Eleventh Circuit Reverses Itself on ‘Ultimate Discovery’ Standard of Proof
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
To establish the “ultimate discovery” exception to the exclusionary rule, the government must prove the exception by a “preponderance of the evidence,” the Eleventh Circuit recently held in an en banc decision. The full-court decision reversed forty-one years of Circuit precedent.
The exclusionary rule bars admission of evidence at trial that resulted from a Fourth Amendment violation. One exception to the rule is “ultimate discovery,” when the unconstitutionally obtained evidence would ultimately have been discovered through lawful means had there been no constitutional violation. The government bears the burden of proving the exception to introduce otherwise tainted evidence into the record in a criminal prosecution.
In 1980, the predecessor court to the U.S. Court of Appeals for the Eleventh Circuit held the proper standard of proof for determining if evidence would ultimately have been discovered through lawful means is “reasonable probability.” Four years later, the Supreme Court held in Nix v. Williams that for the ultimate discovery exception, preponderance of the evidence was at least a permissible proof standard. Preponderance of the evidence requires a factfinder to determine that a fact is more likely true than not; it is a higher burden of proof than reasonable possibility.
Soon after Nix, the Eleventh Circuit interpreted that case consistently with allowing a reasonable probability proof standard in ultimate discovery cases. The court’s consistent application of the reasonable probability standards continued until this month when the full Eleventh Circuit panel issued its decision in U.S. v. Watkins, reversing forty-one years of precedent.
In Watkins, the en banc Eleventh Circuit focused on a long-overlooked citation in Bourjaily v. U.S., a Supreme Court decision from 1987, about the co-conspirator exception to the hearsay rule. In Bourjaily, the Supreme Court cited Nix and added a parenthetical description of the case holding, “inevitable discovery of illegally seized evidence must be shown to have been more likely than not.”
As the Eleventh Circuit explained in Watkins, the Supreme Court in Bourjaily “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.”
The appellate court shrugged aside arguments that the Bourjaily citation is not mandatory precedent, writing “there is dicta and then there is dicta, and then there is Supreme Court dicta.” The court then concluded candidly, “[l]acking the temerity to tell the Supreme Court that it was wrong in Boujaily about what its holding in Nix was, we will realign our circuit law” and apply preponderance of the evidence standard of proof to questions of ultimate discovery.
Read the full petition for review in U.S. v. Watkins.
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