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United States of America v. Latecia Watkins
Case Number: 18-14336
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Plaintiff's Attorney: Not Listed
Atlanta, Georgia - Criminal defense lawyer represented defendant with a petition for a new rehearing and the Appellant’s response.
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 (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. The government has the burden of
proving that exception applies. Id. at 444. 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
* Senior Circuit Judge Ed Carnes and Senior Circuit Judge Marcus elected to participate
in this decision pursuant to 28 U.S.C. § 46(c).
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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
(“If the prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful means .
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. . 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
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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.
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. 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.
Bourjaily involved the Federal Rule of Evidence 801(d)(2)(E)
co-conspirator exception to the hearsay rule. Id. at 173. 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
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furtherance of the conspiracy.” Id. at 175 (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
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. 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 (1984) (inevitable discovery of illegally seized evidence must be shown to have
been more likely than not).” Bourjaily, 483 U.S. at 176 (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 13. “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
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statutory construction “must,” like “shall,” is a mandatory term that connotes a
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.
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
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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 “reasonable probability” as a
relatively new term of art for use in other areas of the law. See generally Borden v.
United States, 141 S. Ct. 1817, 1828 (2021) (“[T]erms of art depart from
ordinary meaning.”) (quotation marks omitted). The most famous example is use
of “reasonable probability” as the standard of prejudice in ineffective assistance of
counsel cases. In Strickland the Court undertook the task of deciding the
appropriate measure of prejudice where counsel’s performance fell outside the
broad scope of reasonable professional assistance. Strickland v. Washington, 466
U.S. 668, 691–96 (1984). The guiding star for the Court’s analysis was that “[t]he
purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant
has the assistance necessary to justify reliance on the outcome of the proceeding.”
Id. at 691–92. Given that purpose, the Court reasoned that “not every error [of
counsel] . . . undermines the reliability of the result of the proceeding.” Id. at 693.
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It considered making the prejudice standard whether counsel’s deficient conduct
“more likely than not altered the outcome in the case,” which would have required
a defendant to show by a preponderance of the evidence that counsel’s errors had
determined the outcome. Id. at 693–94. But the Court rejected that “outcomedeterminative standard” as “not quite appropriate.” Id.
Instead, the Strickland Court decided on a lesser showing, holding that: “The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. And in the very next sentence, the Court helpfully provided this definition
for its term of art phrase: “A reasonable probability [of a different result] is a
probability sufficient to undermine confidence in the outcome.” Id. That
definition dovetails nicely with the purpose of the Sixth Amendment guarantee of
effective assistance of counsel, which is to ensure that the outcome of the criminal
proceeding will be reliable. But Strickland doesn’t tell us what the reasonable
probability standard means when used in connection with the ultimate discovery
exception to the exclusionary rule.
Unlike the Sixth Amendment, the purpose of the Fourth Amendment and the
exclusionary rule is not to increase the reliability of criminal proceedings or bolster
our confidence in their outcome. Nor is that their effect. Just the opposite. The
primary effect of using the exclusionary rule to enforce the Fourth Amendment is
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to exclude from the trier of fact some relevant and probative evidence, which could
decrease the reliability of the outcome of a criminal proceeding. See Lange v.
California, 141 S. Ct. 2011, 2027 (2021) (Thomas, J., concurring in part and in the
judgment, joined by Kavanaugh, J.) (One “especially salient” cost of the
exclusionary rule is that “excluding evidence under the Fourth Amendment always
obstructs the truth-finding functions of judge and jury.”) (quotation marks
omitted); id. (The exclusionary rule’s “interference with the purpose of the judicial
system also creates a downstream risk that some guilty defendants may go free or
receive reduced sentences.”) (quotation marks omitted).
We are not criticizing the Fourth Amendment and the important
constitutional values it embodies. Not at all. Nor are we criticizing the
exclusionary rule and the important purposes it serves. Not at all. Instead, we are
simply explaining why the Strickland definition of “reasonable probability” as a
term of art, which serves its function well in ineffective assistance prejudice
inquiries, won’t work as a standard of proof for the ultimate discovery exception to
the exclusionary rule. We “do not force term-of-art definitions into contexts where
they plainly do not fit and produce nonsense.” Johnson v. United States, 559 U.S.
133, 139–40 (2010).
The Strickland reasonable probability definition plainly does not fit into the
analysis of whether an exception to the exclusionary rule applies, and it would be
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nonsensical to force it in. To the question of whether applying an exception to the
exclusionary rule would increase our confidence in the accuracy of the outcome of
a trial, the answer invariably will be yes. The application of an exception to
exclusion results in inclusion. Instead of being kept from the trier of fact, more
evidence that is relevant and probative will be admitted. (If the evidence were not
relevant and probative, it would not be admitted anyway.) The more relevant and
probative evidence put before the trier of fact, the more reliable the verdict is likely
to be. And the more reliable the verdict is likely to be, the greater our confidence
in the outcome will be. That is why using the Strickland “reasonable probability”
definition or standard, which focuses entirely on confidence in the reliability of the
trial’s outcome, would always lead to application of the ultimate discovery
exception to the exclusionary rule. A standard or test that always produces the
same result is not a standard or test. A box that will always be checked is not
useful in an analysis.
The Supreme Court has also used the same reasonable probability term of art
it used in Strickland to describe the measure of prejudice in Brady violation cases.
See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (The materiality of suppressed
evidence does not require a preponderance showing of a different result but a
“reasonable probability” of one, which as in Strickland is measured by whether the
suppression “undermines confidence in the outcome of the trial.”); accord Banks v.
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Dretke, 540 U.S. 668, 698–99 (2004); United States v. Bagley, 473 U.S. 667, 682
(1985) (“The evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.”). That term of art definition wouldn’t work any better
in ultimate discovery exception cases if we borrowed it from the Brady materiality
decisions than it would if we borrowed the same definition from the Strickland
So what standard of proof should be used to determine if the ultimate
discovery exception applies? We think the wisest course is to follow the Supreme
Court’s lead in Nix and use the preponderance of the evidence standard. Even
putting aside –– as we are here –– what Bourjaily says about it, Nix at a minimum
holds that preponderance of the evidence is a permissible standard of proof here.
See Nix, 467 U.S. at 444 & n.5. It provides a green light for use of that standard of
proof of ultimate discovery. No Supreme Court decision green lights use of the
reasonable probability standard for ultimate discovery purposes.
The preponderance standard of proof is one of widespread and longstanding
use. See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for
S. Cal., 508 U.S. 602, 622 (1993) (noting that the burden of showing something by
a preponderance of the evidence is “the most common standard in the civil law”);
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United States v. Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004) (“[T]he term
‘preponderance of the evidence’ is a common law term of longstanding use.”). Its
meaning is simple, straightforward, and clear. “A preponderance of the evidence is
evidence which is more convincing than the evidence offered in opposition to it.”
Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9 (1997) (quoting Greenwich
Collieries v. Dir., OWCP, 990 F.2d 730, 736 (3d Cir. 1993)) (cleaned up). It
“simply requires the trier of fact to believe that the existence of a fact is more
probable than its nonexistence.” Concrete Pipe, 508 U.S. at 622 (quotation marks
omitted) (quoting In re Winship, 397 U.S. 358, 371–72 (1970) (Harlan, J.,
concurring)). Or phrased in a slightly different fashion, it is proof that persuades
the trier of fact that a proposition “is more likely true than not true.” United States
v. Deleveaux, 205 F.3d 1292, 1296 n.3 (11th Cir. 2000) (quoting a jury instruction
that was upheld); see also 11th Cir. Pattern Civ. Jury Instr. 1.1 (2020) (stating that
the standard of proof by a preponderance of the evidence means the party with the
burden “must prove that, in light of all the evidence, what [that party] claims is
more likely true than not”).
The preponderance standard is well-defined; the reasonable probability
standard is undefined in our case law for use in this context. The preponderance
standard is unambiguous and clear; the reasonable probability standard is
ambiguous and vague in this context. The preponderance standard is
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straightforward and simple to apply; the reasonable probability standard is not in
this context. Use of the preponderance standard in this context has the Supreme
Court’s good judging seal of approval; use of the reasonable probability standard
Even if Nix does not mandate use of the preponderance standard, we hold
that the standard of predictive proof the government must satisfy in order to
establish the proper application of the ultimate discovery exception is
preponderance of the evidence, not reasonable probability. All of our decisions
holding to the contrary are overruled.
Outcome: The panel opinion is VACATED and the case is REMANDED to it for further proceedings consistent with this opinion.