Texas police can get search warrants based on the 'prediction of a future crime,' judge notes

An appeals court in Texas ruled last week that police may obtain a search warrant based on the prediction of a future crime.

Officers in Parker County took Michael Fred Wehrenberg and some associates into custody in summer 2010, after watching his home for about a month as part of a drug investigation.

A confidential informant told police that Wehrenberg and others were “fixing to” cook methamphetamine, and investigators searched the house while he and his friends stood outside in handcuffs.

Police said they found pseudoephedrine, stripped lithium batteries and materials used to make meth and then asked a judge to grant them a warrant to search the house.

They did not mention in the warrant application that officers had already gone into the house, and instead only based their request on information supplied by the confidential informant.

After obtaining the warrant, police seized the items they’d already found, and a trial court denied a request by Wehrenberg’s attorneys to exclude those materials as evidence, citing federal "independent source doctrine” that allows the use of illegally seized evidence identified beforehand by a third party.

Wehrenberg pleaded guilty to one count of possession and one count of intent to manufacture meth and was sentenced to five years in prison.

The Second Court of Appeals overturned the lower court’s ruling, saying the trial judge should have excluded the illegally seized evidence, but the Texas Court of Criminal Appeals – which has the final say – agreed with the trial court.

The CCA ruled that the state’s "exclusionary rule" bans illegally seized evidence from trial, but federal precedent allows it to be introduced if it was first confirmed by an independent source.

The court’s lone dissenting justice, however, wrote that the warrant was obtained only as a result of the officers’ illegal search and could easily have been secured before they went into the house.

“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,” wrote CCA Judge Lawrence Meyers. “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.”

Meyers said the confidential informant’s tip that Wehrenberg was “fixing to” cook meth wasn’t independent evidence but a prediction.

“Search warrants may now be based on predictions of the commission of future crimes," the judge lamented.

[Image: A K-9 unit police dog stands calmly next next to an armed law officer via Shutterstock]