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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14275
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60076-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD SENESE, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 8, 2020)
Before WILSON, BRANCH and MARCUS, Circuit Judges.
PER CURIAM:
Richard Senese Jr. appeals his conviction for attempted importation of a
controlled substance, in violation of 21 U.S.C. § 952. On appeal, he argues that the
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district court erred in applying the inevitable-discovery doctrine and should have
suppressed the evidence from the warrantless use of a Global Positioning System
(“GPS”) tracking device on his vessel because the government did not prove it was
“virtually certain” that the evidence would have been discovered absent the unlawful
search. After thorough review, we affirm.
“A ruling on a motion to suppress presents a mixed question of law and fact.”
United States v. Johnson, 777 F.3d 1270, 1273-74 (11th Cir. 2015) (quotations
omitted). “We review the district court’s findings of fact for clear error and its legal
conclusions de novo.” Id. at 1274 (quotations omitted). “All facts are construed in
the light most favorable to the party prevailing below.” Id. (quotations omitted).
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. If the defendant successfully establishes an expectation of
privacy and that a search and seizure occurred without a search warrant, then the
burden shifts to the government to prove an applicable exception to the warrant
requirement and that the search and seizure was reasonable. United States v.
Bachner, 706 F.2d 1121, 1126 (11th Cir. 1983). The Supreme Court has held that
“the [g]overnment’s installation of a GPS device on a target’s vehicle, and its use of
that device to monitor the vehicle’s movements, constitutes a ‘search.’” United
States v. Jones, 565 U.S. 400, 404 (2012) (footnote omitted).
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“[T]he Fourth Amendment’s balance of reasonableness is qualitatively
different at the international border than in the interior.” United States v. Montoya
de Hernandez, 473 U.S. 531, 538 (1985). Reasonable suspicion, probable cause, or
a warrant are not required for a routine search of a person entering the United States.
Id. Any customs officer may at any time go on board any vessel within the customs
waters and search the vessel. See 19 U.S.C. § 1581(a). The Supreme Court held
that customs officers, without any level of suspicion, can remove, disassemble, and
reassemble a vehicle’s gas tank to look for contraband while the vehicle is located
at a secondary inspection station at the border. United States v. Flores-Montano,
541 U.S. 149, 151, 155 (2004).
As the Supreme Court has explained, the way to ensure the protections of the
Fourth Amendment is by suppressing evidence obtained from illegal searches and
its fruit, which puts the government in the position it would have been in had the
illegality not occurred. See Nix v. Williams, 467 U.S. 431, 443 (1984). However,
there are several exceptions to this exclusionary rule, including “the inevitable
discovery doctrine [which] allows for the admission of evidence that would have
been discovered even without the unconstitutional source.” Utah v. Strieff, 136 S.
Ct. 2056, 2061 (2016). The Supreme Court held, in Nix, that for the inevitable
discovery doctrine to apply, the government must “establish by a preponderance of
the evidence that the information ultimately or inevitably would have been
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discovered by lawful means.” Nix, 467 U.S. at 442-44. “This circuit also requires
the prosecution to show that the lawful means which made discovery inevitable were
being actively pursued prior to the occurrence of the illegal conduct.” United States
v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007) (emphasis omitted). “‘Active
pursuit’ does not require that police have already planned the particular search that
would obtain the evidence.” Johnson, 777 F.3d at 1274. “The government must
instead establish that the police would have discovered the evidence ‘by virtue of
ordinary investigations of evidence or leads already in their possession.’” Id.
(quoting Virden, 488 F.3d at 1323).
In Nix, the police and over two hundred volunteers were looking for the body
of a missing girl over an area of several miles. 467 U.S. at 435. Groups of volunteers
were assigned to defined areas with instructions to check in culverts, among other
hiding places. Id. Williams turned himself in, and while transporting him through
the area, police appealed to Williams to reveal the location of the body. Id. at 435-
36. Eventually, the search was suspended because Williams promised to cooperate,
and he directed police to the body, which was in a culvert. Id. at 449. Williams
moved to suppress the evidence of the body and all related evidence because it was
the product of the officer’s statements. Id. at 436-37. After reviewing the evidence
surrounding the search, the Supreme Court concluded that the evidence of the body
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was admissible because the searchers would have inevitably discovered the body
without the police misconduct if the search had continued. See id. at 448-50.
Prior to the Supreme Court’s decision in Nix, the former Fifth Circuit held in
United States v. Brookins that the inevitable discovery doctrine required the
government to prove that there was a “reasonable probability” that the evidence
would have been discovered by lawful means. 614 F.2d 1037, 1048 (5th Cir. 1980).1
Following the Supreme Court’s decision in Nix, we said that the reasonable
probability formulation in Brookins was consistent with Nix and noted that this
Court had continued to apply Brookins after Nix. Jefferson v. Fountain, 382 F.3d
1286, 1296-97 (11th Cir. 2004) (applying the reasonable probability standard and
concluding that the inevitable discovery doctrine applied because there was “not
simply a probability, but a virtual certainty, that” the officers “inevitably would have
discovered all the evidence” absent the illegal conduct).
In Virden, the police conducted a Terry stop 2 and placed Virden in a police
car in handcuffs without formally arresting him. Virden, 488 F.3d at 1321-22.
Without his consent, they drove his car two miles to a canine unit and found cocaine
in his trunk. Id. at 1320. He successfully moved to suppress evidence of the cocaine,
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
2
Terry v. Ohio, 392 U.S. 1 (1968).
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and the government appealed. Id. In determining whether the government had
demonstrated that the inevitable discovery doctrine applied, we applied the
preponderance of the evidence standard from Nix. Id. at 1322. We noted that
“neither Virden nor his vehicle were known to the investigation, despite more than
[a] year of detective work” and concluded that it was “unlikely that any other future
investigation would have discovered precisely this evidence given that vehicles are
by nature mobile, and Virden was alerted to the police attention by the initial stop.”
Id. at 1322-23. We held that “the evidence obtained [could not] be saved from
suppression by the inevitable discovery exception because the police were not
engaged in any lawful investigatory activity which would have led to the search of
the car.” Id. at 1324.
In Johnson, the police stopped a truck driven by Johnson and learned that he
was driving with a suspended license. 777 F.3d at 1272-73. The officer issued him
a traffic citation and decided that he would arrest him for the violation. Id. at 1273.
Before arresting Johnson, the officer returned to the truck to see if anyone else was
inside and noticed an item wrapped in a cloth. Id. He removed the cloth and
discovered a shotgun. Id. At that point, he arrested Johnson and conducted an
inventory search. Id. Johnson moved to suppress the shotgun and argued that the
government could not rely on the inevitable discovery doctrine to admit the evidence
because the officer was not actively pursuing any lawful means when the illegal
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conduct occurred. Id. at 1274. We rejected Johnson’s narrow reading of active
pursuit, explaining that the purpose of the active pursuit requirement was “to exclude
evidence that was not being sought in any fashion.” Id. at 1275. We noted that the
officer’s investigation of the truck began before, and was independent of, his illegal
search. Id. at 1277. Accordingly, we concluded that “[t]he district court did not
clearly err when it found that the government established a ‘reasonable probability’
that the shotgun would have been discovered by lawful means.” Id. at 1274.
“[O]nly the court of appeals sitting en banc, an overriding United States
Supreme Court decision, or a change in the statutory law can overrule a previous
panel decision.” United States v. Castillo, 899 F.3d 1208, 1214 (11th Cir. 2018),
cert. denied, 139 S. Ct. 796 (2019). A panel cannot overrule a prior panel’s holding
even if it is convinced that the prior case was wrongly decided. United States v.
Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998). “While an intervening decision of
the Supreme Court can overrule the decision of a prior panel of our court, the
Supreme Court decision must be clearly on point.” United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008) (quotations omitted).
Here, the relevant, undisputed facts are these. On the morning of February
20, 2018, United States Coast Guard officials encountered Senese aboard his vessel,
which was disabled and offshore near West Palm Beach, Florida. The vessel was
towed by a commercial salvage company to a marina, where it was boarded by
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members of the Coast Guard and officials from United States Customs and Border
Protection (“CBP”) to conduct an inbound border search of the vessel. The CBP
agent also performed a records check, which revealed that the vessel had been seen
at a location associated with a known narcotics trafficker, the vessel had been
interdicted about a year previously, and its previous owner was a convicted narcotics
trafficker. After discovering this information and encountering a variety of
irregularities, the agents placed a GPS tracking device on the vessel to determine if
it was involved in drug trafficking.
About a month later, on March 18, 2018, using information from the GPS
tracking device, a CBP air patrol unit spotted Senese’s vessel entering the waters of
the United States, and soon thereafter, the vessel again became inoperable and was
unable to proceed on its own. When the vessel was located by two CBP marine
patrols, the agents observed Senese waving his arms over his head as if calling for
help. When asked if he needed a tow, Senese said that he did, because he was broken
down, was out of cell phone range, and did not have any way of calling for
assistance. Once onboard, agents asked questions regarding the nature of his trip,
and according to the agents, Senese provided evasive and inconsistent answers to
some of the questions. In a cursory border search of the vessel, the agents also
noticed some anomalies about its condition, including loose screws and bolts around
the leaning post near the center console and the deck cover, as well as missing and/or
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peeled caulking around the deck cover that demonstrated signs of recent tampering.
Adding to the agents’ suspicion was the overall poor condition of the vessel, which
did not seem well-equipped for that type of voyage.
The agents then decided to tow the vessel for further inspection to a dock in
Port Everglades and after about a fifteen-minute examination, a narcotics detection
canine immediately alerted to the odor of narcotics, and agents uncovered 95
kilograms of cocaine in a hidden compartment of Senese’s vessel. Senese ultimately
pled guilty to attempted importation of a controlled substance, and was sentenced to
151 months’ imprisonment.
In his motion to suppress, Senese sought to suppress all evidence seized
following the searches of his vessel, arguing that the Government violated his Fourth
Amendment rights against unreasonable searches and seizures by installing a
warrantless GPS tracking device on his vessel. While the district court found that
the installation of the GPS tracker was separate from the border search and violated
the Fourth Amendment, the district court nevertheless denied the motion to suppress
because it concluded that the inevitable-discovery exception to the exclusionary rule
applied because there was a reasonable probability that the evidence would have
been discovered by lawful means. We agree with the district court.
On appeal, Senese begins by arguing that our decisions in Brookins, Johnson,
Jefferson and elsewhere that apply the “reasonable probability standard” to the
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inevitable-discovery doctrine are inconsistent with Nix. However, even if we were
to believe that cases like these wrongly decided the issue, we’ve specifically held
that the reasonable probability standard is not inconsistent with Nix, see Jefferson,
382 F.3d at 1296-97, and we are bound by that conclusion unless it is specifically
overruled, which is has not been. Steele, 147 F.3d at 1317-18. Additionally, while
Senese mentions something called a “virtual certainty” standard, he points to no
cases that have actually applied such a standard. See Jefferson, 382 F.3d at 1296-97
(noting that it was a “virtual certainty” that the evidence would have been discovered
but applying the reasonable probability standard).3
In any event, even if preponderance of the evidence were the appropriate
standard, the district court did not clearly err in finding that the government met its
evidentiary burden. As the record reflects, Senese was already under investigation
for drug trafficking, had already been interdicted in the preceding year, and was
observed at a residence associated with a drug trafficker -- all of which is evidence
3
Senese also relies on Strieff, where the Supreme Court gave a very brief overview of the three
exceptions to the exclusionary rule, noting that the inevitable discovery doctrine “allows for the
admission of evidence that would have been discovered.” 136 S. Ct. at 2061 (citing Nix, 467
U.S. at 443-44). However, Strieff involved the “attenuation doctrine,” which concerns the
admissibility of evidence when “the connection between unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening circumstance, so that the interest
protected by the constitutional guarantee that has been violated would not be served by
suppression of the evidence obtained.” Id. (quotations omitted). Because Strieff addressed the
attenuation doctrine, and did not make any holdings concerning the inevitable-discovery
doctrine, it does not control here. Id.; Archer, 531 F.3d at 1352.
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that goes well beyond guilt by association. In addition, Senese’s vessel was
encountered, adrift, in an area with two scheduled marine patrols; the agents did not
even need to alter their planned patrols based on the tracker information to encounter
Senese’s inoperable vessel. The record further reveals that once the agents
encountered the inoperable vessel, the discovery of the cocaine was the result of
ordinary investigation methods based on his evasive answers, physical irregularities
in the boat, and a canine alerting to the odor of narcotics. Indeed, a CBP agent
testified that he did not know why the vessel had been flagged when the agents
decided to conduct a secondary inspection, indicating that the location data provided
by the tracker did not influence his questioning and resulting suspicion of Senese.
Here, unlike in Virden, where the defendant and his vehicle were completely
unknown to the police, the marine patrol was familiar with Senese’s boat, and the
agents had particular, objective reasons to be suspicious of Senese. And in any
event, absent any suspicion or warrant, agents could have conducted a routine border
search and could have taken it for a deconstructive search at a secondary inspection
station. See Montoya de Hernandez, 473 U.S. at 538; see also Flores-Montano, 541
U.S. at 151, 155; 19 U.S.C. § 1581(a). Moreover, the agents towed his inoperable
boat to shore at his request, and the canine unit that the agents requested was waiting
on them when they arrived at the secondary inspection station. In contrast, in Virden,
the vehicle was functional, and without Virden’s consent, the police needed probable
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cause to take his vehicle to the canine unit. 488 F.3d at 1320. Instead, this case is
more like Nix, where there was an ongoing systematic search -- volunteers were
sweeping the county in Nix and there were routine patrols here -- that would have
discovered the evidence absent the illegal conduct. See 476 U.S. at 447-50. On this
record, the government met its burden to show by a preponderance of the evidence
or reasonable probability that the evidence would have been discovered absent the
GPS tracker. See id. at 444; see also Johnson, 777 F.3d at 1274.
As for the second prong of the inevitable-discovery doctrine -- whether the
evidence was being “actively pursued” -- Senese’s boat was part of an ongoing drug
trafficking investigation, had been interdicted twice in the preceding year, and was
observed at a residence associated with a drug trafficker. We simply cannot say that
the evidence in this case was “not being sought in any fashion.” Johnson, 777 F.3d
at 1275. On this record, the government also met the “active pursuit” requirement.
In short, because the district court did not err in finding the evidence was
admissible under the inevitable-discovery doctrine (regardless of whether the
standard of proof was reasonable probability or preponderance of the evidence), we
affirm.4
AFFIRMED.
4
We need not reach whether the installation of the GPS tracker violated the Fourth Amendment
because, even assuming arguendo that the installation was unlawful, we affirm based on the
district court’s application of the inevitable-discovery doctrine.
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