Debate Forum 01/07

Debate Center: Texas court seizes Fourth Amendment issue

By Alex Culpepper

 Illustration:Dayton artist Elliot Ward.


Normally, the police cannot just come to a house, walk in and begin searching for evidence, even if a person has been suspected of a crime. Under the Fourth Amendment, the police need probable cause and a search warrant, and the search warrant needs to specify who is being searched and what in particular they hope to find. This protection for citizens to be “secure in their persons, houses, papers, and effects” is a legacy dating back to pre-Independence days when British officials undertook door-to-door searches in effort to collect tax revenue. The Constitution limits government and law enforcement this way so people are not subject to unlawful search and seizure.

In Texas, however, one event has put a spotlight on law enforcement and the Fourth Amendment. In this particular case, a court sided with police in their search and seizure operation when they entered a home based on information a crime was about to happen. In 2010, police in Texas staked out Michael Wehrenberg’s home with hopes of observing illegal activity. They had received information from an informant that Wehrenberg and some others were intent on making methamphetamine.The police raided the house, arrested the occupants and then received the search warrant allowing them to confiscate materials. Wehrenberg’s lawyer made a motion citing the evidence was gathered illegally, but in the end, the Texas Court of Criminal Appeals said the evidence confirmed by an independent source, the informant, was sufficient and legal. Wehrenberg went to jail.

Opponents of the court’s decision say this case is questionable police work and may set an uncomfortable precedent leading to “predictive policing” at the expense of constitutional rights. They say using information from an informant is not evidence; it’s just making a prediction of a crime, and people can only be arrested for a crime they commit, not a crime they may commit. They further note it is suspicious the police did not initially get a warrant because if their informant was legitimate, an appropriate warrant would have been no problem to secure.

Supporters of the court’s ruling stand by police actions. They say the informant’s information about chemicals and materials at the home were sufficient to determine illegal activity. They cite the fact Wehrenberg and his associates were in possession of illegal material and that it was confirmed by a third party justifies police action.

Reports say police elsewhere in the country have used a predictive approach to crime fighting by using software programs and “predictive analytics” to set up mathematical models identifying patterns of where crime will occur. The issue, though, usually comes down to how much police power people are willing to accept. Some people believe the police should be aggressive in their approaches to deter or stop crime and should use whatever legal tactics available. Others worry about police power leading to misconduct and breaches of rights brought on by courts being too sympathetic with police conduct.

Reach DCP forum moderator Alex Culpepper at


Debate Forum Question of the Week:

A Texas court has ruled police can serve someone a search warrant based on the prediction that person will commit a crime. Should police have the power to search a person’s property based solely on the prediction a crime will occur?


Debate Left: At least I was able to avoid mentioning Scientology

By Ben Tomkins

When I got the call from my editor about Texas police raiding a house based on the prediction of a future crime, I told myself right there I wasn’t going to mention “Minority Report.” I said, “I’m not going to do it. I won’t. It’s a hacky thing to write, it’s too easy and I’m better than that. I’m not going to do it.”

So, I start reading up on this this thing and it has all the hallmarks of the quality of justice I would expect from a state that sent a kid to happy-time-play-date-rehab at a mansion for rich kids in Newport Beach because his “affluenza” caused him to kill four people in a pickup truck – of course – while drunk and high. The police get a tip from some chick about some dudes preparing to cook meth, the police stake out the house, nothing happens, nothing happens, nothing happens … and finally when their little tummies start rumbling in anticipation of a well-deserved lunch break, they decide “screw this,” kick down the door without a search warrant, horse collar the two idiots out into the yard in handcuffs and proceed to turn out the house like an Italian mob before calling in a search warrant retroactively for the evidence they found as a result.

For a state that became the poster child for anal sex crime when the Supreme Court declared Texas anti-sodomy laws unconstitutional in 2003 – I will say that again: in two thousand and three – you would think state authorities would exercise at least a little discretion with the ribbed end of the nightstick.  But it doesn’t stop there. They’re hauled up in front of a judge who screws them again and then sends them to jail where recently retracted legislation will remove a misdemeanor from the list of future crime felonies imposed upon them by the big dude from “Green Mile.” Finally, just when it appears the nightmare is about to end when the Second Court of Appeals in Fort Worth overturns the verdict, the Texas Court of Criminal Appeals recalls the case and a full six of the seven judges on the panel line up and take turns bending them over the bench like a pair of broken patio chairs.

Up to this point, I am holding it together, and then it happens. The one dissenting judge writes the “minority opinion” in which he said, “search warrants may now be based on predictions of the commission of future crimes.”

Dammit, they force you to say it! They force you! That’s the premise of “Minority Report”! A vegetable informs the police the two defendants were about to make methamphetamine – rather, “fixin’ to cook meth” – and the police cuff them and search their house “based on predictions of the commission of future crimes.” You have to say it!

They also made mention of sodomy incidentally, which I planned to avoid so as not to become embroiled in a defamation lawsuit. At the risk of disgracing my sense of humor, I suppose I should have seen this coming.

Regardless, this is so ridiculous it’s almost beyond description. If the criteria for law enforcement officials entering a private residence without a warrant on the suspicion of the commission of a non-violent crime is “someone told us,” why even bother having a Constitution? Was Thomas Jefferson simply wasting otherwise perfectly good quills? Was the winter at Valley Forge something Washington did to prove a point about the low quality of coat manufacturing in the colonies?

Oh, and don’t think for a second this is only a Texas thing. There is actually a federal legal clause called the “independent source doctrine” which allows otherwise illegally seized evidence to be admitted into evidence if a third party told police about it beforehand. Now that’s scary. Have you ever met any of my ex-girlfriends?

Holy crap, if they would have known about this stuff I would have been detained about seventy-five times in two weeks on the back of anonymous phone calls accusing me of everything and anything their evil little brains could dream up.

It’s crazy. It’s absolutely crazy this is possible in a modern society. The only thing that makes me feel slightly better is this came out of Texas and not Massachusetts or some other Ivy League repository. I suppose the best I can do to bring some psychological balance back into the world is to create a sense of symmetry by quoting the only part of the Forum Center that was necessary to convey the totality of what this case is. Here goes.

“Normally, the police cannot just come to a house, walk in and begin searching for evidence even if a person has been suspected of a crime. Under the Fourth Amendment, the police need probable cause and a search warrant, and the search warrant needs to specify who is being searched and what in particular they hope to find. This protection for citizens to be ‘secure in their persons, houses, papers, and effects’ is a legacy dating back to pre-Revolution days when British officials undertook door-to-door searches in effort to collect tax revenue. The Constitution limits government and law enforcement this way so that people are not subject to unlawful search and seizure.

In Texas, however … ”

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at


Debate Right: Texas case is fact-sensitive, not an abuse of liberty

By Rob Scott

 With the recent decision by the Texas Court of Appeals, many will say our world is beginning to turn into the science fiction thriller movie “Minority Report.” In the movie, a specialized police unit called “precrime” apprehends criminals based on foreknowledge provided by three psychics called “precogs.” So, before someone commits a crime they are apprehended for the possibility of committing the crime. Tom Cruise is the main character that makes arrests based upon what the precogs see in the future. The justification for the precrime unit in the movie is the prevention of all murders and crime.

Have no fear. The court’s decision does not go as far as a precrime unit, but could open up possible abuse if not monitored and to continue the constitutional safeguards already in place.

As an attorney who practices criminal law, no right is more paramount in the criminal context than the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. The Fourth Amendment applies to the states through the Fourteenth Amendment. It was adopted in response to the abuse of the writ of assistance – essentially a general search warrant issued by the British government and major source of tension.

Under the Fourth Amendment, search and seizure should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer who was sworn by it. Fourth Amendment case law deals with three questions: what government activities constitute search and seizure; what constitutes probable cause for these actions; and how violations of Fourth Amendment rights should be addressed.

Court decisions limited the amendment’s scope to a law enforcement officer’s physical intrusion onto private property. The U.S. Supreme Court in 1967 with Katz v. United States held its protections – such as the warrant requirement – extend to the privacy of individuals as well as physical locations. Law enforcement officers need a warrant for most search and seizure activities, but the court has defined a series of exceptions for consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches and other situations.

Evidence obtained through a Fourth Amendment violation is generally inadmissible at criminal trials. Evidence discovered as a later result of an illegal search may also be inadmissible as fruit of the poisonous tree, unless it inevitably would have been discovered by legal means.

From a defense attorneys’ perspective, the police in Texas did venture close to the line that raises some questions. However, the informant verified the parties involved had the required material for the manufacture of meth, which is a very complex list of chemicals and tools hardly anyone would possess in their home in the quantities found.

Think about the hit series “Breaking Bad” and all of the materials the main character Walter White and his assistant Jesse Pinkman needed to make meth – aside from the recreational vehicle – but the chemicals and necessary supplies they needed to “cook” the meth.

There was an informant that presented verifiable information to the police investigating the drug ring in Texas. Before the crime of the literal possession and manufacture of meth could occur, the police officers were able to obtain a warrant and raid the house. The purpose was to obviously catch the makers of the meth, but also for the protection and preservation of needed evidence.

Taking the legal context in mind with the facts in Texas shows the court got this one right. The facts in the case support the conclusion the police officers not only had probable cause, but reasonably presume exigent circumstances were present that presented a threat. That threat could be a fire or explosion that is very common for meth labs. This was a direct threat to those in the immediate vicinity of the home and any delay could have resulted in evidence being destroyed.

This is not new law with the long precedents supporting the actions of the police officers. In Ohio, it is a felony crime to have the ingredients for the manufacture of meth. Obviously, there has to be required intent to manufacture the illegal drug.

With the information the Texas police officers had, most Ohio judges would sign off on a search warrant if the same facts were in Ohio. The Texas case is very fact sensitive, and I believe not going to turn the government loose on precrimes. The Texas case presented specific details to the judge that issued the warrant. If this was a different type of case, such as a robbery, then possibly the police officers would have went too far.

There are specific legal safeguards in place under the U.S. Constitution to prevent many of the abuses that could present themselves. The greatest safeguard is a judicial officer, specifically judges, who are the ones who sign off on the search warrants. Meaning those legally trained in Constitutional law and who are independent make the ultimate determination. Additionally, anyone that abuses the power can have any evidence obtained illegally suppressed from any case brought forth.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at or





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