CA11: Govt proved inevitable discovery despite const’l violation

The government showed that the investigation would have revealed the evidence despite the constitutional violation of tracking a package inside a house without a warrant. United States v. Watkins, 2021 U.S. App. LEXIS 27797 (11th Cir. Sept. 16, 2021):

1.Whether the Evidence Would Have Been Discovered Anyway

. . .

More fundamentally, the fact that a constitutional violation occurred never precludes applying the exception. To the contrary, the ultimate discovery exception does not even come up unless there is a real or assumed constitutional violation to begin with. There must be a real or assumed violation for it to make any sense to ask whether the violation made a difference. As the Supreme Court has observed: “It is clear that the cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” Nix, 467 U.S. at 444 (quotation marks omitted). The Court followed up that observation of the obvious by stating: “[o]f course, this does not end the inquiry,” and if that evidence would have been discovered anyway by lawful means “the deterrence rationale has so little basis that the evidence should be received.” Id. (footnote omitted). Anything else, the Court stressed, “would reject logic, experience, and common sense.” Id.

Within moments after the agents knocked on her door, Watkins began making incriminating statements and let the agents into her house where the packages were. There is no reason at all to believe that an hour or two later that night her reaction to seeing the agents would have changed: that she would not have been anxious and nervous, that she would not have feared her co-conspirator had been caught, or that for some other reason she would not have made the statements she did or let the agents into the house as she did an hour or two earlier. The magistrate judge not only found that “even without the tracker notification to law enforcement that the package was located in Defendant’s residence, the agents would have gone to Defendant’s home and conducted a knock and talk in this case,” the context in which that finding appears makes it clear that the judge also found the agents would have done it that same evening.

The district court’s rejection of the magistrate judge’s ultimate or inevitable discovery finding as speculation may have reflected discomfort with the lack of certainty about what would have happened if something that happened had not happened. But, as we have said: “Certainty is illusory in human affairs.” United States v. Roy, 855 F.3d 1133, 1167 (11th Cir. 2017) (en banc). Which probably is why the law seldom, if ever, requires certainty. Instead of certainty, what the law requires in ultimate discovery determinations is only that it be more likely than not the evidence would have been discovered without the constitutional violation. Bourjaily, 483 U.S. at 176; Watkins, 2021 WL 3700295, at *5.

2.Evidence or Leads Already in the Possession of Law Enforcement

The district court gave another reason for its ruling that the inevitable or ultimate discovery exception was inapplicable: under our Satterfield decision and others, “the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct [of the police].” United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984) (emphasis in original), superseded by statute on other grounds as stated in United States v. Edwards, 728 F.3d 1286, 1292 & n.2 (11th Cir. 2013). The Satterfield decision did say that in the circumstances of that particular case. Id. at 846. Those circumstances were that the lawful means by which the evidence in a house would have been discovered was a search warrant that had not been obtained until after the defendant’s rights were violated. See id. at 846-47. We stressed the importance of that fact, explaining: “Because a valid search warrant nearly always can be obtained after the search has occurred, a contrary holding would practically destroy the requirement that a warrant for the search of a home be obtained before the search takes place. Our constitutionally-mandated preference for substituting the judgment of a detached and neutral magistrate for that of a searching officer would be greatly undermined.” Id. (citation omitted).

We have since made clear Satterfield’s requirement that the alternative means of discovery be actively underway before the constitutional violation occurs is limited to cases where that alternative means of discovery is a search warrant. …

This entry was posted in Inevitable discovery. Bookmark the permalink.

Comments are closed.