Posted on 03/23/2014 6:34:06 PM PDT by Altariel
Texas prosecutors are applauding a decision by the State Court of Criminal Appeals that provides police officers a second chance to present evidence which has been gathered contrary to Texas law and the 4th Amendment. The ruling literally offers law enforcement a “do-over,” an opportunity to secure a search warrant AFTER a home has been illegally searched, and AFTER evidence has been improperly obtained.
In 2010, police in Parker County, Texas received a call from a confidential informant (CI) who claimed that Fred Wehrenberg and a number of associates “were fixin’” to cook meth. Hours after the call–at 12:30 A.M the following day–police entered the Wehrenberg home without a warrant and against the wishes of Wehrenberg. Police handcuffed all of the occupants, held them in the front yard, and proceeded to perform what the officers described as a “protective sweep” of the residence. An hour and a half later, after finding no meth being made on the premises, police prepared a search warrant affidavit and secured the warrant.
In the affidavit, police stated that information concerning Wehrenberg’s activities had been provided by a confidential informant. However, “…the judge who signed that search warrant was not informed by the language of the affidavit…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.”
During this 2nd search of Wehrenberg’s home, performed after receipt of the warrant, police seized “…boxes of pseudoephedrine, stripped lithium batteries, and other meth-making materials.” Clearly, this evidence had been discovered prior to procuring the warrant and reported only AFTER the warrant had been awarded.
Thanks to the evidence collected during the 2nd search, Wehrenberg was convicted of a 2nd degree felony. He appealed the conviction, given the clear violation of his 4th Amendment rights AND Texas’ own exclusionary rule that bans illegally collected evidence being introduced at trial. But although the Texas Second Court of Appeals upheld the Wehrenberg appeal, the Criminal Appeals Court later reaffirmed the decision of the trial judge, who cited as his grounds to reject Wehrenberg’s appeal the federal Independent Source Doctrine “…a legally questionable concept that permits illegally seized evidence that was mentioned to police by a third party beforehand.” (That is, by the CI.)
Writing for the majority, Criminal Appeals Court Judge Elsa Alcala agreed 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.” (Fine. But may police perform a warrantless search in order to determine BEFOREHAND whether the desired evidence is actually there?)
What does this ruling mean? It means that police have a trump card once a CI has provided a tip, even about a crime that has not yet been committed but MAY be in the future. Warrants and rules of evidence may be ignored, and a decision to follow the law–that is, obtain a warrant–may be made AFTER an initial search.
Court of Criminal Appeals Judge Lawrence Meyers, the only Court judge to dissent, wrote: “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.” “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.”
Apparently, all Texas police require to search a home, indefinitely detain its occupants, and THEN ask that a warrant be issued is a confidential informant.
What has happened to our 4th Amendment rights?
The statists are at it again, trying to transform Texas ping.
Is there probably cause when the issue is a meth lab? Have you seen what happens to a meth lab gone bad? boooom....
Apparently, all Texas police require to search a home, indefinitely detain its occupants, and THEN ask that a warrant be issued is a confidential informant. …Sounds just like Soviet Russia. So where is Rick Perry on this?
no way... in Texas? can’t be... not in Texas... say it isn’t so, Joe...
That’ll.get over turned....
Let’s not forget the supreme court ruled that the 5th amendment no longer applies in that your silence can be used against you.
I wish I shared your confidence on that. The trend lately has been towards statism.
Insane court rulings are a great danger to America
I think you’re cooking meth. We don’t want your house to go boom, do we? Let’s just search it then. Oh you weren’t cooking meth. Sorry! We’ll get those guns back to you a few years after you fill out the paperwork.
I bet I can get someone to say that Hairless Reid, Nazi Pelosi and Zero have meth labs in their basements. Just look at the way they act!
This is the same disease that permits these idiotic and unconstitutional ‘DUI’ checkpoints. The courts KNEW that there was no legal basis for them, they outright said so in rulings, but faced with the prospect of overturning hundreds of DUI convictions, at least 5 murder convictions, and other major felonies, the courts chickened out, and then started providing ‘guidelines’ to officers which they outright ignore.
It is the same decision that Governor Mitt Romney faced when the Massachusetts State Supreme Court played chicken: could he let the state no longer regulate marriages to protect marriage from the ruling? The answer was no, and he caved to legislation from the bench.
It takes a strength of conviction to stand up and be counted when faced with such questions, a strength that has been leeching out of our society with every passing year.
The best way to fight this chain of events is to make laws that make it a crime for officers to back door evidence discovery, and then go after officers who do try to ignore the will of the people. For cities to outlaw DUI and license checkpoints, and make it a felony to pull over people without probable cause.
The courts may be insane, but in the end, no matter what people may state on this forum, there is no way to govern the United States without the consent of the people. No billion bullet stashes will change that.
Transform my foot.
The problem has always been with the law and order conservative fetishists in Texas.
It was their kind throughout the country that gave us the Drug war and all its constitutional violations.
Don't count on it. Scalia and the other court conservatives rarely see a police tactic they don't approve of.
When was that? What case?
Salinas v. Texas, June 2013.
I’m taking Texas off my list of places to live.
Are the judges on this case conservatives?
It’s true your statement re police tactics the Atwater case via SCOTUS conservatives gave police the right to arrest on a misdemeanor alone
Now we have jaywalk arrests...it SUCKS!
Nothing like rewarding shoddy police work!
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