E.D.N.Y.: The exclusionary doesn’t apply at sentencing

The exclusionary doesn’t apply at sentencing. United States v. Carrillo, 2018 U.S. Dist. LEXIS 21731 (E.D. N.Y. Feb. 9, 2018):

Second, even if the search had been illegal, I still would have considered its results at sentencing. Here, once again, it is important to note that defendant does not claim that he would have gone to trial; he merely asserts that he would have pled to the indictment instead of the plea agreement. But whether defendant had pleaded guilty to an indictment or under an agreement, I would have considered the results of the search, legal or not, because the exclusionary rule does not apply at sentencing, and a sentencing judge is entitled to consider evidence that would not be admissible at trial. “Absent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence has been seized in violation of the Fourth Amendment.” United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992). Any claim of deficient performance on the part of his counsel as to this point therefore fails under both of Strickland’s requirements.

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