Texas Police Enter Home Without Warrant, Force Everyone To Leave, Then Conceal The Raid From Judge In Obtaining A Post-Search Warrant . . . Found To Be Entirely Permissible By Texas Court

MV5BMTc1NDI5NzQyNF5BMl5BanBnXkFtZTYwMjc4NTE5._V1_SY317_CR0,0,214,317_There is a controversial ruling out of Texas where, in the view of a dissent judge, the Texas Court of Appeals just decided that “search warrants may now be based on predictions of the commission of future crimes.” If that sounds like an episode of Minority Report, the truth is far scarier. There are no “precogs” just police getting subsequent warrants based a confidential source on the threat of a future crime.

Here are the facts from the decision:

A police anti-narcotics unit had been conducting surveillance of a Parker County residence for approximately thirty days when officers received a call from a confidential informant advising them that the occupants were preparing to manufacture methamphetamine that night. Several hours after receiving that call, at approximately 12:30 a.m., officers entered the residence without a search warrant and without consent. Upon entering the residence, the officers encountered several individuals, including appellant, whom they handcuffed and escorted to the front yard. Officers performed a protective sweep of the residence, determined that no methamphetamine was being “cooked” at that time, and then went back outside the residence. Two investigators then prepared the search-warrant affidavit. The affidavit relied only on information provided by the confidential informant and did not mention the officers’ warrantless entry into the residence. In relevant part, the affidavit stated that the informant had “provided information detailing narcotics manufacture and trafficking” at appellant’s residence and had, within the past 72 hours, “personally observed the suspected parties in possession of certain chemicals with intent to manufacture a controlled substance.” The affidavit additionally stated that, according to the confidential informant, the subjects were planning to use the “shake and bake” method of manufacturing methamphetamine, which the affiant described as “fast” and “often utilized to prevent detection of the illicit laboratory by law enforcement personnel.”

At 1:50 a.m., approximately one-and-a-half hours after the officers’ initial entry into the residence, the magistrate signed the search warrant. Police officers conducted a search of the residence and discovered methamphetamine and implements for manufacturing methamphetamine. Appellant was arrested and charged with possession of chemicals with intent to manufacture methamphetamine and possession of methamphetamine weighing more than 4 but less than 200 grams.

So the police entered the residence without a warrant and without independent basis for probable cause. They simply said that an officer got a call from a confidential source. The trial court denied the obvious motion for exclusion as illegal evidence. However, the Second Court of Appeals in Fort Worth found police misconduct and overturned the lower court’s ruling. Then it went to the Texas Court of Criminal Appeals and Judge Elsa Alcala handed down a ruling that delighted both cops and precogs. Judge Elsa Alcala ruled that the exclusionary rule did not apply because the call represented an independent source. Alcala relies on Segura v. United States, 468 U.S. 796, 813-14, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) where the Court ruled that the exclusion of evidence as fruit of the poisonous tree was “not warranted” when “there was an independent source for the warrant under which [the challenged] evidence was seized.”

In truth, the Supreme Court has made an unholy mess out of the Fourth Amendment, riddling relatively clear language in the Constitution with a series of ever-expanding exceptions to allow warrantless searches. However, the decision is potentially sweeping in scope. The court accepted the state argument that “there is no causal connection between the prior illegality and the seizure of evidence” because “evidence obtained pursuant to an independent source, much like evidence for which a prior taint has been attenuated, is not “obtained” in violation of the law and is thus not subject to suppression.” So police can enter a home and order everyone outside to be held ostensibly to stop the destruction of evidence (which is a different claim of exigency under the Fourth Amendment) and then go and back a warrant to collect material in the house. They can then cite to a convenient call from a CI and voilà you have admissible evidence.

Notable, concurring Judge Price notes that the “‘independent source’ doctrine presupposes that there is no causal connection—none at all—between a complained-of violation of the law and the subsequent acquisition of evidence by the police.” However, he later states “it is not altogether clear to me that there is not at least some “but/for” relationship between the initial, unlawful entry into the house—and, more to the point, the unlawful seizure of its occupants—and the later acquisition of evidence, albeit by virtue of an untainted warrant.” Hmmm, that would normally present a wee problem for a claim of independence.

The implications of the decision is not lost on Judge Meyers in his dissenting opinion. First he virtually ridicules the assumptions of the majority made in conflict with simple common sense:

it is obvious to me that this search warrant was obtained based upon the officers’ unlawful entry into Appellant’s residence. According to testimony of the investigator who secured the warrant, he spoke to the informant three to four hours before the officers went [*47] to “secure” Appellant’s residence. This is completely inconsistent with the idea that the officers had to conduct the unwarranted entry because of exigent circumstances or to prevent destruction of evidence. Had such circumstances actually existed, the officers would have proceeded immediately to the residence rather than delaying for the number of hours that they did. There was more than enough time to secure a search warrant before the officers’ intrusion into the premises, but they deliberately chose not to attempt to obtain it until after they had conducted the unlawful entry. Further, 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. 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.

More importantly, the officers concealed from the court that they had already entered the home without a warrant which distinguishes the case from the decision in Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988), where “federal agents unlawfully entered a warehouse, observed drugs, and then secured a search warrant based on information they had prior to their entry.”

Finally, there is the problem that Meyer correctly notes that “the informant’s information was only a prediction of a future crime rather than information about one that had been committed or was in the process of being committed. This prediction cannot be the basis for a valid search warrant. But even contrary to the claims of the State in this case, it is apparent from the sequence of events that the search warrant was derived from anything but an independent source.” Thus, any officer can claim that he received a call from a CI that he works with and that the CI said that a person might be committing a crime in the future. The officer can then, hours later, enter the home with a warrant and frog march everyone outside. He can then get a warrant and claim the CI as an independent source and hide the fact that he had already entered the home and forced everyone outside. For a state that prides itself on resisting big government and big brother, it is a curious precedent to establish.

We previously discussed how the searching of whole neighborhoods without warrants during the Boston bombing case produced little scrutiny. We have seen increasing searches carried without warrants under various poorly defined exceptions like exigency. Indeed, we have an Administration that has claimed the right to seize hundreds of millions of communications without a warrant under national security powers. The Framers viewed the sanctity of the home as the very embodiment of liberty and crafted the fourth amendment to bar such intrusions without warrants. We now have a legal system that allows a tip on a future possible crime to be sufficient for a raid and subsequent warrant. I find that rather troubling.

elsa-alcala_jpg_131x197_crop_q100Judge Elsa Alcala, who wrote the majority, is a former state prosecutor who was appointed by Gov. Rick Perry. She is a graduate of The University of Texas Law School and received her BA from Texas A&I University in Kingsville.

Source: Dallas Observer

25 thoughts on “Texas Police Enter Home Without Warrant, Force Everyone To Leave, Then Conceal The Raid From Judge In Obtaining A Post-Search Warrant . . . Found To Be Entirely Permissible By Texas Court

  1. This is truly bizarre…. But the Court of Onions is the highest criminal court in the state of Texas… You gotta remember this is the same court that closed so a man could be executed….. Sharon Keller I think…..is the Chief Judges name….

  2. “There is no liberal wing on the Texas Court of Criminal Appeals. There’s a conservative wing … and a more or less totalitarian wing.” -“Grits” blog

    Monday, June 20, 2011

    Meet Elsa Alcala, newest Texas Court of Criminal Appeals Judge

    http://gritsforbreakfast.blogspot.com/2011/06/meet-elsa-alcala-newest-texas-court-of.html

    Excerpt:

    “Since her nomination was announced, I’ve wondered where Alcala will fit on a court led by a self-avowed “pro-prosecution” judge known for often strained, pro-government opinions. When I asked attorneys I trust about Alcala, the negative responses I received actually related to her husband and brother-in-law, Dan and John Spjut, rather than her. Her husband, a former Houston police lieutenant turned attorney, earned notoriety in a case covered well by Rick Casey at the Houston Chronicle in which his brother repeatedly failed to meet with his client, prepare for trial, or even show up to court in a family law dispute, sending his clearly unprepared sibling Dan to try the case at the last minute. Having never spoken to the client before, Mr. Spjut’s direct examination lasted less than four minutes. “Like the ‘sleeping lawyer’ case,” wrote 1st Court Justice Terry Jennings, “this case will stand as a significant embarrassment in the history of Texas jurisprudence.” Indeed, Casey reported, Jennings said “in dissent that Walker received ‘assistance’ of counsel ‘far below that afforded to the criminal defendant in the infamous sleeping lawyer case.’” Two of Alcala’s colleagues on the 1st Court of Appeals, however, inexplicably found the Spjuts absentee lawyering was not ineffective. Dan Spjut disputed speculation that the ruling was made out of “professional courtesy” to his wife.

    That said, it’s certainly not fair to judge Alcala as a jurist on the basis of failings by her husband or brother-in-law. So over the past few days I took some time to skim dozens of criminal opinions she authored on the 1st Court of Appeals – not all of them by any stretch but most of them over the last three years or so and perhaps enough to get a sense of her approach. It’s somewhat difficult to infer a Court of Appeals judge’s views because they’re so bound by the Court of Criminal Appeals’ opinions, and for the last dozen years or so Texas’ high criminal court has been dominated by Judge Keller and Co., who reflexively go out of their way to side with prosecutors in virtually every instance. But at least one can get a sense of the judge as a writer and thinker, and whether her tendency is to follow stare decisis (past court precedents) or hew her own path.

    My take is that, while Alcala is surely conservative and pro-law enforcement, rarely dissented to pro-government opinions in criminal cases, and while she’s particularly likely to side with the government in cases involving her husband’s former employer at HPD, the judge doesn’t appear to be nearly as knee-jerk in siding with prosecutors as, say, Judges Keller or Hervey on the Court of Criminal Appeals. Most of her decisions affirmed lower court rulings and stuck closely to existing precedent, but there were also instances where she demonstrated an ability to think for herself.

    In all, one imagines Governor Perry could have done worse than Alcala’s appointment (particularly given that last year rumors swirled that Williamson County DA John Bradley might be named to the slot). Her views don’t reflect my own, but neither do I suppose she’ll just be another yes-woman to Judge Keller and the faction she leads on the CCA. Grits has written before that “There is no liberal wing on the Texas Court of Criminal Appeals. There’s a conservative wing … and a more or less totalitarian wing.” From reading this sample of opinions, I’m hopeful, if not certain, Alcala may end up residing in the former camp.

    End of excerpt

    That was 2011. Now we know.

  3. There was a judge in Parker County that was a former state prosecutor. He was appointed to the bench by Governor Perry. This never elected judge would like for me to say his name, I will not. But I will tell you that he had no respect for the constitutional rights of Parker County’s citizens. He was egregious in the way he interpreted the constitution from the bench. In his mind he was making the world a better place by misinterpreting the constitution and creating new law from the bench. He sought to be elected to the position but the citizens of Parker County threw him out.

  4. I have to agree with the dissenting judge. Covering the tracks is the most likely real world reason this went down.

    Sad how a confidential informant can have as much power as a judge in allowing the police to enter someone’s residence. Much of the time, CIs are not the most savory people to begin with

  5. Blouise made an error telling this joke the other & I’m going to help her correct it right here:

    (A Oklahoma game warden came upon a coyote caught in a trap. He took out his cell phone and called the Texas game warden and told him one of his coyotes was caught in a trap.” How do you know it’s one of our coyotes?” asked the Texas game warden.” Well,” replied the Oklahoma game warden, “ Judge Elsa Alcala has already chewed off three of her legs and she’s still trapped!”)

  6. Tyler Durden’s picture
    HSBC Gets Slap On The Wrist For Helping To Finance Terrorists
    Submitted by Tyler Durden on 12/20/2013 – 08:21

    HSBC is back in the news. This time it relates to their transferring funds on the behalf of financiers for the militant group Hezbollah. If transactions such as these had even the slightest link to Bitcoin, there would be endless uproar, calls for countless Congressional hearings and demands to stop the currency at all costs. But when HSBC is caught doing it, what happens? A $32,400 settlement.

  7. Ironically this post came in my email upon the heels of the comment purportedly from Michael Busby where he writes: “The learned professor has not read the complaint, nor is there any evidence he has studied Texas law but but can give a “educated” opinion about the possibility of future events? ”
    Well heck, if the officers could why can’t the professor? (:

  8. Looks like police departments around the country are going to be investing a lot of in burner phones for making those anonymous phone calls predicting crimes.

  9. Warrants? We don’t need no stinking warrants! The law is becoming an inconvenience to the powers that be. This is from 2006 and things have deteriorated since: http://www.cbsnews.com/news/george-w-bush-vs-the-constitution/

    The president claims an inherent power to imprison American citizens whom he has determined to be this country’s enemies without obtaining a warrant, letting them hear the charges against them, or following other safeguards against wrongful punishment guaranteed by the Bill of Rights. Under his administration, the government has engaged in inhumane treatment of prisoners that amounts to torture — and when Congress passed legislation to ban such treatment, he declared he would simply interpret the law his own way. Although the Constitution says treaties are the “supreme law of the land,” the president has abrogated them on his own. And, we now know, he ordered a secret program of electronic surveillance of Americans without court warrants.

  10. Wow:

    And to think in the past we felt lucky to get a few M-16s and an MP-5 for our department.

    One has to wonder how the military can get away with giving away a $600K piece of equipment for nothing when it might be needed sometime in the future. Better it seems to just build a new one for more money.

    Oddly, the mainstay of our military’s strategic bomber fleet, the B-52, is more than fifty years old and still used.

  11. Darren, good questions. armament building is about the only good paying US jobs program there is so maybe the point isn’t what is built, only that something is built.

    In a more paranoid vein, I think local police forces are being ‘federalized’ into quazi-military units. There are several ongoing programs that integrate the federal LE agencies, the security agencies and local/state police forces, all the while shifting jurisdictional control for increasingly joint operations upward. It’s conditioning local and state LE to work under the direction of federal agencies. If those lines get blurred enough one doesn’t have to worry about the spectre of Posse Comitatus raising hackles. There is a ready made domestic army to be put in play.

    I don’t know why such things as giving SWAT tanks is going on but I don’t think a vehicle like that, or gear/weapons like we increasingly see, has any business on American streets. That’s the kind of thing you see in an occupied country.

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