A Texas appeals court ruled that police can obtain search a warrant based on “a prediction of future crime,” the Dallas Observer reported Tuesday.
The ruling last week by a Texas appeals court stems from a controversial case in which police failed to obtain a warrant before a search. Police officers were still permitted to use a weapon confiscated during the search as evidence in a trial.
In 2010, police in Parker County, Texas, staked out Michael Fred Wehrenberg’s house for a month after getting a tip that he was making methamphetamine. Without a warrant, officers entered his home and made arrests of those inside, including Wehrenberg.
Parker County Police sought the warrant to confiscate the meth-making material in the home after they had already searched it without a warrant. But on the search warrant application, they failed to mention that they had been in the home before.
Wehrenberg’s lawyer said that the evidence was inadmissible because it was seized illegally. The trial judge denied 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 accepted a plea bargain and pleaded guilty to meth possession and intent to manufacture. He was sentenced to five years in prison.
The Texas Second Court of Appeals subsequently overturned the trial judge’s ruling, but the higher Court of Appeals reinstated the original judge’s decision.
The majority appeals court opinion was written by Judge Elsa Alcala. The justice wrote that while Texas law prohibits illegally obtained evidence to be submitted, federal precedent allows it if first confirmed by an independent third party.
Dissenting justice 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,” the appeals judge 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.”
The dissenting appeals judge also disagreed that the idea that the informant’s tip was actually confirmation by a third party. Meyers wrote that it was merely a prediction.
“Search warrants may now be based on predictions of the commission of future crimes,” the judge wrote.