US v. Cabrera

• Decision Date: 28 January 1991
• Docket Number: No. 90 Cr. 389 (JSM).,90 Cr. 389 (JSM).
• Citation: 756 F. Supp. 134
• Parties: UNITED STATES of America v. Winston CABRERA, Defendant.
• Court: U.S. District Court — Southern District of New York

756 F. Supp. 134

UNITED STATES of America v. Winston CABRERA, Defendant.

No. 90 Cr. 389 (JSM).

United States District Court, S.D. New York.

January 28, 1991.

Otto G. Obermaier, U.S.Atty. for S.D. N.Y. by Nancy Northrup, Asst. U.S.Atty., New York City, for U.S.

John J. Byrnes, The Legal Aid Society, Federal Defenders Unit, New York City, for defendant.

OPINION

MARTIN, District Judge:

On June 5, 1990, law enforcement officers broke into apartment 3-K at 2800 Jerome Avenue in the Bronx where they seized a .22 caliber handgun and 277.7 grams of cocaine. In an Opinion and Order dated October 17, 1990, this Court held the search of apartment 3-K to be unconstitutional because the agents did not have a warrant and lacked valid consent for the search.

Despite this Court's holding that the search of apartment 3-K was unconstitutional, the Government now argues that in imposing sentence on the defendant Cabrera, the Court should increase the offense level under the Sentencing Guidelines by two levels because the .22 caliber handgun was found in the apartment which Cabrera had been using. The Court is also asked to increase the offense level by two additional levels under Section 2D1.1(a)(3), because the quantity of cocaine found in apartment 3-K increases the total amount of cocaine involved in this transaction to an amount above two kilograms. If the Court were accept the Government's contention that the illegally seized evidence could be used in calculating the offense level under the sentencing guidelines, the result would be to increase the minimum term the Court must impose under the Guidelines by 27 months.

On its face, the Government's argument that illegally seized evidence might be used to increase a jail sentence to be imposed by more than two years would seem totally at odds with the principles enunciated by the Supreme Court in numerous cases holding that illegally seized evidence may not be used in a criminal prosecution. See, e.g., Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The Government's position finds support, however, in the decision of the Second Circuit in United States v. Schipani, 435 F.2d 26 (1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971), in which the Court held that illegally seized evidence could be considered in imposing sentence.

While Schipani clearly supports the proposition urged by the Government, the Court concludes that the reasoning of Schipani, which was decided long before the Sentencing Reform Act's guidelines were even contemplated, simply does not apply to the current post-guideline sentencing process. The Government has not cited any post-guidelines case which supports the use of illegally seized evidence in calculating a guideline sentence. The issue before the Court appears to be one of first impression.

At the time Schipani was decided, courts possessed almost unfettered discretion to impose whatever sentence the judge deemed appropriate within the broad statutory limits. In this context, the Second Circuit reasoned in Schipani, 435 F.2d at 28, that:

applying the exclusionary rule for a second time at sentencing after having already applied it once at the trial itself would not add in any significant way to the deterrent effect of the rule.

This underlying premise on which Schipani rests simply does not apply in the post-guideline era.

As noted above, the fact that Cabrera's offense involved the use of a gun mandates that the Court increase the applicable offense level for his crime by two levels and, on the facts of this case, requires the Court to impose at least 12 months of additional jail time. Thus, the provisions of the guidelines make the use of the gun analogous to a statutory element of the crime. There is no doubt that had Cabrera been charged under a statute that, on its face, provided for the addition of a mandatory...