In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2827

United States of America,

Plaintiff-Appellee,

v.

Biliki Brimah,

Defendant-Appellant.



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


Argued February 23, 2000--Decided May 26, 2000




      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 sentencing." Del
Vecchio v. Illinois Dep’t of Corrections, 31 F.3d
1363, 1388 (7th Cir. 1994) (en banc). After a
consideration of the issue in light of this
existing precedent, we conclude that under the
circumstances presented here the exclusionary
rule should not bar the introduction at
sentencing of evidence seized in violation of the
Fourth Amendment./4

      Against the backdrop of the traditionally broad
sentencing inquiry, and the congressional mandate
in U.S.S.G. sec. 3116 that courts consider all
relevant information in sentencing, the
detrimental effects of applying the exclusionary
rule at sentencing are obvious. To exclude
illegally-obtained evidence during the sentencing
phase "would frustrate the federal policy,
codified, in part, in the [The Sentencing Reform]
Act and the Sentencing Guidelines, that judges
consider all relevant and reliable facts in order
to assure that each defendant receives an
individualized sentence." Lynch, 934 F.2d at
1236. Moreover, because illegally-seized evidence
is not inherently unreliable, see Stone, 428 U.S.
at 490 ("[T]he physical evidence sought to be
excluded is typically reliable and often the most
probative information bearing on the guilt or
innocence of the defendant."); United States v.
Lee, 540 F.2d 1205, 1211 (4th Cir. 1976), the
exclusion of all such evidence at the sentencing
phase would inhibit the ability of sentencing
judges to impose fair and accurate punishments on
defendants. See Tauil-Hernandez, 88 F.3d at 581
(citing Lynch, 934 F.2d at 1236; McCrory, 930
F.2d at 680). These detrimental effects are
significant, and we conclude that these effects
are not outweighed by the marginal deterrence
that might be gained from extending the
application of the exclusionary rule to
sentencing proceedings. See Torres, 926 F.2d at
325 (rejecting the application of the
exclusionary rule at sentencing because "[t]he
desirability of reaching an appropriate decision
in sentencing outweighs what little deterrent
effect may be present"); Tejada, 956 F.2d at
1263; McCrory, 930 F.2d at 69.
      Although there is certainly a small risk that
under the Sentencing Guidelines law enforcement
officials will intentionally violate a
defendant’s Fourth Amendment rights in order to
increase a sentence, "we doubt that there are
many police officers who would risk the fruits of
prior legitimate law enforcement activities in so
cynical a fashion." Tauil-Hernandez, 88 F.3d at
581 (citing Lynch, 934 F.2d at 1236 & n.14).
Furthermore, the application of the exclusionary
rule to the government’s case-in-chief still
provides strong incentives for law enforcement
officials to follow proper procedure in order to
build as strong a case as possible against the
defendant during the conviction phase of trial.
See Tejada, 956 F.2d at 1262. Because we do not
believe the deterrence that might be gained
through the application of the exclusionary rule
to sentencing proceedings justifies limiting a
district court’s consideration of all relevant
and reliable information in order to assure fair,
accurate, and individualized sentences, we join
the other circuits who have considered this issue
and hold that the exclusionary rule does not bar
the consideration at sentencing of evidence
seized in violation of the Fourth Amendment.

III.   Conclusion

      Because we hold that the district court
properly refused to apply the exclusionary rule
at sentencing to bar the consideration of the 443
grams of illegally-seized heroin, we AFFIRM the
decision of the district court.

/1 The Guidelines also mandate that sentencing
courts consider "all acts and omissions . . .
that were part of the same course of conduct or
common scheme or plan as the offense of
conviction." U.S.S.G. sec. 1B1.3(a)(2).

/2 U.S.S.G. sec. 1B1.4, which governs the
determination of a defendant’s sentence within a
selected guidelines range or the appropriateness
of a departure from that range, grants a trial
court broad discretion to consider all relevant
and reliable information at sentencing, with the
significant limitation that the court may not
consider evidence whose admission or
consideration is "otherwise prohibited by law."
U.S.S.G. sec. 1B1.3, governing the selection of
the applicable offense level, does not contain
any such limitation. By failing to qualify the
broad language of U.S.S.G. sec. 1B1.3 in the same
way that it qualified the language of U.S.S.G.
sec. 1B1.4, the Sentencing Commission left open
the possible interpretation that a district court
is not limited by other sources of law in
initially determining the applicable guidelines
range, but rather is only so limited in terms of
the information it can consider when selecting a
sentence within a selected guidelines range or
when deciding whether to depart from that range.
See United States v. Kim, 25 F.3d 1426, 1433-34
(9th Cir. 1994). However, because we find no
applicable law prohibiting the consideration of
evidence during the sentencing phase, the
district court’s decision would be correct
regardless of whether the limitations of U.S.S.G.
sec. 1B1.4 is incorporated into U.S.S.G. sec.
1B1.3. See id. at 1434. We therefore do not
address this issue of interpretation here.

/3 Because the exclusionary rule is limited to
situations where its deterrent effect is best
served, the Supreme Court has recognized a
variety of situations in which it does not apply.
See, e.g., United States v. Leon, 468 U.S. 897
(1984) (holding that evidence seized in good-
faith reliance on a defective warrant was
admissible); United States v. Janis, 428 U.S. 433
(1976) (stating that the exclusionary rule was
not applicable to federal civil tax proceedings);
Calandra, 414 U.S. at 338 (finding that the
exclusionary rule did not apply to grand jury
proceedings); Walder v. United States, 347 U.S.
62 (1954) (holding that illegally-obtained
evidence could be used to impeach a criminal
defendant at trial).

/4 Because there are no allegations in this case
that the police intentionally acted illegally in
seizing the heroin from the air conditioner box
in order to enhance the defendant’s sentence, "we
leave open the question whether suppression would
be necessary and proper at the sentencing phase
where it is shown that the police acted
egregiously, e.g., by undertaking a warrantless
search for the very purpose of obtaining evidence
to increase a defendant’s sentence." McCrory, 930
F.2d at 69 (citing Verdugo v. United States, 402
F.2d 599, 611-13 (9th Cir. 1968) (excluding
evidence seized during a "blatantly illegal"
search in a situation where the police needed to
be deterred from making such searches); United
States v. Vandemark, 522 F.2d 1019, 1024 (9th
Cir. 1975) (limiting Verdugo to cases where
refusing to apply the exclusionary rule "would
provide a substantial incentive for
unconstitutional searches and seizures")).
