United States v. Raposa, 84 F.3d 502, 1st Cir. (1996)

84 F.
3d 502
UNITED STATES of America, Appellee,

v.
Robert RAPOSA, Defendant, Appellant.
No. 95-2088.
United States Court of Appeals,

First Circuit.
Heard March 7, 1996.
Decided May 29, 1996.
Robert B. Mann, Providence, RI, with whom Mann & Mitchell was on
brief, for appellant.
Margaret Curran, Assistant United States Attorney, Providence, RI, with
whom Sheldon Whitehouse, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief, for the United
States.
Before LYNCH, Circuit Judge, ALDRICH and BOWNES, Senior Circuit
Judges.
LYNCH, Circuit Judge.
Following a plea of guilty to one count of possessing heroin with intent to

distribute, Robert Raposa was sentenced to a term of 30 months imprisonment.
He appeals that sentence, arguing that the district court erroneously included as
"relevant conduct," see U.S.S.G. 1B1.3 (Nov. 1994), his possession, with
intent to distribute, of a substantial quantity of cocaine that the court had earlier
ordered suppressed as the product of an illegal search. The consideration, inter
alia, of the suppressed cocaine as "relevant conduct" increased the defendant's
Guidelines sentencing range from 10-16 months to 30-37 months. The latter
was the same as the range that would have obtained if the defendant had been
convicted on the cocaine count as well as the heroin count.
We are asked to decide whether the Fourth Amendment exclusionary rule

applies in the context of Sentencing Guidelines proceedings, at least on the
facts of this case. On the record before us, however, the resolution of that
question is not necessary to the decision of this appeal. We decline, therefore, to
reach that important question here, preferring to leave it for a future case.
Instead, we affirm the defendant's sentence on the ground that the district
court's findings were amply supported by statements concerning the cocaine
provided by the defendant and incorporated in the Presentence Investigation
Report ("PSR"), and on which he relied to obtain a reduction in his sentence for
acceptance of responsibility.
3
* On February 10, 1995, two narcotics detectives interrupted a drug deal in

progress in an alley in downtown Providence. The defendant, Robert Raposa,
was sitting in the driver's seat of a parked white Mercury Sable, doing business
with several men standing at his window, when the detectives approached and
identified themselves as police officers. Raposa bolted out of the car and ran,
dropping a bundle of heroin packets labelled "Die Hard" as he fled. One of the
officers picked up the heroin packets and gave chase. Raposa was apprehended.
The officers brought him back to the scene of the drug deal, where they found
another bundle of heroin marked "Die Hard" and $140 in cash on the ground
near the Mercury. Two beepers were found on the defendant, and a cellular
telephone in the car. Raposa was arrested and taken to the central police station.
After a short investigation, the detectives went to Raposa's apartment, while the
defendant remained in custody at the station. A woman answered the door. The
officers told her that Raposa had been arrested. The woman stated that Raposa
was her boyfriend and lived with her in the apartment.
What happened next was disputed. The government would later assert that the
woman consented to a search of the apartment, and that no search was
undertaken until a consent form had been signed. The defendant would contend
that no valid consent was ever given, and that his girlfriend's signature on the
form had been coerced. In any event, the officers conducted a warrantless
search of the apartment. They seized three large bags containing over $13,000
worth of cocaine lying in a closet in one of the bedrooms. Back at the police
station, Raposa was informed of the seizures. Having been read his Miranda
rights, he agreed to talk, and confessed that the cocaine was his.
Raposa was charged with possession of cocaine (375.21 grams) and heroin (less
than 5 grams), with intent to distribute. After initially pleading not guilty to both
counts, he moved to suppress all of the cocaine that the police had found in his
apartment, arguing that it was the fruit of an illegal search. After an evidentiary
hearing, the district court granted the motion, finding that the government had
failed to prove that Raposa's girlfriend had consented to the search. The
defendant subsequently pleaded guilty to the heroin charge (Count II), and the
government voluntarily dismissed the cocaine charge (Count I).
II
7
Raposa's sentence for his heroin conviction was governed by U.S.S.G. 2D1.1.
Under that guideline, the amount of heroin possessed by the defendant (less
than 5 grams) corresponds to a base offense level of 12, which, charted against
a criminal history category of I, would yield a Guidelines sentencing range of
10-16 months. However, the district court found, over the defendant's
objection, that the defendant's possession of the cocaine found at his apartment
constituted "part of the same course of conduct ... as the offense of conviction"
under the Guidelines' "relevant conduct" provision. U.S.S.G. 1B1.3(a)(2).
After expressing serious reservations about the fairness of considering illegally

seized evidence for purposes of the Guidelines' relevant conduct provisions, the
district court concluded, relying on cases from other circuits, that the
exclusionary rule did not apply at sentencing. The court thus incorporated the
cocaine into the total drug quantity for which defendant was to be sentenced,
pushing the offense level up to 22. After subtracting three levels for acceptance
of responsibility, the court arrived at a total offense level of 19, yielding a final
sentencing range of 30-37 months. The court imposed a sentence of 30 months,
and the defendant filed this appeal.1
III
9
To date, five circuit courts of appeal have addressed the issue of whether the
Fourth Amendment exclusionary rule prohibits a sentencing court from
considering illegally seized evidence for purposes of determining or enhancing
a defendant's Guidelines sentence. 2 Each of these courts has held that the
exclusionary rule does not generally apply in the sentencing context and that
there is no blanket prohibition on the consideration of illegally seized evidence
for purposes of making the findings required under the Guidelines. See United
States v. Jenkins, 4 F.3d 1338, 1345 (6th Cir.1993) (rejecting, as dicta, contrary
statements in United States v. Nichols, 979 F.2d 402, 410-11 (6th Cir.1992),
aff'd on other grounds, --- U.S. ----, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)),
cert. denied, --- U.S. ----, 114 S.Ct. 1547, 128 L.Ed.2d 197 (1994); United
States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.), cert. denied, 506 U.S. 841, 113
S.Ct. 124, 121 L.Ed.2d 80 (1992); United States v. Lynch, 934 F.2d 1226,
1236-37 (11th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116
L.Ed.2d 788 (1992); United States v. McCrory, 930 F.2d 63, 69
(D.C.Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 788
(1992); United States v. Torres, 926 F.2d 321, 325 (3d Cir.1991). The rule
adopted in these cases has not been met with universal acclaim. See, e.g.,
United States v. Jewel, 947 F.2d 224, 238-40 (7th Cir.1991) (Easterbrook, J.,
concurring); McCrory, 930 F.2d at 70-72 (Silberman, J., concurring); Wayne R.
LaFave, 1 Search and Seizure 1.6, at 40-41 (2d ed. Supp.1995).3 This court
has not yet decided the issue.
10
Although the parties have ably argued to us the merits of each side of the
debate, a review of the record requires the conclusion that this case does not
present a proper occasion for us to decide this important question.
11
After the defendant agreed to plead guilty to the charge of possessing heroin
with intent to distribute, the district court ordered that a PSR be prepared. In
setting forth his version of the facts for inclusion in the PSR, the defendant
(through his counsel) provided the federal probation officer with a signed
statement in which he voluntarily admitted that he owned the cocaine that was
found in his apartment on February 10, 1995. The statement was incorporated
verbatim into the PSR. It declared, in relevant part:
I12understand the police recovered two bundles of heroin near my car [on February
10]. Those bundles of heroin were my heroin. I accept complete responsibility for
my actions. I also accept responsibility for the cocaine found at [my apartment].... I
have always accepted responsibility for this cocaine. At the police station, on the
day of my arrest I made a signed statement. In that statement I clearly accepted
responsibility for the cocaine. [4 ] The cocaine was found in a spare bedroom closet. I
accept complete responsibility for my actions with the cocaine[5 ] as I did with the
heroin [footnotes added].
13
The defendant lodged no objection nor attempted to reserve any Fourth

Amendment argument specifically with respect to the PSR's recounting of these
admissions.6 Indeed, based in part on these statements, the defendant
successfully argued at sentencing for a three-level reduction in his Guidelines
offense level under U.S.S.G. 3E1.1.
14
Whatever force the exclusionary rule might have at sentencing, it clearly could
not have barred the district court from considering the defendant's voluntary
statements as set forth in the PSR. Cf. United States v. Patino, 862 F.2d 128,
132-34 (7th Cir.1988) (holding second confession not to have been obtained in
violation of Fourth Amendment where sufficient time had passed since illegal
search and initial confession and where intervening circumstances were
benign), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 637 (1989).7
The portion of the PSR containing those statements, to which defendant
declined to object (and as a result of which he received acceptance-ofresponsibility credit under the Guidelines), provides an independently sufficient
ground for the district court's finding at sentencing that the defendant possessed
the cocaine at issue.8 See United States v. Blanco, 888 F.2d 907, 908-09 (1st
Cir.1989) (permitting proof at sentencing of uncharged quantities of drugs
through statements in PSR to which defendant failed to object).
15
Thus, on the record before us, the question of the exclusionary rule's
applicability at sentencing has no bearing on the outcome of this appeal. Cf.
New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 176 (1st
Cir.1989) ("longstanding precedent" requires courts to "avoid ruling on
constitutional issues when non-constitutional grounds are dispositive"). Wholly
apart from any consideration of the suppressed cocaine evidence, the portions
of the PSR that recounted defendant's admissions as to cocaine possession, to
which no objection was recorded, provide clear and ample support for the
findings that resulted in the assignment to defendant of a total offense level of
19 under the Guidelines. Cf. Murray v. United States, 487 U.S. 533, 538-41,
108 S.Ct. 2529, 2533-35, 101 L.Ed.2d 472 (1988) (exclusionary rule does not
affect information "cleanly" obtained through "independent source" (quoting
United States v. Silvestri, 787 F.2d 736, 739 (1st Cir.1986), cert. denied, 487
U.S. 1233, 108 S.Ct. 2897, 101 L.Ed.2d 931 (1988))). Because this aspect of
the record is dispositive in favor of affirmance, we need not decide whether the
exclusionary rule applies at sentencing.
IV
16
For the foregoing reasons, we decline to reach the question of whether the
Fourth Amendment exclusionary rule applies in the context of Guidelines
sentencing proceedings,9 and we uphold the sentence imposed by the district
court based solely on our conclusion that it was adequately supported by the
facts established in the unobjected-to portions of the PSR.
17
Affirmed.
After acknowledging that defendant had raised a substantial issue for appeal,
the district court granted the defendant's request that he be permitted to remain
released on bail pending appeal of the sentence
There are also several reported cases that address the issue in the preGuidelines context. See United States v. Lee, 540 F.2d 1205, 1210-12 (4th
Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United
States v. Vandemark, 522 F.2d 1019, 1021-25 (9th Cir.1975); United States v.
Schipani, 435 F.2d 26, 27-28 (2d Cir.1970), cert. denied, 401 U.S. 983, 91 S.Ct.
1198, 28 L.Ed.2d 334 (1971); Verdugo v. United States, 402 F.2d 599, 610-13
(9th Cir.1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970)
3
See also Todd Flaming, Comment, Laundering Illegally Seized Evidence

Through the Federal Sentencing Guidelines, 59 U.Chi.L.Rev. 1209 (1992);
Victor J. Miller, Note, An End Run Around the Exclusionary Rule: The Use of
Illegally Seized Evidence Under the Federal Sentencing Guidelines, 34 Wm. &
Mary L.Rev. 241 (1992); Clinton R. Pinyan, Comment, Illegally Seized
Evidence at Sentencing: How to Satisfy the Constitution and the Guidelines
With an "Evidentiary" Limitation, 1994 U.Chi.Legal F. 523 (1994)
It appears, although the record is not clear, that the statement given by Raposa
to the police on February 10 was also covered by the district court's
suppression order
The defendant further admitted, elsewhere in this same statement, that the
quantity of cocaine he possessed was at least equal to the amount charged in the
indictment (375.21 grams)
Defendant's PSR statement was not made under any promise of immunity. Cf.
United States v. Conway, 81 F.3d 15 (1st Cir.1996)
Defendant does not and could not credibly argue that the statements recounted
in the PSR constituted a fruit of the illegal search conducted on the day of his
arrest. The statement provided by defendant to the probation officer was
voluntarily submitted, presumably with the advice of counsel. Furthermore, the
statement was provided after the district court had ruled on the defendant's
suppression motion, so that defendant could make no claim that he was
unaware of his rights. The provision of the statement to the probation officer
was "sufficiently an act of free will to purge the primary taint" of the illegal
search. Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 417, 9
L.Ed.2d 441 (1963); cf. Brown v. Illinois, 422 U.S. 590, 608-09, 95 S.Ct. 2254,
2264-65, 45 L.Ed.2d 416 (1975) (Powell, J., concurring) (discussing
attenuation doctrine)
Defendant does not argue that the relevant conduct guideline itself is
unconstitutional
We therefore need not comment on the merits of the government's contention at

oral argument that any unfairness that might result from not applying the
exclusionary rule at sentencing could be alleviated by invoking, as warranted,
the due process prohibition against "sentencing factor manipulation." See
United States v. Egemonye, 62 F.3d 425 (1st Cir.1995); United States v.

Montoya, 62 F.3d 1 (1st Cir.1995); cf. Jenkins, 4 F.3d at 1345 (exclusionary
rule may be applied at sentencing, as exception to general rule, where defendant
shows that illegal search was conducted for specific purpose of obtaining
sentence enhancement); Tejada, 956 F.2d at 1263 (same); McCrory, 930 F.2d
at 69 (same); cf. also Lynch, 934 F.2d at 1237 n. 15 (reserving the question);
Torres, 926 F.2d at 325 (same)

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84 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Following a plea of guilty to one count of possessing heroin with intent to

We are asked to decide whether the Fourth Amendment exclusionary rule

* On February 10, 1995, two narcotics detectives interrupted a drug deal in

After expressing serious reservations about the fairness of considering illegally

The defendant lodged no objection nor attempted to reserve any Fourth

See also Todd Flaming, Comment, Laundering Illegally Seized Evidence

We therefore need not comment on the merits of the government's contention at

United States v. Egemonye, 62 F.3d 425 (1st Cir.1995); United States v.

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