Texas Court Allows Cops To Search First, Acquire Warrants Later

from the Fourth-Amendment-now-filling-out-change-of-address-forms dept

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.

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Comments on “Texas Court Allows Cops To Search First, Acquire Warrants Later”

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Anonymous Coward says:

You know, if all this is so slam dunk and the person is so obviously guilty, then why oh why is it so difficult for law enforcement to act within the boundaries of the law?

Why the shortcuts?
Why is the warrant process being sidestepped so frequently?
Why in 2013 is it so difficult for someone to get a warrant?

I would expect this, you know, maybe in the 1950’s, when we weren’t so connected, and everything was on paper. But now?

This reeks of corruption. And for the inevitable cop-sympathizers who will chime in as to what a hard job they have, and that we should cut them some slack, my advice is this: if their job is so difficult, then they need to FIND ANOTHER LINE OF WORK! Let someone who can do the job CORRECTLY do it instead.

TKnarr (profile) says:

Re: Re:

More importantly, why if it was so critical to search first and get a warrant later did the cops wait 3-4 hours before going to search? In that time they could’ve done what they did later: go to the judge with the tip in hand and get a warrant issued. Were I a judge, the fact that the police had time to get a warrant issued and didn’t would’ve killed their arguments dead right there.

out_of_the_blue says:

Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

Until this goes away (forced to look in code, got the above for HOSTS file), this parasite mars my every view of glorious Techdirt, and only possible way to relieve that is by mentioning to Mike. If follows his stated notions, he’s supposed to deliver content the way users want, when they want it, and according to the Kornfeld rule of marketing, not deliberately annoy anyone.

Here’s the offending code on your page, Mike (I omit “://” so doen’t link): img alt=”The Conversation” height=”1″ src= “https counter.theconversation.edu.au/content/21483/count.gif”
It’s clearly a web bug for counting and tracking, a little bit of hidden snooping that at same time tries to compromise everyone’s computer with totally false claim of needing “security” for its damned tracking bug, and after which the site likely has certain privileges on your computer. I don’t know what all effects are because don’t use Windows. I resent being forced to fend off low-level malware like this; everyone reasonable will soon be forced off teh internets, only unsuspecting and complacent dolts left.

Success. HOSTED out yet another tracking web-bug. Man, these parasites are RUTHLESS.

Get your hosts file started from: http://www.mvps.org/winhelp2002/hosts.htm

And add counter.theconversation.edu.au to it!

Rikuo (profile) says:

Re: Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

…You don’t use Windows? What then, Mac OS? Or a Unix/Linux distro? If the last, call me surprised, but you’ve never demonstrated the intelligence levels necessary to use such operating systems effectively.
If you’re so paranoid about the damage Techdirt might do to your computer, then stay the hell away from it. There, problem solved. Of course, given that this very obvious solution has been pointed out to you only about a billion times, I’m wasting my metaphorical breath here. Why do I bother trying to teach the unteachable?

ottermaton (profile) says:

Re: Re: Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

If you’re so paranoid about the damage Techdirt might do to your computer, then stay the hell away from it. There, problem solved.

Reminds me of something I heard recently … what was it? … hmmm … Oh! This is it:

So don’t deal with Amazon. Problem solved.

That’s the title of a very recent (3 days ago) comment made by our illustrious OOTB, aka King of Cognitive Dissonance. [source] After his typical rambling he ends with:

… all I can write is just: BOOHOO

Yeah. Right back at ya.

out_of_the_blue says:

Re: Re: Re: Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

@ “ottermaton” : So don’t deal with Amazon. Problem solved.

Good advice. Glad to see you got the message.

But how am I to predict when Mike will throw in a hidden https web-bug? Or any site? Those are only for tracking.

Did you read where I solved it? I’m annoyed, is all, to be tricked by allowing a formerly trusted site to plant tracking code. And you say that I can’t complain, but I’ve foxed both you and Mike, haven’t I? Exposed the tracking bug, and yet I’m going to continue reading and commenting at Techdirt, which is evidently to your displeasure. So the BOOHO is YOUHOO.

Visitor beware! Fanboy-trolls may ask you questions! But only to wear you down.


ottermaton (profile) says:

Re: Re: Re:2 Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

@ “ottermaton” : So don’t deal with Amazon. Problem solved.

Good advice. Glad to see you got the message.

Actually, I was pointing to your own cognitive dissonance. Everyone BUT YOU seems to understand that saying shit like “don’t use Amazon then” is utterly incongruous with you coming on here and bitching about THIS site. Take your own advice: don’t use it (Techdirt) then.

Is that clear enough?

And you say that I can’t complain …

When? Where? More lies from you.

… but I’ve foxed both you and Mike, haven’t I?


out_of_the_blue says:

Re: Re: Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

@ “Rikuo”: “stay the hell away” from “Techdirt”.

It’s good advice, but said I was annoyed, not worried.

This, though, is typical of your level zero trolling: I reveal an “https” web-bug here that you didn’t even suspect, and yet you think I’m the incompetent.

If you like yapping ankle-biters, you’ll love Techdirt!


Rikuo (profile) says:

Re: Re: Re: Why does counter.theconversation.edu.au need a "security certificate" here, Mike?

Just to let you know, your little code at the bottom of most of your posts? You’ve just done enough here to allow someone with a modicum of intelligence and experience in cryptography (I have none in the latter by the way) to be able to fully spoof you to your supervisors. You need a stronger algorithm.
Yeah, you “revealed” a bug. Problem is, the source for this claim is YOU. YOU are not trusted. You could say to me the sky is blue, and the first thing I’d do is stick my head out of a window for at least ten minutes before grudgingly agreeing that you were correct. After all, the same person who claims to have found a http bug is the same guy who’s constantly claiming that the NSA had Snowden deliberately leak his information, all in some sort of weird plot to make themselves look bad (seriously, your claim makes no sense, because if true, there are no positive results for the US intelligence community).
As for “trusted site”? You…trusted TD?

Baron von Robber says:

49 states?

Wow, Texas must be set to secede from the Union.

This just in from the govenor of Texas…

“We’re tired of pretending there’s a Constitution thingy anymore. You! Reporter! Where’s your white hat? Officer, arrest that man for not wearing a white hat. Nevermind, just arrest him for being a reporter.”

Anonymous Coward says:

Re: 49 states?

Texan here, while this ruling is pretty stupid and what you say is getting closer to reality, I can tell you this.

If this state Secedes from the Union, it will be over blood, because there will be a lot of people killing each other to make sure the Constitution is protected here. As a state before we joined the States we were ahead of most others.

out_of_the_blue says:

Only fair thing to do is JAIL the officers TOO.

Can’t just throw out evidence of crimes. What if someone were murdered here? Would you throw the evidence out? — Of course not. So, since you agree with the principle that criminals however found out should be punished, I say that the solution to similar cases — and are MANY over the years — is to prosecute and jail ALL the officers involved TOO. Personal punishment is the ONLY way that criminals ever learn, whether they’ve a badge on or not.

BUT the practical problem is that the whole “law enforcement” gang protects other gang members even with far more obvious crimes. But calling for the officers, who at best lapsed in performance of standard and essential point, to be jailed TOO cuts through the dilemma of letting known criminals go free. — There’s no either/or here, not just one criminal is possible, and plenty of jail cells, it’s the only growth industry in the former US of A.

Anonymous Coward says:

Re: Only fair thing to do is JAIL the officers TOO.

Well, they managed to get a warrant later. All evidence obtained by a legal warrant should be legal. (Another problem here is that a warrant was issued based on a confidential informant saying that they were “fixing to” commit a crime – you can’t reasonably say that’s probable cause.) BUT – then you must hold the officers liable for the initial warrantless entry. They waited several hours; there’s no excuse for not getting warrant in that time. This is what you call criminal trespass and false arrest. It does not matter whether it is a police officer breaking into a house illegally or me breaking into a house illegally, the punishment should be the same.

If the officers are not to be held liable and all evidence of a crime is be legal to present in court regardless of how it is obtained, then there is no Fourth Amendment.

But we all know that the cops will, in practice, NEVER be prosecuted for an illegal search. They can meet the legal definition of raping someone and not be prosecuted. So… we exclude the evidence, to decrease their incentive to act illegally.

Anonymous Coward says:

So how many other people expect that in the future we’ll hear a story of cops breaking into someone’s home, murdering the owner for objecting to/attempting to defend against the invasion, they get a warrant a few hours later, nothing is actually found, and it’s written off as a bad tip and the cops go on to the next? Or we get a story of cops doing the same except planting evidence before getting the warrant?

That One Guy (profile) says:

I can't be the only one who thought this...

If they can break into a house before getting a warrant, what exactly is to stop them from planting ‘evidence’ to justify it after the fact?

Break into the house, drag the owners out and keep them where they can’t see what’s going on, plant some ‘evidence’, and then go to a judge with a ‘tip’ you received from an ‘anonymous source’ who told you that there were drugs, and since the ‘tip’ was right, the drugs were right where the informant said they would be, obviously an after the fact warrant is needed, lest those filthy drug dealers/users get away with their crime!

Also, the assholes of Texas have got to be rejoicing over this new ruling, now SWATing someone you don’t like is not only legal, it’s police sanctioned.

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