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.


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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?)


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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?

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.


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