Dallas Observer -by Eric Nicholson
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.
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.
http://blogs.dallasobserver.com/unfairpark/2013/12/parker_county_meth_search_warr.php
Hello! Round Rock, TX Police do this all the time. They did this to me, too. The cop wanted to search my car, so when I refused and asked for a search warrant, he arrested me for interfering with a public servant and got a search warrant AFTER I was placed under arrest and even he typed it out right in front of my face in the squad car. In which case, I told them it was illegal and he just states, “There you go again, thinking you know the law better than me”. May he rot in Hell!
By the way, he found nothing in my car because there was NOTHING in my car to begin with! He just wanted to harass me with his “I’m a cop and you will respect my authority” ego!
Hey NC,
You Rest assured that his day is coming as in if Karma dont eliminate this sumb%$#h justice will,we reap what we sow on this journey ol buddy and there aint no getting away from that fact as its in the Book. Do you carry any kind of recording device as lately it seems to instill the beginnings of manners in these costume wearing nothings. I carry an old, dont even work anymore mini cassette recorder thats about the size of a cigarette pack and make a big deal out of turning it on and stating their line”if you dont have nothing to hide you have nothing to worry about”,might not work in texass as I lived in houston for quite a few yrs and their’s is a different mentality for sure.
Steve
In my situation, the bastard would have just taken it away, erased the info. and declare it inadmissible as evidence and recite some made up wiretapping law. It would have made zero difference. These guys do what they want regardless.
the Feds use all the extra legal and illegal methods at their disposal, to help the state, or locals, achieve a conviction. With the odds stacked against us like that, never surrender to anyone. The massive and growing corruption has ended all constitutional protections. The choice becomes simple; gamble with your future in a corrupt system , or reach for a cartridge box.
I still don’t agree with drug producing and meth is dangerous and ugly, but we have ways of doing these things right, and this raid was done wrong and should be thrown out, it shows they are not following the rule of law, so whats OUR incentive to follow the rule of law?..nothin’
careful what you wish for cops
As much as I detest the motives and methods employed by our local heroes in this case, I can’t say the result offends me. The purpose of the exclusionary rule is to force adherence to the warrant requirement of the Fourth Amendment. Here, it did what it is supposed to do. It obviously didn’t keep them from raiding the joint, but it did force them to get a warrant. The warrant was based on only the hearsay of a CI, not any observations made during the warrantless invasion of the defendant’s property.
Like it or not, warrants based on the hearsay of CIs (sometimes known as “rats”) have long been a part of the system, with no sign that their inherent flaws are going to be curbed. So, if you need anything to dislike about this case, dislike (as do I) that the warrant was based upon the hearsay of an absent witness, NOT the oath or affirmation of someone before the court, which one might argue the Fourth Amendment requires.
It takes two to tango in the Fourth Amendment ballroom: the police must seek out a judge, who reads the affidavit (maybe like Congress read the healthcare bill), maybe asks some questions of the heroes, and signs the warrant, if there is probable cause to believe a crime has been committed and evidence of it can be found. For example, a judge might have inquired how the CI knew they were “fixin” to cook meth. Did he see any meth-related materials on the premises? Was mere possession of the materials and/or equipment a crime? We don’t know what either the CI or the judge knew and when he knew it. Or that the judge cared, particularly.
A prosecution career being (too) many times the fast track to judicial office, there may be only one-and-a-quarter or -a-half tangoing, but thats a different problem from whether this was an unreasonable search. Like some used to say about the Panama Canal, “We stole it fair and square.” I regret to say that our local heroes did so here, as well. You may dislike, as do I, this aspect of the case, by all means!
It should be borne in mind that the police presence in the home was NOT based on any warrant, any consent, or any exigent circumstance (safety, emergency, etc.) and, as such, amounted to nothing less than a burglary, home invasion, trespass, assault, or battery, for which remedies exist in both civil and criminal courts. I certainly won’t hold my breath ’til those remedies are applied, however, if past history is any indicator of the future. I invite you to dislike this aspect of the case, as well.
But give credit where credit is due: the Fourth Amendment and exclusionary rule did force police to at least seek and obtain a warrant, albeit under the marshmallow legalities and practicalities fashioned by court decisions to date. If they end up paying big bucks in a subsequent civil suit, more the better.
Thanks for the opportunity to be heard.
WRONG!
The CIA is an unconstitutional police agency. There is zero authority in our Constitution for our employees to create police agencies to enforce their statutes, which cannot be enforced upon an American national. And sure as hell no seditious agent, conceived through an act of treason, can swear out a warrant against an American national. Their law within the Constitution is not the people’s law. Outside the Constitution, we the people are sovereign and self governing.
So, unless an American national, not acting as an unconstitutional agent, presents a judge with two affidavits showing that an infringement against that person has occurred, there can be no warrant issued….. if there was law in this country… which there is not. Color of law is color of law and you are off base in implying otherwise.
This insanity will be “ever forthcoming” as long as we allow it.
I have a prediction I predict these traitors are going to hang.
Every last one of them.