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One Fabulous Skyline
G&S Vol. 21, No. 50 - December 16, 2013
TIBA’s Case of the Week
Case Name: Michael Fred Wehrenberg v. The State of Texas
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OFFENSE: Possession of Certain Chemicals; Possession of Controlled Substance
COUNTY: Parker
COURT OF APPEALS: Fort Worth 2012
C/A CITATION: 385 S.W.3d 715
C/A RESULT: Trial Court Reversed
CCA. CASE No. PD-1702-12 & PD-1703-12
DATE OF OPINION: December 11, 2013
DISPOSITION: Court of Appeals Reversed
OPINION: Alcala, J.
VOTE: 7-1-1
TRIAL COURT: 43rd D/C; Hon. Roy Quisenberry
LAWYERS: Richard Alley, James Wilson (Defense); Don Schnebly, Edward Lewallen
(State)
(Background Facts) The police had been conducting surveillance of a 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, which is not in and of itself challenged, was based solely on information
provided by the confidential informant and did not mention the officers’ warrantless
entry into the residence. Approximately one-and-a-half hours after the officers’
initial entry into the residence, the magistrate signed the search warrant. Police
officers searched the residence and discovered methamphetamine and implements
for manufacturing methamphetamine.
G&S 32.02 Search & Seizure / Inevitable Discovery or Independent Source: Appellant moved to
suppress the evidence, arguing that the officers’ warrantless entry was unlawful and that all
evidence seized thereafter was subject to suppression. The State, in response, argued that the
search warrant was a valid basis for admitting the challenged evidence. At the hearing on the
motion, Officer Montanez justified the warrantless entry into the house, stating that it was
necessary “to “keep from evidence being destroyed” and to “secure the residence” because the
process of “cooking” methamphetamine via the “shake-and-bake method” is “volatile” and
“hazardous” in that it can cause explosions and/or fire, and he was “afraid that [the subjects] would
begin making methamphetamine and then a fire would break out.” He also testified that the
contents of the search warrant affidavit were based solely on the confidential informant’s tip. The
trial court denied the motion to suppress, but the Court of Appeals reversed the conviction, holding
that the federal “independent source doctrine” is inconsistent with Texas’s exclusionary rule and
thus inapplicable in this State (see G&S, Vol. 20, No. 46; 11/19/2012). The Court of Appeals noted
that the Court of Criminal Appeals “declined to recognize that the federal inevitable discovery
doctrine is an exception to the statutory Texas exclusionary rule” in Garcia v. State, 829 S.W.2d
796 (Tex.Cr.App. 1992), and State v. Daugherty, 931 S.W.2d 268 (Tex.Cr.App. 1996)(see G&S, Vol.
4, No. 24; 06/26/1996). Although it recognized that the opinions in Daugherty and Garcia
addressed only the inevitable discovery doctrine, not the independent source doctrine, the Court
of Appeals reasoned that those two doctrines are “actually two sides of the same coin.” The Court
of Criminal Appeals granted the State’s PDR to determine whether the Court of Appeals erred by
holding that the independent source doctrine conflicts with the statutory exclusionary rule and is
inapplicable in Texas.
Holding: Because the independent source doctrine does not circumvent or avoid the statutory
exclusionary rule’s requirement that evidence obtained in violation of the law be suppressed, we
conclude that the Court of Appeals erred by rejecting that doctrine as a basis for upholding the
trial court’s suppression ruling.
Concurring / Dissenting Opinions: Judge Price filed a concurring opinion. He agrees “without
reservation” that the concept behind the federal independent source doctrine may be applied
consistently with Article 38.23, “notwithstanding that we have previously held that the ‘inevitable
discovery’ doctrine may not be applied consistently with Article 38.23.” Judge Meyers dissented,
arguing that the opinion provides the State with two “majors wins,” which he says are “First, the
independent source doctrine is now an applicable concept in Texas law and, second, search
warrants may now be based on predictions of the commission of future crimes.”
Sidebars: (David A. Schulman) When the Court of Appeals delivered it’s opinion, I wrote that it
was a “horribly written opinion” and “a waste of 25 pages of paper. These opinions are also an
unnecessary waste of paper. First, even if the Court of Appeals was correct in its statement that
the officers’ warrantless entry into the residence was unjustified, it was dead wrong when it
determined that the drugs found pursuant to the search warrant should have been suppressed,
because the drugs involved were not fruits of the warrantless entry. Appellant’s remedy for the
cops busting in and “securing” the house while quite literally arresting him and everyone in the
house was not suppression of the drugs later discovered, as it is clear that nobody was cooking
meth when the police arrived and nothing the officers observed was used to obtain the search
warrant. Appellant’s remedy for the intrusion and arguably improper arrest is a suit for damages
under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Second, whether this opinion and its several recitations about the differences in the “inevitable
discovery” rule rejected in Daugherty and Garcia, and the “independent source” doctrine, are
correct, the entire discussion is unnecessary. As this opinion correctly notes, ,the independent
source doctrine, “excepts from the exclusionary rule evidence initially observed during an unlawful
search but later obtained lawfully through independent means.” Thus, because the search warrant
was not based on “evidence initially observed during an unlawful search,” the “independent source
doctrine is not really at play.