United States v. Raposa

United States Court of Appeals
For the First Circuit

No. 95-2088

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT RAPOSA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Lynch, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

Robert B. Mann, with whom Mann & Mitchell was on brief, for

appellant.

Margaret Curran, with whom Sheldon Whitehouse, United States

Attorney, and Zechariah Chafee, Assistant United States Attorney,

were on brief, for the United States.

May 29, 1996

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.

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I

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

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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

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

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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

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

1. 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.

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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. 1993), aff'd on other

grounds, 114 S. Ct. 1921 (1994)), cert. denied, 114 S. Ct. 1547

(1994); United States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.),

cert. denied, 506 U.S. 841 (1992); United States v. Lynch, 934

F.2d 1226, 1236-37 (11th Cir. 1991), cert. denied, 502 U.S.

1037 (1992); United States v. McCrory, 930 F.2d 63, 69 (D.C.

Cir. 1991), cert. denied, 502 U.S. 1037 (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 185-

87 (Silberman, J., concurring); Wayne R. LaFave, 1 Search and

2. There are also several reported cases that address the
issue in the pre-Guidelines context. See United States v. Lee,

540 F.2d 1205, 1210-12 (4th Cir.), cert. denied, 429 U.S. 894

(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 (1971); Verdugo v.

United States, 402 F.2d 599, 610-13 (9th Cir. 1968), cert.

denied, 397 U.S. 925 (1970).

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Seizure 1.6, at 40-41 (2d ed. Supp. 1995).3 This court has

not yet decided the issue.

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.

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:

I understand 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

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).

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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].

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.

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

4. 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.

5. 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).

6. Defendant's PSR statement was not made under any promise of
immunity. Cf. United States v. Conway, 81 F.3d 15 (1st Cir.

1996).

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U.S. 1069 (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-of-responsibility 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).

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

7. 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 (1963); cf. Brown v. Illinois, 422

U.S. 590, 608-09 (1975) (Powell, J., concurring) (discussing
attenuation doctrine).

8. Defendant does not argue that the relevant conduct
guideline itself is unconstitutional.

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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 (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 (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

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.

9. 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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Affirmed.

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