Evidence suppressed in a prior case could be used in sentencing in another case. The exclusionary rule should not be applied to prevent evidence from being used in a subsequent sentencing. People v. Rose, 2008 Ill. App. LEXIS 861 (August 13, 2008), released for publication September 26, 2008:
We now discuss defendant’s rights regarding the suppressed evidence. The judicially created exclusionary rule generally serves to prevent evidence obtained in violation of the fourth amendment from being used in a criminal proceeding against the individual whose constitutional rights were violated. Illinois v. Krull, 480 U.S. 340, 347, 94 L. Ed. 2d 364, 373, 107 S. Ct. 1160, 1165 (1987). The central purpose of the exclusionary rule is to deter the police from acting unlawfully in the future, thereby effectuating the fourth amendment guarantee against unreasonable searches and seizures. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165. The exclusionary rule is not a personal constitutional right of the aggrieved party, and its application is not intended or able to act as a remedy for the invasion of the party’s rights that has already taken place. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165-66. The exclusionary rule is not designed to prevent the use of suppressed evidence in all types of proceedings or against all people. People v. Dowery, 62 Ill. 2d 200, 204, 340 N.E.2d 529 (1975). “[I]n determining whether the ‘exclusionary rule’ should be extended to certain proceedings a balancing test has been utilized to limit application of the rule ‘to those areas where its remedial objectives are thought most efficaciously served.'” Dowery, 62 Ill. 2d at 204, quoting United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 620 (1974).
Our research has not revealed any Illinois case addressing the specific question of whether evidence suppressed on fourth amendment grounds in a prior case nonetheless may be considered at a sentencing hearing on a future charge. One case, People v. Evans, 125 Ill. 2d 50, 530 N.E.2d 1360, 125 Ill. Dec. 790 (1988), discusses a sentencing court’s consideration of previously suppressed evidence, but that case is distinguishable. In Evans, the defendant argued on appeal that the sentencing court erred in considering the testimony of an alleged prior rape victim, because during the defendant’s trial for that offense the trial court granted his motion to suppress the victim’s identification of him. Evans, 125 Ill. 2d at 90. The defendant claimed that this prior suppression made the evidence unreliable at sentencing. Evans, 125 Ill. 2d at 91. Our supreme court held that the defendant’s argument was without merit because the defendant failed to inform the sentencing court that the identification had been suppressed and because the victim’s testimony was cumulative of the large amount of evidence in aggravation. Evans, 125 Ill. 2d at 91-92. The instant case, unlike Evans, involves evidence suppressed under the fourth amendment, so the mere fact that the evidence was suppressed does not equate to a finding that it was unreliable. Moreover, defendant preserved his argument in the trial court, and the introduction of the suppressed evidence would not amount to harmless error here.
While there is no Illinois law directly on point, we note that all but one of the federal appellate courts have resolved the issue at hand, and they have all concluded that the exclusionary rule generally does not apply to sentencing hearings. United States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002); United States v. Ryan, 236 F.3d 1268, 1271-72 (10th Cir. 2001); United States v. Brimah, 214 F.3d 854, 858 (7th Cir. 2000); United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996); United States v. Kim, 25 F.3d 1426, 1435 (9th Cir. 1994); 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, 1263 (2d Cir. 1992); United States v. Lynch, 934 F.2d 1226, 1236-37 (11th Cir. 1991); United States v. McCrory, 289 U.S. App. D.C. 178, 930 F.2d 63, 69 (D.C. Cir. 1991); United States v. Torres, 926 F.2d 321, 325 (3rd Cir. 1991); see also United States v. Nichols, 438 F.3d 437, 441 (4th Cir. 2006) (citing Acosta and cases cited therein with approval). Though we are not required to follow decisions of federal courts other than the United States Supreme Court (People v. Calvert, 326 Ill. App. 3d 414, 424, 760 N.E.2d 1024, 260 Ill. Dec. 251 (2001)), we may use such decisions as guidance (People v. Criss, 307 Ill. App. 3d 888, 900, 719 N.E.2d 776, 241 Ill. Dec. 647 (1999)). The aforementioned federal appellate courts have noted that a sentencing court may conduct a very broad inquiry into the defendant’s background, character, and conduct in order to have the largest range of information available to determine the appropriate punishment. Acosta, 303 F.3d at 85-86. They have recognized that evidence that has been illegally seized is not inherently unreliable (see, e.g., Brimah, 214 F.3d at 858) and concluded that “the deterrent effect of the exclusionary rule does not outweigh the detrimental effects of excluding reliable evidence on the court’s ability to meet its goal of proper sentencing.” Acosta, 303 F.3d at 85. Still, some of the federal courts have indicated that the exclusionary rule will apply at sentencing if there is evidence that the police violated the defendant’s fourth amendment rights with the purpose of obtaining a greater sentence. See Acosta, 303 F.3d at 85 (cases cited therein).
Comment: To say that the police are not deterred by the ability to use illegally seize evidence is either manifestly false or incredibly niave. They seize it to use it; that simple. If they can’t use it in the case at hand, it can come back to bite the defendant later.
