Appeal from the United States District Court for the District of New Jersey. D.C. No. 89-00240-01.
Stapleton, Greenberg, and Joseph F. Weis, Jr., Circuit Judges.
In this appeal we decide that a kilogram of cocaine seized in violation of the Fourth Amendment and suppressed for that reason was nevertheless properly considered in determining the applicable sentence under the Sentencing Guidelines. Because the plea bargain was based on a stipulation that a lesser amount of the drug was to be used for computation of the sentencing range, we will remand for appropriate relief.
Based on an informant's tip, a number of DEA agents conducted a warrantless search of an apartment in Cliffside Park, New Jersey, on July 1, 1989, and found 198 grams of cocaine. Within seconds after their entry into the apartment, an automobile in which the defendant was a passenger, arrived on the scene. Some of the agents left the apartment, went to the car and arrested the occupants. A brick of cocaine weighing approximately one kilogram was found in the automobile.
Defendant filed a motion for suppression. After a hearing, the district court ordered that evidence of the kilogram of cocaine taken from the automobile be excluded, but denied the motion as to the 198 grams taken from the apartment.
Defendant then agreed to plead guilty to a superseding information charging one count of possession with intent to distribute less than 500 grams of cocaine. In a letter setting forth the terms of the agreement, the government stipulated that "the amount of cocaine involved in the offense for purposes of calculating the applicable sentencing guideline range is 100 to 200 grams." In addition, the letter stated that the stipulation did not bind the court and was based on information possessed by the government at that time.
The presentence report prepared by the probation officer suggested that the kilogram of cocaine found in the car be considered in sentencing as evidence of relevant conduct. The district judge accepted this recommendation and, over the objections of both defendant and prosecutor, took the kilogram into account in calculating the appropriate sentencing guideline range. He also denied the defendant's request to withdraw his guilty plea.
This appeal presents two issues: (1) whether the exclusionary rule as applied to Fourth Amendment violations precludes consideration of suppressed evidence in sentencing determinations and (2) whether in the circumstances here the defendant should be permitted to withdraw his plea.
The exclusionary rule serves as a remedy for various constitutional violations, but on differing rationales. When the Fifth Amendment is implicated, as in the case of a coerced or otherwise dubious confession, suppression is invoked primarily on the theory that the evidence is tainted by unreliability and a conviction obtained by its use might be suspect.
When the violation implicates the Fourth Amendment, however, different considerations comes into play. That an unlawful search and seizure has occurred does not diminish the probative value of the illegally seized evidence in any way. Indeed, in most cases where suppression is granted, the evidence is quite trustworthy.
In Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), the Supreme Court prohibited the use of evidence seized in violation of the Fourth Amendment to secure a conviction. The Court has since explained that the rule of exclusion is based on an effort to deter unlawful police activity as well as a recognition of judicial integrity in the admission of evidence. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961); Elkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960). Nevertheless, these concerns must be weighed against the costs to the administration of justice in permitting obviously guilty defendants to be acquitted. "Unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury." United States v. Payner, 447 U.S. 727, 734, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980). Cardozo's pithy remonstrance, "The criminal is to go free because the constable has blundered," People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587, cert. denied, 270 U.S. 657, 46 S. Ct. 353, 70 L. Ed. 784 (1926), has not lost its sting.
The Supreme Court, therefore, has veered from an absolutist approach and instead has restricted the rule's application "to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). In United States v. Janis, 428 U.S. 433, 447-54, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976), the Court adhered to this criteria, weighing the likely deterrent effect and the cost to society in expanding the rule. The Court concluded that the deterrent effect would be marginal and that extension of the rule was unjustified. Id. at 454.
Calandra made it clear that the exclusionary rule was a judicially created remedy, rather than a constitutional right and that it did not "proscribe the use of illegally seized evidence in all proceedings or against all persons." 414 U.S. at 348. It does not apply, for example, to grand jury proceedings, Id. at 351-52, or deportation proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984). Evidence illegally seized by state officials may be used in a federal civil proceeding, Janis, 428 U.S. at 454, and evidence obtained in violation of the Fourth Amendment may be used for impeachment, United States v. Havens, 446 U.S. 620, 627-28, 64 L. Ed. 2d 559, 100 S. Ct. 1912 (1980).
Moreover, evidence procured by an officer acting in objective good faith will not be suppressed even though the warrant was defective. United States v. Leon, 468 U.S. 897, 922, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). A state prisoner may not be granted federal habeas corpus relief for an unconstitutional search where the state has provided for full and fair litigation of the Fourth Amendment claim. Stone v. Powell, 428 U.S. 465, 494, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). "In this context the contribution of the exclusionary rule, if any, to the effectuation ...