualified as an expert. Fed. R. Evid. 702. 

In United States v. Novaton, 271 F.3d 968 (11th Cir. 2001), we held that the 

district court did not abuse its discretion in permitting agents to give opinion 

testimony under pre-amendment Rule 701 regarding the meaning of code words 

based on their experience as police officers. Novaton, 271 F.3d at 1009. However, 

we noted that after the 2000 amendments to Rule 701, the admissibility of such 

testimony under Rule 701 was an open question. Id. at 1009 n.9. We later noted 

that the 2000 amendments did not alter our Rule 701 jurisprudence where law 

enforcement officers testify as lay witnesses. See Tampa Bay Shipbuilding & 

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Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1223 & n.17 (11th Cir. 

2003) (civil case holding that, like the police officers in Novaton, Tampa Bay’s 

witnesses testified based upon their particularized knowledge garnered from years 

of experience within the field, and noting that we found no basis to determine that 

Novaton required a different finding under Rule 701’s amendment). Thus, lay 

witnesses may testify based upon their particularized knowledge garnered from 

years of experience within a field. Id. at 1223.

Eleventh Circuit Rule 36-2 provides that unpublished opinions are not 

considered binding precedent, but may be cited as persuasive authority. 11th Cir. 

R. 36-2. Unpublished opinions are persuasive only insofar as their legal analysis 

warrants. Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th 

Cir. 2007) (citing United States v. Rodriguez-Lopez, 363 F.3d 1134, 1138 n.4 (11th 

Cir. 2004)).

We may decline to address an argument where a party fails to provide 

arguments on the merits of an issue or provide legal support, because the issue is 

deemed waived without such argument. United States v. Gupta, 463 F.3d 1182, 

1195 (11th Cir. 2006). Unlike forfeited claims, waived claims are not reviewed on 

appeal. United States v. Lewis, 492 F.3d 1219, 1220–21 (11th Cir. 2007) (en 

banc); see Fed. R. Crim. P. 52(b).

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As an initial matter, Riley does not make any arguments on the merits as to

how reliance on Wasser or Caton was erroneous, nor does he provide any legal 

support for his contentions that such reliance was reversible error. Thus, we 

decline to address those issues, as they have been waived. See Gupta, 463 F.3d at

1195; Lewis, 492 F.3d at 1220-21.

The court did not err by relying on Jones as persuasive authority in 

permitting the officer to testify as a lay witness. The court’s reliance on 

unpublished opinions of this Court was not improper, because the court understood 

the persuasive nature of the unpublished decisions, and Riley does not show that 

the court’s analyses were erroneous. Further, the officer’s lay testimony, based on 

particularized knowledge garnered from years of experience within the field of 

narcotics investigations, was not prohibited by Rule 701(c).

IV.

Riley argues that the evidence was insufficient to support his conviction for 

the § 924(c) charge. He first contends that there was insufficient evidence for the 

jury to reasonably infer that he constructively possessed the gun. Second, he 

asserts that a reasonable juror would not be able to make the series of inferential 

leaps to establish the “in furtherance” prong without resorting to speculation.

When the defendant challenged the sufficiency of the evidence by an 

appropriate motion for judgment of acquittal, we review de novo whether sufficient 

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evidence supports a conviction. United States v. Jiminez, 564 F.3d 1280, 1284 

(11th Cir. 2009).

In reviewing the sufficiency of the evidence, we view the record in the light 

most favorable to the government, resolving all reasonable inferences in favor of 

the verdict. United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). 

Accordingly, we sustain a defendant’s conviction as long as it is supported by a 

reasonable basis in the record. Id. Whether the evidence is direct or only 

circumstantial, we will accept all reasonable inferences that tend to support the 

government’s case. United States v. Williams, 390 F.3d 1319, 1324 (11th Cir. 

2004). It is not required that the evidence exclude every reasonable hypothesis of 

innocence in order for a reasonable jury to find guilt beyond a reasonable doubt. 

United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc). 

Thus, the jury is free to choose among alternative, reasonable interpretations of the 

evidence. Id. 

Section 924(c) provides enhanced penalties for possessing a firearm in 

furtherance of any drug trafficking crime for which a defendant is prosecuted. 18 

U.S.C. § 924(c)(1)(A). To establish a § 924(c) violation, the government must 

show that the defendant (1) knowingly (2) possessed a firearm (3) in furtherance of 

any drug trafficking crime for which he could be prosecuted in a court of the 

United States. United States v. Williams, 731 F.3d 1222, 1232 (11th Cir. 2013). 

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Possession may be actual or constructive. United States v. Gunn, 369 F.3d 1229, 

1234 (11th Cir. 2004). To establish constructive possession, the government must 

show that the defendant exercised ownership, dominion, or control over the 

firearm. Id. 

A firearm is possessed in furtherance of a drug trafficking offense when the 

firearm aided, advanced, or promoted the underlying offense. Williams, 731 F.3d 

at 1232. The presence of a gun within the defendant’s dominion and control 

during a drug-trafficking offense is not sufficient, by itself, to sustain a § 924(c) 

conviction. United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)

(holding that evidence was sufficient to sustain a guilty verdict where agents found 

two loaded firearms on top of an oven, an empty ammunition box inside the oven, 

a bullet-proof vest in a closet, $350 in a stove drawer, and a total of 35.67 grams of 

crack cocaine). In order to prove the “in furtherance” element, the government 

must show some nexus between the gun and the drug trafficking offense. Id. at 

1253. This nexus can be established by: the type of drug activity being conducted, 

the accessibility of the gun, the type of gun, whether the gun was stolen, whether 

the gun was possessed legally, whether the gun was loaded, the gun’s proximity to 

drugs or drug profits, and the time and circumstances under which the gun is 

found. Id.

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Viewed in the light most favorable to the government, the evidence was 

sufficient to support Riley’s § 924(c) conviction. The jury could have reasonably 

inferred that Riley had constructive possession of the gun because it was found 

next to his hands and Riley was the only resident of the house when the gun was 

found. Furthermore, there was a reasonable basis in the record from which the jury 

could conclude that Riley possessed the gun in furtherance of the drug crime, given 

that the gun was found near more than 1000 grams of cocaine, the gun was not 

possessed legally, and the gun was loaded. 

In conclusion, upon review of the record and consideration of the parties’ 

briefs, we affirm.

AFFIRMED.

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