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.

Judge 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