USA v. Brimah

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before Flaum, Kanne, and Diane P. Wood; Flaum
• Citation: USA v. Brimah, 214 F.3d 854 (7th Cir. 2000)
• Decision Date: 26 May 2000
• Docket Number: No. 99-2827,99-2827
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Biliki Brimah, Defendant-Appellant

Page 854

214 F.3d 854 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Biliki Brimah, Defendant-Appellant.

No. 99-2827

In the United States Court of Appeals For the Seventh Circuit

Argued February 23, 2000

Decided May 26, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 43--Milton I. Shadur, Judge.

Before Flaum, Kanne, and Diane P. Wood, Circuit Judges.

Flaum, Circuit Judge.

The defendant Biliki Brimah was convicted and sentenced on one count of distribution of heroin in violation of 21 U.S.C. sec. 841(a)(1). The defendant now appeals, arguing that the district court erred in failing to apply the exclusionary rule at sentencing to bar the introduction of evidence that the district court determined was seized in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. For the reasons stated herein, we affirm the decision of the district court.

I. Facts

On January 19, 1998, the defendant sold 100 grams of heroin to a cooperating witness of the FBI. Subsequent to this controlled sale, the FBI sought a search warrant for the defendant's condominium unit. The search warrant covered both the condominium and the defendant's storage locker in the basement of the building. While performing the search of the storage locker, the FBI looked inside an air conditioner box located next to the defendant's locker and found a black bag belonging to the defendant containing 443 grams of heroin. At trial, the district court granted the defendant's motion to suppress the 443 grams of heroin seized from the basement, having found that the FBI's warrant did not cover the air conditioner box in which the black bag was discovered.

On February 12, 1999, a jury found the defendant guilty of distribution of heroin based upon the 100 grams of that drug the defendant sold to the FBI's cooperating witness. Prior to sentencing, the Probation Office issued a Presentence Report that included as relevant conduct the 443 grams of illegally-seized heroin. The defendant objected to the Presentence Report, arguing that the exclusionary rule should bar the inclusion of the 443 grams of heroin deemed inadmissible at trial. The district court denied this objection and, based on an offense level of twenty-eight, sentenced the defendant to eighty- one months in prison and four years of supervised release. The defendant now appeals that sentence.

II. Analysis

The defendant challenges the district court's refusal to apply the exclusionary rule at sentencing to bar the consideration of 443 grams of heroin illegally seized by the FBI. In making this challenge, the defendant concedes that under traditional sentencing principles, the district court would be free to consider illegally-seized evidence at sentencing as long as that evidence was reliable. See United States v. Tucker, 404 U.S. 443, 446 (1972) ("[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come."); Williams v. New York, 337 U.S. 241, 246 (1949) (stating that historically courts had "wide discretion in the sources and types of evidence used to assist . . . in determining the kind and the extent of punishment to be imposed within limits fixed by law"); United States v. Lynch, 934 F.2d 1226, 1235 (11th Cir. 1991) ("The only limitation on the sentencing judge's broad inquiry was that the information he considered be reliable.") (citing Townsend v. Burke, 334 U.S. 736 (1948)). Although recognizing this broad sentencing discretion as an historical matter, the defendant argues that the discretion of trial courts to consider all relevant and reliable information should now be limited in light of the enactment of the Sentencing Guidelines.

In response to the defendant's argument, the government relies heavily on 18 U.S.C. sec. 3661 of the Sentencing Guidelines, which provides that: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."¹ While this provision appears to codify traditional sentencing principles and admits of no exceptions on its face, the defendant correctly points out that a sentencing judge's discretion is not unlimited in scope. See, e.g., U.S.S.G. sec. 5H1.1-1.6 (stating that "age," "education and vocational skills," "mental and emotional conditions," "physical condition," "employment record," and "family ties and responsibilities, and community ties" are not "ordinarily relevant" in sentencing determinations); U.S.S.G. sec. 5H1.10 ("[Race, sex, national origin, creed, religion, and socio- economic status] are not relevant in the determination of a sentence."). In attempting to show that the broad grant of discretion under 18 U.S.C. sec. 3661 is implicitly limited by Fourth Amendment principles, the defendant points to Section 1B1.4 of the Sentencing Guidelines, which states that all relevant evidence may be considered by a sentencing judge except information "otherwise prohibited by law." U.S.S.G. sec. 1B1.4. The defendant contends that the exclusionary rule is a legal principle that otherwise prohibits the consideration at sentencing of evidence seized in violation of the Fourth Amendment.²

The defendant relies heavily on three concurring opinions, including one from this Circuit, that argued forcefully that the exclusionary rule should apply at sentencing hearings, asserting that if the exclusionary rule is not applied at sentencing "the constitutional ban on unreasonable searches and seizures will become a parchment barrier." United States v. Jewel, 947 F.2d 224, 240 (7th Cir. 1991) (Easterbrook, J., concurring). The opinions questioning the widespread refusal to apply the exclusionary rule at sentencing place great emphasis on the perception that the advent of the Sentencing Guidelines has shifted the focus of the prosecution from the conviction stage to the sentencing stage. See Jewel, 947 F.2d at 239-40 (Easterbrook, J., concurring); United States v. McCrory, 930 F.2d 63, 71 (D.C. Cir. 1991) (Silberman, J., concurring); see also United States v. Kim, 25 F.3d 1426, 1437 (9th Cir. 1994) (Schroeder, J., concurring). According to these opinions, the potential under the Guidelines for law enforcement officials to obtain a conviction on relatively minor conduct, and then to seek a significantly enhanced sentence by introducing other evidence at sentencing, necessitates the application of the exclusionary rule at sentencing. See Kim, 25 F.3d at 1437 (Schroeder, J., concurring); Jewel, 947 F.2d at 240 (Easterbrook, J., concurring). Without such a limitation, the defendant argues, once police have legitimately obtained some evidence of crimes with broad sentencing ranges, they may then ignore the requirements of the Fourth Amendment in seizing evidence that, although inadmissible during the government's case-in- chief, could be used to support an enhanced sentence after conviction in a way that effectively undermines the very purpose of the exclusionary rule. See Jewel, 947 F.2d at 240 (Easterbrook, J., concurring); see also Kim, 25 F.3d at 1437 (Schroeder, J., concurring); McCrory, 930 F.2d at 71-72 (Silberman, J., concurring).

"[T]he [exclusionary] rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348 (1974); see Stone v. Powell, 428 U.S. 465, 486 (1976). Because the exclusionary rule is designed to deter official misconduct, and not to remedy individual constitutional violations, its application is "restricted to those areas where its remedial objectives are thought most efficaciously served."³ Calandra, 414 U.S. at 348. In order to determine whether the exclusionary rule should bar the introduction of evidence seized in violation of the Fourth Amendment at a sentencing hearing, we must weigh the additional deterrent benefit to be gained by applying the rule at sentencing against the costs such an application would impose on sentencing proceedings and on the goal of achieving fair, accurate, and individualized sentences. See Illinois v. Krull, 480 U.S. 340, 347 (1987) (determining the application of the exclusionary rule by "examin[ing] whether the rule's deterrent effect will be achieved, and weigh[ing] the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process"); Calandra, 414 U.S. at 349; United States v. Puglia, 8 F.3d 478, 482 (7th Cir. 1993).

The issue of the application of the exclusionary rule at sentencing under the Sentencing Guidelines is a matter of first impression in this Court, but nine other circuits have considered the issue and determined that, in most circumstances, the exclusionary rule does not bar the introduction of the fruits of illegal searches and seizures during sentencing proceedings. See United States v. Tauil- Hernandez, 88 F.3d 576, 580-81 (8th Cir. 1996); Kim, 25 F.3d at 1432-36; United States v. Montoya-Ortiz, 7 F.3d 1171, 1181-82 (5th Cir. 1993); United States v. Jenkins, 4 F.3d 1338, 1344-45 (6th Cir. 1993); United States v. Tejada, 956 F.2d 1256, 1260-63 (2d Cir. 1992); United States v. Jessup, 966 F.3d 1354, 1356-57 (10th Cir. 1992); McCrory, 930 F.2d at 70; United States v. Torres, 926 F.2d 321, 322-25 (3d Cir. 1991); United States v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir. 1991). In addition to the great weight of precedent supporting the government's argument, we considered a similar question in the context of a confession obtained in violation of a defendant's Miranda rights and concluded that "[t]he exclusionary rule is generally inapplicable during...