969 F.3d 1213
11th Cir.2020Background
- McKathan was convicted in 2005 of possessing child pornography and sentenced to prison followed by lifetime supervised release that required him to "answer truthfully all inquiries by the probation officer" and permit reasonable searches (including of electronic devices).
- In Sept. 2014 probation officer Rafael Goodwin found an Android phone at McKathan’s residence, had McKathan enter the phone PIN, reviewed browser history and discovered searches suggestive of child pornography, then obtained and executed a warrant; images on the phone led to a federal indictment for receipt/possession of child pornography.
- Defense counsel litigated a Fourth Amendment suppression motion in the criminal case (arguing unlawful search); the court denied that motion, and McKathan pleaded guilty under a plea agreement and was sentenced.
- McKathan filed a 28 U.S.C. § 2255 petition alleging ineffective assistance of counsel because counsel failed to move to suppress under the Fifth Amendment (arguing the probation condition and the threat of revocation created a "classic penalty situation").
- The district court denied relief on the prejudice prong of Strickland; the Eleventh Circuit held McKathan had a substantial Fifth Amendment claim (self-executing privilege/penalty situation) but remanded because the record lacked facts to decide whether the phone evidence would have been admissible anyway (e.g., inevitable discovery or other lawful means).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McKathan’s statements/PIN to his probation officer were “compelled” under the Fifth Amendment (classic penalty situation) | McKathan: supervised-release condition plus threat of revocation created an objectively reasonable fear that silence would lead to revocation, so privilege was self-executing and statements were compelled | Government: no penalty situation; federal supervised-release terms proscribe false statements but do not condition release on waiving Fifth Amendment rights; Murphy controls | Held: Court found a reasonable likelihood the Fifth Amendment claim would succeed—Robinson and related authority made McKathan’s fear reasonable and created a classic penalty situation |
| Whether counsel’s failure to raise a Fifth Amendment suppression motion constituted ineffective assistance (Strickland prejudice) | McKathan: but for counsel’s omission, a suppression motion would likely have succeeded and thus affected plea/trial choice | Government: even if suppression succeeded, the evidence would have been admissible anyway (e.g., inevitable discovery); no reasonable probability of a different outcome | Held: Court remanded — because Fifth Amendment claim had merit, the district court must determine on the record whether the evidence would have been admissible by independent lawful means; only then decide prejudice/deficiency under Strickland |
| Whether the government could have revoked supervised release for refusing to answer probation officer’s questions (Robinson’s effect) | McKathan: Robinson shows the Eleventh Circuit has allowed revocation for invocation of the Fifth, making a penalty situation realistic | Government: Robinson can be distinguished and does not negate Murphy’s rule that a probationer’s privilege generally must be claimed | Held: Court treated Robinson as persuasive and concluded it made a reasonable belief in a penalty situation plausible for McKathan |
| Whether the evidence from the phone would have been admissible regardless of compelled statements (inevitable discovery / independent source) | McKathan: evidence flowed from compelled statements and would be suppressed absent independent lawful source | Government: Goodwin had authority to search under supervised-release search consent/reasonable suspicion; also argued it had technical means to access phones without the PIN | Held: Record insufficient to resolve inevitable discovery/independent-admissibility; remand required for government to present proof and for district court to rule |
Key Cases Cited
- Minnesota v. Murphy, 465 U.S. 420 (U.S. 1984) (defines "classic penalty situation" and analyzes when a probationer’s Fifth Amendment right is self-executing)
- Garrity v. New Jersey, 385 U.S. 493 (U.S. 1967) (public employees coerced under threat of job loss cannot have their compelled statements used criminally)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
- Robinson, 893 F.2d 1244 (11th Cir. 1990) (probation condition requiring complete and truthful reporting upheld revocation after invocation of Fifth; treated here as creating a realistic penalty risk)
- Saechao v. [unnamed], 418 F.3d 1073 (9th Cir. 2005) (probationer coerced into incriminating statements by supervision condition; suppression affirmed)
- In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335 (11th Cir. 2012) (sets out elements for a Fifth Amendment compulsion claim: compulsion, testimonial act, incrimination)
- Nix v. Williams, 467 U.S. 431 (U.S. 1984) (articulates the inevitable discovery doctrine allowing admission of evidence that would have been found by lawful means)