New Texas Court Case May Allow Police to Search Your Home Without a Search Warrant or Your Okay

On television, the police cannot come into your home without (1) a warrant or (2) your approval and consent — unless they’ve got a really, really good reason (like they can see someone on the living room floor unconscious by looking through the no-curtained window). Perhaps you learned in class while in high school or college that part of the search and seizure protections provided by the federal constitution (not to mention state law limiting the scope of police powers) was the need to get a search warrant before going into someone’s private home to search it for suspected criminal wrongdoing.

After a recent court decision that has come down from the highest criminal court in the State of Texas, this may no longer be the reality for those of us living and residing in the Lone Star State.

Some are comparing the new Texas CCA opinion to the Tom Cruise movie, Minority Report.

Wehrenberg v. State: the New Texas Court of Criminal Appeals Exception to Search and Search Law

Recently, the Texas Court of Criminal Appeals made new law for all Texas when the majority of the CCA’s justices okayed a legal exception to the standard rule that excludes evidence in state law enforcement searches and seizures when the defense demonstrates that there has been police misconduct in the search itself.  (Read the full text of Wehrenberg v. State here.)

The Texas statutory exclusionary rule had no exceptions in its statutory language. The Court of Criminal Appeals has judicially created one.

What Happened Here?

In the case itself, some officers in the narcotics department down in Parker County, Texas, had a confidential informant (”CI”) who gave them a ring about a house that the officers had been watching for around a month as part of a drug sting operation. The officers suspected there was a meth lab in the place. The CI called to let them know that rumor had it there was going to be some methamphetamine being cooked up there in that house that very evening.

Hours passed from when the CI made that call to the police. In the middle of the night (about 12:30 am according to the court opinion), the police marched up to the home’s front door and entered the place — no search warrant, no consent from anyone inside.

Once the police got in the place, they found some folk and they handcuffed all of them, and took them into the front yard. Then the police “performed a protective sweep of the residence” (again, quoting the opinion) and found no meth being cooked in there.

Now, the police prepared a search warrant affidavit, which mentioned the CI’s phone tip but omitted the fact that they’d already gone into the residence and searched it.

From the opinion:

In relevant part, the affidavit stated that the informant had “provided information detailing narcotics manufacture and trafficking” at appellant’s residence and had, within the past 72 hours, “personally observed the suspected parties in possession of certain chemicals with intent to manufacture a controlled substance.” The affidavit additionally stated that, according to the confidential informant, the subjects were planning to use the “shake and bake” method of manufacturing methamphetamine, which the affiant described as “fast” and “often utilized to prevent detection of the illicit laboratory by law enforcement personnel.”

At 1:50 a.m., approximately one-and-a-half hours after the officers’ initial entry into the residence, the magistrate signed the search warrant. Police officers conducted a search of the residence and discovered methamphetamine and implements for manufacturing methamphetamine. Appellant was arrested and charged with possession of chemicals with intent to manufacture methamphetamine.

Notice how the judge who signed that search warrant was not informed by the language of the affidavit that supported getting that search warrant under the law that the police had already (1) taken custody of everyone in the place and held them in the front yard; and (2) entered the home already to look around.

Based upon this search, Mr. Wehrenberg was arrested for a second degree felony. He was later convicted, and appealed his conviction based upon this violation of search and search law.

Which brought Mr. Wehrenberg to the Texas Court of Criminal Appeals and the new ruling we are all dealing with now.

In lawyer-speak, the majority opinion overturned the Fort Worth appellate court (the Second Court of Appeals) which had excluded the evidence from the search. The Court of Criminal Appeals ruled (with a dissent from Meyers) the CI’s phone tip was an “independent source” for the search warrant which allowed the evidence to be admitted. This, even though Texas’ statutory exclusionary rule has no such hook upon which to hang this hat. They got there by looking to federal law, where an “independent source doctrine” has been created by the courts — and dismissing the analysis of the Fort Worth appeals court which had determined that the federal law’s “independent source” concept conflicted with Texas’s exclusionary rule and should not apply.

What Does This Mean to Texas Criminal Evidence From a Search and Seizure Now?

Well, the prosecutors across the state are happy. Labelling Wehrenberg v. State as their “case of the week,” the Texas District and County Attorneys’ Association explained the case as:

The Court of Criminal Appeals held that the federal “independent source” doctrine is applicable in Texas. Like the attenuation doctrine, the independent source doctrine does not violate CCP Art. 38.23 because evidence that is initially discovered through illegal means is later legally acquired through the independent source.

Criminal defense attorneys are not taking the same view of this new opinion. Many are describing this as allowing illegal searches where the police are going to be able to enter someone’s home merely on the PREDICTION of a crime that may happen in the future. The Huffington Post coverage compares this situation to the futuristic Tom Cruise movie Minority Report.

Perhaps the concern is best explained in language found in the dissenting opinion of Judge Lawrence Meyers:

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.

Bottom line, this new opinion provides police with opportunities to do bad things, and Texas criminal defense lawyers – both pre-trial and in appeals of convictions – must be extremely aggressive and vigilant in fighting against evidence coming into trial for any police search and seizure.

For more on the changing ability of police to search your home, car, or person, read our other blog posts dealing with search and seizure law developments.


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