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.


1
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

2
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.


3
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

4
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.


5
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


6
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).


7
"[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).


8
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


9
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.


10
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

11
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.



Notes:


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")).


