— By CHRISTIN COYNE
A Parker County felony drug case involving the illegal entry of a Weatherford home by Parker County narcotics investigators is headed back to a lower court after Texas’ highest criminal appeals court handed state prosecutors a win last week.
Michael Fred Wehrenberg, 49, who is currently on parole after pleading guilty two years ago to two felony drug charges, is appealing his conviction, arguing that a Parker County judge should not have allowed prosecutors to use evidence obtained after officers made unlawful entry to a house during the August 2010 investigation.
Ruling last week on the issue of how to interpret state law regarding the issue, the Texas Court of Criminal Appeals sent Wehrenberg’s appeal back to the Second Court of Appeals.
The Second Court of Appeals will now likely address prosecutors’ argument that the evidence truly was obtained independently of the illegal entry, according to State Attorney Lisa McMinn, who said the justices might consider whether the magistrate who issued the search warrant had knowledge of the prior entry.
Michael Fred Wehrenberg, 49, was arrested Aug. 31, 2010, on charges he was preparing to manufacture methamphetamine.
Several hours after receiving information from a confidential informant that people were about to cook methamphetamine at a residence at 501 Center Point Road, which had been under surveillance for a month, narcotics investigators testified they went to the residence around 12:30 a.m.
Law enforcement officers entered the residence without a warrant or permission, handcuffed and removed Wehrenberg and others from the residence and performed a “protective sweep” of the premises, according to court records, which state no one cooking methamphetamine at the time.
Investigators then sought and obtained a search warrant for the residence shortly before 2 a.m.
Relying only on information provided by the informant, who had “personally observed the suspected parties in possession of certain chemicals with intent to manufacture a controlled substance,” the officer seeking the warrant stated that the suspects were planning to use the “shake and bake” method of manufacturing methamphetamine, described as “fast” and used to prevent detection by police.
After obtaining the warrant, narcotics investigators reportedly seized evidence that included empty pseudoephedrine boxes, empty blister packets, a coffee grinder with residue, Oxycodone, lithium batteries, stripped lithium batteries, a vial with liquid, and red- and clear-colored liquids.
In response to Wehrenberg’s motion to suppress the seized evidence, Judge Graham Quisenberry “stated that the officers’ initial entry into the residence was ‘without a lawful warrant, exigent circumstances, or other lawful basis,’ and therefore, ‘any evidence from that search and seizure during that entry and detention at the initial entry to the home is suppressed,’” according to court records. “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.’”
After the judge’s decision, Wehrenberg made a deal with prosecutors, pleading guilty to possession of more than four grams of methamphetamine and possession or transport of chemicals with the intent to manufacture methamphetamine and receiving five years confinement in each case.
Other defendants arrested with Wehrenberg took plea deals, waiving their right to appeal, according to a prosecutor.
Wehrenberg appealed, contending that his detention and removal from the residence was illegal and the illegal entry tainted the subsequent search warrant.
A three-judge panel for Second Court of Appeals ruled in Wehrenberg’s favor last year, and the state appealed that decision to the Texas Court of Criminal Appeals.
“The only issue before the court of criminal appeals was whether the search could be upheld based on the warrant and whether the warrant served as an independent source for the evidence,” McMinn said. “The initial entry into the house was illegal so the question was whether the later warrant that came, which was not tainted by the earlier entry, would provide justification for admitting that evidence.”
Different from the federal rule on the subject created by federal courts, Texas law basically states that no evidence obtained in violation of the law is admissible during trial, according to McMinn, who said the court essentially said that since the evidence was obtained independently, it was not a violation of the law.
“We, therefore, hold that the court of appeals erred by holding that the independent source doctrine is inapplicable in Texas,” the opinion handed down by eight of the court’s nine judges states. “We remand this cause to the court of appeals for further consideration of appellant’s argument that the trial court erroneously denied his motion to suppress.”
The only dissenting justice, Judge Lawrence Meyers, argued that the search warrant was not obtained exclusively on information from the police informant because it was obtained several hours after receiving the information and after officers had already conducted a sweep of the residence.
Meyers came to the conclusion that court’s decision allows “search warrants ... [to] be based on predictions of the commission of future crimes.”
“That’s really not an issue in the case,” McMinn told the Democrat.
Parker County Assistant District Attorney Jeff Swain also noted that, under state law, possession of the substances used to manufacture methamphetamine with the intent to do is a crime itself, not just actual the actual cooking of methamphetamine.
McMinn doesn’t expect the court of criminal appeals reading of state law in this case to affect very much.
“I thought it was a pretty clear cut interpretation of our exclusionary rule,” McMinn said. “And I was surprised it had not been addressed before because it’s just sort of a natural, clear reading of the statute.”
“I don’t know if it will have a huge affect [on Texas law],” McMinn said. “I don’t know how often you have a situation where it ends up where you have an illegal act by the police and yet there’s another way that the evidence was discovered legally. It probably doesn’t come up all that often, although there are cases, you know, in the U.S. Supreme Court and other states where it’s been used. So it does happen but probably not all that often.”
Wehrenberg’s attorney, James Wilson, reached Friday, said he was ill and not available to discuss the ruling.