Texas Court Allows Cops To Search First, Acquire Warrants Later

The Texas Court of Criminal Appeals has just made it much easier for Texas cops to skirt the Fourth Amendment. Why secure a warrant when you can just take a look around beforehand to see whether a warrant's worth pursuing? (h/t to Techdirt reader K Marshall)

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.

There are several problems with what went on here, not the least of which is the Texas Court of Criminal Appeals' determination that these officers (in effect) did nothing wrong. According to the court, the pre-warrant search may have been illegal but the evidence can't be excluded because its existence was confirmed by an "independent source."

The dissenting opinion from Judge Lawrence Meyers takes issue with the entire decision, first noting that no criminal activity was taking place when the cops made their first, warrantless sweep of the premises.

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.

This is hardly heartening news. No one -- at least no one on this side of the blue line -- is in any hurry to start prosecuting people for crimes they haven't committed yet. We've already gone Orwellian with our domestic surveillance. Why push to go Dickian in the law enforcement arena?

This rhetorical question largely doesn't matter. As Scott Greenfield points out, criminal conspiracy laws already hold us liable for acts that haven't yet occurred.

While the question of whether “fixing to” is sufficient to establish probable cause to believe that a crime will be committed, and thus provide an adequate factual predicate for a warrant, is a bit tricky, it’s not all that surprising. When it comes to narcotics cases, already watered down from the demands applied to pretty much any other crime where, under federal law, no overt act is needed in a conspiracy to prove the crime, there doesn’t seem to be a floor below which courts won’t allow police to go.

The more problematic aspect is that the ruling allows cops to acquire search warrants post-search as long as they have a confidential informant ("independent source") who can fill in the blanks. This is where the real abuse begins. The usual abuse (detailed above), encouraged by the War on Drugs, will continue unabated. But Fourth Amendment protections are going to start gathering dust in Texas.

Here's what Judge Meyers had to say about the officers' actions now being condoned by the state:

“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.”

Not only that, but any excuses about "exigent circumstances" are equally weak.

[T]he 3-4 hour delay [is] 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.

This is where the real perversion of justice lies.

The argument adopted here was that the search warrant, based on the snitch, was independent of the intervening grossly unconstitutional search. The problem here is that this is utter, unadulterated nonsense, and a gross bastardization of a horrible concept that rewards deliberate constitutional violations…

[T]here was no attenuation of the “taint,” but at best an intentional circumvention of the 4th Amendment. They left out of the warrant application that they took the snitch’s information, violated the Constitution and then sought a warrant in a post hoc effort to legalize their search.

A clash between federal and state-level statutes governing the admissibility of illegally-obtained evidence has now become a Texas-sized loophole for local law enforcement. As it stands now, LEOs in Texas can perform illegal searches and simply "launder" the evidence by securing warrants post-search. This should give Texas cops a 100% success rate in serving warrants, what with its new Pre-Search program being given the thumbs-up by the highest appeals court in the state.