No. 13-­--1301 UNITED STATES OF AMERICA v. Tyler Sanders

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑1301
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
TYLER SANDERS,
Defendant-­‐‑Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:09-­‐‑cr-­‐‑00156-­‐‑LJM — Larry J. McKinney, Judge.
____________________
ARGUED JANUARY 28, 2014 — DECIDED FEBRUARY 14, 2014
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
EASTERBROOK, Circuit Judge. Tyler Sanders pleaded guilty
to possessing more than 50 grams of cocaine base with intent
to distribute. At sentencing, the district judge found that he
possessed more than 500 grams of cocaine or cocaine base
and calculated an offense level of 26, producing a recom-­‐‑
mended range of 110 to 137 months’ imprisonment. The
judge sentenced Sanders to 120 months. Most of the cocaine

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2 No. 13-­‐‑1301
that was included as relevant conduct for the purpose of cal-­‐‑
culating the offense level had been seized from Sanders’s
home, which the police searched with a warrant following
his arrest. The district judge concluded that the warrant was
invalid and ruled that the evidence seized from Sanders’s
home could not be used against him at trial. 710 F. Supp. 2d
821 (S.D. Ind. 2010). Sanders contends that the judge should
have prohibited use of that evidence at sentencing too.
We held in United States v. Brimah, 214 F.3d 854 (7th Cir.
2000), that the exclusionary rule does not apply at criminal
sentencing. Every other court of appeals has come to the
same conclusion. Sanders does not ask us to overrule Brimah.
Instead he observes that a footnote, 214 F.3d at 858 n.4, re-­‐‑
marks that the appeal did not present the question whether
an “egregious” violation of the fourth amendment might jus-­‐‑
tify suppression at sentencing. Sanders wants us to call the
search of his house “egregious” and hold that the evidence
must be suppressed. He acknowledges, however, that this
step would itself create a conflict among the circuits: No
court of appeals has held that evidence is inadmissible at
sentencing on account of an “egregious” violation (whatever
that might mean in operation). See also 18 U.S.C. §3661,
which provides that all evidence is admissible at sentencing.
We could create an “egregious violation = suppression” rule
only at the expense of holding §3661 unconstitutional as ap-­‐‑
plied, a step no court of appeals has taken.
Judges regularly remark the limits of their holdings. In
addition to footnote 4 in Brimah, this court has several times
observed that it was unwilling to suppress evidence at sen-­‐‑
tencing when the defendant had not shown that the police
knowingly violated the Constitution for the purpose of jack-­‐‑

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No. 13-­‐‑1301 3
ing up the sentence. See, e.g., United States v. Perez, 581 F.3d
539, 544 (7th Cir. 2009); United States v. Krueger, 415 F.3d 766,
780 (7th Cir. 2005). But we have never held that such a pur-­‐‑
pose does justify suppression at sentencing. Turning a reser-­‐‑
vation of an issue into a holding that a police officer’s mental
state could lead to suppression would violate the Supreme
Court’s strongly expressed view that the fourth amendment
is administered objectively, without regard to police officers’
thoughts or beliefs. See, e.g., Kentucky v. King, 131 S. Ct. 1849,
1859 (2011), which quotes and cites earlier decisions. And
this court has consistently rebuffed arguments that manipu-­‐‑
lation of events by police or prosecutors to get higher sen-­‐‑
tences justifies disregarding evidence in the name of the fifth
amendment or a common-­‐‑law doctrine of “sentencing ma-­‐‑
nipulation” or “sentencing entrapment”. See, e.g., United
States v. Long, 639 F.3d 293, 300–01 (7th Cir. 2011); United
States v. Turner, 569 F.3d 637, 641 (7th Cir. 2009); United States
v. Garcia, 79 F.3d 74, 76 (7th Cir. 1996). The rationale of those
cases applies equally to contentions that searches and sei-­‐‑
zures were designed to yield longer sentences.
So Sanders cannot get mileage from the fact that particu-­‐‑
lar issues have been reserved or bypassed in earlier cases. To
succeed on this appeal, he must persuade us to create an
“egregious violation” exception to the doctrine that the ex-­‐‑
clusionary rule does not apply at sentencing. There are at
least four obstacles to that proposal.
First, although the Supreme Court regularly asks wheth-­‐‑
er the exclusionary rule applies to one or another stage of a
proceeding—to the prosecution’s case in chief, to cross-­‐‑
examination, to immigration proceedings, to OSHA investi-­‐‑
gations, and so on—the Court has never held that the an-­‐‑

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4 No. 13-­‐‑1301
swer is “sometimes.” The rule applies, or it does not. It ap-­‐‑
plies to the prosecution’s case-­‐‑in-­‐‑chief and to the cross-­‐‑
examination of most witnesses, but not to cross-­‐‑examination
of the defendant. See James v. Illinois, 493 U.S. 307 (1990) (dis-­‐‑
tinguishing the defendant personally from other witnesses).
It does not apply to immigration proceedings. INS v. Lopez-­‐‑
Mendoza, 468 U.S. 1032 (1984). Sanders wants us to create a
novel distinction between “ordinary” and “egregious” viola-­‐‑
tions that lacks any support in the holdings of the Court that
created the exclusionary rule and defines its scope. (Lopez-­‐‑
Mendoza reserved decision on the question whether egre-­‐‑
gious misconduct could justify suppression, 468 U.S. at
1050–51, but we have explained why reserving a question
does not equal a holding.)
Second, the Supreme Court has held that the exclusion-­‐‑
ary rule does not apply to evidence obtained by officers who
reasonably rely on a warrant, see United States v. Leon, 468
U.S. 897 (1984), or make certain kinds of negligent errors, see
Herring v. United States, 555 U.S. 135 (2009). The search of
Sanders’s house was authorized by a warrant. That makes it
difficult to see any space between ordinary and egregious
violations of the fourth amendment for the purpose of sen-­‐‑
tencing. If the violation had been an ordinary one, then un-­‐‑
der Leon the evidence would have been admissible for all
purposes. After decisions such as Leon and Herring, a doc-­‐‑
trine that “the exclusionary rule does not apply at sentencing
except for egregious violations” would come to much the
same thing as “the exclusionary rule applies at sentencing in
the same way it does at trial.”
Third, it is hard to understand how an “egregious” viola-­‐‑
tion could be defined in a way that is both administrable and

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No. 13-­‐‑1301 5
distinguishes severe from other violations. An epithet differs
from a rule of law. Sanders contends that his own situation
illustrates an “egregious” violation, but we doubt it.
After Sanders was arrested while in possession of mari-­‐‑
juana, a state judge issued a warrant to search his home. The
application described the arrest and the drugs found on or
near Sanders; mentioned that he had prior drug-­‐‑related
charges; stated that an informant had set up a purchase of
cocaine from Sanders but that the transaction fell through
after the informant did not appear with the cash (though
Sanders himself showed up); and asserted that one officer
had smelled the odor of marijuana near Sanders’s home. The
district judge suppressed the evidence after concluding that
the affiant had recklessly omitted the information that a
drug-­‐‑detection dog near the building had not alerted to the
odor of drugs. Sanders wants us to treat the omission as an
“egregious” violation. Yet there are shades of recklessness;
only one equates to intent, see Farmer v. Brennan, 511 U.S.
825 (1994), and it is not clear that all “intentional” violations
of the fourth amendment should be deemed “egregious.”
Indeed, it is not clear to us that any violation of the fourth
amendment occurred in the search of Sanders’s home. Un-­‐‑
fortunate though the omission of the information about the
dog may have been (the omission might support an infer-­‐‑
ence that the officer who claimed to smell marijuana was ly-­‐‑
ing, though more marijuana was found when the warrant
was executed), the remaining evidence was strong. Sanders
had been arrested with marijuana on his person (and was
later found to be hiding more marijuana and a distribution
quantity of cocaine in his rectum) and had not only agreed to
sell cocaine to an informant but also appeared at the site ar-­‐‑

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6 No. 13-­‐‑1301
ranged for the sale. Why would it be unreasonable to think
that he had some of his inventory at home? The omission of
exculpatory information from a warrant application does not
spoil the search, if what remains shows probable cause. See
Franks v. Delaware, 438 U.S. 154 (1978). The United States has
not contended that the district judge erred in ruling that the
cocaine would have been suppressed had there been a trial
(which Sanders’s guilty plea prevented), but neither has it
conceded that this warrant was so obviously invalid that any
reasonable officer would have understood that the search
was impermissible.
Fourth, an “egregious violation” exception is not neces-­‐‑
sary to deter officers from violating the fourth amendment—
and deterrence is the goal of the exclusionary rule. When a
violation of the fourth amendment really is beyond the pale,
the offending officers will be liable in damages. Qualified
immunity protects officers who commit “ordinary” viola-­‐‑
tions of the fourth amendment, but not those who wilfully or
blatantly violate the Constitution. See, e.g., Malley v. Briggs,
475 U.S. 335, 341 (1986) (in suits alleging violations of the
fourth amendment, qualified immunity “provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law”). Given officers’ qualified im-­‐‑
munity, it would be easier to conclude that “ordinary” viola-­‐‑
tions should lead to suppression in sentencing proceedings,
in order to preserve deterrence, see United States v. Jewel, 947
F.2d 224, 238–40 (7th Cir. 1991) (concurring opinion), than to
conclude that suppression is essential to deter “egregious”
violations while others go unchecked.
The exclusionary rule does not apply at sentencing. An
“egregious violation” exception is not necessary to deter vio-­‐‑

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No. 13-­‐‑1301 7
lations, as long as damages are available. The district judge
did not err in following §3661 and considering the evidence
found during the search of Sanders’s home. The judgment
therefore is
AFFIRMED.

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