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?
We suspect you are cooking meth, Citizen. What, no meth? Well, we’re going to seize your laptop, your firearms and your cash.
The cash was almost certainly acquired from a drug deal, the laptop undoubtedly has illegal content and the firearms, well, no citizen needs those when the Agents of the State are armed!
Cart before the horse? This invites fishing expeditions and abuse and is devoid f common sense. Another judge exercising bad judgment. Seems to be the norm lately...
Meth is a plague but I’m not willing to sacrifice the 4th amendment to prosecute its making.
“That’ll.get over turned....
Don’t count on it. Scalia and the other court conservatives rarely see a police tactic they don’t approve of.”
Oh this is too easy then.....Call the police as a CI and say that you know (Insert name of judge)’s son is about to cook up some Meth.
You have a right to face your accuser. So who is the CI? Was it data mining purchases? Or an actual person?
Actually it will be a Petition to SCOTUS.
Appeals from a state’s highest court go directly over to SCOTUS.
If they take a hard look at this I do think it is a good chance to revisit the Independent Source Doctrine.
The ruling was based on shaky SCOTUS precedent, and the court completely ignored the Texas law and Constitution which actually grant more protections than the 4th Amendment alone.
I’m a Texas defense attorney and former prosecutor.
This ruling cannot be allowed to stand. The opportunity for abuses by cops was bad enough before this ruling.
Lots of people are going to be the victims of illegal fishing expeditions in the form of raids.
God help us.
Thanks, Clump
Good point. The feds can now come in for suspicion of an action, seize and search. If they find anything illegal, now they can get a retroactive search warrant. If they find nothing illegal, suspicious amounts of cash can still be seized and kept. Civil forfeiture, I think.
Either way, they can take your property and you have legal recourse.
The scary thought is that they can even seize your assets and the court has said that holding all your money prior to a trial so you can’t hire a good attorney isn’t a violation of your rights. You can get a cheap and inexperienced public attorney just like everyone else.
This is not good. How is this happening in Texas? Is it the libs?
Judge Elsa Alcala, Texas Court of Criminal Appeals
Place 8 (R)
http://www.texastribune.org/directory/elsa-alcala/
Full Name: Elsa Alcala
Education: B.A. Texas A&I University of Kingsville, 1986; J.D. University of Texas at Austin 1989
Spouse: Dan Spjut
Financial Statements
Year:
Election Info
2012 General Election
Won with 78.07% of vote
2012 Republican Party Primary Election
Won with 100.00% of vote
Political Profile
Current Office: Texas Court of Criminal Appeals
Place: 8
Party: Republican Party
Term Expiration: 2018
Term Length: 6 years
Salary: $150,000 per year
Contact Info
Website: judgeelsaalcala.com
Facebook: Fan Page
Republican judge.
I don’t know whether this judge claims to be a conservative, but I know she is a registered Republican.
Isn't it great how Tyrannical Democrat judges & Tyrannical Republican judges complement each other in imposing Tyranny?
If a Democrat wants to ignore the Constitution in one place, a Republican will be happy to ignore it somewhere else. When it comes to shredding the Constitution in the name of expediency, there's often not a dime's worth of difference between the two.
Kinda gives me a warm feeling...</sarc>
There are many of us in Texas who know this state isn’t as “red” as people think.
Police here in Texas are just as thuggish and they are anywhere else. They make up “facts” given to them by made up confidential informants. The word “confidential” means they don’t have to identify the person. In other words, you don’t get to confront your accuser. Cops are out of control all over this country.
I wonder how much cash and how many rounds of ammo a person would need to have for a cop to consider it suspicious.
Thanks, I had forgotten that one. No majority opinion, and Alito's plurality was very fact-intensive, but the concurrence by Scalia and Thomas is downright scary. The four liberals got it right for a change.
Police here in Texas are just as thuggish and they are anywhere else.
Since when has Republican been synonymous with libertarian?
Plenty of conservatives on this forum love law and order above liberty.
"Red" states are traditionally more pro-prosecution in criminal cases than "blue" states.
texas better get its sh1t together or else the term “hangin’ judge” is gonna take on a whole new meaning.
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