Eleventh Circuit Regrets Having Invented a New Burden of Proof for Fourth Amendment Exception, So It Rules En Banc to Wipe “Reasonable Probability” From Books

In United States v. Watkins, No. 18-14336 (11th Cir. Aug. 20, 2021), the en banc Eleventh Circuit unanimously overrules the “reasonable probability” standard it had used since the 1980s to evaluate claims by police under the Fourth Amendment “inevitable discovery” exception, Nix v. Williams, 467 U.S. 431 (1984). It holds that the correct standard, consistent with Nix, is preponderance of the evidence.

Under “inevitable discovery,” evidence discovered in an unlawful search or seizure is admissible notwithstanding the Fourth Amendment exclusionary rule if the same evidence would have been discovered by independent and lawful means. The full court “granted rehearing en banc . . . to decide what standard of proof the government must satisfy” to establish inevitable discovery. “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?”

In an en banc decision signed jointly by Judges Martin and Ed Carnes, the Eleventh Circuit overrules the “reasonable probability” standard that prevailed for decades.

“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.”

Even though the Supreme Court in Nix suggested preponderance of the evidence as the standard of proof, “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.” The Supreme Court later in Bourjaily v. United States, 483 U.S. 171 (1987), even stated outright that the proper standard under Nix was preponderance of the evidence, but that went unnoticed.

Finally catching up with the gap between its old case law and the governing Supreme Court authority, the full court “hold[s] that Supreme Court precedent requires the use of the preponderance standard for” evaluating the government’s claim of inevitable discovery. “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.’ . . . . 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.”

The en banc court also notes that even if Supreme Court authority did not require the overruling of Brookins, the “reasonable probability” standard should also be rejected because it is unworkable. “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 . . . .  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.”

The panel notes that the Supreme Court itself had used “reasonable probability” as the standard in the Sixth Amendment arena for claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 691–96 (1984): “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. “A reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome.” Id. The court notes that the “reasonable probability” formulation in Strickland “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.”

“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 to exclude from the trier of fact some relevant and probative evidence, which could decrease the reliability of the outcome of a criminal proceeding.”

“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.”

The court holds that preponderance of the evidence best suits the inevitable discovery doctrine. “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 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 does not.”

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