January-February 2014

Wehrenberg v. State: Resetting a bad search with the independent source doctrine

David C. Newell

Assistant District Attorney in Harris County

As a prosecutor, I generally love it when a police officer calls me about a search issue because it usually gives me an opportunity to validate the officer’s foresight and understanding of the law before the search occurs. Unfortunately, there are a few occasions where an officer calls in the midst of an investigation like Goose from Top Gun asking me to do some of that “prosecutor @&#%” to save a search that started off on the wrong foot.
    Well, the Court of Criminal Appeals has recently decided a case that does provide some help to those well-intentioned officers who might have stumbled upon evidence improperly. By recognizing the “independent source” doctrine as an exception to the State exclusionary rule in Wehrenberg v. State, the Court of Criminal Appeals has provided a rationale for the admission of evidence that has been properly seized after an initially illegal search. Thus, a police officer may be able to hit the reset button on a search that starts off improperly by ensuring that any subsequent search and seizure conducted independently of the original search.
Fixin’ to commit a crime
A police anti-narcotics unit had been conducting surveillance of Michael Wehrenberg for almost a month when officers received a call from a confidential informant advising them that the folks in the house were “fixin’ to” cook meth that night.1 Several hours later, at 12:30 in the morning, the officers entered the residence without a search warrant and without consent to prevent the evidence from being destroyed. They removed several subjects, including Wehrenberg, placed them in the front yard, handcuffed them, and performed a protective sweep of the premises. No one had been cooking meth so the officers went back outside.
    Police subsequently prepared a search warrant that a magistrate signed about an hour and a half after the residence was secured. The search warrant affidavit relied only on information provided by the confidential informant and made no mention of the officers’ warrantless entry into the residence. The affidavit stated that the informant had personally observed the suspected parties in possession of certain chemicals with intent to manufacture a controlled substance. According to the informant, the subjects were planning to use the “shake and bake” method of manufacturing methamphetamine, which is often utilized to prevent detection of the meth-making process. Police officers conducted a search pursuant to the warrant and discovered methamphetamine and the tools for making methamphetamine.
    At the hearing on the motion to suppress, the lead investigator noted that the “shake and bake” method of cooking meth was volatile and hazardous, so he felt the need to remove the subjects from the home to avoid a possible fire. He also said that he left to get the warrant signed immediately after the initial detention. The trial judge suppressed any evidence from the initial entry and detention. However, he did not suppress any evidence obtained pursuant to the search warrant because the search warrant did not allude to or mention the previous entry or detention. Thus, the evidence seized pursuant to the search warrant—methamphetamine and the tools for its manufacture—was untainted by the previous entry and detention.
    On appeal, the State argued that the case fell squarely within the parameters of the “independent source” doctrine because all the information contained in the search warrant was derived from facts that were made known to the officers by the confidential informant before the warrantless entry into the residence. But the court of appeals rejected this argument. First, it observed that the Court of Criminal Appeals had twice declined to recognize the “inevitable discovery” doctrine as an exception to the Texas exclusionary rule (in State v. Daugherty and Garcia v. State). Because the court of appeals felt inevitable discovery and independent source were two sides of the same coin, it declined to recognize either. The court of appeals also declined to recognize “independent source” because the Court of Criminal Appeals had left the issue open, hinting only in dicta that the doctrine might be applicable.2

Independent source vs. inevitable discovery
The Court of Criminal Appeals reversed, holding that the “independent source” doctrine provides for the admissibility of untainted evidence under the Texas statutory exclusionary rule.3 Writing for an ostensibly eight-judge majority, Judge Alcala explained that the United States Supreme Court first recognized the independent source doctrine in 1920 when it held that facts do not become “sacred and inaccessible” simply because they are first discovered unlawfully.4 According to Judge Alcala, the U.S. Supreme Court has long held that evidence is not to be excluded when the connection between the illegal police conduct and the discovery and seizure of evidence is so attenuated as to dissipate the taint. The central question in determining whether challenged evidence is admissible under the independent source doctrine is whether the evidence at issue was obtained by independent, legal means.
    Judge Alcala then went on to detail the two Supreme Court cases that laid out the doctrine. In Segura v. United States, for example, police responded to a tip regarding drug trafficking and entered an apartment without a warrant or consent.5 However, the United States Supreme Court upheld the subsequent seizure of the evidence because it had occurred a day later pursuant to a valid search warrant based solely upon information known to the officers prior to the initial illegal entry. Similarly, in Murray v. United States, the United States Supreme Court broadened the holding in Segura to not only cover evidence observed for the first time during an independent lawful search (the case in Segura), but also evidence that had been observed in plain view during the initial unlawful search.6
    But Judge Alcala made clear that Murray authorized only a subsequent seizure of evidence that police had improperly observed in plain view where the search pursuant to a warrant was in fact a genuinely independent source of the information and tangible evidence at issue. So while the officers would not be able to enter illegally and seize items in plain view, they could subsequently seize that evidence pursuant to a warrant so long as the warrant was based upon information known to officers before the initial, illegal entry and not upon any observations pursuant to an illegal entry.
    Of course, the Texas exclusionary rule in Art. 38.23 is different from the court-made rule in the federal system. But the Court of Criminal Appeals noted that the rule implicates only evidence that was “obtained” in violation of the law. There must be some causal connection between the illegal conduct and the acquisition of the evidence.7 And if the taint from any illegality has dissipated by the time the evidence is acquired, Art. 38.23 is not implicated. The Court of Criminal Appeals had already held that this “attenuation” doctrine was not really an impermissible non-statutory exception to Art. 38.23; it was a method of determining whether evidence was actually “obtained” in violation of the law. When the causal relationship between the illegality and the acquisition of evidence is attenuated, exclusion is not required because the ordinary meaning of “obtained” does not extend to such a remote or attenuated causal relationship. And so, if it is true that evidence is not obtained when the causal relationship is too attenuated, then it is also true that evidence is lawfully obtained if there is no causal relationship between the prior illegality and the later lawful discovery of evidence through the independent source doctrine.
    However, this is different from the “inevitable discovery” doctrine, which presupposes that the evidence was actually obtained in violation of the law. Judge Alcala noted that initially a plurality of the court observed that “inevitable discovery” was a species of harmless error where a constitutional violation is determined to be inconsequential when the outcome of a police investigation was probably unaffected by the violation.8 Later, a majority of the court adopted this reasoning in State v. Daugherty to hold that there is no “inevitable discovery” doctrine in Texas. And there still isn’t. But according to the court, these two doctrines are not the same, and the unavailability of the inevitable discovery doctrine does not require a holding that the independent source doctrine is foreclosed by the Texas exclusionary rule. Simply put, “inevitable discovery” applies to unlawful seizures, while “independent source” necessarily applies to otherwise lawful seizures.
    Judge Price wrote a concurring opinion to not only endorse the majority opinion but also to expand on the court’s rationale. According to Judge Price, the terminology of “inevitable discovery” and “independent source” causes confusion because at bottom, “independent source” is about attenuation of the taint. Applying State v. Mazuca, Judge Price noted that the intervening circumstance of a valid warrant, coupled with the relative lack of purposefulness and flagrancy of the police misconduct, would break the causal connection between the primary illegality and the seizure of the contraband.

Judge Meyer’s
minority report
Judge Meyers dissented to lament the recognition of the independent source doctrine and to criticize the use of a warrant based upon the prediction of future crimes. According to Judge Meyers, probable cause for a search warrant cannot be based upon anticipation of a prospective crime. The informant in this case would have to have provided credible information that Wehrenberg possessed methamphetamine or materials to manufacture the drug.9 The fact that he did not suggested to Judge Meyers that police had relied upon their observations during the initial illegal entry to secure the warrant rather than on the confidential informant’s information.
    Of course, Judge Meyers may have been needlessly philosophical with this point. Regardless of whether the information describes a future or a past crime, the evaluation of the warrant would be the same. As the court has repeatedly said, probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued.10 The warrant is read in a common-sense and realistic manner, and reasonable inferences may be drawn from the facts and circumstances contained in the four corners of the affidavit. Indeed, the probable-cause determination in Illinois v. Gates included predictions of future criminal activity.11 Seems likely that a magistrate could review an affidavit regarding a future meth cook12 and determine if that information gave rise to the reasonable inference that the contraband or evidence would be on the premises. That said, a significant body of law on precognition has yet to be developed.

It is always the better practice to err on the side of getting a search warrant, but this case is a useful tool for those circumstances when law enforcement misjudges a situation and enters a residence in mistaken reliance upon an exception to the warrant requirement that later turns out to be inapplicable. And while it is nice to have such a clear-cut case that finally recognizes the independent source doctrine, note that a strong majority of the court refused to budge on the inapplicability of the inevitable discovery doctrine. The court continues to hold that this exception to the federal exclusionary rule is incompatible with the Texas exclusionary rule. Still, this opinion provides nice validation for all those times prosecutors have told officers to stop what they are doing and get a warrant. So if police can secure a search warrant based solely on the evidence at their disposal prior to any illegality, there still may be a chance to hit the reset button through the independent source doctrine.


1 No, Jeff Foxworthy was not the confidential informant.
2 See State v. Powell, 306 S.W.3d 761, 769 (Tex. Crim. App. 2010)(noting possible applicability of the independent source doctrine).
3 Wehrenberg v. State, Nos. PD-1702-12, PD-1703-12, slip op. at 9 (Tex. Crim. App. Dec. 11, 2013).
4 Id. citing Silverthorne Lumber Company v. United States, 251 U.S. 385, 392 (1920).
5 Segura v. United States, 468 U.S. 796 (1984).
6 Murray v. United States, 487 U.S. 533, 537 (1988).
7 State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996).
8 See Garcia v. State, 829 S.W.2d 796 (Tex. Crim. App. 1992).
9 Or to put it in Foxworthy terms, he’d have to say they used-ta-could have made meth rather than they were fixin’-to do so.
10 See e.g. Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006)(setting out the law regarding review of a search warrant).
11 Illinois v. Gates, 103 S.Ct. 2317 (1983).
12 After watching Breaking Bad, I’m totally down with the lingo.