Judge: In Texas, Search Warrants Can Now Be Based on a "Prediction of a Future Crime"

MethLabKOMU.jpg
KOMU News
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.

Find out what experts say about the case after the jump.

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.

Update on December 19: Lisa McMinn, the attorney who prosecuted the appeals case on behalf of the state, takes issue with Meyers' opinion. Only natural, given that that's her job, but she says Meyers is mistaken on a matter of fact.


The only issue before the Court of Criminal Appeals was the search warrant. The search warrant wasn't based on the "fixing to cook methamphetamine" statement-- only on the chemicals the confidential informant had previously seen at the house.

"The search warrant wasn't based on the "fixing to cook methamphetamine" statement-- only on the chemicals the confidential informant had previously seen at the house," McMinn writes.

She quotes from the search warrant.

The source further detailed, that within the past 72 hours, the source personally observe the suspected parties in possession of certain chemicals with intent to manufacture a controlled substance....The sourse detailed personally observing the suspected parties involved in the preparatory stages of the illicit manufacturing of the controlled substance methamphetamine.

The source reported seeing meth-making chemicals and "illicit laboratory items" like ammonia, rock salt, lithium batteries, clear tubing, pseudoephedrine, funnels, possible drain cleaner containing sulfuric acid, at Wehrenberg's house.

Further your Affiant relays that within the past 72 hours, the source personally observed the suspected parties in possession of a useable amount of methamphetamine at the suspected place.

Send your story tips to the author, Eric Nicholson.

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263 comments
nick11766
nick11766

Most search warrants are pro-forma garbage, this is par for the course.  Corrupted search warrants (when the useless cops even bother with them), yet another violation of our rights.   The gov’t constantly violates our rights. 

They violate the 1st Amendment by caging protesters and banning books like “America Deceived II”.

They violate the 4th and 5th Amendment by allowing TSA to grope you.

They violate the entire Constitution by starting undeclared wars.

Impeach Obama.

Last link of “America Deceived II” before it is completely banned:

amazon com/America-Deceived-II-Possession-interrogation/dp/1450257437


dw.dude
dw.dude

minority report and future crime...not such a far out idea, eh?

CMET
CMET

We have a Constitution for a reason. It has to mean something, not just when it says what we like, but when it says what we can't stand or it's worthless.

dexteroustext
dexteroustext

This headline is a bit misleading, considering that a crime had already been committed: possessing all materials necessary to make methamphetamine. That the suspects involved merely had not put everything together to make the necessary chemical reactions yet is irrelevant because already harboring that stuff is a crime.The police had been watching these guys do the very same thing for a while, so I think it's fair to say that they would be engaging in the same activity with that stuff as they do every night.


Considering how large this drug manufacturing problem has gotten in the U.S. and how much it damages land, real estate, water, and sewer, I'd say this is a step in the right direction for methamphetamine cases, personally speaking. and I support law enforcement and the judicial system on this. Come on, Texas, set precedent for Southern California because we could sure use the help. This meth stuff is everywhere and me and everyone I know is sick of not having enough rights to get it out of our neighborhoods. It's ruining everything.

SavageNation
SavageNation

To follow the Equal Protection Clause of the Constitution, the police will have to pre-arrest practically every politician elected to office in Texas, for FUTURE CRIMES against the Taxpaying Citizens! 

Be careful what you wish for, you might just get it. 

threekeyselections
threekeyselections

Joe Biden, then a U.S. Senator,  told Supreme Court Chief Justice John Roberts during his confirmation hearings that he would be ruling on "implantable micro chips to track a person's every move" and "Pre Crime Brain Scanning".  Here, watch for yourself...


https://www.youtube.com/watch?v=DA5AJttX8II

bobd
bobd

That's fantastic!  And as most serial killers are old white men I propose we start by searching the homes of the old white men serving in the Texas judicial system.  We may find a body or two, who knows.

TXfalt
TXfalt

I was convicted in Parker County back in 2004 at the age of 17 for delivery and possession.  You would not believe the corruption back then of the joint task force: CROSS TIMBERS.  They  were disbanded years later after they were discovered to actually be cooking meth.


At the time I did not live in Parker County, Cross Timbers wanted me to become a snitch.  They offered me an apartment and living cost if I would enroll in the local HS and become an informant to find out where a surge of MDMA was coming from.  They had 4 kids at the school die that year from overdoses.  Much more to this whole story, it is unreal what they were capable of.


Parker County, one of the most corrupt counties in Texas, guaranteed.


NOTE: Since my teen years I have grown and learned much.  Currently a working, law abiding, well grounded individual that moves in a positive direction and only wants the best for my family and country.  Long live the tree of Liberty!

TXfalt
TXfalt

I was convicted in Parker County back in 2004 at the age of 17 for delivery and possession.  You would not believe the corruption back then of the joint task force: CROSS TIMBERS.  They  were disbanded years later after they were discovered to actually be cooking meth.


At the time I did not live in Parker County, Cross Timbers wanted me to become a snitch.  They offered me an apartment and living cost if I would enroll in the local HS and become an informant to find out where a surge of MDMA was coming from.  They had 4 kids at the school die that year from overdoses.  Much more to this whole story, it is unreal what they were capable of.


Parker County, one of the most corrupt counties in Texas, guaranteed.

scottintexas
scottintexas

How about crimes by this govt against its people?  Did the Judge address those or is he just a govt shill?  The voters MUST start getting rid of these terrible Judges.

frankz00
frankz00

They might as well throw all of FBI in jail now then!

rambo2_981
rambo2_981

I smell DNA swabbing on every corner in Texas.  Cmon Texas, wake up.

rgharry2
rgharry2

Control--BAAL, Moloch and kin will rule all, the Control will be total. I am sure the police and courts in Parker County believe they are doing the right thing. I am sure they are nice to their superiors, their families and 'substantial' citizens. But as they seek unjustified power over others they ARE NOT good people. If they decide you are a bad guy THEY get to make the decision you can not buy and sell.


But this is all predicted, every last bit of it.

ss101
ss101

Then why don't they use this "logic" at the TSA lines at the airport?  But wait, targeting 20-something Muslim men, would be "profiling", and that (according to them) is wrong.  The idiocy of those in power is laughable.

rekabr52
rekabr52

Well, these guys are just following the lead of our Fearless Leader in Washington. "Constitution?  We don't need no steenking Constitution!" 

nosmokin1
nosmokin1

Don't worry. It will be legal in Colorado next year.

sheik.mabouti
sheik.mabouti

This will become the norm in the militarized police state of the USA today.

jimtwan
jimtwan

No surprise, the "law" has been creating rules outside of their purveiw for years.

Kronos
Kronos

Everyone knows that Texas (the Soviet Union) is the most communist/socialist, Obama loving state in the union and it now shows. Rick Perry (Vladimir Lenin) is plotting to destroy the Constitution along with his secret ally (Obama). It has now only become obvious, they are starting with the 4th amendment.

readyforanything
readyforanything

" But it's the Texas Court of Criminal Appeals that has the final say"

False.  It will be the US supreme court that has the final say and they will rule it unconstitutional.

militanttradcat
militanttradcat

Welcome to Obama's New World Order.  More to come-!

gus1
gus1

Very logical ruling by the court.  Naturally AFRICAN-AMERICANS are more likely to be criminals...IN FUTURE..........RIGHT??

jastpeel
jastpeel

There will come a point when the worm will turn -- on you and your ilk.

Read up on Ernst Röhm, the Brown Shirts, and The Night of the Long Knives and you will see your future.

Lenin called you and your ilk "useful idiots".

The_Postman
The_Postman

And once again Texas leads in 'Murica's Race to the Bottom! Kudos, Texas!

teebonicus
teebonicus

That's just nuts.


It's almost as crazy as that nincompoop Ohio SC decision that said no one has a right to resist police who are illegally entering their dwelling. The Ohio legislature took care of that one pronto by statute.


Maybe the Texas legislature will true the bubble back to center, too.

geoffreybritain
geoffreybritain

Is it just laziness with all of these cops ignoring proper procedure or do they believe they're above the law? Do these judges even read the law any more or are they just making it up as the mood strikes? Ignoring the rule of law is a formula for tyranny.

GetMikey
GetMikey

So let me see if I've got this straight.

Federal trumps state if it involves seizure of property.  But state trumps federal when it comes to the Affordable Care Act. 

Right.  Got it.

Thanks, Uncle Rick, for being so consistent!

james.bro13512
james.bro13512

Here's an easy prediction: a black male will commit a violent crime against an elderly white man or white woman and claim the police profiled him when arrested.

epoch711
epoch711

This is absolutely UNCONSTITUTIONAL.  

This "judge" needs to be pilloried, then tarred and feathered and run out of Texas on a rail, with a 16 inch wooden dildo to keep her from falling off during the trip..

gordonhilgers
gordonhilgers

I see both the right and left agitprop press machine is going bonkers over this, but nowhere did I see anything about either the ACLU or the Southern Poverty Law Center, two organizations in particular that defend civil rights and even human rights, regardless of what some Texas judge has to say about it. 

I'm not bashing Texas judges in general, but I've got to say Texas always has been awfully long on the enforcement end, but shorter than a roof-nail in terms of justice.  Given how conservatives everywhere are trying to play a brand new game of "grab-ass" in terms of their misbegotten sense of responsibility in terms of literally politicizing every little thing on earth. 

Gays, for example, organize and push for the same civil rights as everyone else in America, and just as the conservative Christians did in the Sixties and even long prior to the beginning of the civil rights era, the long ghettozed group is now some kind of secret conspiracy to turn every able-bodied Christian boy and girl into a homosexual.  It doesn't matter to them what scientific research has found in asking "how" homosexuality occurs and plays a role in human society.  Since, to these long anti-science ideologues, science is "a matter of faith" and definitely not one of reason, experimentation and obervation, it seems obvious to them that protecting a couple of verses in the Bible is far more important than protecting the very lives of other human beings. 

Then these well-intentioned people, believing bigotry is the answer for everything odd or different, pat themselves on the back for using "common sense".  They'll cite Thomas Paine as if the British revolutionary and agitator was Elvis without even knowing that the very author of "Common Sense" was jailed for daring to point-out all the errors and contradictions in the Bible by people in the 18th Century.  Look:  It's the 21st Century and yet the ignorant continue to bully and push people into zones of conflict both unnecessary and fruitless. 

I'm not defending methamphetimine.  That's a particularly nasty drug.  Aryan Nations and other neo-Nazi groups have made a cottage industry in Texas and the Midwest off manufacture of crystal.  And obviously, police departments are not beynd acting-out as the episode here amply illustrates. 

Too bad the judiciary is being politicized.  Too bad we're now seeing right-wing social engineering.  Too bad we're seeing activist judges on the U.S. Supreme Court, justices who have gone feral in terms of sticking to the letter, not the spirit, of the Constitution. 

Anyone here ever heard of the political and legal concept of "disinterestedness"?  Especially within the judiciary, but also in the legislative bodies, the federal versions thereof that are now less popular than dog poop because of excessive partisanship and a refusal to compromise, "disinterestedness" means politicians are charged with actually representing the people impartially and not giving-in to special interests. 

Future crimes, future games.  Now that's just so special, isn't it? 

EmmaRoosevelt
EmmaRoosevelt

@dexteroustext Possession of an item alone should not be illegal. Only when it's use denies someone else their life or liberty has a crime been committed.

jason_conners
jason_conners

@dexteroustext What exactly are drug users doing to your community?  I find it interesting that people want to wage war on drugs in the first place. The mere prohibition of drugs creates almost all crime and tax payer related expenses enforcing these draconian laws. Legalizing all drugs would destroy the drug cartels and eradicate most crime.  We could dismantle the DEA and all drug related law enforcement agencies. Tax drugs like we tax alcohol and cigarettes. 

dexteroustext
dexteroustext

@rgharry2 Please wake up from your own Blair Witch Project; it's just you and a flashlight, hunkered over a laptop. Even bigger than the fantasy conspiracy theories that justify your fears of current society is the REALITY that meth is tearing up this country's resources and contributing to the poor economy. Do some real research, not the usual tying of a million bits of rumor and symbology together to justify a horrible end. Meth is the biggest evil of our generation and it requires new laws because the ones we have in place now aren't doing enough.

rmichael1976
rmichael1976

@Kronos Hahaha, dude, you have been smoking way too much dope.  hahahaha

Geraldine_Ferraro
Geraldine_Ferraro

@Kronos Interesting mobying/smurfing - Soros must be getting more generous to hire folks to smurf like you.  

Kronos
Kronos

Also don't be fooled by Ted Cruz. He is merely the Leon Trotsky in all of this. He is fooling almost all of us, but he is actually the vanguard of the communist revolution. A wolf in sheep's clothing.

grendal113
grendal113

@readyforanythingSince the victim admitted to guilt i'll bet this case stopped there and will go no further. Not only that the supreme court gets to pick and choose the cases it takes. They won't touch this with a 10 foot pole. even if they do this guy will be out and retired before they rule.

vladilyich
vladilyich

@jastpeelIf you carefully research that phrase, you will quickly discover that Lenin never said that.  It actually didn't appear anywhere until the 1940's in reference to Hitler's Germans.  Lenin died in 1924.

dexteroustext
dexteroustext

@geoffreybritain There's more to the story than you realize. Meth is a monster and requires new ways to arrest. It's killing everything and everyone.

gus1
gus1

@GetMikey Thanks for being incoherent and retarded.  Great work.  

teebonicus
teebonicus

@epoch711- Worse, it was upheld by a panel of judges of a Texas appeals court.

dexteroustext
dexteroustext

@gordonhilgers We're long past the days of neo-Nazi/Aryan nations being the big, bad dealers of destruction with methamphetamine. Open up your eyes and nose--this stuff is EVERYWHERE. I estimate 2/3-3/4 of the service class is fully addicted across America. For every one pound of this stuff produced in apartments, hotels, stores, and cars, five pounds of toxic waste is put into the real estate, water, and soil, and some of these chemicals have half-lives of 50 years. It's destroying sewer systems and water treatment facilities, too. Please wake up.

geoffreybritain
geoffreybritain

@gordonhilgers Just curious, did you have to review all those progressive talking points before you went on your rant of stereotypes or do you have them memorized?

grendal113
grendal113

@dexteroustext you seem to have a real hard on about meth. Who in your family destroyed their life? No one has the kind of fanaticism with out personal lose. either that or you are a cop that hates losing cases for not following procedure.

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