In United States v. Watkins, No. 18-14336 (Sept. 16, 2021) (Luck, Ed Carnes, Marcus), on remand from the en banc Court, the Court reversed and remanded to the district court for further proceedings.

The Court originally reversed the district court’s order granting the defendant’s motion to suppress on the government’s interlocutory appeal.  Though the government conceded that it violated the Fourth Amendment when GPS tracking devices placed inside an intercepted package re-activated inside the defendant’s home, the Court held that there was a “reasonable probability” that the evidence would have inevitably been discovered because the agents would have conducted the same knock and talk with the same result.

The case was then reconsidered en banc.  The en banc Court held that the standard of proof that the government must meet in order to establish that evidence would have been inevitably discovered is the preponderance of the evidence, not a “reasonable probability.”  The en banc Court remanded the case back to the original panel for further proceedings consistent with its holding.

On remand, the Court, applying the preponderance of the evidence standard–whether the evidence more likely than not would have been discovered–concluded that it would have been.  In so holding, the Court found that the district court clearly erred when it disregarded the magistrate judge’s credibility findings without holding a new hearing.

The Court reversed the district court’s order granting suppression and remanded the case to give the district court an opportunity to decide whether to conduct a de novo evidentiary hearing or to accept the fact findings of the magistrate judge.  The Court noted that, if accepted, those finding compel the end finding that it is more likely than not that the challenged evidence ultimately would have been discovered, without the constitutional violation, through lawful means.