Judicial activism allows police to get away with illegal conduct

The Texas Court of Criminal Appeals last week adopted yet another court-created federal exception to the exclusionary rule in state-level search and seizure cases that allows evidence to be admitted in the face of clear police misconduct, even though Texas has a statutory exclusionary rule that - unlike the court-created federal version - includes no exceptions on its face. See Judge Elsa Alcala's opinion (pdf) on behalf of the majority, a concurrence (pdf) from Judge Tom Price, and a dissent (pdf) from Judge Lawrence Meyers.

The case - Wehrenberg v. State - involved a drug bust in Parker County in which officers received a tip from a confidential informant that the defendant and others were "fixing to" cook meth later that evening. Three or four hours later, after midnight, officers illegally entered Mr. Wehrenberg's residence "without a search warrant and without consent," handcuffing everyone inside and escorting them all into the front yard, conducting a "protective sweep" of the house. Then they held everyone outside in handcuffs for an hour and a half while one of the officers went to find a judge to secure a search warrant. The search warrant affidavit did not inform the judge that officers had already entered the premises and detained everyone found in the house. The judge issued a warrant, police found contraband, and charged Mr. Wehrenberg with a second degree felony, for which he was convicted.

Alcala and the majority overturned a ruling (pdf) by the Fort Worth Second Court of Appeals, which had held that the federal "independent source doctrine" conflicts with Texas' statutory exclusionary rule, applying an exception created by federal judges that is not contemplated in the plain text of Texas' statutory rule. They decided that the confidential informant's tip provided an "independent source" for the search warrant and therefore the evidence could come in to court.

Judge Meyers, though, wasn't buying it. In his dissent, he said the 3-4 hour delay was

completely inconsistent with the idea that the officers had to conduct an unwarranted entry because of exigent circumstances or to prevent destruction of evidence. Had such circumstances actually existed, the officers would have proceeded immediately to the residence rather than delaying for the number of hours that they did. 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 then to secure the warrant in order to cover their tracks and collect the evidence without the taint of their entry.

Meyers felt that it "seems unreasonable that the trial judge could not decipher that the officers involved were less than truthful when indicating they relied solely on the confidential informant in obtaining the search warrant." Judge Price, OTOH, noting that the trial judge had declined to issue findings of fact on the matter, even though the defendant requested them, said Meyers was substituting his judgment for the trial judge's and that the proper course was for the Fort Worth Court of Appeals, when considering the case on remand, to insist that the trial judge formally explain why he considered the officer's explanation credible.

In addition, Judge Meyers lamented, after this decision "search warrants may now be based on predictions of future crimes." After all, "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" (citation omitted). This aspect of the ruling reminds me of the "Pre-Crime Division" in the movie Minority Report, in which police could arrest people based on what psychics predicted they would do in the future.

I'm not a lawyer so Grits is not qualified to estimate how much difference this new, judge-created exception will make on the ground. The basic idea of an independent source doctrine, the majority pointed out, isn't greatly different from the Court of Criminal Appeals' caselaw about "attenuating the taint" of an unlawful search. But the actions of police in the case don't pass the smell test. 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?

In that light, whether or not the majority's hair-splitting legalisms are valid, the net effect of the ruling in this particular instance was to allow police to gloss over actions that everyone agrees were illegal conduct. Bottom line: In Texas, if citizens break the law, they go to jail. If police break the law, some activist judge will find or create a reason to excuse their misbehavior, which is precisely what happened in this case.

MORE: From The Dallas Observer's Unfair Park blog. AND MORE: From Raw Story. AND MORE: From Simple Justice. AND: From Huffington Post. AND: From TechDirt. AND: From RT.com. AND: From Opposing Views, and several more. This Grits scoop has seemingly gone viral. :)