Free Republic
Browse · Search
General/Chat
Topics · Post Article

Skip to comments.

Texas Court Rules That Police May Introduce Illegally-Gathered Evidence At Trial
Western Journalism.com ^ | March 19, 2014 | Doug Book

Posted on 03/23/2014 6:34:06 PM PDT by Altariel

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.

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?)

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?


TOPICS: Miscellaneous
KEYWORDS: donutwatch; fourthamendment; police; texas; trial
Texas Freepers: Time to put an end to this, before it gets worse.
1 posted on 03/23/2014 6:34:06 PM PDT by Altariel
[ Post Reply | Private Reply | View Replies]

To: Windflier

The statists are at it again, trying to transform Texas ping.


2 posted on 03/23/2014 6:35:06 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel

Is there probably cause when the issue is a meth lab? Have you seen what happens to a meth lab gone bad? boooom....


3 posted on 03/23/2014 6:39:18 PM PDT by Mercat
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel
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. …
Sounds just like Soviet Russia. So where is Rick Perry on this?
4 posted on 03/23/2014 6:39:22 PM PDT by Olog-hai
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel

no way... in Texas? can’t be... not in Texas... say it isn’t so, Joe...


5 posted on 03/23/2014 6:39:52 PM PDT by latina4dubya (when i have money i buy books... if i have anything left, i buy 6-inch heels and a bottle of wine...)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel

That’ll.get over turned....


6 posted on 03/23/2014 6:42:21 PM PDT by Vendome (Don't take life so seriously-you won't live through it anyway-Enjoy Yourself ala Louis Prima)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel

Let’s not forget the supreme court ruled that the 5th amendment no longer applies in that your silence can be used against you.


7 posted on 03/23/2014 6:42:23 PM PDT by CodeToad (Keeping whites from talking about blacks is verbal segregation!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel
What good is the constitution then if this stands? The world is indeed upside down.
8 posted on 03/23/2014 6:44:00 PM PDT by Fungi
[ Post Reply | Private Reply | To 1 | View Replies]

To: Vendome

I wish I shared your confidence on that. The trend lately has been towards statism.


9 posted on 03/23/2014 6:45:55 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 6 | View Replies]

To: Altariel

Insane court rulings are a great danger to America


10 posted on 03/23/2014 6:46:17 PM PDT by faithhopecharity ((Brilliant, Profound Tag Line Goes Here, just as soon as I can think of one..))
[ Post Reply | Private Reply | To 1 | View Replies]

To: Mercat

I think you’re cooking meth. We don’t want your house to go boom, do we? Let’s just search it then. Oh you weren’t cooking meth. Sorry! We’ll get those guns back to you a few years after you fill out the paperwork.


11 posted on 03/23/2014 6:47:02 PM PDT by goodwithagun (My gun has killed fewer people than Ted Kennedy's car.)
[ Post Reply | Private Reply | To 3 | View Replies]

To: Fungi

I bet I can get someone to say that Hairless Reid, Nazi Pelosi and Zero have meth labs in their basements. Just look at the way they act!


12 posted on 03/23/2014 6:47:20 PM PDT by MtnClimber (Just doing laps around the sun and shaking my head that progressives can believe what they do!)
[ Post Reply | Private Reply | To 8 | View Replies]

To: Altariel

This is the same disease that permits these idiotic and unconstitutional ‘DUI’ checkpoints. The courts KNEW that there was no legal basis for them, they outright said so in rulings, but faced with the prospect of overturning hundreds of DUI convictions, at least 5 murder convictions, and other major felonies, the courts chickened out, and then started providing ‘guidelines’ to officers which they outright ignore.

It is the same decision that Governor Mitt Romney faced when the Massachusetts State Supreme Court played chicken: could he let the state no longer regulate marriages to protect marriage from the ruling? The answer was no, and he caved to legislation from the bench.

It takes a strength of conviction to stand up and be counted when faced with such questions, a strength that has been leeching out of our society with every passing year.

The best way to fight this chain of events is to make laws that make it a crime for officers to back door evidence discovery, and then go after officers who do try to ignore the will of the people. For cities to outlaw DUI and license checkpoints, and make it a felony to pull over people without probable cause.

The courts may be insane, but in the end, no matter what people may state on this forum, there is no way to govern the United States without the consent of the people. No billion bullet stashes will change that.


13 posted on 03/23/2014 6:48:01 PM PDT by kingu (Everything starts with slashing the size and scope of the federal government.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel
The statists are at it again, trying to transform Texas ping.

Transform my foot.

The problem has always been with the law and order conservative fetishists in Texas.

It was their kind throughout the country that gave us the Drug war and all its constitutional violations.

14 posted on 03/23/2014 6:48:35 PM PDT by ClaytonP
[ Post Reply | Private Reply | To 2 | View Replies]

To: Vendome
That’ll.get over turned....

Don't count on it. Scalia and the other court conservatives rarely see a police tactic they don't approve of.

15 posted on 03/23/2014 6:52:33 PM PDT by Bubba Ho-Tep ("More weight!"--Giles Corey)
[ Post Reply | Private Reply | To 6 | View Replies]

To: CodeToad
Let’s not forget the supreme court ruled that the 5th amendment no longer applies in that your silence can be used against you.

When was that? What case?

16 posted on 03/23/2014 6:53:27 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
[ Post Reply | Private Reply | To 7 | View Replies]

To: Lurking Libertarian

Salinas v. Texas, June 2013.


17 posted on 03/23/2014 6:55:46 PM PDT by CodeToad (Keeping whites from talking about blacks is verbal segregation!)
[ Post Reply | Private Reply | To 16 | View Replies]

To: Altariel

I’m taking Texas off my list of places to live.


18 posted on 03/23/2014 6:56:43 PM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Bubba Ho-Tep

Are the judges on this case conservatives?
It’s true your statement re police tactics the Atwater case via SCOTUS conservatives gave police the right to arrest on a misdemeanor alone
Now we have jaywalk arrests...it SUCKS!


19 posted on 03/23/2014 7:10:23 PM PDT by magna carta
[ Post Reply | Private Reply | To 15 | View Replies]

To: Altariel

Nothing like rewarding shoddy police work!


20 posted on 03/23/2014 7:11:20 PM PDT by high info voter
[ Post Reply | Private Reply | To 1 | View Replies]

To: Mercat

We suspect you are cooking meth, Citizen. What, no meth? Well, we’re going to seize your laptop, your firearms and your cash.

The cash was almost certainly acquired from a drug deal, the laptop undoubtedly has illegal content and the firearms, well, no citizen needs those when the Agents of the State are armed!


21 posted on 03/23/2014 7:18:40 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 3 | View Replies]

To: Altariel

Cart before the horse? This invites fishing expeditions and abuse and is devoid f common sense. Another judge exercising bad judgment. Seems to be the norm lately...


22 posted on 03/23/2014 7:18:45 PM PDT by jsanders2001
[ Post Reply | Private Reply | To 2 | View Replies]

To: Altariel

Meth is a plague but I’m not willing to sacrifice the 4th amendment to prosecute its making.


23 posted on 03/23/2014 7:20:19 PM PDT by JimSEA
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel
On to the 5th Circuit
24 posted on 03/23/2014 7:22:32 PM PDT by Ready4Freddy
[ Post Reply | Private Reply | To 1 | View Replies]

To: Bubba Ho-Tep

“That’ll.get over turned....

Don’t count on it. Scalia and the other court conservatives rarely see a police tactic they don’t approve of.”

Oh this is too easy then.....Call the police as a CI and say that you know (Insert name of judge)’s son is about to cook up some Meth.


25 posted on 03/23/2014 7:22:43 PM PDT by Fai Mao (Genius at Large)
[ Post Reply | Private Reply | To 15 | View Replies]

To: Altariel

You have a right to face your accuser. So who is the CI? Was it data mining purchases? Or an actual person?


26 posted on 03/23/2014 7:45:13 PM PDT by Ray76 (Profit from the mistakes of others, you'll never live long enough to make them all yourself.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Ready4Freddy

Actually it will be a Petition to SCOTUS.
Appeals from a state’s highest court go directly over to SCOTUS.
If they take a hard look at this I do think it is a good chance to revisit the Independent Source Doctrine.
The ruling was based on shaky SCOTUS precedent, and the court completely ignored the Texas law and Constitution which actually grant more protections than the 4th Amendment alone.
I’m a Texas defense attorney and former prosecutor.
This ruling cannot be allowed to stand. The opportunity for abuses by cops was bad enough before this ruling.
Lots of people are going to be the victims of illegal fishing expeditions in the form of raids.
God help us.


27 posted on 03/23/2014 8:03:17 PM PDT by Clump ( the tree of liberty is withering like a stricken fig tree)
[ Post Reply | Private Reply | To 24 | View Replies]

To: Clump

Thanks, Clump


28 posted on 03/23/2014 8:04:49 PM PDT by Ready4Freddy
[ Post Reply | Private Reply | To 27 | View Replies]

To: Altariel

Good point. The feds can now come in for suspicion of an action, seize and search. If they find anything illegal, now they can get a retroactive search warrant. If they find nothing illegal, suspicious amounts of cash can still be seized and kept. Civil forfeiture, I think.
Either way, they can take your property and you have legal recourse.
The scary thought is that they can even seize your assets and the court has said that holding all your money prior to a trial so you can’t hire a good attorney isn’t a violation of your rights. You can get a cheap and inexperienced public attorney just like everyone else.


29 posted on 03/23/2014 8:22:00 PM PDT by tbw2
[ Post Reply | Private Reply | To 21 | View Replies]

To: Altariel

This is not good. How is this happening in Texas? Is it the libs?


30 posted on 03/23/2014 8:33:31 PM PDT by GAFreedom (Freedom rings in GA!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: All

Judge Elsa Alcala, Texas Court of Criminal Appeals
Place 8 (R)

http://www.texastribune.org/directory/elsa-alcala/

Full Name: Elsa Alcala
Education: B.A. Texas A&I University of Kingsville, 1986; J.D. University of Texas at Austin 1989
Spouse: Dan Spjut
Financial Statements
Year:

Election Info

2012 General Election
Won with 78.07% of vote
2012 Republican Party Primary Election
Won with 100.00% of vote

Political Profile
Current Office: Texas Court of Criminal Appeals
Place: 8
Party: Republican Party
Term Expiration: 2018
Term Length: 6 years
Salary: $150,000 per year
Contact Info
Website: judgeelsaalcala.com
Facebook: Fan Page


31 posted on 03/23/2014 8:37:47 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 1 | View Replies]

To: GAFreedom

Republican judge.


32 posted on 03/23/2014 8:38:27 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 30 | View Replies]

To: ClaytonP

I don’t know whether this judge claims to be a conservative, but I know she is a registered Republican.


33 posted on 03/23/2014 8:39:44 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 14 | View Replies]

To: Altariel
Judge Elsa Alcala, Texas Court of Criminal Appeals Place 8 (R)

Isn't it great how Tyrannical Democrat judges & Tyrannical Republican judges complement each other in imposing Tyranny?

If a Democrat wants to ignore the Constitution in one place, a Republican will be happy to ignore it somewhere else. When it comes to shredding the Constitution in the name of expediency, there's often not a dime's worth of difference between the two.

Kinda gives me a warm feeling...</sarc>

34 posted on 03/23/2014 8:45:06 PM PDT by sargon (I don't like the sound of these here Boncentration Bamps!)
[ Post Reply | Private Reply | To 31 | View Replies]

To: Altariel

There are many of us in Texas who know this state isn’t as “red” as people think.

Police here in Texas are just as thuggish and they are anywhere else. They make up “facts” given to them by made up confidential informants. The word “confidential” means they don’t have to identify the person. In other words, you don’t get to confront your accuser. Cops are out of control all over this country.


35 posted on 03/23/2014 8:45:37 PM PDT by VerySadAmerican (".....Barrack, and the horse Mohammed rode in on.")
[ Post Reply | Private Reply | To 1 | View Replies]

To: Altariel

I wonder how much cash and how many rounds of ammo a person would need to have for a cop to consider it suspicious.


36 posted on 03/23/2014 8:49:03 PM PDT by VerySadAmerican (".....Barrack, and the horse Mohammed rode in on.")
[ Post Reply | Private Reply | To 21 | View Replies]

To: CodeToad
Salinas v. Texas, June 2013.

Thanks, I had forgotten that one. No majority opinion, and Alito's plurality was very fact-intensive, but the concurrence by Scalia and Thomas is downright scary. The four liberals got it right for a change.

37 posted on 03/23/2014 8:52:31 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
[ Post Reply | Private Reply | To 17 | View Replies]

To: VerySadAmerican
There are many of us in Texas who know this state isn’t as “red” as people think.

Police here in Texas are just as thuggish and they are anywhere else.

Since when has Republican been synonymous with libertarian?

Plenty of conservatives on this forum love law and order above liberty.

38 posted on 03/23/2014 8:55:41 PM PDT by ClaytonP
[ Post Reply | Private Reply | To 35 | View Replies]

To: VerySadAmerican
There are many of us in Texas who know this state isn’t as “red” as people think.

"Red" states are traditionally more pro-prosecution in criminal cases than "blue" states.

39 posted on 03/23/2014 8:55:56 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
[ Post Reply | Private Reply | To 35 | View Replies]

To: Altariel

texas better get its sh1t together or else the term “hangin’ judge” is gonna take on a whole new meaning.


40 posted on 03/23/2014 9:16:07 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: JimSEA

yes. your explanation paraphrases franklin on sacrificing liberty for security.


41 posted on 03/23/2014 9:23:10 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
[ Post Reply | Private Reply | To 23 | View Replies]

Had Enough Yet ?


42 posted on 03/23/2014 9:57:00 PM PDT by S.O.S121.500 (Had Enough Yet ? ........................ Enforce the Bill of Rights ......... It's the LAW !!!)
[ Post Reply | Private Reply | To 3 | View Replies]

To: CodeToad
Let’s not forget the supreme court ruled that the 5th amendment no longer applies in that your silence can be used against you.

...of course unless your name is Lois Lerner.

43 posted on 03/23/2014 11:42:15 PM PDT by Rodamala
[ Post Reply | Private Reply | To 7 | View Replies]

To: Lurking Libertarian

“The four liberals got it right for a change.”

That, alone, makes you stop and rethink the case. Spooky when they get something right.


44 posted on 03/24/2014 1:32:33 AM PDT by CodeToad (Keeping whites from talking about blacks is verbal segregation!)
[ Post Reply | Private Reply | To 37 | View Replies]

To: CodeToad

People tend to forget that Kelo was a conservative decision, too.


45 posted on 03/24/2014 12:33:18 PM PDT by Bubba Ho-Tep ("More weight!"--Giles Corey)
[ Post Reply | Private Reply | To 44 | View Replies]

To: ClaytonP

Didn’t think about that. Personally, I fall into the libertarian category. I forgot that a lot of conservatives are the “law and order” and “cops can do no wrong” crowd.


46 posted on 03/24/2014 8:42:58 PM PDT by VerySadAmerican (".....Barrack, and the horse Mohammed rode in on.")
[ Post Reply | Private Reply | To 38 | View Replies]

To: Secret Agent Man; Windflier

Hopefully enough Texans will hear about this and rise up to stop this.

The word needs to get out, before Texas wakes up and realizes, too late, that she gave away all her liberty.


47 posted on 03/25/2014 9:28:25 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 40 | View Replies]

To: VerySadAmerican

There’s some of those here, but their number is decreasing.

More Freepers are having unfortunate encounters with aggressive cops and a power-hungry “Just-us” system.

I hope the rest will wake up before more innocents are attacked, assaulted or worse.


48 posted on 03/25/2014 9:29:57 PM PDT by Altariel ("Curse your sudden but inevitable betrayal!")
[ Post Reply | Private Reply | To 46 | View Replies]

To: Altariel; All

I happened upon this today. Don’t get angry after reading the first few sentences. Continue on through the article to the part about the militarization of the local cops. And those local cops are already coming for us.

http://www.doityourselfcapitalism.com/when-they-come-your-guns-you-will-turn-them-over


49 posted on 03/26/2014 11:46:14 AM PDT by VerySadAmerican (".....Barrack, and the horse Mohammed rode in on.")
[ Post Reply | Private Reply | To 1 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
General/Chat
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson