(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).

Other

POST CON - GROUNDS - SENTENCE - JUDICIAL MISCONDUCT TO CONSIDER INAPPROPRIATE FACTORS AT SENTENCE
At sentencing, the court sometimes makes legal errors. In addition, the judge sometimes takes into account inappropriate considerations in imposing sentence, to which counsel must object or the error is normally waived. See People v. Scott, 9 Cal.4th 331, 353 n.16 (1995)(defense counsels failure to object to sentencing errors bars raising those errors on appeal except for errors considered jurisdictional). For example, it is judicial misconduct to make negative remarks about the defendant being on welfare and fathering children out of wedlock. People v. Bolton, 23 Cal.3d 208, 217 (1979). The court may not threaten to have the defendants castrated. United States v. Duhart, 496 F.2d 941 (9th Cir. 1974) (judge stated he could put defendant in same room with husbands of sex offense victims and possibly cut "something" out of the defendants body).