United States v. Watkins

• Decision Date: 20 August 2021
• Docket Number: No. 18-14336,18-14336
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Latecia WATKINS, Defendant-Appellee.

10 F.4th 1179

UNITED STATES of America, Plaintiff-Appellant,

v.Latecia WATKINS, Defendant-Appellee.

No. 18-14336

United States Court of Appeals, Eleventh Circuit.

August 20, 2021

Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, Alexandra Chase, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, William T. Zloch, U.S. Attorney's Office, Fort Lauderdale, FL, for Plaintiff - Appellant

Michael Caruso, M. Caroline McCrae, Federal Public Defender, Federal Public Defender's Office, West Palm Beach, FL, for Defendant - Appellee

Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ED CARNES, and MARCUS,^* Circuit Judges.

MARTIN and ED CARNES, Circuit Judges:

Rehearing en banc is granted. The rules are suspended, see Fed. R. App. P. 2 ; 11th Cir. R. 2-1, and the case is submitted on the Appellee's petition for rehearing and the Appellant's response. This is the decision of the en banc Court vacating the panel opinion and remanding the case to the panel for further proceedings.

I.

The exclusionary rule bars admission of evidence resulting from a Fourth Amendment violation, unless an exception applies. See Nix v. Williams, 467 U.S. 431, 442–43, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). One of the exceptions is when the unconstitutionally obtained evidence would ultimately have been discovered through lawful means had there been no constitutional violation. Id. at 443–44, 104 S.Ct. 2501. The government has the burden of proving that exception applies. Id. at 444, 104 S.Ct. 2501. We granted rehearing en banc in this case to decide what standard of proof the government must satisfy to show that the evidence would ultimately have been discovered through lawful means without the constitutional violation. Must it show there was a reasonable probability of ultimate discovery, or show by a preponderance of the evidence that the evidence ultimately would have been discovered?

Forty-one years ago our predecessor court held that the proper standard of proof for determining if the evidence would ultimately have been discovered through lawful means is reasonable probability. United States v. Brookins, 614 F.2d 1037, 1042 n.2, 1044–48 (5th Cir. 1980). Ever since then the Brookins reasonable probability standard of proof has been reiterated in decisions of this Court involving the ultimate discovery exception. See United States v. Wilson, 671 F.2d 1291, 1293–94 (11th Cir. 1982) ; United States v. Roper, 681 F.2d 1354, 1358 (11th Cir. 1982) ; Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004) ; United States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015). Except for the occasional lapse. See McKathan v. United States, 969 F.3d 1213, 1232 (11th Cir. 2020) ("The ‘inevitable discovery’ doctrine applies when the government can show by a preponderance of the evidence that it would have discovered the evidence by some other lawful means.").

Four years after our Brookins decision, the Supreme Court held that for the ultimate discovery exception, proof by a preponderance of the evidence was at least a permissible proof standard, if not the required one. Nix, 467 U.S. at 444, 104 S.Ct. 2501 ("If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... the evidence should be received. Anything less would reject logic, experience, and common sense.") (footnote omitted).

Because Nix was decided after our Brookins decision, one might have expected that it would prompt this Court to replace our reasonable probability standard with the plain old preponderance of the evidence, more-likely-than-not standard that the Supreme Court approved in Nix. Instead, we re-pledged allegiance to the Brookins reasonable probability standard and went on applying that standard, holding it was not inconsistent with the Nix decision. See Jefferson, 382 F.3d at 1296 (citing the Brookins decision for the reasonable probability standard and stating that "[s]ince the [Supreme Court's] Nix decision, we have continued to follow the Brookins decision, which is entirely consistent with it").

The panel in this case was bound by the prior panel precedent rule to follow the holdings of our post- Nix decisions that reiterated the Brookins reasonable probability standard. See United States v. Tellis, 748 F.3d 1305, 1309–10 (11th Cir. 2014) ; Smith v. GTE Corp., 236 F.3d 1292, 1302–03 (11th Cir. 2001). But, sitting en banc, we are not bound to do so but may decide anew whether Supreme Court precedent simply permits the preponderance of the evidence standard of predictive proof in ultimate discovery exception cases, or instead requires its use. We hold that Supreme Court precedent requires the use of the preponderance standard for these purposes. And even if that were not so, we would hold that the preponderance standard must be used because of the advantages it has over the reasonable probability standard when it comes to finding whether evidence ultimately would have been discovered through lawful means if the constitutional violation had not taken place.

II.

In Nix the Supreme Court explicitly rejected the defendant's argument that a standard of proof higher than a preponderance should be required for application of the ultimate discovery exception. 467 U.S. at 444 n.5, 104 S.Ct. 2501. But, as the panel opinion in this case pointed out, the Court did not explicitly hold in Nix that a lesser standard of proof was insufficient. See United States v. Watkins, 981 F.3d 1224, 1234 n.3 (11th Cir. 2020). Apparently for that reason, most post- Nix decisions of this Court continued to follow the Brookins decision and its reasonable probability standard of proof. But none of those decisions took note of what the Supreme Court said about its 1984 Nix decision three years later in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

Bourjaily involved the Federal Rule of Evidence 801(d)(2)(E) co-conspirator exception to the hearsay rule. Id. at 173, 107 S.Ct. 2775. More specifically, the issue was what standard of proof the offering party must meet on the preliminary factual issues of whether "there was a conspiracy involving the declarant and the nonoffering party, and [whether] the statement was made during the course and in furtherance of the conspiracy." Id. at 175, 107 S.Ct. 2775 (quotation marks omitted). The Court stated that its decision of the issue was "guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions," which had "traditionally required that these matters be established by a preponderance of proof." Id.

Most importantly for our purposes, the Court explained in Bourjaily that "[w]e think that our previous decisions in this area resolve this matter," and it listed four of them. Id. at 176, 107 S.Ct. 2775. The second one the Court listed, and the Court's parenthetical summary of that decision, was: " Nix v. Williams, 467 U.S. 431, 444 n.5 [104 S.Ct. 2501, 81 L.Ed.2d 377] (1984) (inevitable discovery of illegally seized evidence must be shown to have been more likely than not)." Bourjaily, 483 U.S. at 176, 107 S.Ct. 2775 (emphasis added).

So just three years after it had issued the Nix decision, the Supreme Court told us what that decision requires. The Court did not tell us in Bourjaily that Nix allows a reasonable probability standard or anything less than a preponderance of the evidence more-likely-than-not standard. Instead, it told us that Nix requires that the offering party must –– not may, but must –– prove that ultimate discovery through lawful means was more likely than not, which is the preponderance of the evidence standard, see infra at 1184-85. "Must" is a term of requirement. Cf. Burban v. City of Neptune Beach, 920 F.3d 1274, 1279 (11th Cir. 2019) (pointing out that in statutory construction "must," like "shall," is a mandatory term that connotes a requirement).

Some may argue that the Court's statement in Bourjaily about Nix is dicta, but we need not decide whether it is. As we have stated before, "there is dicta and then there is dicta, and then there is Supreme Court dicta." Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006). Lacking the temerity to tell the Supreme Court that it was wrong in Bourjaily about what its holding in Nix was, we will realign our circuit law about Nix’s holding to square with what the Supreme Court in Bourjaily said Nix held.

III.

Even if the Bourjaily opinion had not provided us with the Supreme Court's understanding of its Nix decision, we would still hold that preponderance of the evidence is a better standard of proof than reasonable probability is for the ultimate discovery exception to the exclusionary rule. Here's why.

The primary problem with using the reasonable probability standard of proof to predict whether evidence discovered through a constitutional violation ultimately would have been discovered anyway is that no one knows exactly what reasonable probability means in this context. The words are plain enough separately, but their combined meaning is anything but plain. The term "reasonable probability" implies there must be an unreasonable probability, just as darkness must exist for light to have meaning. Otherwise, why put the limiting adjective "reasonable" in front of the noun "probability" –– what work does "reasonable" do? But how can a probability be unreasonable? How does a reasonable probability differ from an unreasonable one? In the 41 years that the term "reasonable probability" has been the guiding standard in this circuit for an important exception to the exclusionary rule, it has never been defined in this context. Probably because no one knows exactly what it means here.

To be sure, the Supreme Court has crafted ...