10 F.4th 1179
11th Cir.2021Background
- Rehearing en banc granted to decide the burden-of-proof standard for the Fourth Amendment "ultimate/inevitable discovery" exception to the exclusionary rule.
- The government bears the burden to prove the exception applies, but circuits (including this one) disagreed whether proof must be by a "reasonable probability" or by a preponderance of the evidence.
- The Eleventh Circuit historically followed United States v. Brookins, which used a "reasonable probability" standard, and reiterated that standard in several later decisions.
- The Supreme Court in Nix v. Williams approved use of the preponderance standard for inevitable discovery; later, Bourjaily characterized Nix as requiring a more-likely-than-not (preponderance) showing.
- The en banc court concluded Bourjaily’s reading of Nix is authoritative and that the preponderance standard is clearer and preferable to the vague "reasonable probability" formulation.
- Holding: the preponderance-of-the-evidence standard governs ultimate discovery claims; prior Eleventh Circuit decisions to the contrary are overruled and the panel opinion was vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper burden-of-proof for the ultimate/inevitable discovery exception | Government: must prove by a preponderance of the evidence (more likely than not) | Opposing view: Circuit precedent (Brookins) requires a "reasonable probability" (a lesser or different predictive standard) | Preponderance of the evidence is required; Brookins and contrary Eleventh Circuit decisions overruled |
| Effect and precedential weight of Bourjaily’s description of Nix | Bourjaily interprets Nix to require a more-likely-than-not showing; thus Nix requires preponderance | Opposing: Bourjaily’s description is dicta and not binding | Court treats Bourjaily’s statement as authoritative for interpreting Nix and aligns circuit law with it |
| Whether the "reasonable probability" standard is workable here | Government: preponderance is clearer, well-established, and preferable | Opposing: reasonable probability has been applied in circuit precedent | Court finds "reasonable probability" vague and unsuitable in this context and rejects it in favor of preponderance |
Key Cases Cited
- Nix v. Williams, 467 U.S. 431 (1984) (approved use of preponderance standard for inevitable discovery exception)
- Bourjaily v. United States, 483 U.S. 171 (1987) (characterized Nix as requiring a more-likely-than-not showing)
- United States v. Brookins, 614 F.2d 1037 (5th Cir. 1980) (adopted a "reasonable probability" standard; formerly followed in this circuit)
- Strickland v. Washington, 466 U.S. 668 (1984) (established "reasonable probability" as a term of art for prejudice in ineffective-assistance claims; Court explains that term does not fit inevitable-discovery analysis)