When Crime’s-a-Comin’

The snitch gave the police a tip that might strike a Yankee as odd, but apparently sounded credible enough to the police anti-narcotics squad (as opposed to the pro-narcotics squad in Harris County) in Parker County, Texas.  Via Raw Story:

Officers in Parker County took Michael Fred Wehrenberg and some associates into custody in summer 2010, after watching his home for about a month as part of a drug investigation.

A confidential informant told police that Wehrenberg and others were “fixing to” cook methamphetamine, and investigators searched the house while he and his friends stood outside in handcuffs.

Police said they found pseudoephedrine, stripped lithium batteries and materials used to make meth and then asked a judge to grant them a warrant to search the house.

What does “fixing to” cook meth mean?  It means enough to the police that they will enter a home, restrain its occupants and search it, with neither consent nor warrant.   But the Texas Court of Criminal Appeals upheld the search nonetheless by adopting the federal independent source doctrine.

Dissenting Judge Lawrence Meyers wasn’t persuaded that the post-search issuance of the search warrant was justified under any circumstances:

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.

While “fixing to” certainly appears to be a prediction of future criminal conduct, it’s par for the course in narcotics conspiracies, where the conduct leading up to the manufacture and distribution of narcotics regularly suffices to provide sufficient evidence.

While taking down an operation at an early stage may be problematic in that the conduct is sufficiently equivocal that it leaves the defense with an argument that the defendant wasn’t manufacturing meth (just your ordinary guy hanging with a bunch of pseudoephedrine in case he gets the sniffles), that’s a risk the prosecution takes.  Often, the police will either let the  situation play out until the evidence is stronger, or target the operation for a sting as buyers of the drugs.

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 curious aspect of the opinion is that court’s adoption of the federal “independent source doctrine,” which was used to justify the seizure of evidence pursuant to the search warrant based on the snitch’s information.

In Segura, the Supreme Court explained that “[i]t has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’ It is not to be excluded, for example, if police had an ‘independent source’ for discovery of the evidence[.]” Segura, 468 U.S. at 805 (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). At its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from any illegal conduct by law enforcement, is not subject to exclusion. Nix, 467 U.S. at 443 (describing doctrine as permitting “admission of evidence that has been discovered by means wholly independent of any constitutional violation”); Murray, 487 U.S. at 537 (stating that independent source doctrine permits introduction of “evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality”).

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.

As Judge Meyers notes,

“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.”

If the police believed the CI’s information to provide probable cause to search, then the next step would have been to seek a search warrant. Of course, that wasn’t what they were “fixing” to do. Instead, they just went in, a flagrant constitutional violation.  There 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.

This is what the inevitable discovery doctrine, the flip side of the independent source rule, expressly prohibits.  Neither of the interconnected rules exists to either encourage or enable the police to intentionally violate the Constitution with impunity, knowing that if they find what they’re looking for, they can go back and get a do-over on obtaining a warrant to make a flagrantly unlawful search lawful.

While the question of whether the snitch’s information was adequate to establish probable cause of a future crime, the intervening unlawful search based upon the information taints the subsequent effort to sanitize it by laundering it through a search warrant. Even if there was an independent source that would have allowed the police to inevitably discover the evidence, it cannot be used to make an end run around the Constitution.  Except, now, in Texas.

 

 

3 comments on “When Crime’s-a-Comin’

  1. Anonymous

    At least we have written Constitution even if we do have a very few judges and LEOs that seem like leftovers from the Post-WW2 “Operation Paperclip”.

    1. SHG Post author

      I considered writing it in Texian, but figured those who actually spoke the language of the Great Republic of Texas would make fun of me for being a poseur.

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