The story of police being able to obtain a warrant based on prediction of a crime is generating a lot of interest mixed with outrage on the Internet. It has shades of the 2002 “Minority Report” Tom Cruise movie, which convicted people based on a prediction that they would commit crimes.
But the ruling last week by a Texas appeals court judge is not science fiction. It stems from a controversial case in which police failed to obtain a warrant before a search. But officers were still permitted to use a weapon confiscated during the search as evidence in a trial.
2010 meth case
Three years ago, police in Parker County, Texas, staked out Michael Fred Wehrenberg’s house for a month after getting a tip that he was making meth. Without a warrant, police entered the home and made arrests of those inside, including Wehrenberg.
Police south the warrant to confiscate the meth-making material in the home after they had already searched it without a warrant. On the warrant application, they failed to mention that they had been in the home before.
Wehrenberg’s attorney argued that the evidence was inadmissible because it was seized illegally. But the trial judge overruled this request, ruling federal “independent source doctrine” allowed the evidence because a third party – the unnamed informant – tells police about it beforehand.
As a result of that judge’s decision, Wehrenberg pleaded guilty to meth possession and intent to manufacture. He got five years in prison.
The Second Court of Appeals subsequently overturned the trial judge’s ruling, but the Court of Appeals reinstated the original judge’s decision.
The majority opinion was written by Judge Elsa Alcala. She wrote that while Texas law prohibits illegally obtained evidence to be submitted, federal precedent allows it if first confirmed by an independent third party.
But dissenting Judge Lawrence Meyers wrote that police decided to obtain a search warrant only after entering the home illegally.
“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,” Meyers wrote. “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.”
Meyers also disagreed that the idea that the informant’s tip was actually confirmation by a third party. The justice wrote that it was merely a prediction.
“Search warrants may now be based on predictions of the commission of future crimes,” Meyers wrote.