United States v. Latecia Watkins

981 F.3d 1224

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 2020
• Docket: 18-14336
• Status: Published

Opinion

USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 1 of 31

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14336 ________________________

D.C. Docket No. 9:17-cr-80222-KAM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

LATECIA WATKINS,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 3, 2020)

Before LUCK, ED CARNES, and MARCUS, Circuit Judges.

ED CARNES, Circuit Judge:

The Postal Service is as old as the United States, and during the past two-

and-a-half centuries more than a million Americans have honorably served this USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 2 of 31

country through it. Among the more notable ones are Benjamin Franklin who was

the first Postmaster General, and Abraham Lincoln who as a young man was

postmaster in the village of New Salem, Illinois. Franklin and Lincoln did not

betray the trust placed in them. The same cannot be said of Latecia Watkins.

Watkins was a supervisor at the Boca Raton, Florida Post Office until her

arrest in 2017 on charges stemming from the importation of more than five

kilograms of cocaine into the United States with the intent to distribute it. She was

caught red-handed and voluntarily confessed, but she convinced the district court

to suppress the evidence of her guilt on Fourth Amendment grounds. This is the

government’s interlocutory appeal from the district court’s suppression order and

its order denying a motion for reconsideration.

I. FACTS

Two packages were sent into this country from Trinidad and Tobago. Both

had cocaine hidden inside. And both were oddly addressed. One was addressed to

“Margaret Simpson” at the Boca Raton Post Office, but with no post office box

number. The other was addressed to “Jason Stanley” at a UPS Store that was a

couple of hundred feet from the Boca Raton Post Office, but there was no box

number included in that address either. The absence of box numbers was notable

because neither a post office nor a UPS store accepts packages addressed for

delivery there unless the addressee rents a box at that location.

2 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 3 of 31

At the international mail facility, after finding cocaine hidden in the two

packages, law enforcement agents had removed the drugs from them, placed a GPS

tracking device and sham cocaine into each package, and then put both packages

into the mail stream, headed to their original destinations.

The agents monitored the packages’ locations using both the inserted

tracking devices and the Postal Service’s internal tracking system, which is

routinely used on all packages. They also set up surveillance of the Boca Raton

Post Office on the morning of August 11, 2017, when they expected the packages

to be delivered. But that morning the GPS tracking devices the agents had put into

both packages unexpectedly stopped working. That happened around 9:42 a.m.

Unlike the GPS tracking devices used by law enforcement, the Postal

Service’s routine package tracking system does not continuously pinpoint a

package’s location as it moves or is stationary. Instead, it uses scans of a

package’s unique tracking number to show the history of its journey: where the

package came into the postal system, some of the stops along the way, and where it

was finally delivered. The package is scanned at each stage, and unless it is

tampered with, the tracking system automatically updates to the database the

location, date, and time a package is manually scanned as it proceeds through the

postal system to delivery.

3 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 4 of 31

A few of the codes that are routinely entered as a package is scanned while it

proceeds along the way are important here. One of them is the code that occurs

when a package is scanned as it comes into a post office en route to its final

destination; the resulting code shows when the package arrived at the post office.

Another code results from the scanning that occurs when the package is delivered

to its intended address. That final code records the delivery time.

One wrinkle is that if a package is addressed to a post office box but is too

large to fit into that box, it is scanned into the tracking system with the code:

“Scanned Notice Left.” That means the postal carrier left a notice slip in the

recipient’s post office box, which she can take to the counter to exchange for her

package.

As for the two packages involved in this case, law enforcement agents could

tell from the codes produced by the routine postal tracking system that both

packages had been on a journey that was not routine. The package addressed to

Jason Stanley was reported by the postal tracking system to have arrived (having

been scanned in) at the post office at 8:33 a.m. that morning. The system also

reported that the package had then been delivered to the UPS store near the post

office at 11:06 a.m. But when the agents called the UPS store, they learned that no

one named “Jason Stanley” rented a box there, and that no package addressed to

that name had been delivered to the store.

4 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 5 of 31

The package tracking system also told an odd tale about the package

addressed to Margaret Simpson. According to the system, that package had been

delivered to the Boca Raton Post Office at 11:06 a.m. that same morning. But, as

we’ve mentioned, there was no post office box number in the address on the

package, no one named “Margaret Simpson” rented a post office box there, and

without a rented box generally no one could receive mail or a package at that post

office. Not only that, but even though the package was too large to fit into a post

office box, it had not been scanned as “Scanned Notice Left.” And neither of the

two packages of (sham) cocaine was anywhere to be seen.

How could all of this be? To the agents all signs pointed to an inside job. A

postal employee had to have been helping sneak the packages through the mail

system, leaving only a few otherwise inexplicable traces. And the culprit most

likely was not just any postal employee. The agents knew that a supervisor would

have had what one agent called “unique access to certain aspects” of the scanning

system. That unique access would allow a supervisor to scan the two packages in

ways that indicated they had arrived and been delivered at times and places they

had not been. From the facts they knew, the agents deduced that a supervisor had

known that the packages would be arriving, had manipulated their scan history

once they did arrive, and had taken the packages.

5 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 6 of 31

One postal worker stood out as a suspect: Latecia Watkins. She was a

supervisor, which was important. She also had “some issues with the postal

service,” and one of the agents believed that “her character fit this” crime. Because

of their suspicions, the agents looked up Watkins in one of their databases and

obtained her driver’s license information and home address.

The agents’ suspicion of Watkins grew throughout the day that the packages

were delivered. At one point that day, two of the agents entered the post office to

see if they could find the packages. As they were entering, they encountered

Watkins. Her response to seeing them, one of whom she knew to be a postal

inspector, was dramatic. Even before they had spoken a word to her she appeared

anxious, nervous, and scared –– so much so that her knees buckled and she looked

like she was going to faint. When they asked Watkins if she was okay or if

anything was wrong, she just stared at them. Only after the agents told her that

they were there to get some documents (which was a ruse) did she finally calm

down. Watkins’ extreme reaction to seeing them deepened the agents’ suspicions

that she was involved in smuggling the drugs.

The agents maintained surveillance at the post office until it closed at 6:30

p.m. that same day. As the supervisor in charge of closing the office that night,

Watkins was the last employee to leave. No agent followed her or otherwise

attempted to surveil her. With the post office closed, the agents decided to enter

6 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 7 of 31

and search for the packages because they had not noticed anyone leave there with

the packages during the day. They expected their search of the post office to take a

couple of hours.

As the agents searched the post office, they did not have a fixed plan for

what they would do if they did not find the packages there. But, later in testimony

that the magistrate judge credited, the agents stated that their next step “probably”

would have been to conduct a knock and talk at Watkins’ house, which was located

at an address they had already looked up before the tracking device unexpectedly

came back to life. The agents would have done a knock and talk anyway because

she was their “prime suspect” and, in fact, their only suspect. They did not have

“any other leads.”

As one agent testified, a knock and talk at Watkins’ house “was the plan

being discussed,” and “that was the plan [they] had begun to formulate” and were

in the process of formulating when the tracking device began to function again.

They had felt pressure to “act[] quickly” because “it would have been

exponentially harder to locate the packages” had they not. One of the agents

testified that if the device had not come back on they would have done the knock

and talk that night anyway after searching the post office instead of waiting until

the next day to do it.

7 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 8 of 31

But, as we have mentioned, while the search at the post office continued and

the agents were discussing their next step, one of the two tracking devices

unexpectedly began working again at 8:29 p.m. (Both devices had gone silent

nearly eleven hours earlier, around 9:42 a.m. that morning.) The device indicated

that it was in a location that the agents immediately recognized as the area where

Watkins lived, and they used a Google search to confirm that the device was at her

house. At that point, they stopped searching the post office and went immediately

to Watkins’ house.

At least six law enforcement agents drove there in unmarked vehicles. At

least five of the agents approached the front of Watkins’ house and three of those

five approached her front door wearing tactical vests over civilian clothes. They

arrived at the door at around 9:08 p.m.

One of the agents knocked on Watkins’ door in a “normal” way, without

pounding on it. Before the door opened, at least one of the three agents at the door

could smell marijuana, and after Watkins opened the door all three of them could

smell marijuana coming from inside the house. At that point, Agent Rivera

identified herself as a law enforcement officer and calmly asked Watkins, “Do you

know why we are here[?]” In response, Watkins “just put her head down” and

answered either, “Yes, the boxes,” or, “The packages.”

8 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 9 of 31

Agent Rivera then asked Watkins to step outside the house so they could

talk. She did so. They walked to the end of the driveway, and Agent Rivera asked

her, “You know why we [are] here about the boxes.” Again, Watkins said “yes.”

Then Agent Rivera asked her, “Can I take a look at the boxes? Can you show me

wh[ere] they are?” At that point, Watkins turned and, without saying anything,

began walking back to her house. Though Watkins had not expressly said so,

Agent Rivera interpreted her actions as consent to follow her into the house.

Before they actually went into the house, two other agents stopped them so a

security sweep could be completed inside the house. The sweep was in response to

the smell of marijuana and the agents’ concern that the evidence of the marijuana

might be destroyed. The agents also planned to apply for a search warrant based

on that smell, and one of them did get a warrant after the sweep, but no additional

evidence relevant to this case was located through the warrant. During the sweep,

which took only a few minutes, the agents found marijuana in plain view. They

also saw in plain view two packages lying on the floor in Watkins’ bedroom,

which they recognized as being the ones with the fake drugs in them.

Once the security sweep was done, Agent Rivera followed Watkins to her

bedroom where the packages were. Watkins, who was not in handcuffs, signed

written Garrity and Miranda waiver forms, consented to a search of her cellphone,

and in a recorded interview made several incriminating statements. See Garrity v.

9 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 10 of 31

New Jersey, 385 U.S. 493 (1967); Miranda v. Arizona, 384 U.S. 436 (1966).

Watkins explained to the agents how she had met her co-defendant, as well as their

scheme for him to mail drugs into the country and for her to use her position to get

the drugs through the post office without detection. Watkins also told the agents

that her co-defendant’s telephone was going straight to voicemail when she called

it, that she had no other way to get in touch with him, and that she thought he had

already been arrested.

II. PROCEDURAL HISTORY

Watkins was charged with four crimes. 1 She moved to suppress “all

physical evidence and statements obtained as a result of law enforcement’s

warrantless installation of and surveillance using tracking devices hidden inside

two postal packages.”

A. The Magistrate Judge’s Report and Recommendation

Watkins’ motion to suppress was referred to Magistrate Judge William

Matthewman. He held an evidentiary hearing, which included four government

witnesses, three of whom were law enforcement agents who had been involved in

1 Those charges were: Conspiracy to import five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 963, 952(a), and 960(b)(1)(B) (Count 1); importation of five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(B) (Count 2); conspiracy to possess five kilograms or more of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count 3); and attempted possession of five kilograms or more of cocaine with attempt to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count 4). 10 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 11 of 31

the search of the post office and the knock and talk at Watkins’ house. Watkins

called two of her own witnesses; they had been with her in the house when the law

enforcement agents arrived.

The judge issued a report recommending that Watkins’ motion be denied. In

it, he expressly and repeatedly found that the testimony of the law enforcement

agents was credible in all respects. He also found that Watkins’ witnesses were not

credible.

The report gave several reasons for recommending denial of the motion to

suppress. It said that the initial search and seizure of the two packages was lawful,

and that the monitoring of the one tracking device that was functioning inside

Watkins’ house was also lawful. In the alternative, the report concluded that even

without the reactivated tracking device, law enforcement had reasonable suspicion

to do a knock and talk at Watkins’ house that night, and that they would have gone

to her house to do it anyway. According to the report, Watkins consented to the

agents entering her home, and her consent and all of her incriminating statements

were voluntary. Finally, it concluded that after Watkins opened the door, probable

cause and exigent circumstances justified a security sweep of the house because of

the marijuana smell and concerns about the destruction of evidence as well as for

the safety of the agents.

11 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 12 of 31

B. The District Court’s Orders

Watkins objected to the magistrate judge’s report and recommendation.

Without conducting a new evidentiary hearing, the district court issued an order

sustaining Watkins’ objections and granting her motion to suppress. The court

agreed with the magistrate judge that the initial search and placement of the

tracking devices by the government was lawful. But relying on the Supreme

Court’s Karo and Jones decisions, the court concluded that the government had to

have a warrant to monitor the tracking device inside Watkins’ house because it was

no longer open to visual surveillance from a public place and Watkins had a

justified privacy interest in her house. See United States v. Jones, 565 U.S. 400

(2012); United States v. Karo, 468 U.S. 705 (1984). Because the agents did not

have a warrant at that time, the court concluded that Watkins’ Fourth Amendment

rights were violated by the government’s warrantless monitoring of the tracking

device when it reactivated and showed them that the packages were in her house.

The district court also ruled that, even though Watkins’ consent to the search

of her home was voluntary, it was tainted because it was the product of the

unlawful monitoring of the tracking device and, for that reason, the attenuation

exception to the exclusionary rule did not apply. The court acknowledged that the

magistrate judge had “found that even without the tracking of the box, law

enforcement would have conducted a ‘knock and announce.’” But the court

12 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 13 of 31

viewed that finding as irrelevant “in view of the fact that law enforcement did, in

fact, track the box with the monitoring device which led them to [Watkins’]

residence.”

The government filed a motion for reconsideration of the district court’s

order, contending that the inevitable discovery exception made the evidence

admissible. It noted that the court had declined to consider the inevitability of the

discovery based on the court’s finding that law enforcement had illegally tracked

one of the packages. But, as the government pointed out, “analysis under the

inevitable discovery doctrine presupposes an illegal search did, in fact, occur, [and]

considers whether there is a reasonable probability that the evidence would

otherwise have been discovered by lawful means.” It argued that the suppressed

evidence would inevitably have been discovered because, even before the tracking

device came back to life, Watkins was the sole suspect and the agents had already

searched for and found her address; and the agents testified that going to Watkins’

house that same night to do a knock and talk was probably the next step in their

investigation. They had no other leads.

The district court denied the motion to reconsider. First, the court stated that

it was “purely speculative to conclude” that law enforcement agents would have

gone to Watkins’ house after they completed their search at the post office, and

that it was “purely speculative to conclude” Watkins would have responded in the

13 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 14 of 31

same way if they had approached her house “at a different time and under different

circumstances.” Second, the court ruled that the inevitable discovery exception did

not apply because it found that although the lawful means of obtaining the

evidence — the knock and talk — was being considered, it “was not actually being

pursued when the unlawful tracking occurred, and law enforcement abandoned

their search of the post office to approach” Watkins’ house.

III. ANALYSIS

In its brief to this Court, the government concedes that law enforcement

violated Watkins’ Fourth Amendment rights by the warrantless monitoring of the

tracking device once it reactivated inside Watkins’ house. We are not bound to

accept that concession, see Roberts v. Galen of Va., Inc., 525 U.S. 249, 253

(1999), but for purposes of this case we will assume that the warrantless

monitoring of the signal from the package once it entered the house was a violation

of the Fourth Amendment. We can make that assumption because it does not

affect the bottom line of our decision.

A. The Exclusionary Rule and the Inevitable Discovery Exception

A Fourth Amendment violation can trigger the exclusionary rule, which

requires courts to suppress illegally obtained evidence, but that rule has several

exceptions. Exceptions exist because the exclusionary rule “has always been our

last resort, not our first impulse.” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016)

14 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 15 of 31

(quotation marks omitted). We are not quick to “indiscriminate[ly] appl[y]” the

rule because it “generates substantial social costs, which sometimes include setting

the guilty free and the dangerous at large” and which take a “costly toll upon truth-

seeking and law enforcement objectives.” United States v. Delancy, 502 F.3d

1297, 1314 (11th Cir. 2007) (quoting Hudson v. Michigan, 547 U.S. 586, 591

(2006)). Instead, we reserve the exclusionary rule “‘only [for] where its remedial

objectives are thought most efficaciously served — that is, where its deterrence

benefits outweigh its substantial social costs.’” Id. (quoting Hudson, 547 U.S. at

591). And to justify application of the rule those deterrence benefits cannot be

merely incremental, marginal, or simply possible; they must be substantial and

must actually outweigh the costs. Herring v. United States, 555 U.S. 135, 141,

147–48 (2009).

One of the exceptions to the exclusionary rule is for inevitable discovery,

which “allows for the admission of evidence that would have been discovered even

without the unconstitutional source.” Strieff, 136 S. Ct. at 2061. That exception is

akin to the harmless error rule that is applied for constitutional violations generally,

a kinship that the Supreme Court pointed out in its Nix opinion. See Nix v.

Williams, 467 U.S. 431, 443 n.4 (1984) (“The ultimate or inevitable discovery

exception to the exclusionary rule is closely related in purpose to the harmless-

error rule . . . .”); see generally United States v. Roy, 855 F.3d 1133, 1167 (11th

15 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 16 of 31

Cir. 2017) (en banc) (recognizing that “the harmless error doctrine is alive and

well” because it “serves vital interests and promotes public respect for the criminal

process”).

When there is a reasonable probability that the evidence discovered by a

violation of the Fourth Amendment would have turned up anyway, the violation is

harmless and in that circumstance “the ‘public interest in having juries receive all

probative evidence of a crime’ outweighs the need to discourage police

misconduct.” Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004)

(quoting Nix, 467 U.S. at 443).

The Supreme Court has explained that the purpose of the inevitable

discovery exception is to “put[] the police in the same, not a worse, position tha[n]

they would have been in if no police error or misconduct had occurred.” Nix, 467

U.S. at 443; accord United States v. Johnson, 777 F.3d 1270, 1275 (11th Cir.

2015). Excluding evidence where it would have been discovered anyway “would

not restore the parties to their previous positions and would upset the careful

weighing of competing interests underlying the exclusionary rule.” Jefferson, 382

F.3d at 1296. It would “put the police in a worse position than they would have

been in if no unlawful conduct had transpired,” and would “fail[] to take into

account the enormous societal cost of excluding truth in the search for truth in the

administration of justice.” Nix, 467 U.S. at 445. And it “would place courts in the

16 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 17 of 31

position of withholding from juries relevant and undoubted truth that would have

been available to police absent any unlawful police activity,” which would “add[]

nothing to either the integrity or fairness of a criminal trial.” Id. at 445–46.

Illegally obtained evidence is admissible under the inevitable discovery

exception if the government can make two showings. One is a showing that if

there had been no constitutional violation there is “a reasonable probability that the

evidence in question would have been discovered by lawful means.” Johnson, 777

F.3d at 1274 (quotation marks omitted); accord United States v. Terzado-Madruga,

897 F.2d 1099, 1114 (11th Cir. 1990). That does not require establishing an

“absolute inevitability of discovery but simply a reasonable probability that the

evidence in question would have been discovered other than by the tainted source.”

United States v. Brookins, 614 F.2d 1037, 1042 n.2 (5th Cir. 1980).2 The other

requirement the government must meet is “that the lawful means which made

discovery inevitable were being actively pursued prior to the occurrence of the

illegal conduct.” Johnson, 777 F.3d at 1274 (quotation marks omitted). But

“active pursuit” in this sense does not “require that police have already planned the

particular search that would obtain the evidence” but only “that the police would

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981. 17 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 18 of 31

have discovered the evidence by virtue of ordinary investigations of evidence or

leads already in their possession.” Id. (quotation marks omitted).

B. Application of the Inevitable Discovery Exception

After conducting an evidentiary hearing in this case, the magistrate judge

found the three agents to be not just credible but “very credible” and credited their

testimony. (The judge found the two defense witnesses whose testimony went to

another issue not credible.) The report and recommendation concluded that the

motion to suppress should be denied based on the inevitable discovery exception.

Watkins’ objections brought the matter before the district court. Without hearing

any testimony itself, the district court twice rejected the government’s inevitable

discovery argument. Both times it erred.

1. The Reasonable Probability that the Evidence Would Have Been Discovered Anyway

In its initial order suppressing the evidence, the only place that the district

court addressed the magistrate judge’s finding that the evidence would have been

found even without the Fourth Amendment violation is in a two-sentence footnote

that stated:

The Court recognizes that the Magistrate Judge found that even without the tracking of the box, law enforcement would have conducted a “knock and announce” of Defendant’s residence in any event. However, in view of the fact that law enforcement did, in fact, track the box with the monitoring device which led them to Defendant’s

18 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 19 of 31

residence, and this Court has concluded a warrant was required, the analysis required by Delancy and Santa must be performed.

Doc. 113 at 9 n.3.

The district court cited the parts of Delancy and Santa that deal with whether

consent to search is sufficiently attenuated from a constitutional violation to be

voluntary. See Doc. 113 at 9–10 (citing Delancy, 502 F.3d at 1308–10; United

States v. Santa, 236 F.3d 662, 676–77 (11th Cir. 2000)). It did not cite the

inevitable discovery exception part of Delancy, and Santa did not mention

inevitable discovery.

More fundamentally, the fact that a constitutional violation occurred never

precludes applying the exception. To the contrary, the inevitable discovery

exception does not even come up unless there is a real or assumed constitutional

violation to begin with. There must have been a violation for it to make sense to

ask whether the violation made a difference. As the Supreme Court has stated: “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

19 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 20 of 31

received.” Id. (footnote omitted).3 Anything else, the Court stressed, “would

reject logic, experience, and common sense.” Id.

In its motion for reconsideration, the government pointed out that flaw in the

district court’s reasoning, and it asked the court to rule that the inevitable discovery

exception did apply. In its order denying reconsideration, the court did not insist

on its earlier rationale, but stated a new one: “The Court rejects the premise of the

Government’s motion that, absent the tracking of the package as being located in

Defendant’s residence, the law enforcement officers would have conducted the

‘knock and announce’ and the events would have unfolded in the same way.”

That replacement reasoning is flawed in three respects. First, it misstates the

predictive standard. As we have already pointed out, under binding precedent the

standard is not whether the evidence in fact “would have” been discovered, but

whether there is a reasonable probability that it would have been. Johnson, 777

3 The footnote at the end of that quotation was about the measure of proof required to establish inevitable discovery. See Nix, 467 U.S. at 444 n.5. Nix was a federal habeas case involving an Iowa conviction, and that state’s law required that inevitable discovery be shown by a preponderance of evidence. Id. at 437–38. The defendant contended that the burden should be higher, that it should be proof by clear and convincing evidence. Id. at 439–40. The Supreme Court rejected that contention, holding that proof by a preponderance was enough. Id. at 444 n.5. The Court did not, however, have before it the issue of whether a reasonable probability that the challenged evidence would have been found anyway was enough. See generally id. It said nothing about that issue in Nix or any other decision. We have consistently held that the government is required to show a reasonable probability that the evidence in question would have been discovered by lawful means. Johnson, 777 F.3d at 1274; Jefferson, 382 F.3d at 1296; Brookins, 614 F.2d at 1042 n.2, 1048. That standard was first announced by our predecessor Court in Brookins, and as we stated in Jefferson: “Since the Nix decision, we have continued to follow the Brookins decision, which is entirely consistent with it.” 382 F.3d at 1296. 20 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 21 of 31

F.3d at 1274; Jefferson, 382 F.3d at 1296; Terzado-Madruga, 897 F.2d at 1114;

Brookins, 614 F.2d at 1042 n.2. In concluding that the inevitable discovery

exception did not apply, the district court used the wrong standard.

Second, the district court’s reasoning is wrong because it is based on the

district court’s own findings of fact instead of those of the magistrate judge. The

magistrate judge heard all of the testimony and was in a position to make

credibility determinations, and he made findings based on those credibility choices.

The district court did not hear any of the testimony and without conducting its own

evidentiary hearing was in no position to substitute its own credibility

determinations and findings of fact for those of the magistrate judge. It abused its

discretion in doing so. See United States v. Powell, 628 F.3d 1254, 1256–57 (11th

Cir. 2010) (recognizing that “a district court abuses its discretion when it squarely

reject[s] the magistrate judge’s findings of fact and credibility determinations and

substitute[s] its own, without hearing so much as a single witness”) (alterations in

original) (quotation marks omitted); Amlong & Amlong, P.A. v. Denny’s, Inc.,

500 F.3d 1230, 1245 (11th Cir. 2007) (noting that our decisions “have

unambiguously and repeatedly observed that a district court may not reject a

magistrate judge’s factual and credibility findings” that were based on testimony

the magistrate judge heard, unless the district court conducts its own evidentiary

hearing).

21 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 22 of 31

Third, and in any event, the district court clearly erred in finding that the

government had not established a reasonable probability that if the tracking device

had not reactivated and been monitored, the agents would have conducted a knock

and talk at Watkins’ house that night anyway and with the same result. The

evidence the magistrate judge relied on to reach the opposite finding bears

repeating. The oddly addressed packages had been received at the post office and

taken out of the mail stream by an insider. The person who had done that had also

manipulated the post office’s internal scan-and-track system to evade detection.

To do that, the culprit more than likely was a supervisor. Watkins was a supervisor

and was on duty that day. She had also had “issues with the postal service.” And

when she encountered two of the agents, one of whom she knew to be a postal

inspector, in the post office that day, she acted in a highly suspicious way. Before

the two agents said anything to her, Watkins appeared anxious, nervous, and

scared, her knees buckled, and she seemed ready to faint. When the agents asked

if she was okay, she just stared at them. It is no wonder that Watkins was the lead

suspect — in fact, the only one.

And it is no wonder that while conducting the search of the post office after

it closed, the agents discussed going to Watkins’ house and conducting a knock

and talk if they did not find the packages at the post office. All three agents

testified, without dispute, that even if the tracking device had not come back to life

22 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 23 of 31

and let them know where one of the packages was, they probably still would have

gone to Watkins’ house and done the knock and talk just like they did after the

tracking device reactivated. They had, after all, already obtained Watkins’ address

before they knew they would hear from the device again.

Despite all of those facts, which the district court was not at liberty to

ignore, the district court dismissed as “purely speculative” the magistrate judge’s

finding that even if the tracking device had not reactivated, the agents still would

have gone to Watkins’ house that night and conducted a “knock and announce.”

The only authority the district court gave for dismissing as pure speculation the

magistrate judge’s finding about inevitable discovery is the statement in Nix that

“inevitable discovery involves no speculative elements but focuses on

demonstrated historical facts capable of ready verification or impeachment.” Nix,

467 U.S. at 444 n.5.

But that cuts against what the district court did, not in favor of it, because the

magistrate judge’s subsidiary and ultimate findings were not based on speculative

elements. They were based on historical facts proven by the consistent testimony

of three agents, each of whom had personal knowledge of the facts. All of that

testimony was subject to verification or impeachment through the usual means

employed at evidentiary hearings: examination, cross-examination, and the

23 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 24 of 31

opportunity to present other evidence. The findings the district court dismissed

were not based on speculation, much less “pure speculation.”

The magistrate judge’s finding of inevitable discovery incorporates an

implicit subsidiary finding that if the knock and talk had taken place one or two

hours later than it did, Watkins would have reacted the same way she reacted

earlier, which would have resulted in discovery of the same incriminating

evidence. See Calixto v. Lesmes, 909 F.3d 1079, 1093 (11th Cir. 2018) (“We

recognize that in the context of a bench trial we can ‘infer[ ] from a . . . court’s

explicit factual findings and conclusion [other] implied factual findings that are

consistent with its judgment although [they are] unstated.”) (alterations in original)

(citations omitted); United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir.

2007) (inferring that the trial court made implicit findings consistent with its

conclusion); United States v. $242,484.00, 389 F.3d 1149, 1154 (11th Cir. 2004)

(“[W]e and other federal appellate courts have inferred from a [trial] court’s

explicit factual findings and conclusion implied factual findings that are consistent

with its judgment although unstated.”); see generally Hightower v. Terry, 459 F.3d

1067, 1072 n.9 (11th Cir. 2006) (“[A] trial court’s dispositive ruling may contain

implicit findings, which, though unstated, are necessary to that ruling.”).

The district court rejected that implicit finding of the magistrate judge as

well, with the same “purely speculative” characterization it applied to the judge’s

24 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 25 of 31

explicit findings. But, like the explicit findings of the magistrate judge, this

implicit one was not speculative. It is undisputed that when the agents went to her

house after the tracking device reactivated, Watkins was anxious and nervous; she

had not been able to get in touch with her co-conspirator; she thought that he had

been arrested, leaving her all alone in the crime. The record reveals that he was

not in the country at the time, meaning that the person most likely to retrieve the

packages from her could not have done so and, as a result, they likely still would

have been in her house later that evening.

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 she would for some other reason 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

25 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 26 of 31

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.4

Labeling application of the facts underlying an inevitable discovery

conclusion as speculation, as the district court did, may have reflected some

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.

Take, for example, the prejudice element of an ineffective assistance of

counsel claim. For at least a third of a century it has been firmly established that

“actual ineffectiveness claims alleging a deficiency in attorney performance are

subject to a general requirement that the defendant affirmatively prove prejudice.”

Strickland v. Washington, 466 U.S. 668, 693 (1984). And it has also been

4 The government argued to the magistrate judge that it had “established that . . . law enforcement would have gone to [Watkins’] house that evening to conduct a knock and talk.” (Emphasis added.) The judge found that “law enforcement in the case at hand clearly had reasonable suspicion to conduct a knock and talk at [Watkins’] home on the evening of August 11, 2017, even if” the tracking device had not shown them that one of the packages was in Watkins’ house. (Emphasis added.) Thereafter, the magistrate judge found that even without the tracking device notification “the agents would have gone to [Watkins’] home and conducted a knock and talk in this case.” There was sufficient evidence to support the finding that it would have been done that night. The agents who testified at the evidentiary hearing were unanimous that they probably would have conducted a knock and talk at Watkins’ house anyway, and they were discussing doing that when the device reactivated. Not only that, but they felt an urgency to do it before the packages became harder to retrieve. 26 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 27 of 31

established just as firmly and for just as long that to meet the prejudice requirement

the defendant or petitioner must establish: “there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt respecting

guilt.” Id. at 695 (emphasis added); see also id. (holding that a capital defendant

claiming ineffective assistance at the sentence stage must show a reasonable

probability of a sentence less than death but for counsel’s deficient performance);

id. at 694 (pointing out that the reasonable probability of a different result standard

is also “the test for materiality of exculpatory information not disclosed to the

defense by the prosecution”) (citing United States v. Agurs, 427 U.S. 97, 104, 112–

113 (1976)). Not certainty, but a reasonable probability.

Applying the reasonable probability standard in ineffective assistance of

counsel cases and in cases involving the government’s suppression of exculpatory

evidence is no less “speculative” than applying a reasonable probability standard in

inevitable discovery exception cases in general and this one in particular. Yet the

reasonable probability standard has been applied in more than a hundred thousand

ineffective assistance of counsel cases since it was announced in the Strickland

decision more than a third of a century ago. 5 If application of the standard

5 At last check, the parts of the Strickland decision discussing the prejudice component, including the reasonable probability standard, had been cited by more than 106,000 cases. (That number comes from a Westlaw search on December 3, 2020 for all cases listed as citing the part of the Strickland opinion organized under headnote 19.) 27 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 28 of 31

involves speculation, there’s been a whole lot of speculating going on. See Roy,

855 F.3d at 1167 (discussing the reasonable probability measure used in deciding

the prejudice component of ineffective assistance claims and stating that: “If that

is speculation, then speculation is rampant in the nation’s courts”).

The law is comfortable with the reasonable probability standard. To say that

applying that standard involves “speculation” is to use the term “in [the] broad

sense, which equates with the lack of certainty,” and if the lack of certainty is

speculation, it “is not impermissible; it is inevitable.” Id. at 1166. What we are

talking about is not “pure speculation,” as the district court put it, but “the exercise

of a court’s best judgment,” id. at 1167, which is part and parcel of the act of

judging.

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

Alternatively, or additionally, the district court ruled that the inevitable

discovery exception was inapplicable because under our Satterfield decision the

lawful means of obtaining the evidence must actually have been pursued before the

constitutional violation occurred. See United States v. Satterfield, 743 F.2d 827

(11th Cir. 1984), 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. The

circumstances were that the lawful means by which the evidence in a house would

28 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 29 of 31

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).

But we have since made clear Satterfield’s requirement that the alternative

means of discovery be actively underway at the time of the violation is limited to

cases in which the alternative means was a search warrant. See Johnson, 777 F.3d

at 1274–75. As we have explained: “In Satterfield, we were concerned with the

efficacy of the warrant requirement. . . . Any concern about circumnavigating

warrants is misplaced here, where no one argues that [the officer] would have

applied for a search warrant.” Id. at 1276. Johnson held that in cases where the

means by which the challenged evidence would have been discovered anyway is

not a search warrant, “active pursuit” does not require the government to “have

already planned the particular [legal] search that would obtain the evidence.” Id. at

1274. Instead, as we held in Johnson, the government must show only “that the

police would have discovered the evidence by virtue of ordinary investigations of

29 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 30 of 31

evidence or leads already in their possession.” Id. (quotation marks omitted)

(emphasis added). We stated that requirement is enough to serve the purpose of

the active pursuit requirement, which is to “exclude evidence that was not being

sought in any fashion.” Id. at 1275.

The evidence incriminating Watkins would have been discovered through

ongoing investigation and the pursuit of leads that were already in the possession

of the agents at the time the device started functioning and they monitored it. She

was their lead suspect and for good reason. See supra at pp. 22–23. They had

already looked up information about her and had obtained her address. They were

discussing doing a knock and talk at her house, which would not have required a

search warrant. Not only was it their probable next step, but at the moment the

tracking device reactivated, they were actively discussing doing it. And it is not as

if the knock and talk is a novel or unfamiliar investigative technique: collectively

the agents had done hundreds of them.

IV. CONCLUSION

For the reasons we have discussed, not applying the inevitable discovery

exception in this case would “put the police in a worse position than they would

have been in if no unlawful conduct had transpired,” and would “fail[] to take into

account the enormous societal cost of excluding truth in the search for truth in the

administration of justice.” Nix, 467 U.S. at 445. It “would place [us] in the

30 USCA11 Case: 18-14336 Date Filed: 12/03/2020 Page: 31 of 31

position of withholding from juries relevant and undoubted truth that would have

been available to police absent any unlawful police activity.” Id. It would do that

while “add[ing] nothing to either the integrity or fairness of a criminal trial.” Id. at

446.

The order suppressing the challenged evidence is REVERSED.