Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


January 28, 1991


The opinion of the court was delivered by: 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.

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

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 additional prison term if the underlying offense involved the use of a weapon, the Fourth Amendment would preclude the use of illegally seized evidence to support that charge. We see no reason to draw a distinction in this case simply because the additional element was added by the Sentencing Commission rather than by Congress.

In reasoning that little deterrent effect would be added by applying the exclusionary rule to issues of sentencing, the Court in Schipani observed that it was unlikely that law enforcement officials would engage in illegal conduct to obtain information for sentencing. 435 F.2d at 28. That reasoning was valid when applied to a sentencing structure that gave the district judge almost unlimited discretion in selecting a sentence below the statutory maximum, including the discretion to consider or not consider suppressed evidence. See United States v. Mapp, 476 F.2d 67, 82 (2d Cir. 1973). This pre-guideline reasoning is not valid when applied to a sentencing scheme that requires the Court to provide specific increases in the sentencing level in specific factual settings. The existence of sentencing guidelines are well-known to police officers and federal agents and the impact of specific evidence on the sentence a defendant will receive surely cannot have escaped their notice. See United States v. Bye, 919 F.2d 6, 7 (2d Cir. 1990) (agent testified to advising defendant his sentence would be calculated on the basis of quantity of narcotics). In these circumstances substantial deterrent effect can be expected if law enforcement officers are on notice that illegal evidence may not be used to compel the Court to impose substantially increased punishment on a convicted defendant.

The importance of the exclusionary rule in securing to all our citizens the protections afforded by the Fourth Amendment was established over 75 years ago in Weeks v. United States, supra, 232 U.S. at 393, 34 S.Ct. at 344, where the Court observed:

  If letters and private documents can thus be
  seized and held and used in evidence against a
  citizen accused of an offense, the protection of
  the Fourth Amendment declaring his right to be
  secure against such searches and seizures is of
  no value, and, so far as those thus placed are
  concerned, might as well be stricken from the
  Constitution. The efforts of the courts and their
  officials to bring the guilty to punishment,
  praiseworthy as they are, are not to be aided by
  the sacrifice of those great principles
  established by years of endeavor and suffering
  which have resulted in their embodiment in the
  fundamental law of the land.

Winston Cabrera has been convicted of a serious crime and he will receive a substantial sentence. If we are to ask him to accept that sentence and, in the future, conform his conduct to the requirements of the law, he is entitled to know that the courts also require law enforcement officials to conform their conduct to the law's requirements and will not sanction the illegal search and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.