Stems from case in which police conducted an illegal entry prior to obtaining warrant
December 18, 2013
A ruling by the Texas Court of Criminal Appeals last week opens the door for Texas law enforcement to obtain search warrants “based on predictions of the commission of future crimes,” an appeals judge
The ruling came in the 2010 case of a man who police allege was “fixing to” cook methamphetamine.
Parker County police had been staking out suspect Michael Fred Wehren’s house for over a month.
When an informant tipped them off that Wehren and others were preparing to manufacture a batch of meth, police entered the home after midnight and detained Wehren and his friends outside his home in handcuffs.
Police then entered the home and located pseudoephedrine, stripped lithium batteries and other materials typically used to cook meth.
Only after police illegally entered Wehren’s home did they secure a search warrant from a judge. Of course, their request made sure not to mention the fact they had already entered the house and seized what they were looking for.
During trial, Wehrenberg’s lawyers argued the evidence was inadmissible as it had been obtained through deceptive means.
“The motion was denied,” writes Eric Nicholson for the Dallas Observer, adding, “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.”
Wehren’s lawyers appealed the verdict to the Second Court of Appeals in Fort Worth on the grounds that evidence used to convict him should have initially been excluded.
While that court sided with Wehren’s lawyers, judges with the Texas Court of Criminal Appeals, which ultimately has the final say, agreed with the trial court’s decision, saying the confidential informant’s tip could be construed as being within the guidelines of the federal “independent source doctrine.”
One judge offered a sound basis for dissenting with the majority, ominously concluding the ruling meant “search warrants may now be based on predictions of the commission of future crimes.”
“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,” wrote Judge Lawrence E. Meyers in his dissenting opinion.
“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.”
“Further,” Meyers continued, “even if the search warrant was based exclusively on the confidential informant’s information, it still would not be valid. The informant’s tip that Appellant and his group were ‘fixing to’ cook methamphetamine that evening was a prediction of a future crime rather than an assertion that a crime was being or had been committed. Probable cause for a search warrant cannot be based on anticipation of a prospective crime.”