United States v. Latecia Watkins ( 2020 )

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[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
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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.
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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.
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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.
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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.
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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
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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.
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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.”
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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.
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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).
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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.
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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
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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
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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)
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(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
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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
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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.
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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
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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
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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.
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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).
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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
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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
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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
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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
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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.
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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.)
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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
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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
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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
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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.
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