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 eightyone 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 socioeconomic 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-inchief, 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. TauilHernandez, 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 goodfaith 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")).