Texas Judge: Search Warrants Can Now be Issued Based On “Prediction Of Future Crimes”

It’s difficult to sympathize with meth cooks and dealers. But because of how a judge ruled in their case, it’s set yet another dangerous precedent for illegal searches and seizures.

A few years ago in Texas, police received a tip from a “classified informant” that a man named Michael Wehrenberg, along with a crew of people, were “fixing to” cook meth one night at Wehrenberg’s house. Police waited about 3 to 4 hours before deciding to enter his house and place everyone there under arrest.

It wasn’t until after police had entered the house, searched it, and had Wehrenberg and other residents in handcuffs that they obtained a search warrant from the judge. And they didn’t bother telling the judge that they had already searched the place and had detained those who were inside. So, the judge went ahead and signed the warrant.

And yes, police did find meth-making materials, all of which were gathered as evidence.

But, in this case, the evidence was obtained illegally. Yes, they did get a warrant, but that warrant was sought only after they had determined that they hit the jackpot. What if they had burst into Wehrenberg’s house based on this “confidential informant’s” accusation only to find no meth operation or any evidence of any drugs or criminal activity at all? That sort of thing happens more than you think. They probably wouldn’t bother trying to get a search warrant, because they’d see nothing there to justify a search in the first place. At that point, they’d have to invent something to cover themselves from any potential lawsuit resulting from their illegal intrusion.

Lucky for them, they found evidence of a meth operation at this man’s house. And naturally, Wehrenberg’s attorney tried to get the evidence thrown out of court, because it was obtained illegally. However, the trial judge ruled that the “confidential informant” served as an independent source who provided police with the necessary information about criminal activity to justify their raid and confiscation of evidence. So, the illegality of their search and seizures was irrelevant. Wehrenberg then pleaded guilty and received 5 years in prison.

The case was appealed, and the Second Court of Appeals in Fort Worth overturned the trial judge’s decision, ruling that this presented a case of illegally obtained evidence, which should be thrown out of court.

The Texas Court of Criminal Appeals however just ruled on that decision, siding with the initial trial judge. The Dallas Observer blog noted, “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.”

The sole dissenting voice in the latest criminal appeals decision stated that this now means that search warrant can be issued based on a “prediction of future crimes.” Here was part of Judge Lawrence Meyers’ statement:

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.

…Further, even if the search warrant were based exclusively on the confidential informant’s information, it still would not be valid. The informant’s tip that Appellant and his group were “fixing to” cook methamphetamine that evening was a prediction of a future crime rather than an assertion that a crime was being or had been committed. Probable cause for a search warrant cannot be based on anticipation of a prospective crime.

You can read his entire statement here.

Am I suggesting that these meth cooks and dealers be let go, all because of a legal technicality? Well, the police have to follow the law too. And the law states that they have to have probable cause to secure a search and seizure warrant. As Judge Meyers noted, having some third party “predict a future crime” does not constitute probable cause.

What this case means is that an accusation by a “confidential informant,” which could be your angry neighbor, is all the police need to justify searching and seizing any property and arresting residents on “suspicion.” And maybe they’ll get their warrant after the fact if they think about it.

H/T:  Grits for Breakfast