[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 ________________________

(August 20, 2021) Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, USCA11 Case: 18-14336 Date Filed: 08/20/2021 Page: 2 of 14

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ED CARNES, and MARCUS, * Circuit Judges. MARTIN and ED CARNES, Circuit Judges:

Rehearing en banc is granted. The rules are suspended, see Fed. R. App. P. 2; 11th Cir. R. 2-1, and the case is submitted on the Appellee’s petition for rehearing and the Appellant’s response. This is the decision of the en banc Court vacating the panel opinion and remanding the case to the panel for further proceedings.

I.

The exclusionary rule bars admission of evidence resulting from a Fourth Amendment violation, unless an exception applies. See Nix v. Williams, 467 U.S. 431, 442–43 (1984). One of the exceptions is when the unconstitutionally obtained evidence would ultimately have been discovered through lawful means had there been no constitutional violation. Id. at 443–44. The government has the burden of proving that exception applies. Id. at 444. We granted rehearing en banc in this case to decide what standard of proof the government must satisfy to show that the evidence would ultimately have been discovered through lawful means without the constitutional violation. Must it show there was a reasonable probability of

* Senior Circuit Judge Ed Carnes and Senior Circuit Judge Marcus elected to participate in this decision pursuant to 28 U.S.C. § 46(c). 2 USCA11 Case: 18-14336 Date Filed: 08/20/2021 Page: 3 of 14

ultimate discovery, or show by a preponderance of the evidence that the evidence ultimately would have been discovered?

Forty-one years ago our predecessor court held that the proper standard of proof for determining if the evidence would ultimately have been discovered through lawful means is reasonable probability. United States v. Brookins, 614 F.2d 1037, 1042 n.2, 1044–48 (5th Cir. 1980). Ever since then the Brookins reasonable probability standard of proof has been reiterated in decisions of this Court involving the ultimate discovery exception. See United States v. Wilson, 671 F.2d 1291, 1293–94 (11th Cir. 1982); United States v. Roper, 681 F.2d 1354, 1358 (11th Cir. 1982); Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004); United States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015). Except for the occasional lapse. See McKathan v. United States, 969 F.3d 1213, 1232 (11th Cir. 2020) (“The ‘inevitable discovery’ doctrine applies when the government can show by a preponderance of the evidence that it would have discovered the evidence by some other lawful means.”).

Four years after our Brookins decision, the Supreme Court held that for the ultimate discovery exception, proof by a preponderance of the evidence was at least a permissible proof standard, if not the required one. Nix, 467 U.S. at 444 (“If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would ha