Change in Texas Warrant Law

A recent Texas Court of Criminal Appeals case has created a new wrinkle to the law pertaining to warrants in Texas. The Court in Wehrenberg v. State has adopted the “independent source doctrine,” which has been mainstay of Federal law for decades. The doctrine holds that evidence obtained by independent, lawful means is not tainted by a prior illegal search.

Wehrenberg involved a narcotics investigation in Parker County. Police had been conducting surveillance on the defendant’s home for 30 days when a confidential informant told police that residents in the home were about to start manufacturing methamphetamine. Based on this information, police officers entered the home without a warrant or consent–that is, illegally–secured the inhabitants and conducted a sweep of the home, concluding that the suspects were not cooking meth at that time. The officers then secured a warrant, which did not mention the illegal search moments before, searched the home and discovered meth and devices used to manufacture meth. The residents were arrested.

The owner of the home, now charged, sought to suppress all of the evidence obtained during the search pursuant to the warrant. He claimed even if the warrant did not mention the illegal search, information from the illegal search was used which tainted the warrant. If true, this would have put the meth and other evidence strictly within the “fruit of the poisonous tree” doctrine, well established in state and federal law. This doctrine provides that evidence or information obtained in an illegal search cannot be the basis for a lawful search later. In other words, once evidence is tainted, any additional evidence obtained directly or indirectly from that evidence is tainted at well.

Prior to the case, the independent source doctrine had not been applied to Texas law, but the Court changed course is Wehrenberg. The independent source doctrine seems to be a sound policy because it prevents criminals from avoiding convictions based on technicalities. However it also has strong potential for abuse. Consider this: suppose police receive a tip that an inhabitant of a home is storing drugs. The police could obtain a warrant and search the house, or the police could conduct an illegal search and see if the informant is telling the truth. Once they see that he is, they could then secure a warrant, never mentioning the illegal entry. The evidence would then be obtained by an “independent source” and not be tainted, despite being observed during an illegal search. The problem with this scenario is that the police would be violating someone’s right to be free from unreasonable searches and seizures (4th Amendment) simply to make their lives easier rather than to investigate a crime. It creates a loophole around the warrant requirement.

There are no accounts so far of police abusing the independent source doctrine, but defense attorneys will be on alert. If carefully practiced the independent source doctrine has the potential to take dangerous criminals off our streets, but history has no shortage of stories of police officers not respecting civil rights. It is always important to track the law of warrants and make sure the police are living by the proper requirements. Otherwise rights become useless words on paper and soon disappear.