Post-Conviction Relief for Immigrants

(E)  Illegally Obtained Evidence.   At sentencing the court may not receive illegally obtained evidence, such as an involuntary confession or evidence resulting from an unconstitutional search and seizure.[371]

[371] United States ex rel. Brown v. Rundle, 417 F.2d 282 (3d Cir. 1969) (due process does not permit consideration of constitutionally inadmissible confession at sentence); Verdugo v. United States, 402 F.2d 599, 613 (9th Cir.), cert. denied, 397 U.S. 925 (1969) (evidence obtained from unconstitutional search excluded from sentencing “where, as here, the use of illegally seized evidence at sentencing would provide a substantial incentive for unconstitutional searches and seizures . . . .”); Armpriester v. United States, 256 F.2d 294, 297 (4th Cir. 1958) (“[W]e would not condone the use of evidence obtained in breach of the law, even for the limited purposes of determining the sentence.”) (dictum); but see United States v. Torres, 926 F.2d 321 (3d Cir. 1991) (sentencing judge could consider evidence ordered suppressed pursuant to the Fourth Amendment); United States v. Lee, 540 F.2d 1205, 1212 (4th Cir.), cert. denied, 429 U.S. 894 (1976); United States v. Schipani, 315 F. Supp. 253, 260 (E.D.N.Y.), aff’d, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983 (1971) (illegally obtained evidence considered at sentence where it was reliable and not gathered for the purpose of improperly influencing the sentencing judge); United States v. Nichols, 763 F. Supp. 277 (E.D. Tenn. 1991), aff’d, 979 F.2d 402 (6th Cir. 1992).