In Texas, Search Warrants Can Now Be Based on a "Prediction

[LSUTiger]

In Texas, Search Warrants Can Now Be Based on a "Prediction of a Future Crime"

http://blogs.dallasobserver.com/unfairp ... h_warr.php" onclick="window.open(this.href);return false;

"The Second Court of Appeals in Fort Worth wasn't so eager to overlook what appeared to be a clear case of police misconduct and overturned the lower court's ruling.

But it's the Texas Court of Criminal Appeals that has the final say, and last week they agreed with the trial court. In a majority opinion, Judge Elsa Alcala wrote that, while Texas' "exclusionary rule" bans illegally seized evidence from trial, federal precedent dictates that it can be introduced if it was first confirmed by an independent source."

IANAL, but it sounds like "Minority Report" to me.

[WildBill]

But it's the Texas Court of Criminal Appeals that has the final say, and last week they agreed with the trial court. In a majority opinion, Judge Elsa Alcala wrote that, while Texas' "exclusionary rule" bans illegally seized evidence from trial, federal precedent dictates that it can be introduced if it was first confirmed by an independent source."

I thought this was always the case.

[LSUTiger]

But it's the Texas Court of Criminal Appeals that has the final say, and last week they agreed with the trial court. In a majority opinion, Judge Elsa Alcala wrote that, while Texas' "exclusionary rule" bans illegally seized evidence from trial, federal precedent dictates that it can be introduced if it was first confirmed by an independent source."

I thought this was always the case.

I don't know, is this always the case? Or is this some new infringement of our rights? It still doesn't sound right to me.

Hypethetically, I can falsely accuse someone of something and it gives the police the right to illegally obtain evidence? What if they did not find what they were looking for originally but found something else? The fact is they didn't get a warrant first. The warrant limits the search if I am not mistaken.

[jmra]

I don't agree with the title of the thread (make that the title of the story).
Sure the informant said they were getting ready to make meth. But, if I'm a cop, to me that means there are illegal (or illegally obtained) substances in the house. I don't think the action by the police was based on what the suspects were about to do. The information suggested a crime had already been committed.
So the problem here is not why they were arrested but when and how the warrant was obtained.
Said all that to say the title of the story is very misleading.

[WildBill]

I don't agree with the title of the thread (make that the title of the story).
Said all that to say the title of the story is very misleading.

[n5wd]

...
So the problem here is not why they were arrested but when and how the warrant was obtained.
Said all that to say the title of the story is very misleading.

But it doesn't buy into the scare if you don't sell it correctly!

[mamabearCali]

How is that not "fruit of the poisonous tree." The police did something illegal (searching a house with out a warrant) then having the information they needed they went and got the warrant.....huh?

I only took one law class in college, but I remember that type of behavior being specifically illegal.

I must be missing something here.

[texanjoker]

Interesting decision. I have to agree the title is misleading. They had a CI that said they were about to cook meth so they were not predicting, they had a snitch. The article doesn't say how reliable the snitch was. CI's get tested to become reliable. Aside from that, I wonder why they didn't obtain a telephonic search warrant or regular search warrant prior to entry? A LEO can make entry during exigent circumstances, but they can only clear a residence and make it safe. They CANNOT do a further search without a warrant. The article said they waited "hours" so that takes away the exigent circumstances IMO. I personally don't see how one could articulate that somebody was getting ready to cook meth as exigent circumstances and then wait hours before making entry. They did the right thing by freezing the scene and then obtaining a warrant prior to seizing the items. The exigent circumstance is what is in question. I wonder what their reason was? I'd like to read the affidavit. The article said they "walked through the front door" so this could have been a knock and talk. Most raids are at 0600. Not enough info to know what actually happened.

I have been a part of searches and I have never seen a potential meth lab hit prior to having a warrant, or other condition authorizing a search such as a parole/probation condition where one gave up their 4th amendment rights as part of a plea deal, or a knock & talk with consent given. (not in all jurisdictions). I bet this cases goes to the big court. I can also see it getting overturned due to the fact they had hours to obtain a telephonic warrant prior to the raid. Even tweekers have rights under our great constitution

[EEllis]

But it's the Texas Court of Criminal Appeals that has the final say, and last week they agreed with the trial court. In a majority opinion, Judge Elsa Alcala wrote that, while Texas' "exclusionary rule" bans illegally seized evidence from trial, federal precedent dictates that it can be introduced if it was first confirmed by an independent source."

I thought this was always the case.

I don't know, is this always the case? Or is this some new infringement of our rights? It still doesn't sound right to me.

Hypethetically, I can falsely accuse someone of something and it gives the police the right to illegally obtain evidence? What if they did not find what they were looking for originally but found something else? The fact is they didn't get a warrant first. The warrant limits the search if I am not mistaken.

I think you are framing the situation the wrong way. The case is about the evidence seized and if it is admissible. Clearly the cops actions were illegal, that isn't in question, the argument is that since they had a secondary source they would of gotten the materials anyway so they should be admissible. This isn't "new", I've seen it on Law and Order a dozen times. This ruling moves the line here in Texas a bit but doesn't seem to break new ground.

[texanjoker]

But it's the Texas Court of Criminal Appeals that has the final say, and last week they agreed with the trial court. In a majority opinion, Judge Elsa Alcala wrote that, while Texas' "exclusionary rule" bans illegally seized evidence from trial, federal precedent dictates that it can be introduced if it was first confirmed by an independent source."

I thought this was always the case.

I don't know, is this always the case? Or is this some new infringement of our rights? It still doesn't sound right to me.

Hypethetically, I can falsely accuse someone of something and it gives the police the right to illegally obtain evidence? What if they did not find what they were looking for originally but found something else? The fact is they didn't get a warrant first. The warrant limits the search if I am not mistaken.

I think you are framing the situation the wrong way. The case is about the evidence seized and if it is admissible.

Clearly the cops actions were illegal

, that isn't in question, the argument is that since they had a secondary source they would of gotten the materials anyway so they should be admissible. This isn't "new", I've seen it on Law and Order a dozen times. This ruling moves the line here in Texas a bit but doesn't seem to break new ground.

I'd have to question whether their actions were legal or illegal, and based on the article one cannot tell. They may have had consent to enter the home. With consent their actions would be legal.

[EEllis]

How is that not "fruit of the poisonous tree." The police did something illegal (searching a house with out a warrant) then having the information they needed they went and got the warrant.....huh?

I only took one law class in college, but I remember that type of behavior being specifically illegal.

I must be missing something here.

According to Law and Order if you can show the evidence would have been discovered anyway than you can use it..

No really you are referring to the exclusionary rule where evidence acquired during a search, seizure, or arrest in violation of the Fourth Amendment is inadmissible in court, as is evidence obtained as a result of an unconstitutional search or seizure. It is important to note tho that there are and have always been exceptions to that rule. While not all encompassing here are some of the main exceptions.

(1) A second, unpoisoned/untainted source had a major role in finding the evidence.

(2) The evidence would have been discovered anyways without the tainted evidence.

(3) Evidence may be used for impeaching a witness on cross examination.

(4) A witness's identification of the defendant is not excluded if the witness could identify the defendant before an illegal arrest (witnesses recognizes the defendant from the crime, not from the line up).

(5) The rule does not apply to evidence presented in grand jury proceedings.

(6) State agents acted under a good faith belief that they were complying with the Fourth Amendment.

[EEllis]

I'd have to question whether their actions were legal or illegal, and based on the article one cannot tell. They may have had consent to enter the home. With consent their actions would be legal.

I don't know about legal and honestly it doesn't matter for this case. The court has said the manner in which the police conducted themselves was wrong. That really doesn't seem to be disputed by anyone so rehashing it with the little info we have seems silly. The question is if the "second source" is enough to get the tainted evidence back in. Here the court said it is.

[VMI77]

I don't agree with the title of the thread (make that the title of the story).
Sure the informant said they were getting ready to make meth. But, if I'm a cop, to me that means there are illegal (or illegally obtained) substances in the house. I don't think the action by the police was based on what the suspects were about to do. The information suggested a crime had already been committed.
So the problem here is not why they were arrested but when and how the warrant was obtained.
Said all that to say the title of the story is very misleading.

I agree with you about the title, not so sure about the informant aspect. For one thing the use of an informant is very convenient. Was there an informant, or is this another one of those SOD arrests where they cover up that the NSA illegally provided surveillance data? How can we possibly know when we have secret policing like we do now?

We don't have enough information to know for sure, but just an informant saying someone is about to make meth is not equivalent to that someone possessing illegal substances in their home. Assuming there is really an informant, said informant saying he saw cases of cold pills and other chemicals for making meth in their house, is something more like justifiable "evidence."

What this is really about is an illegal search. The police searched without a warrant and got a warrant after the fact based on false information. Why ever bother to get a warrant if you can get one after the fact?

[jmra]

I don't agree with the title of the thread (make that the title of the story).
Sure the informant said they were getting ready to make meth. But, if I'm a cop, to me that means there are illegal (or illegally obtained) substances in the house. I don't think the action by the police was based on what the suspects were about to do. The information suggested a crime had already been committed.
So the problem here is not why they were arrested but when and how the warrant was obtained.
Said all that to say the title of the story is very misleading.

I agree with you about the title, not so sure about the informant aspect. For one thing the use of an informant is very convenient. Was there an informant, or is this another one of those SOD arrests where they cover up that the NSA illegally provided surveillance data? How can we possibly know when we have secret policing like we do now?

We don't have enough information to know for sure, but just an informant saying someone is about to make meth is not equivalent to that someone possessing illegal substances in their home. Assuming there is really an informant, said informant saying he saw cases of cold pills and other chemicals for making meth in their house, is something more like justifiable "evidence."

What this is really about is an illegal search. The police searched without a warrant and got a warrant after the fact based on false information. Why ever bother to get a warrant if you can get one after the fact?

My biggest issue was the suggestion from the title that people were being arrested for something they might do. As you stated, that is not what this is about.

[WildBill]

According to Law and Order if you can show the evidence would have been discovered anyway than you can use it..

We went to the same law school!