Case: 11-13427     Date Filed: 01/22/2014   Page: 1 of 35


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 11-13427
                           ________________________

                     D.C. Docket No. 9:10-cr-80159-KAM-1

UNITED STATES OF AMERICA,

                                                                Plaintiff - Appellee,

                                       versus

BRIAN MICKO YEARY,

                                                             Defendant - Appellant.
                           ________________________

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

                                 (January 22, 2014)

Before TJOFLAT, MARTIN, and FAY, Circuit Judges.


TJOFLAT, Circuit Judge:

      A federal jury convicted Brian Micko Yeary, a felon, on multiple counts of

conspiring to possess, or of possessing, various controlled substances with intent to
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distribute, of possessing a firearm in furtherance of a drug trafficking offense, and

of possessing a firearm or ammunition by a felon.1 The District Court sentenced

him to prison for a total of 1,092 months.2 Yeary now appeals his convictions and

sentences. He challenges his convictions on five grounds and his sentences on one

ground. The only challenges meriting discussion deal with his convictions; he

argues that the District Court erred in denying his motion to suppress evidence—

drugs, drug paraphernalia, and firearms—that the police seized in warrantless

searches of his residences. The other challenges are meritless, as indicated in the

footnote below. 3 At the end of the day, we affirm Yeary’s convictions and

sentences.



       1
          The case was tried on a second superseding indictment. The jury found Yeary guilty of
three counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006) (Counts 1, 5, and 9); possession with intent to distribute marijuana, in violation of 21
U.S.C. § 841(a)(1) (Count 2); conspiracy to possess with intent to distribute over 500 grams of a
mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1) (Count 14); conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 16); four counts of possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Counts 3, 7, 15, and
17); and five counts of possession of a firearm or ammunition by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 4, 8, 11, 12, and 13). The jury acquitted Yeary
on one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) (Count 6), and one count of possession of oxycodone with intent to distribute (Count
10), in violation of 21 U.S.C. § 841(a)(1).
        2
          The District Court sentenced Yeary to concurrent prison terms as follows: 132 months
on Counts 1, 5, 9, 14 and 16; 60 months on Counts 2, 4, 8, 11, 12 and 13. The court sentenced
him to consecutive prison terms of 60 months on Count 3, and 300 months on Counts 7, 15 and
17.
        3
          Yeary seeks an acquittal on all charges, arguing that the evidence was insufficient to
convict. This argument lacks merit because the evidence of guilt was overwhelming. He seeks a
                                                 2
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                                                 I.

       In this part, we detail the facts the Government’s proof established at

Yeary’s trial. Section A touches briefly on the criminal activities Yeary engaged

in prior to his commission of the crimes charged in this case. Sections B, C and D

set out the circumstances surrounding the searches Yeary contends were illegal

because they were warrantless. 4




new trial on three grounds, arguing that the District Court abused its discretion (1) in denying his
motion to sever the counts into three groups, each involving one of the three searches that led to
his convictions, (2) in denying his pro se motion for the court’s recusal based on alleged
“sarcastic comments” the court made, and (3) in instructing the jury in accordance with the
Eleventh Circuit’s Pattern Jury Instruction on the elements of a 18 U.S.C. § 924(c) violation. We
find no abuse of discretion in any of these arguments. Thus, whether his convictions stand or fall
depends on our disposition, in part III, infra, of his arguments that the District Court erred in
denying his motions to suppress evidence. As for Yeary’s sentences, we find no merit in the
argument that the court abused its discretion under the Eighth Amendment in imposing
consecutive sentences for the 18 U.S.C. § 924(c) convictions.
        4
          As indicated in note 

, Yeary contends that the evidence was insufficient to
convict. In sections A through D, after considering the evidence presented in the Government’s
case in chief in the light most favorable to the jury’s verdict, United States v. Garcia-Bercovich,

, 1237 (11th Cir. 2009), we recite the facts such evidence established. (After the
Government rested its case, Yeary moved the court for a judgment of acquittal pursuant to Fed.
R. Crim. P. 29. The court denied the motion with respect to all counts save Count 6 and Yeary
rested his defense without presenting any evidence). The District Court based its rulings denying
Yeary’s motions to suppress the evidence obtained in the searches of his residences on the
evidence giving rise to the facts recited in sections B through D and the evidence Yeary moved
the court in limine to preclude the Government from presenting to the jury.
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                                                   A.

          On May 2, 2006, Yeary was convicted of two felonies in the Circuit Court

for Palm Beach County, Florida. 5 Because federal law prohibited him from

carrying a firearm, 6 Yeary had a friend, Jeff Bell, purchase firearms for his use.

On August 12, 2006, Yeary, accompanied by his girlfriend, Lindsey Kline, and

Bell went to a gun show, where Bell purchased two firearms, a Glock Model 22

and a Kel Tec.7 Yeary gave Bell the cash required for the purchases and took

possession of the guns upon leaving the gun show. On April 15, 2007, Bell

purchased two Taurus 9 millimeter pistols—a Model PT-111 and a Model PT-

917—for Yeary. Again, Yeary provided the cash for the purchases and took

possession of the guns.

          On August 10, 2007, Yeary and Kline got into an argument at a

condominium they shared in Boynton Beach, Florida. 8 Following the argument,



          5
              The felonies were fleeing or attempting to elude a marked police car and resisting
arrest.
          6
              18 U.S.C. § 922(g) provides:

       (g) It shall be unlawful for any person—(1) who has been convicted in any court
       of, a crime punishable by imprisonment for a term exceeding one year . . . to ship
       or transport in interstate or foreign commerce, or possess in or affecting
       commerce, any firearm or ammunition; or to receive any firearm or ammunition
       which has been shipped or transported in interstate or foreign commerce.
       7
         The Glock Model 22 and the Kel Tec were the firearms described in Count 15 of the
indictment.
       8
         Boynton Beach is located in Palm Beach County.
                                                    4
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Yeary left the condominium. Thereafter, Kline called the police, and Officer

Connor Haugh of the Boynton Beach Police Department responded to the call.

When Officer Haugh arrived, Kline requested that he stay with her while she

removed her belongings from the condominium, which he did. As Haugh was

helping her, he saw in plain view a Kel Tec pistol, a cylinder drum filled with

assault-type rifle ammunition, a magazine of ammunition, and a box of

ammunition. Because Haugh knew that Yeary was a convicted felon and was

prohibited from possessing a firearm, he seized the Kel Tec. He also seized drug

paraphernalia that Kline pointed out to him, including a digital scale, acetone, a

bowl with residue, and super mannitol (which is used to dilute cocaine).

Responding to a BOLO, 9 the police stopped Yeary on the roadway and arrested

him. 10




          9
          A BOLO is a police acronym for “be on the lookout.” See, e.g., United States v.
Simms, 

, 1350 (11th Cir. 2004).
        10
           The jury was not informed as to whether Yeary was charged with possessing the Kel
Tec, or the ammunition, or the narcotic paraphernalia. The records of the Palm Beach County
Circuit Court, of which we take judicial notice, see Fed. R. Evid. 201, reveal, however, that, on
August 10, 2007, Yeary was arrested and charged with two counts of possession of narcotics and
one count of constructive possession of a firearm by a convicted felon. He was subsequently
adjudicated guilty on January 30, 2009, and sentenced to ten months in the county jail. We do
not consider these facts in reaching our disposition of this appeal.
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       On November 15, 2007, Kline came to the Palm Springs Police Department

and met with Officer Joseph Derogatis. 11 After a brief conversation, she asked

Derogatis to accompany her to her residence, a house in Palm Springs. 12 When

they arrived, Kline took the officer to the bedroom she shared with Yeary and

showed Derogatis what he described as “items consistent with drug sales,

paraphernalia, some ammo cartridges, [and] magazine pouches.” Kline also

showed him two safes, “a handgun-type safe . . . on top of a larger safe,” and a

“press,” which, Derogatis concluded, was “used for compressing powered cocaine

. . . making it a tight package to be shipped and delivered . . . to resell.”

       Derogatis then summoned an officer who handled a “K-9 dog.” The dog

alerted the officers to the presence of drugs. After a search warrant issued,

Derogatis opened the safes. The larger safe contained $1,800 in cash and a

Styrofoam cup with two plastic bags filled with white powder. The smaller safe

contained an empty prescription bottle bearing the name Brian Yeary.



       11
           Prior to his trial, Yeary moved the District Court in limine to exclude all of the
evidence related to the events leading to Kline’s trip to the Palm Springs Police Department.
The court granted his motion; thus, the jury did not hear the following. Around 7:30 a.m. on
November 15, Kline called the police to report a home invasion. Officers came to her residence
and discovered her in a mentally disheveled state; there was no home invasion, so they left.
Later in the morning, officers on patrol found Kline driving erratically. They stopped her and
discovered that she had been pistol-whipped in the head; she exhibited a “major gash.” The
officers took her to the hospital. It was after she was discharged that she came to the police
station and met with Officer Derogatis.
        12
           Palm Springs is in Palm Beach County, a few miles south of Boynton Beach.
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                                               B.

       At some point in time, the Palm Beach County Circuit Court issued a

warrant for Yeary’s arrest. 13 The County Sheriff’s Office was unable to find him,

so it contacted the U.S. Marshal’s Fugitive Task Force for assistance. The Task

Force suspected that Yeary was living with Kline in a house in Stuart, in Martin

County, 14 and, on June 16, 2008, three Deputy U.S. Marshals and five Sheriff’s

Office deputies were sent to arrest him. Kline—who at the time was pregnant with

Yeary’s child—opened the door; Yeary stood behind her. A black semiautomatic

handgun was on a table next to Yeary in the deputies’ plain view.

       Yeary was arrested and removed from the house. Kline was asked if there

were others in the house. She said that two other people were there. During the

protective sweep that followed, the deputies discovered in plain view in Kline and

Yeary’s bedroom a black tray that had narcotic residue, marijuana clippings, scales

with cocaine residue, and Ziploc baggies used for packaging narcotics, along with

other drug paraphernalia.




       13
           The jury was not informed of the crime alleged in the warrant or whether Yeary was
convicted of the crimes following his arrest. In his opening statement to the jury, the Assistant
U.S. Attorney said that the warrant arose out of the November 15, 2007, incident described in the
preceding text, but he introduced nothing in the Government’s case in chief to support the
statement.
       14
           Martin County, Florida, is immediately north of Palm Beach County.
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       Based on this discovery, a Martin County Sheriff’s Office deputy obtained a

search warrant for the house. The ensuing search uncovered, and deputies seized,

51.8 grams of cocaine, 97.1 grams of marijuana, and a firearm. The marijuana was

packaged in small baggies, all stored in a Ziploc bag. The cocaine was similarly

packaged in baggies that were placed in a larger bag. A safe containing Yeary’s

driver’s license, approximately $3,000 cash and a 9 millimeter ammunition

cartridge was also seized.

       Lindsey Kline testified that Yeary made his living selling drugs, including

cocaine, marijuana, and prescription pills. She and others Yeary employed made

sales for him. Yeary’s cocaine source was a man named Pepe, who supplied Yeary

with 5.25 ounces of cocaine every other week.

       Kline produced several photographs depicting Yeary holding firearms and

drugs. One of the photos, taken on January 1, 2008, showed Yeary holding a

Remington Model 870 shotgun.15

                                             C.

       In February 2009, Yeary was placed under in-house arrest pending trial on

felony charges in the Palm Beach County Circuit Court.16 As a condition of




       15
          On the basis of this photo, the Government charged Yeary with one count (Count 13)
of possessing a Remington Model 870 shotgun, in violation of 18 U.S.C. § 922(g).
                                              8
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release, the Circuit Court required Yeary to agree with the Palm Beach County

Sheriff’s Office’s Alternative Custody Unit (the “ACU”) that it could search his

residence 17 at any time without prior notice and without a warrant.18 Yeary agreed

to this condition by executing a written agreement to that effect with the ACU.

       On June 1, 2009, the ACU received an anonymous tip that Yeary was selling

drugs out of his residence. Before the ACU could dispatch officers to Yeary’s

residence, Yeary moved his residence to a house in Lake Worth.19 He informed

the ACU of the move, and it had him sign a new agreement.

       Shortly thereafter, on June 24, responding to the anonymous tip, officers of

the ACU, a Sheriff’s Office detective, and Agent Troy Raines of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives went to Yeary’s Lake Worth

residence. Yeary and three others were at the residence when officers arrived.

Yeary complied with officers’ request to search his residence. Agent Raines and

the detective found drugs and a Sig Sauer Model P229 firearm loaded with Fiocchi

.40 caliber rounds in Yeary’s bedroom. They also found a digital scale, Ziploc




       16
            The District Court sustained Yeary’s objection to the jury’s being informed of the
charges for which he was awaiting trial. The record discloses that the charges were cocaine
trafficking and burglary with assault and battery, but not the dates the offenses occurred.
         17
            The record does not indicate the location of Yeary’s residence at the time he was
initially placed under in-house arrest.
         18
            The relevant provisions of the ACU agreement are quoted in note 26, infra.
         19
            Lake Worth is in Palm Beach County.
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bags similar to the ones found during the previous search of Yeary’s Stuart

residence, and a pair of shorts with a concealed pocket containing a bag of cocaine.

In total, they seized 50.9 grams of cocaine, 5.5 tablets of Xanax with a net weight

of 1.4 grams, 39 tablets of oxycodone tables with a net weight of 19.2 grams, and

1.9 grams of marijuana.

       On November 2, 2010, a federal grand jury returned a multi-count

indictment against Yeary, charging him with some of the drug and firearm offenses

involved in this appeal, 20 and a warrant for his arrest issued.

                                              D.

       On the night of November 10, 2010, Yeary was shot in the leg outside of a

bar, “Apple Bottoms,” in the Palm Beach County town of Lantana. At the time,

Yeary was carrying a Taurus 92AFS 9 millimeter firearm loaded with fourteen live

rounds. Two friends drove him to a friend’s house. Another friend, Sean East, met

Yeary and his friends there, took possession of Yeary’s firearm, placed it in his

vehicle, and prepared to drive Yeary to the hospital. Detectives from the Palm

Beach County Sheriff’s Office, which had been called by one of the two friends



       20
           The record does not indicate whether, as the result of the June 24, 2009, search of
Yeary’s Lake Worth house, the Palm Beach County Circuit Court vacated its February 2009
order placing Yeary under in-house arrest pending trial. Nor does the record indicate the
outcome of that trial. What the record does reveal is that on November 10, 2010, Yeary was not
in custody, as indicated in section D that follows.
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who had been with Yeary at the bar, arrived at the scene before East could take

Yeary to the hospital. Also arriving at the scene were paramedics assigned to the

County’s fire and rescue unit. The paramedics took Yeary to the hospital.

Detective James Evans stayed behind to look for the gun Yeary was carrying at the

time he was shot. East told him that the gun was in his vehicle. With East’s

permission, Evans directed a crime scene investigator to enter the vehicle and

retrieve the gun.

      Meanwhile, following Yeary’s indictment on November 2, Agent Raines set

out to locate Yeary. Around midnight on November 10, Detective Evans called

Raines to let him know that Yeary had been shot and taken to the hospital. He also

informed Raines that Yeary had been living in a condominium in Lantana.

      At 4:30 a.m. on November 11, Raines and Evans went to Yeary’s

condominium to inform its residents of Yeary’s shooting and hospitalization.

Nicole Sackmann—Yeary’s girlfriend who was pregnant with his child—met them

at the door. Raines and Evans identified themselves, informed her that Yeary had

been shot and taken to the hospital, and asked permission to enter. She granted it

and let them in.

      Inside the condominium, the officers saw a bag they thought contained

cocaine. With that discovery, they asked Sackmann, who had mentioned that she

was leasing the condominium, if she would consent to a search of the
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condominium and presented her with a “consent form” that included a notice

stating that she had the right to withhold her consent. She granted their request and

signed the consent form.

       During the ensuing search, the officers found a safe, thirty-eight rounds of

.40 caliber Smith and Wesson bullets, a plastic bag with cocaine residue, and

another bag with 8.8 grams of cocaine. After the officers obtained a warrant to

search the safe, they discovered a pill bottle containing twenty oxycodone pills and

$2,000 cash.

       On November 11, while in the hospital, Yeary was arrested by a deputy U.S.

Marshal on the warrant that issued pursuant to the grand jury indictment returned

on November 2. The next day, Yeary was taken before a U.S. Magistrate Judge for

a detention hearing. 21 The Magistrate Judge ordered that he be temporarily

detained in the Palm Beach County jail and scheduled his arraignment and a

detention hearing for November 29. Yeary was arraigned that day and, represented

by retained counsel, entered a plea of not guilty. 22 He then asked the Magistrate

Judge to continue his detention hearing; his request was granted. On December 17,



       21
          The Federal Public Defender represented Yeary at the hearing on a temporary basis
because Yeary informed the court that he intended to retain counsel.
       22
          Retained counsel moved the District Court to withdraw as Yeary’s counsel on
February 9, 2011. The court granted his motion and, apparently finding Yeary indigent,
appointed counsel to represent him.
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the Magistrate Judge, after entertaining the parties’ evidentiary submissions,

ordered Yeary detained in the County jail pending trial.23

       Yeary made several telephone calls from the jail while being detained; all

outgoing calls, except for those he made to his attorney, were recorded pursuant to

Sheriff’s Office protocol. At trial, the Government played some of the recordings

for the jury.

       One of the calls was to Jeff Bell, who connected the call to Sackmann’s

phone. During that conversation, which occurred on January 1, 2011, Yeary

explained he was shot at Apple Bottoms to “bust a sale” and referred to his

pending drug sale with a person named Corey. He also stated that he was armed at

the time and intended to shoot the person who shot him. Yeary again spoke with

Sackmann on January 28, 2011. She advised him of a drug sale she had transacted.

       On February 5, 2011, Yeary called his former girlfriend, Lindsey Kline, and

criticized her for leaving him in jail when, according to Yeary, Kline had been his

accomplice. He said,

       You were out there with me[,] you were enjoying all the fruits of the
       shit when I was selling dope and all the fucking money it was
       bringing. You were enjoying the fucking lifestyle that we were living,


       23
           As indicated in note 

, Yeary was tried on a second superseding indictment.
The first superseding indictment was returned on February 3, 2011; the second superseding
indictment was returned on April 7, 2011. Yeary remained in pretrial detention in the Palm
Beach County jail throughout the prosecution of this case.
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       but right now I am the one in here by myself serving the fucking time
       for what we were doing.

When Kline responded that Yeary was in jail for possessing a gun, not for selling

drugs, Yeary disagreed, stating, “I am in here because I was a fucking drug

dealer.”

                                               II.

       Yeary moved the District Court to suppress the evidence obtained in the

warrantless searches described in sections B, C and D of part 

. The District

Court, after entertaining the factual circumstances of the searches, denied the

motion.

       Addressing the part I.B search, which took place on June 16, 2008, at

Yeary’s house in Stuart, the District Court expressly made the following findings:

(1) The deputies possessed a valid warrant for Yeary’s arrest24 when they knocked

on the door; after Kline opened the door but before entering the house, the deputies

saw a gun in plain view on the table next to where Yeary was standing; this gave

them a lawful basis for entering the home. (2) Yeary was placed under arrest and

removed from the house. (3) Kline informed officers that there were two other

individuals in the residence. (4) This information, combined with the arrest



       24
          Yeary did not contest the validity of the warrant when the deputies arrested him or in
prosecuting his motion to suppress.
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warrant and discovery of a firearm, created a reasonable basis for the arresting

officers to fear for their safety. (5) Based on the reasonable fear for their safety,

the detectives conducted a protective sweep. (6) The protective sweep was limited

in time and scope to locate the other individuals in the house. (7) While

conducting the sweep, the deputies saw in plain view the drugs and drug

paraphernalia that gave the detectives probable cause to apply for a search warrant.

      Turning to the part I.C search, which took place on June 24, 2009, at

Yeary’s house in Lake Worth while he was in in-house arrest under ACU

supervision, the court made these findings: (1) Yeary knowingly and voluntarily

consented to searches of his residence as a condition of being placed on in-house

arrest. (2) In light of Yeary’s risk of flight, criminal history, and threat to kill

Kline, in addition to the charges he faced—cocaine trafficking and burglary with

assault and battery—agreeing to a search of his premises by the ACU was

reasonable to protect the safety of others. (3) Requiring Yeary to waive his right to

withhold consent to a search of his residence without a warrant was not

unreasonable in light of the alternative he faced—pretrial detention. (4) Yeary did

not have a reasonable expectation of privacy at the time of the search. (5) The

officers had a reasonable suspicion that Yeary possessed contraband, which

justified the search.


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       Regarding the part I.D search, which took place on November 11, 2010, at

the Lantana condominium in which Yeary was apparently living, the court found

as follows: (1) Sackmann, Yeary’s girlfriend at the time, greeted Agent Raines and

Detective Evans when they announced their arrival. (2) Sackmann informed the

officers she was the lessee of the premises. (3) Sackmann invited officers into the

residence to discuss Yeary’s shooting. (4) Sackmann was not coerced or

threatened. (5) Inside the residence, the officers observed in the living room in

plain view a blue Ziploc bag containing what they suspected was cocaine residue.

(6) The officers then asked for Sackmann’s permission to search the residence. (7)

Sackmann knowingly and voluntarily consented verbally and in writing to the

search.

                                                III.

       Yeary argues that the District Court erred in denying his motion to suppress

the three searches at issue in this case because they cannot withstand Fourth

Amendment scrutiny. 25




       25
           In reviewing the District Court’s denial of Yeary’s motion to suppress, “we review its
findings of fact for clear error and its application of law to those facts de novo.” United States v.
Ramirez, 

, 1235 (11th Cir. 2007). We consider the evidence in the light most
favorable to the District Court’s judgment. 

“In addition, we may affirm the denial
of a motion to suppress on any ground supported by the record.” United States v. Caraballo, 

, 1222 (11th Cir. 2010).

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      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. “It is a ‘basic principle of

Fourth Amendment law’ that searches and seizures inside a home without a

warrant are presumptively unreasonable.” Payton v. New York, 

,

586, 

, 1380, 

(1980). This presumption is “subject

only to a few ‘jealously and carefully drawn’ exceptions.” McClish v. Nugent, 

, 1240 (11th Cir. 2007) (quoting Georgia v. Randolph, 

,

109, 

, 1520, 

(2006)). Although each of the three

searches in this case occurred without a warrant, we hold that an exception to the

warrant requirement justified each search. Because each search implicates a

different exception to the presumption that warrantless searches of a home are

unreasonable, we analyze the circumstances of each search separately.

                                          A.

      The District Court upheld the search of Yeary’s Stuart residence on the

ground that the search was a valid protective sweep, justified by Kline’s statement

to the deputies that there were two other individuals in the home. Law

enforcement officers are permitted, in the context of a valid arrest, to conduct a

protective sweep of a residence for officers’ safety. See Maryland v. Buie, 

, 333–35, 

, 1097–99, 

(1990); United
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States v. Hromada, 

, 690 (11th Cir. 1995) (“Officers have a legitimate

interest ‘in taking steps to assure themselves that the house in which a suspect is

being, or has just been, arrested is not harboring other persons who are dangerous

and who could unexpectedly launch an attack.’ ” (quoting 

,

110 S. Ct. at 1098)). Such a sweep must be brief and limited to areas from which

an attack could be launched. As the Supreme Court has indicated:

      [A] protective sweep, aimed at protecting the arresting officers, if
      justified by the circumstances, is nevertheless not a full search of the
      premises, but may extend only to a cursory inspection of those spaces
      where a person may be found. The sweep lasts no longer than is
      necessary to dispel the reasonable suspicion of danger and in any
      event no longer than it takes to complete the arrest and depart the
      premises.

–36; 110 S. Ct. at 1099. To justify a protective sweep, “there

must be articulable facts which, taken together with the rational inferences from

those facts, would warrant a reasonably prudent officer’s belief in believing that

the area to be swept harbors an individual posing a danger to those on the arrest

scene.” 

110 S. Ct. at 1098.

      We agree that the deputies conducted a valid protective sweep of the Stuart

residence. First, the arrest warrant, standing alone, would have given deputies the

authority to enter the home. See 

, 100 S. Ct. at 1388

(“[A]n arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives when there is reason
                                          18
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to believe the suspect is within.”); United States v. Bennett, 

, 965

(11th Cir. 2009). Of course, the deputies did not enter the home to make the arrest;

Yeary cooperated, left the home and was arrested—but only after the deputies saw

a firearm in plain view. The deputies then learned of the presence of two unknown

individuals in the residence. Based on these two facts, the deputies could have

reasonably suspected that they were in danger. See 

n.9

(“[T]he dangers presented by in-home arrests are often greater than those

conducted on the street due to the ‘home turf’ advantage the suspect has over the

police.”). Therefore, the deputies were justified in engaging in a protective sweep.

Moreover, the sweep was limited in scope; it was only coincidental that one of the

deputies discovered contraband in plain view while conducting the sweep. See

United States v. Smith, 

, 1290 (11th Cir. 2006) (“The plain view

doctrine allows police officers to seize any contraband in plain view if the officers

have a right of access to the place where the contraband is located.” (quoting

United States v. Rodgers, 

, 221 (11th Cir. 1991)). We therefore hold

that the Stuart search was valid.

                                         B.

      In February 2009, after Yeary was arrested in Palm Beach County on felony

charges, he appeared before the Palm Beach County Circuit Court at a detention

hearing. At the conclusion of the hearing, the court ordered that, pending his trial,
                                          19
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Yeary be placed under in-house arrest under the supervision of the ACU (as

opposed to being held in jail). The conditions of his in-house arrest, which Yeary

accepted by entering into an agreement with the ACU, prohibited him from

engaging in illegal activity, including possessing drugs, firearms, or ammunition.

To ensure that Yeary did not possess such items, he agreed that his residence

would be subject to warrantless searches.26

       On June 24, 2009, officers of the ACU, accompanied by other law

enforcement personnel, acting on an anonymous tip that Yeary was trafficking

drugs from his residence, went to the house in Lake Worth in which he was then




       26
            The ACU agreement contained the following provision:

       The participant and all other residents must allow Alternative Custody staff access
       to the residence and any vehicles owned, leased, or rented by the participants and
       all other residents without prior notice 24 hours a day. The Alternative Custody
       staff will enter the residence to inspect and maintain monitoring equipment, check
       on the participant’s welfare and presence, compliance with the program rules, and
       will conduct warrant-less searches of the residence to ensure the participant is not
       involved in any illegal activity or in possession of any illegal substances.

       (emphasis added). The ACU agreement contained another provision, which stated:

       By signing this agreement I indicate I have read, understand, and agree to abide
       by all terms and conditions of this agreement and I waive any objections to
       warrant-less and forced entry to my residence and warrant-less searches of my
       residence.

        (emphasis added). Yeary’s signature appears directly below this second quoted portion
of the ACU agreement.
                                               20
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living and conducted a warrantless search that yielded drugs, a firearm, and

ammunition.

      There is no doubt that Yeary agreed to warrantless searches of his residence

as a condition of his in-house arrest. Therefore, the constitutionality of the Lake

Worth search necessarily turns on the validity of Yeary’s consent.

      In Schneckloth v. Bustamonte, 

, 

, 

(1973), the Supreme Court established the still-prevailing framework for

analyzing consent searches:

      [W]hen the subject of a search is not in custody and the State attempts
      to justify a search on the basis of his consent, the Fourth and
      Fourteenth Amendments require that it demonstrate that the consent
      was in fact voluntarily given, and not the result of duress or coercion,
      express or implied. Voluntariness is a question of fact to be
      determined from all the circumstances, and while the subject’s
      knowledge of a right to refuse is a factor to be taken into account, the
      prosecution is not required to demonstrate such knowledge as a
      prerequisite to establishing a voluntary consent.

93 S. Ct. at 2059. Although the search in Bustamonte occurred in

the context of an automobile, the Supreme Court has applied its framework for

consent searches to searches of the home as well. See Illinois v. Rodriguez, 

, 181, 

, 2797, 

(1990) (“The Fourth

Amendment generally prohibits the warrantless entry of a person’s home, whether

to make an arrest or to search for specific objects. The prohibition does not apply,

however, to situations in which voluntary consent has been obtained . . . .”
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(citations omitted)); see also United States v. Garcia, 

, 360–62 (11th

Cir. 1989) (applying the Bustamonte framework to the search of a home).

       “The government bears the burden of proving both the existence of consent

and that the consent was not a function of acquiescence to a claim of lawful

authority but rather was given freely and voluntarily.” United States v. Acosta,

, 1151 (11th Cir. 2004) (citation omitted). “A district court’s

determination that consent was voluntary is a finding of fact, that will not be

disturbed on appeal absent clear error.” United States v. Purcell, 

,

1281 (11th Cir. 2001).

       In examining the totality of the circumstances, it becomes clear to us that

Yeary knowingly consented to the search of his residence. At the suppression

hearing, Sergeant Lawrence of the ACU explained that Yeary was given the

opportunity to read and review the ACU agreement—“page by page, line by line,

paragraph by paragraph”—with the ACU deputy in charge of his case, so that he

could fully understand the conditions of his in-house arrest.27 His agreement with



       27
           Although counsel was not present when Yeary signed the ACU agreement, we do not
believe this fact alters the analysis. We are focused on whether Yeary’s signature—and
therefore his consent to search—was knowing and voluntary, not on whether he was fully
appraised by counsel of the implications of consenting to a search. The presence and advice of
counsel is certainly not a prerequisite to a finding that a suspect knowingly and voluntarily
consented to the run-of-the-mill consent search of a home. See Schneckloth v. Bustamonte, 

, 243–45, 

, 2056–57, 

(1973) (“Those cases that have
dealt with the application of the Johnson v. Zerbst[,304 U.S. 458, 

, 

                                               22
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the ACU plainly stated that he would allow ACU staff access to the residence

twenty-four hours a day for warrantless searches. Before he signed the agreement,

Yeary acknowledged that he understood and agreed to abide by its terms. Indeed,

above the signature line was the statement, “I waive any objections to warrant-less

and forced entry to my residence and warrant-less searches of my residence.” The

agreement was clear: as a condition of in-house arrest, ACU staff would be

permitted to enter his residence and conduct a search—at any time and without a

warrant—to ensure that he was not engaged in illegal activity or in possession of

illegal substances.

       The choice Yeary faced—in-house arrest on the terms outlined in the ACU

agreement or jail—is not all that different from those we have held to be voluntary

in the context of run-of-the mill consent searches. For example, we upheld a

search where police officers presented the defendant with the choice of consenting




(1938)] rule [regarding waiver of criminal rights] make clear that it would be next to impossible
to apply to a consent search the standard of ‘an intentional relinquishment or abandonment of a
known right or privilege.’ . . . It would be unrealistic to expect that in the informal, unstructured
context of a consent search, a policeman, upon pain of tainting the evidence obtained, could
make the detailed type of examination demanded by Johnson.”). Neither do we think counsel is
required when the consent to search comes in the form of an agreement to a condition to in-
house arrest. The presence or absence of counsel is but one factor we consider when
determining whether the consent was in fact knowing and voluntary. Cf. 

, 93 S. Ct. at 2048 (“While knowledge of the right to refuse consent is one factor to be
taken into account, the government need not establish such knowledge as the sine qua non of an
effective consent.”).
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to the search or having his house “dug up” once a search warrant was obtained.

See United States v. Long, 

, 405 (11th Cir. 1989) (“Even if the

officers stated that they could come back and ‘dig the place up,’ such a statement

does not amount to coercion. [The defendant] was free to force the agents to obtain

a search warrant and, if at that time, he did not want ‘his whole place dug up,’ [he]

could have cooperated.”). Similarly, we have found consent to be voluntary where

fourteen police officers were present at the defendant’s house when they arrested

and handcuffed him and where the officers refused to accept the defendant’s

conditional consent to search only the part of the house, stating they would instead

obtain a search warrant unless the defendant consented to a full search. See United

States v. Garcia, 

, 360–62 (11th Cir. 1989). Still another case that

supports our conclusion that the consent in this case was voluntary is United States

v. Espinosa-Orlando, 

(11th Cir. 1983). In Espinosa-Orlando, the

defendant was pulled over by officers on suspicions that he was transporting drugs.

With guns drawn, four officers ordered the defendant to get out of his

car and lie on the ground. 

the officers holstered their guns while the

other pointed the gun elsewhere; then one of the officers asked for the defendant’s

consent to search the car. 

The defendant consented, and we held that

the consent was voluntary and uncoerced. 

11-13427       Date Filed: 01/22/2014       Page: 25 of 35


       From these cases it becomes clear that Yeary was hardly faced with the

Hobson’s choice he presents. He was not entitled to release on bail; given his

criminal history, his risk of flight, and his threat to kill Kline, the court had more

than ample grounds to detain him pending trial. Viewed in this light, we find

entirely reasonable the court’s requirement that, if he desired in-house arrest rather

than detention in jail, Yeary would have to consent to warrantless searches of his

residence. 28 In short, the imposition of the condition does not amount to coercion

sufficient to render Yeary’s consent invalid.

       Our review of the evidence presented at the suppression hearing reveals that

the District Court did not err in finding that Yeary knowingly and voluntarily



       28
           We note that the Federal Bail Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1837
(codified as amended at 18 U.S.C. §§ 3141–3156), authorizes a federal court to impose
conditions similar to the ones imposed by the state court here. For example, a federal judge may
require that an arrestee “undergo available medical, psychological, or psychiatric treatment,
including treatment for drug or alcohol dependency,” 18 U.S.C. § 3142(c)(1)(B)(x), which likely
would include random searches and drug testing. Additionally, a federal judge is authorized to
impose “any other condition that is reasonably necessary to assure the appearance of the person
as required and to assure the safety of any other person and the community.” 18 U.S.C.
§ 3142(c)(1)(B)(xiv).
        Moreover, the Supreme Court has recognized that “[t]he government’s interest in
preventing crime by arrestees is both legitimate and compelling,” and can justify the detention of
an arrestee prior to trial when the detention is a product of an individualized determination that
such detention is necessary to prevent crime. United States v. Salerno, 

, 749, 107 S.
Ct. 2095, 2103, 

(1987) (upholding the constitutionality of the Federal Bail
Reform Act of 1984). If it is permissible to detain a federal arrestee and deprive him of his
liberty—including any expectation of privacy with respect to his housing unit, see 28 C.F.R.
§ 552.14(a) (“Staff may search an inmate’s housing and work area, and personal items contained
within those areas, without notice to or prior approval from the inmate and without the inmate’s
presence.”)—then surely the less restrictive deprivation involved here is valid.
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              Case: 11-13427    Date Filed: 01/22/2014    Page: 26 of 35


consented to the warrantless search of his Lake Worth home. Thus, the warrantless

search was valid.

                                          C.

      The District Court upheld the search of Yeary’s Lantana residence on the

ground that the lessee of the condominium, Sackmann, voluntarily consented to the

search. “[A] warrantless entry is valid when it is based upon the consent of a third

party whom the police, at the time of entry, reasonably believed possessed

authority over the premises.” United States v. Mercer, 

, 1074 (11th

Cir. 2008).

      Common authority is, of course, not to be implied from the mere
      property interest a third party has in the property. The authority
      which justifies the third-party consent . . . rests rather on mutual use of
      the property by persons generally having joint access or control for
      most purposes, so that it is reasonable to recognize that any of the co-
      inhabitants has the right to permit the inspection in his own right and
      that the others have assumed the risk that one of their number might
      permit the common area to be searched.

United States v. Matlock, 

, 171 n.7, 

, 993 n.7, 

242 (1974) (citations omitted). The Government, of course, bore “the burden of

proving both the existence of consent and that the consent was not a function of

acquiescence to a claim of lawful authority but rather was given freely and

voluntarily.” United States v. Acosta, 

, 1151 (11th Cir. 2004)

(citation omitted).

                                          26
               Case: 11-13427         Date Filed: 01/22/2014        Page: 27 of 35


       A review of the evidence presented at the suppression hearing reveals that

the District Court did not clearly err in finding that Agent Raines and Detective

Evans reasonably believed that Sackmann, as the condominium’s lessee, possessed

authority to consent to the search. 29 Nor did the court err in concluding that she

gave her consent freely and voluntarily.

                                                IV.

       For the reasons set out above, we find no error in the District Court’s denial

of Yeary’s motion to suppress. The court’s judgment is, accordingly,

       AFFIRMED.




       29
           If it is the case that whether the officers’ belief was reasonable is a mixed question of
fact and law, we conclude that the court committed no error in concluding that their belief was
reasonable.
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             Case: 11-13427     Date Filed: 01/22/2014    Page: 28 of 35


Martin, Circuit Judge, Concurring Specially:

      I concur in the result the majority reaches in this case. I write separately,

with the utmost respect for my colleagues, because I cannot concur in the

reasoning the majority adopts in Part III.B of its opinion. In my view, the

majority’s conclusion that Mr. Yeary’s consent to warrantless searches as a

condition of pre-trial release gave the government unfettered authority to search his

home “at any time,” supra at 9, 23, is unnecessary. I would uphold the searches

not under the consent doctrine (as the majority does), but instead under the

traditional totality-of-the-circumstances approach to analyzing the constitutionality

of warrantless searches and seizures. The majority goes beyond principles

established in our precedent or that of the Supreme Court when it decides the case

based on Mr. Yeary’s consent alone. I am mindful that Mr. Yeary was presumed

to be innocent at the time he gave this consent. For these reasons, I cannot

acquiesce in the majority’s position that consent to searches exacted from a person

who has been charged but not convicted of a crime, in exchange for his liberty

leading up to a criminal trial, causes him to forfeit all protections the Fourth

Amendment would otherwise afford him.

      Today’s majority relies on the admittedly well-settled principle that a search

conducted pursuant to valid consent is constitutionally permissible. Schneckloth v.

Bustamonte, 

, 222, 

, 2045 (1973). Under the consent
                                          28
             Case: 11-13427     Date Filed: 01/22/2014   Page: 29 of 35


doctrine, a search that might otherwise violate the Fourth Amendment will be

upheld so long as the government can establish that a person freely and voluntarily

consented, waiving his rights under the Fourth Amendment. See 

that the principle is well-settled is, however, quite different than

saying that it has been readily extended. To date, the Supreme Court has avoided

applying the consent doctrine to uphold the very sort of search presented by Mr.

Yeary’s case: a search conditioned on an agreement made by a probationer or

parolee as a condition of his release from jail. See United States v. Knights, 

, 118, 

, 591 (2001) (“We need not decide whether [the

probationer’s] acceptance of the search condition constituted consent in the

Schneckloth sense of a complete waiver of his Fourth Amendment rights . . . .”);

Samson v. California, 

, 852 n.3, 

, 2199 n.3 (2006)

(“[W]e need not reach the issue whether [the parolee’s] acceptance of the search

condition constituted consent in the Schneckloth sense of a complete waiver of his

Fourth Amendment rights.” (quotation marks and alterations omitted)).

      Rather than relying on the consent doctrine, the Supreme Court has instead

applied the totality-of-the-circumstances balancing test that ordinarily governs

warrantless searches. Whether a search is reasonable under the totality-of-the-

circumstances approach “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
                                         29
             Case: 11-13427     Date Filed: 01/22/2014   Page: 30 of 35


which it is needed for the promotion of legitimate governmental interests.”

–19, 122 S. Ct. at 591 (quotation marks omitted). This

analysis assumes—contrary to the consent doctrine upon which the majority

relies—that the government’s authority to invade an individual’s privacy is still

limited by its interest in doing so even when the individual consents to the

invasion.

      I read the majority opinion to hold that consent to searches as a condition of

release from custody amounts to a forfeiture of all Fourth Amendment protections,

doing away with the traditional interests-balancing analysis. I would not go this

far. Instead, I would follow the Supreme Court’s tack in Knights and Samson and

resolve the constitutionality of the search of Mr. Yeary’s Lake Worth residence

under the traditional totality-of-the-circumstances approach.

      In Knights, the defendant agreed to permit warrantless searches of his

residence as a condition of his 

, 122 S. Ct. at 589.

Acting pursuant to the search condition, officers later searched Mr. Knights’s

residence and discovered incriminating evidence. 

. In

reviewing the constitutionality of this search, the Supreme Court did not find Mr.

Knights’s consent dispositive, as today’s majority would have it. Rather, his

consent was a “salient” factor in assessing his reasonable expectation of privacy

under the totality of the circumstances test. 

122 S. Ct. at 591. Because
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Mr. Knights had consented to government intrusions, the Supreme Court reasoned,

the extent to which he could reasonably expect to be free of such intrusions was

“significantly diminished.” 

122 S. Ct. at 592. And the Court

balanced this diminished individual privacy interest against the government’s

significant interest in regulating probationers and reintegrating them into society in

light of their higher propensity to engage in criminal conduct than the general

public. 

122 S. Ct. at 592. This balance, the Supreme Court held,

weighed in favor of permitting searches conducted pursuant to a probationer’s

consent as a condition of release, at least when based on reasonable suspicion. 

122 S. Ct. at 592.

      In Samson, the Supreme Court considered the question left open in Knights:

whether a search predicated on consent to search as a condition of release from

government custody would be permissible even without any individualized

suspicion. 

, 126 S. Ct. at 2198. Tellingly, even though

the Supreme Court framed the question as though consent to the search were

dispositive, it still declined to decide the case under the Schneckloth framework.

& 

& n.3. Instead, it again assumed that the

Fourth Amendment balancing inquiry would limit the government’s authority to

conduct the search. The interests balanced were the same as those the Court

identified in Knights: the diminished individual privacy interest and the significant
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government interest in “reducing recidivism and thereby promoting reintegration

and positive citizenship among probationers and parolees.” 

126 S. Ct. at

2200. The Supreme Court concluded that this balance counseled in favor of

permitting even suspicionless searches of post-conviction individuals who had

agreed to a search condition as a term of release. 1 

, 2202.

       Turning to Mr. Yeary’s challenge, I admit that the balance of interests is

much closer than the balance before the Court in Knights and Samson. The

diminished individual privacy interest is clear, for Mr. Yeary’s in-house arrest

agreement “clearly expressed the search condition,” and he was “unambiguously

informed” of it. 

–20, 122 S. Ct. at 591–92.

       But the significance of the government’s interest in regulating people like

Mr. Yeary before they are convicted is not clearly as strong as it was in Knights




       1
          It is worth bearing in mind that the Supreme Court in Samson did not sanction a search
regime that subjects individuals “to capricious searches conducted at the unchecked whim of law
enforcement 

, 

(quotation marks omitted). Rather, the
search regime sanctioned in Samson was one that had procedural safeguards prohibiting
“arbitrary, capricious or harassing searches.” 

omitted). I fear that the
majority today will allow precisely the sort of search “untethered by any procedural safeguards,”

(Stevens, J., dissenting), that the Supreme Court took pains to carve out from the
exception to the warrant requirement outlined in Samson. Indeed, Mr. Yeary’s consent
agreement reveals no procedural safeguards. Neither could I find any statutory provision outside
the agreement that gives people subject to it any procedural safeguards comparable to those
accompanying the regime upheld in Samson.
                                               32
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and Samson. 2 I readily accept there may be a “propensity” among people who are

released pending trial to get into trouble with the law. See S. Rep. No. 98-225, at 3

(1983) (noting the “problem of crimes committed by persons on release”); United

States v. Salerno, 

, 750, 

, 2103 (1987). But just how

strong is that propensity compared to that of the general public, which is the

relevant comparative marker the Supreme Court identified in both Knights and

Samson? Cf. United States v. Mitchell, 

, 413 (3d Cir. 2011) (“[T]he

interests in supervising convicted individuals on release and deterring recidivism

do not apply to arrestees or pretrial detainees.”).

       In both Knights and Samson, the government established that it had a

significant interest in regulating people who had been convicted of crimes, and

were serving probation or parole as a result. Specifically, the government tendered

reliable statistical analyses supporting that interest. See 

,

122 S. Ct. at 592 (concluding that the recidivism rate of probationers is

significantly higher than the general crime rate based on U.S. Department of

Justice, Bureau of Justice Statistics studies); 

, 126 S. Ct. at

       2
          Of course, it is true that Mr. Yeary was technically “post-conviction,” to the extent that
he did have unrelated prior convictions at the time he consented to the search condition. But the
analysis of the government’s interest focuses not on the interest in regulating someone in Mr.
Yeary’s particular circumstance, but instead on the more generalized interest in regulating the
class of people who are facing criminal charges yet released from custody pending trial. See
Knights, 534 U.S. at 

; 

–55, 126 S. Ct. at 2200–
01.
                                                33
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2200 (discussing several statistical studies demonstrating the significance of the

state’s interest in supervising parolees in light of their higher propensity to offend).

In contrast, the record in this case includes no recent data examining the propensity

of pre-conviction individuals to offend while on pre-trial release. I can only

assume based on the studies recited in Knights and Samson that the propensity of

those charged, but not yet convicted of crimes, to offend exceeds that of the

general public. Although I accept the fact of a higher propensity based on these

studies, I have no basis for knowing the extent of it. And the extent of the

propensity determines, at least to some degree, the significance of the

government’s interest. Again, there is no data in the record of this case—one way

or the other—about the propensity for committing crimes of those who have not

been convicted, but are awaiting trial as opposed to those who have been

convicted. Based upon this dearth of information, I do not think this is a proper

case for extending Samson’s rule permitting suspicionless searches predicated on

consent as a condition of release for people convicted of 

,

, 2202, to people who have not. And in any event, no

extension of the rule is necessary to reach the result the majority did.

      Given this balance of interests, I would uphold the search of Mr. Yeary’s

Lake Worth residence because it was not suspicionless. Before conducting the

search, the officers received an anonymous tip informing them that Mr. Yeary had
                                           34
             Case: 11-13427     Date Filed: 01/22/2014    Page: 35 of 35


weapons and drugs in his residence. This anonymous tip was accompanied by

indicia of its reliability—Mr. Yeary’s recent arrests for drug-related offenses, of

which the officers were aware. See Florida v. J.L., 

, 270, 

, 1378 (2000) (noting that an anonymous tip accompanied by sufficient

indicia of reliability may provide reasonable suspicion); see also United States v.

Lindsey, 

, 1291 (11th Cir. 2007) (finding reasonable suspicion

where officers received anonymous tip that was consistent with facts already

known to officers by virtue of an ongoing investigation). The particularized

suspicion created by the tip and Mr. Yeary’s recent arrests, even if it does not rise

to the level of reasonable suspicion, is sufficient in my view to justify the search of

Mr. Yeary’s home in light of the balance of private and government interests.

       I therefore concur in the result reached by the majority, but arrive at that

result based upon considerations other than Mr. Yeary’s consent in his pre-trial

release contract.




                                          35