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Judge: In Texas, Search Warrants Can Now Be Based on a "Prediction of a Future Crime"

Police in Parker County had been watching Michael Fred Wehrenberg's home for a month when, late in the summer of 2010, they received a tip from a confidential informant that Wehrenberg and several others were "fixing to" cook meth. Hours later, after midnight, officers walked through the front door, rounded up the people inside, and kept them in handcuffs in the front yard for an hour and a half.

The only potential problem, at least from a constitutional standpoint, was that the cops didn't have a search warrant. They got one later, before they seized the boxes of pseudoephedrine, stripped lithium batteries, and other meth-making materials, while the alleged meth cooks waited around in handcuffs, but by then they'd already waltzed through the home uninvited. They neglected to mention this on their warrant application, identifying a confidential informant as their only source of information.

Wehrenberg's lawyers argued during materials that the seized materials had been taken illegally and shouldn't be allowed as evidence. The motion was denied -- the trial court cited federal "independent source doctrine," which allows illegally seized evidence a third party told them about beforehand -- and Wehrenberg pleaded guilty to one count of possession and one count of intent to manufacture, getting five years in prison.

See also: Texas' Highest Criminal Court Overturns Ban on "Titillating Talk" With Minors

The Second Court of Appeals in Fort Worth wasn't so eager to overlook what appeared to be a clear case of police misconduct and overturned the lower court's ruling.

But it's the Texas Court of Criminal Appeals that has the final say, and last week they agreed with the trial court. In a majority opinion, Judge Elsa Alcala wrote that, while Texas' "exclusionary rule" bans illegally seized evidence from trial, federal precedent dictates that it can be introduced if it was first confirmed by an independent source.

Find out what experts say about the case after the jump.

 

Grits for Breakfast's Scott Henson, who first reported the case, isn't sure how significant the decision will prove to be on the ground.

"But the actions of police in the case don't pass the smell test," he writes. "If their informant was so credible, why not go to the judge for a search warrant in the 3-4 hours before their illegal entry? The judge was available in the middle of the night, so there's little basis to believe they couldn't have gotten it earlier. And why conceal the fact that they'd already swept the house and detained the suspects in the search warrant application if everything was on the up and up?"

He has a kindred spirit in CCA Judge Lawrence Meyers, who was the only justice to dissent. As Meyers wrote, "it is obvious to me that this search warrant was obtained based upon the officers' unlawful entry into [Wehrenberg]'s residence."

There was more than enough time to secure a search warrant before the officers' intrusion into the premises, but they deliberately chose not to attempt to obtain it until after they had conducted the unlawful entry. Further, had the officers entered the home and found the occupants only baking cupcakes, the officers would not have bothered to then obtain the warrant at all. It was only after unlawfully entering and finding suspicious activity that they felt the need to then secure the warrant in order to cover their tracks and collect the evidence without the taint of their entry.

In addition, Meyers argues that the confidential informant's report that Wehrenberg was "fixing to" cook meth wasn't independent evidence but a prediction of a future crime. The majority's decision, he writes, means that "search warrants may now be based on predictions of the commission of future crimes," which is an uncomfortable concept to say the least.

Update on December 19: Lisa McMinn, the attorney who prosecuted the appeals case on behalf of the state, takes issue with Meyers' opinion. Only natural, given that that's her job, but she says Meyers is mistaken on a matter of fact.

The only issue before the Court of Criminal Appeals was the search warrant. The search warrant wasn't based on the "fixing to cook methamphetamine" statement-- only on the chemicals the confidential informant had previously seen at the house.

"The search warrant wasn't based on the "fixing to cook methamphetamine" statement-- only on the chemicals the confidential informant had previously seen at the house," McMinn writes.

She quotes from the search warrant.

The source further detailed, that within the past 72 hours, the source personally observe the suspected parties in possession of certain chemicals with intent to manufacture a controlled substance....The sourse detailed personally observing the suspected parties involved in the preparatory stages of the illicit manufacturing of the controlled substance methamphetamine.

The source reported seeing meth-making chemicals and "illicit laboratory items" like ammonia, rock salt, lithium batteries, clear tubing, pseudoephedrine, funnels, possible drain cleaner containing sulfuric acid, at Wehrenberg's house.

Further your Affiant relays that within the past 72 hours, the source personally observed the suspected parties in possession of a useable amount of methamphetamine at the suspected place.

Send your story tips to the author, Eric Nicholson.


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