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. …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)