Wehrenberg v. State

• Decision Date: 11 December 2013
• Docket Number: Nos. PD–1702–12,PD–1703–12.,s. PD–1702–12
• Citation: 416 S.W.3d 458
• Parties: Michael Fred WEHRENBERG, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

416 S.W.3d 458

Michael Fred WEHRENBERG, Appellant

v.The STATE of Texas.

Nos. PD–1702–12, PD–1703–12.

Court of Criminal Appeals of Texas.

Dec. 11, 2013.

James R. Wilson, The Mallick Tower, Richard Alley, Fort Worth, TX, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, Texas, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Is the federal independent source doctrine, which excepts from the exclusionary rule evidence initially observed during an unlawful search but later obtained lawfully through independent means, applicable in Texas? The State raises this question in its petition for discretionary review after the court of appeals reversed two felony drug convictions of Michael Fred Wehrenberg, appellant, on the grounds that the trial court erred by applying that doctrine as a basis to deny appellant's motion to suppress. Wehrenberg v. State, 385 S.W.3d 715 (Tex.App.-Fort Worth 2012) (holding that independent source doctrine is inconsistent with Texas's exclusionary rule and thus inapplicable in this State). We agree with the State that the independent source doctrine poses no conflict with Article 38.23 of the Texas Code of Criminal Procedure, the statutory exclusionary rule in Texas that requires suppression of evidence “obtained” in violation of the law. SeeTex.Code Crim. Proc. art. 38.23; Segura v. United States, 468 U.S. 796, 813–14, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (holding that exclusion of evidence as fruit of the poisonous tree was “not warranted” because “there was an independent source for the warrant under which [the challenged] evidence was seized”). 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. We reverse and remand.

I. Background and Procedural History

A. Facts and Trial Proceeding

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.¹

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 to suppress, the trial court heard testimony from Investigator Montanez, one of the officers who had prepared the search-warrant affidavit. Regarding the initial entry, Montanez stated that upon receiving the informant's tip that the subjects were “fixing to cook methamphetamine,” the officers decided to “pull[ ] everybody out of the house and place[ ] them in the front yard” in order to “keep from evidence being destroyed.” Montanez additionally explained that it was necessary 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.” Regarding the search warrant, Montanez testified that the affidavit's contents were based solely on the confidential informant's tip. He stated that he left to go get the warrant signed “immediately” after appellant and his co-defendants were detained, and that he returned to the scene around 2 a.m., at which time the search warrant was executed.

The trial court granted in part and denied in part appellant's motion to suppress. Announcing his ruling, the trial judge stated that the officers' initial entry into the residence was “without a lawful warrant, exigent circumstances, or other lawful basis,” and that, therefore, “any evidence from that search and seizure during that entry and detention at the initial entry to the home is suppressed.” The trial judge went on to explain, however, that evidence seized pursuant to the search warrant was not subject to suppression because the search-warrant affidavit did not “allude to or mention the previous entry of the home, nor the detention of the suspect inhabitant defendants,” and, therefore, the warrant was “untainted by the previous entry and detention.” ² Appellant subsequently pled guilty pursuant to a plea-bargain agreement and was sentenced to five years' confinement on each count, to run concurrently. Appellant expressly reserved his right to appeal the trial court's ruling on the motion to suppress.

B. Court of Appeals's Holding and Arguments on Discretionary Review

In the court of appeals, appellant contested the trial court's conclusion that the search warrant could serve as a valid basis for admitting the challenged evidence. He argued that (1) the officers' initial entry into the residence was unjustified by any exception to the warrant requirement and thus constituted an unlawful search, and (2) officers obtained information during that unlawful search that later served as the basis for the search-warrant affidavit, and, therefore, the warrant was “tainted from the use of information gained in and from the warrantless entry of the home.” Appellant essentially disputed the trial court's assessment that the search-warrant affidavit was based solely on information provided by the confidential informant, but he did not directly argue that the independent source doctrine was inapplicable in this State. In response to appellant's arguments, the State contended that suppression was not required because (1) the officers' initial entry into the residence was justified by exigent circumstances, and, alternatively (2) the search warrant was a valid basis for admitting the challenged evidence under the independent source doctrine because it was issued based solely on information provided by the confidential informant and thus was untainted by any pre-warrant intrusion into the residence.

After agreeing with appellant and the trial court that the officers' initial entry into the residence was unlawful, the court of appeals held that the trial court erred by finding that the search warrant was a valid basis for admitting the challenged evidence under the independent source doctrine. See Wehrenberg, 385 S.W.3d at 727–29. Although the court of appeals agreed with the State's contention that this case “would appear to fall squarely within the parameters of the independent source doctrine” because “all of the information contained in the search warrant affidavit was derived from facts that were made known to [the officers] by the confidential informant before the warrantless entry into the residence,” it ultimately concluded that the doctrine was inapplicable in Texas, for three reasons. Id. at 727. First, the court of appeals noted that it had declined to adopt the independent source doctrine in its prior opinion in Oliver v. State.Id. (citing 711 S.W.2d 442, 445 (Tex.App.-Fort Worth 1986, pet. ref'd)) (reasoning that both inevitable discovery and independent source doctrines constitute “judicial exceptions to the judicially articulated exclusionary rule,” and declining to apply those doctrines because Texas's statutory exclusionary rule plainly “contains no exceptions”). Second, the court of appeals noted that this Court has, on at least two prior occasions, in State v. Daugherty and Garcia v. State, “declined to recognize that the federal inevitable discovery doctrine is an exception to the statutory Texas exclusionary rule.” Id. (citing State v. Daugherty, 931 S.W.2d 268, 269–73 (Tex.Crim.App.1996); Garcia v. State, 829 S.W.2d 796, 798–800 (Tex.Crim.App.1992)). Although it recognized that this Court's opinions in Daugherty and Garcia addressed only the inevitable discovery doctrine, not the independent source doctrine, the court of appeals reasoned that...