Wehrenberg, Michael Fred

See case details

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.

ALCALA, J.

would not be innocent, because he was required to have a reasonable belief that he was in good standing with the State Bar of Texas as well as being licensed and in good standing in Mexico.

I respectfully disagree with the plurality‘s holding that the mistake-of-fact defense cannot apply to any element except the culpable mental state, but because appellant failed to offer evidence of his entitlement to a mistake-of-fact instruction, I concur in the Court‘s judgment.

a man‘s hat and shirt, and presenting the general appearance of a man while in the buggy[.]” Id. at 889. We explained,

[I]f Mrs. Garrett was wearing the apparel of a man, and presented the appearance of one, and appellant was misled into the belief that she was a man, without fault or want of care upon his part, we know of no reason why he would not be afforded the benefit of the law as applied in criminal cases of an honest mistake of fact. The mistake, if the jury found it existed, while it would not have excused, it would have mitigated, the offense.

Id. This mistake did not, of course, rebut the defendant‘s culpable mental state of intentionally or knowingly causing bodily injury, nor did it exculpate him from all culpability, but it did mitigate the offense, and therefore he was entitled to such an instruction.

Suppose a modern-day actor was charged with aggravated robbery of an elderly person and article 41 was still Texas law. If the defendant reasonably believed that the person he was assaulting and whose property he was trying to take was, in fact, under the age of 65 (think Sally Field, Diana Ross, Mia Farrow, Al Pacino, Harrison Ford, Robert Redford), the defendant could rely on Vyoral as precedent for his entitlement to a mistake-of-fact instruction that could lower the offense from a first degree felony offense under Section 29.03(a)(3), to a second degree robbery under Section 29.02(a).

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. See TEX.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 those two doctrines are “actually two sides of the same coin,” and, therefore, this Court‘s rejection of the inevitable discovery doctrine in those cases necessarily implied that the independent source doctrine should similarly be rejected. Id. at 727-28 (quoting

United States v. Grosenheider, 200 F.3d 321, 327 (5th Cir.2000)). Third, the court of appeals noted that this Court has “not squarely addressed whether or not the independent source doctrine applies in Texas,” although it acknowledged that this Court has, on one prior occasion, suggested in dicta that the doctrine is applicable. Id. at 728-29 (citing

State v. Powell, 306 S.W.3d 761, 769 (Tex.Crim.App.2010)). On these bases, the court of appeals held that the independent source doctrine was inapplicable and could not serve as a valid basis for upholding the trial court‘s suppression ruling. Id.

In its petition for discretionary review, the State contends that the court of appeals erred by holding that the independent source doctrine conflicts with Texas‘s statutory exclusionary rule. It argues that evidence obtained through an independent source has “no causal link” to the prior instance of illegal activity, and that such evidence, therefore, “is not obtained in violation of the law” within the meaning of the Texas exclusionary rule. Moreover, the State contends that the independent source doctrine is actually more compatible with the Texas exclusionary rule than the attenuation doctrine, a related doctrine that this Court has embraced, and that it is analytically distinct from the inevitable discovery doctrine, which this Court has rejected. Appellant responds that the court of appeals correctly concluded that the independent source doctrine is inapplicable in this State, or, alternatively, that the doctrine would not apply to his case because the search-warrant affidavit was based on evidence unlawfully observed by officers during their initial entry into the residence. This Court granted the State‘s petition 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.³ We agree with the State‘s contentions and hold that the independent source doctrine is applicable in Texas.

II. Independent Source Doctrine Provides for Admissibility of Untainted Evidence

A. General Scope of Independent Source Doctrine

Before answering the question of whether the independent source doctrine is consistent with the plain terms of the Texas exclusionary rule, we must first define the scope of that doctrine. We initially note that the federal exclusionary rule generally requires suppression of both primary evidence obtained as a direct result of an illegal search or seizure, as well as derivative evidence acquired as an indirect result of unlawful conduct. See

Segura, 468 U.S. at 804, 104 S.Ct. 3380 (exclusionary remedy “extends as well to the indirect as the direct products’ of unconstitutional conduct“) (quoting

Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The Supreme Court has, however, developed several exceptions to this rule, including the independent source doctrine. That doctrine was first referred to by the Supreme Court in

Silverthorne Lumber Company v. United States, in which the Court recognized that facts do not become “sacred and inaccessible” simply because they are first discovered unlawfully; rather, “[i]f knowledge of [facts] is gained from an independent source they may be proved like any others[.]”

251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The Supreme Court has subsequently elaborated on this principle on several occasions. See

Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988);

Segura, 468 U.S. at 814-16, 104 S.Ct. 3380;

Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

In Segura, the Supreme Court explained that “[i]t has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’ It is not to be excluded, for example, if police had an ‘independent source’ for discovery of the evidence[.]”

Segura, 468 U.S. at 805, 104 S.Ct. 3380 (quoting

Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)). At its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from any illegal conduct by law enforcement, is not subject to exclusion.

Nix, 467 U.S. at 443, 104 S.Ct. 2501 (describing doctrine as permitting “admission of evidence that has been discovered by means wholly independent of any constitutional violation“);

Murray, 487 U.S. at 537, 108 S.Ct. 2529 (stating that independent source doctrine permits introduction of “evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality“).⁴ Thus, in determining whether challenged evidence is admissible under the independent source doctrine, the central question is “whether the evidence at issue was obtained by independent legal means.”

United States v. May, 214 F.3d 900, 906 (7th Cir.2000).⁵

B. Segura v. United States

Segura v. United States established that, notwithstanding a prior instance of unlawful police conduct, evidence actually discovered and obtained pursuant to a valid search warrant is not subject to suppression, so long as the police would have sought the warrant regardless of any observations made during the illegal entry. See

Segura, 468 U.S. at 799, 813-15, 104 S.Ct. 3380.⁶ In Segura, the question before the Supreme Court was whether suppression was required after the police, acting on a tip regarding possible drug-trafficking activity, entered the defendant‘s apartment without his consent and conducted a security sweep of the residence.

Id. at 799-801, 104 S.Ct. 3380. No search warrant was obtained until the next day, 19 hours after the initial entry, at which point a search was conducted and several items of evidence were discovered and seized, including weapons, cash, and several pounds of cocaine. Id. None of these items was observed by officers during the initial entry; rather, they were discovered for the first time during the subsequent search pursuant to the warrant.

Id. at 804, 104 S.Ct. 3380. After determining that the initial entry into the defendant‘s apartment had been unlawful, the Supreme Court nevertheless concluded that the evidence seized pursuant to the search warrant need not be excluded “as derivative or fruit of the poisonous tree” because of the existence of an “independent source.”

Id. at 813-14, 104 S.Ct. 3380. Explaining its ruling, the Court stated that suppression was not warranted because the “evidence [was] discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant,” and the warrant was “issued wholly on information known to the officers before the entry into the apartment.”

Id. at 799, 104 S.Ct. 3380. It further observed that “[n]one of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners’ apartment.”

Id. at 814, 104 S.Ct. 3380. The information supporting the search warrant instead “came from sources wholly unconnected with the entry and was known to the agents well before the initial entry.” Id. Because “[n]o information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant,” the officers’ preexisting knowledge provided an independent source for the discovery and seizure of the evidence. Id. Given that the illegal entry had nothing to do with the later discovery and seizure of evidence pursuant to the warrant, the Court deemed that evidence untainted and admissible. See

Hudson v. Michigan, 547 U.S. 586, 600, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (describing Segura as distinguishing “the effects of the illegal entry from the effects of the legal search“). Moreover, Segura instructs that the existence of an independent source makes the exclusionary rule inapplicable because it “breaks the causal chain between the constitutional violation alleged and the discovery of the evidence challenged.”

United States v. Scott, 270 F.3d 30, 44 (1st Cir. 2001).

C. Murray v. United States

Subsequent to Segura, the Supreme Court has explained that the independent source doctrine is broad enough to encompass both (1) evidence observed and obtained for the first time during an independent lawful search following a previous instance of unlawful police conduct, which was the factual situation in Segura, and (2) evidence observed in plain view during an initial unlawful entry but later “obtained independently from activities un- tainted by the initial illegality,” the situation presented in Murray.

Murray, 487 U.S. at 542, 108 S.Ct. 2529. In Murray, after receiving a tip from an informant, federal drug-enforcement agents entered a warehouse by force and without a warrant, at which time they observed drugs in plain view.

Id. at 535, 108 S.Ct. 2529. The officers then left the warehouse without disturbing the drugs, but kept the location under surveillance. Id. Eight hours later, the agents secured a search warrant based solely on information already in their possession prior to the initial entry. They then re-entered the warehouse and seized 270 bales of marijuana.

Id. at 535-36, 108 S.Ct. 2529. In holding that the drugs were not tainted by the initial entry and not subject to suppression, the Supreme Court explained that, although “[k]nowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry,” it was “also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply.”

Id. at 541, 108 S.Ct. 2529. So long as the later, lawful seizure was “genuinely independent of an earlier, tainted one,” the independent source doctrine would apply to carry the challenged evidence outside the scope of the exclusionary remedy. Id. Murray thus stands for the proposition that, in cases involving a warrant obtained after an initial unlawful search during which officers observed the evidence in plain view, the challenged evidence is nevertheless admissible so long as the “search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue.”

Murray, 487 U.S. at 542, 108 S.Ct. 2529.⁷

Reading Segura and Murray in conjunction, we observe that the core function of the independent source doctrine is to remove from the scope of the federal exclusionary rule evidence that is actually discovered through an independent source and thus is untainted by the prior instance of unlawful police conduct. Having defined the contours of the doctrine, we now turn to the question of whether application of that doctrine is consistent with Texas‘s statutory exclusionary rule. See

Baker v. State, 956 S.W.2d 19, 23 (Tex.Crim.App.1997) (noting that “whether a recognized exception to a federal exclusionary rule also applies to Article 38.23 depends upon whether the exception is consistent with the language of Article 38.23“).

III. Independent Source Doctrine Consistent With Texas Exclusionary Rule

The primary dispute in this case centers on whether evidence derived from an independent source following a prior instance of unlawful police conduct is nevertheless “obtained” in violation of the law, thereby requiring suppression under Texas‘s statutory exclusionary rule. See TEX.CODE CRIM. PROC. art. 38.23. The State contends that, contrary to appellant‘s contention and the conclusion reached by the court of appeals, evidence acquired pursuant to an independent source is not actually “obtained” in violation of the law because it is not derived in any way from a prior instance of illegal conduct. See

Segura, 468 U.S. at 814, 104 S.Ct. 3380;

Murray, 487 U.S. at 542, 108 S.Ct. 2529. It argues that, because there is no causal connection between the prior illegality and the seizure of evidence, suppression is not required under Article 38.23. We agree with the State that evidence obtained pursuant to an independent source, much like evidence for which a prior taint has been attenuated, is not “obtained” in violation of the law and is thus not subject to suppression. See TEX.CODE CRIM. PROC. art. 38.23;

Johnson v. State, 871 S.W.2d 744, 750-51 (Tex.Crim.App.1994) (holding that federal attenuation doctrine is consistent with Article 38.23 because “evidence sufficiently attenuated from the violation of the law is not considered to be ‘obtained’ therefrom“). We, therefore, conclude that the court of appeals erred by rejecting that doctrine as a basis for upholding the trial court‘s suppression ruling. See

Wehrenberg, 385 S.W.3d at 728-29.

A. Unlawfully “Obtained” Evidence Must Be Excluded Under Texas Exclusionary Rule

The Texas exclusionary rule provides in relevant part that “No evidence obtained... in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” TEX.CODE CRIM. PROC. art. 38.23. To determine the meaning of this provision, we examine its plain language. See

Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991); see also

Daugherty, 931 S.W.2d at 270 (examining plain language of Article 38.23);

Johnson, 871 S.W.2d at 750 (same);

Garcia, 829 S.W.2d at 799 (same).

Evidence is “obtained” if it is “possessed,” “gained or attained,” usually “by planned action or effort.” Webster‘s New Collegiate Dictionary 816 (9th ed.1988); see also

Daugherty, 931 S.W.2d at 270 (same). Applying this definition in the context of the Texas exclusionary rule, the word obtained means that evidence is acquired by planned action or effort, or, more specifically, by seizure. Id. Applying this ordinary definition, this Court has previously interpreted Article 38.23 to mean that evidence is “obtained” in violation of the law only if there is some causal connection between the illegal conduct and the acquisition of evidence.

Roquemore v. State, 60 S.W.3d 862, 870 (Tex.Crim.App. 2001);

Daugherty, 931 S.W.2d at 270 (“Once the illegality and its causal connection to the evidence have been established, the evidence must be excluded” under Article 38.23). Conversely, if there is no causal connection, then the evidence cannot be said to have been “obtained” in violation of the law and thus is not subject to exclusion under the statute.

Daugherty, 931 S.W.2d at 270-71;

Powell, 306 S.W.3d at 770 n. 18 (noting in dicta that “[a]bsent a ‘but-for’ causal connection between any unlawful seizure... and the discovery of [evidence], our state exclusionary rule... would not require exclusion“);

Sorto v. State, 173 S.W.3d 469, 487 n. 71 (Tex.Crim.App.2005) (suppression not warranted because, among other factors, there was no showing of “any causal connection” between purported violation of law and challenged evidence). The existence of a but-for causal connection between the illegality and the obtainment of evidence is thus a prerequisite to application of the statutory exclusionary rule, for without at least some causal link, the evidence is not properly understood as having been “obtained” unlawfully, as an ordinary person would interpret that term. See

Daugherty, 931 S.W.2d at 270;

Johnson, 871 S.W.2d at 750.

Furthermore, this Court has long recognized that evidence is not “obtained” in violation of the law within the plain meaning of Article 38.23 if the taint from the illegality has dissipated by the time the evidence is acquired.

Johnson, 871 S.W.2d at 750. In Johnson, this Court adopted the federal attenuation doctrine as being consistent with the express provisions of Article 38.23 because “evidence sufficiently attenuated from the violation of the law is not considered to be ‘obtained’ therefrom.”

Id. at 750-51. The Court further reasoned that the attenuation doctrine was not an impermissible non-statutory exception to the exclusionary rule, but rather was “a method of determining whether evidence was ‘obtained’ in violation of the law, with ‘obtained’ being included in the plain language of the statute.”

Id. at 751; see

Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407 (describing attenuation analysis as being an inquiry into “whether, granting establishment of the primary illegality, the [challenged] evidence... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint“);

State v. Mazuca, 375 S.W.3d 294, 300 n. 18 (Tex.Crim.App.2012) (noting that attenuation doctrine “applies in determining whether evidence has been unlawfully ‘obtained’ for purposes of” Article 38.23).

In

State v. Daugherty, the Court reaffirmed the correctness of its approach in Johnson with respect to the attenuation doctrine.

931 S.W.2d at 270-71. It noted that “[t]he ordinary meaning of ‘obtained’ may accommodate the attenuation doctrine inasmuch as, depending on how removed the actual attainment of the evidence is from the illegality, the ordinary person would not consider that evidence to have been ‘obtained’ by that illegality.”

Id. at 270 (observing that, under plain-language interpretation of Article 38.23, there is “a point beyond which the ‘ordinary understanding’ of obtained just does not apply“). Thus, when the causal relationship between the illegality and the acquisition of evidence is attenuated, exclusion is not required because the “ordinary meaning of ‘obtained’ does not extend to such a remote, or ‘attenuated,’ causal relationship.”

Id. at 270-71.

As we observe above, the independent source doctrine provides that evidence actually obtained pursuant to a distinct, untainted source is not subject to suppression because, in such cases, the prior illegality does “not contribute in any way to discovery of the evidence seized under the warrant.”

Segura, 468 U.S. at 815, 104 S.Ct. 3380. In cases involving an independent source, “not even the threshold ‘but for’ requirement” is met. Id.; see also

United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980);

Murray, 487 U.S. at 539, 108 S.Ct. 2529. Because the independent source doctrine is applicable only to situations in which there is no causal link between the illegal conduct and the discovery or seizure of evidence, application of that doctrine is entirely consistent with the statutory exclusionary rule‘s requirement that evidence “obtained” in violation of the law is subject to suppression. See TEX.CODE CRIM. PROC. art. 38.23;

Johnson, 871 S.W.2d at 750;

Daugherty, 931 S.W.2d at 271; see also

Segura, 468 U.S. at 814, 104 S.Ct. 3380 (discussing absence of causal link in situations involving independent source).

Moreover, given this Court‘s rationale for determining in Johnson that the attenuation doctrine is consistent with the Texas exclusionary rule, that same rationale leads us to conclude that the independent source doctrine is also compatible with it.⁸ See

Johnson, 871 S.W.2d at 750-51. If it is true, as this Court stated in Johnson, that evidence is not “obtained” in violation of the law if the causal relationship between the illegality and the seized evidence is too remote or attenuated to be recognized, then it is also certainly true that evidence is not unlawfully “obtained” if there is no causal relationship between the prior illegality and a later lawful discovery of evidence, as in the independent source context. Furthermore, like the attenuation doctrine, the independent source doctrine does not constitute an impermissible non-statutory exception to the Texas exclusionary rule because it falls squarely within its plain terms. See TEX.CODE CRIM. PROC. art. 38.23;

Johnson, 871 S.W.2d at 751.

Our analysis is bolstered by dicta in

State v. Powell, in which this Court stated that, even assuming the existence of a prior Fourth Amendment violation, exclusion of evidence was not required due to a lack of a causal relationship between the illegality and seizure of evidence:

In this case... we are unable to conclude that there is any causal connection between any unlawful seizure of the safes and the otherwise lawful search of the safes resulting in the acquisition of the methamphetamine by the police. This otherwise lawful search of the safes was “wholly unrelated” to any prior unlawful seizure of these safes.... In this case, the methamphetamine was not obtained because the police may have unlawfully seized the safes but “because of a subsequent search pursuant to a lawful warrant.”

306 S.W.3d at 769-71 (citations omitted). Powell thus signaled this Court‘s support for the proposition that, in the absence of any causal connection between a prior instance of unlawful police conduct and a subsequent seizure of evidence pursuant to a valid search warrant, the statutory exclusionary rule would not require suppression. Id.

Because the independent source doctrine by definition applies only to situations in which there is no causal connection between the illegality and the obtainment of evidence, we conclude that an ordinary person would not consider evidence seized pursuant to an independent source to be “obtained” in violation of the law. See TEX.CODE CRIM. PROC. art. 38.23;

Daugherty, 931 S.W.2d at 270;

Johnson, 871 S.W.2d at 750-51. The independent source doctrine, therefore, is consistent with the plain terms of the Texas exclusionary rule.

B. Independent Source Doctrine Distinct from Inevitable Discovery

In a related argument, appellant urges this Court to agree with the court of appeals‘s conclusion that the independent source doctrine must be rejected on the basis that it is the functional equivalent of the inevitable discovery doctrine, which has been disavowed in Texas. See

Wehrenberg, 385 S.W.3d at 727 (noting that “several federal courts... do not draw a relevant distinction” between those doctrines, and describing inevitable discovery as an “extrapolation” from independent source). We, however, conclude that this Court‘s prior rejection of the inevitable discovery doctrine does not compel rejection of the independent source doctrine.

As the court of appeals observed, this Court has previously concluded that the inevitable discovery doctrine is inapplicable in Texas based on that doctrine‘s inconsistency with the plain language of the statutory exclusionary rule. See

Daugherty, 931 S.W.2d at 269-71;

Garcia, 829 S.W.2d at 799-800. In Garcia, a plurality of this Court observed that the inevitable discovery doctrine is “a species of harmless error rule which holds that constitutional violations in the seizure of evidence are inconsequential for purposes of admissibility... when the outcome of police investigation was probably unaffected by it.”

829 S.W.2d at 798. In reaching its conclusion that the doctrine was inapplicable, the Garcia plurality noted that the inevitable discovery doctrine, by its terms, applies only to situations that involve actual unlawful seizures of evidence.

Id. at 798-99. This aspect of the doctrine, it observed, could not be squared with the statutory exclusionary rule‘s absolute requirement of exclusion of all evidence seized in violation of the Fourth Amendment.

Id. at 798 (citing language of TEX. CODE CRIM. PROC. art. 38.23 that provides for exclusion of evidence “obtained” in violation of law).

A majority of the Court later adopted the reasoning of Garcia in Daugherty, holding that evidence “actually ‘obtained in violation of the law‘” was subject to suppression under Article 38.23, regardless of “whether or not it might later have been ‘obtained’ lawfully.”

931 S.W.2d at 268. The Daugherty Court explained that the inevitable discovery doctrine by definition “assumes a causal relationship between the illegality and the evidence. It assumes that the evidence was actually ‘obtained’ illegally.” Id. The Court further reasoned that “the fact that evidence could have been ‘obtained’ lawfully anyway does not negate the fact that it was in fact ‘obtained’ illegally.” Id.

The court of appeals relied on Garcia and Daugherty in reaching its conclusion that the similarities between the independent source and inevitable discovery doctrines make them equally inapplicable in this State.

Wehrenberg, 385 S.W.3d at 727-28. Although we recognize that the independent source and inevitable discovery doctrines are closely related, we disagree with the court of appeals‘s assessment that the doctrines, by virtue of their similarity, warrant identical treatment in the context of applying the statutory exclusionary rule. Contrary to the court of appeals‘s conclusion, the independent source and inevitable discovery doctrines are not functionally the same. See

United States v. Markling, 7 F.3d 1309, 1318 n. 1 (7th Cir.1993) (noting that two doctrines are “closely related” but “not the same“). Although both doctrines are commonly described as “exceptions” to the federal exclusionary rule, they apply to different factual situations.

Nix, 467 U.S. at 443-44, 104 S.Ct. 2501;

Crews, 445 U.S. at 470, 100 S.Ct. 1244. As discussed above, the independent source doctrine applies to situations involving a seizure or discovery of evidence “by means wholly independent of any constitutional violation” following a prior instance of unlawful police conduct.

Nix, 467 U.S. at 443, 104 S.Ct. 2501; see also

Segura, 468 U.S. at 814, 104 S.Ct. 3380;

Murray, 487 U.S. at 539, 108 S.Ct. 2529 (doctrine applies when evidence was “subsequently obtained by lawful, independent means“);

United States v. Siciliano, 578 F.3d 61, 68 n. 4 (1st Cir.2009) (explaining that independent source doctrine, unlike inevitable discovery, “requires lawful discovery of the evidence“);

United States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1165 (9th Cir.2008) (describing independent source doctrine as allowing admission of “evidence that is actually found by legal means through sources unrelated to the [prior unlawful] search.“). The independent source doctrine thus removes from the scope of the exclusionary rule evidence actually obtained pursuant to an independent source, so long as the source (such as a valid search warrant) is truly independent and untainted by the prior police conduct. See

United States v. Stabile, 633 F.3d 219, 243 (3d Cir.2011). The doctrine is distinct from other exceptions to the exclusionary rule because it requires that there be a complete break in the causal chain between the illegality and the acquisition of evidence; it asks a court to decide whether the evidence was actually discovered lawfully through an independent source. If so, exclusion is not required. See

United States v. Scott, 270 F.3d 30, 44-45 (1st Cir.2001) (noting that “in the case of an actual discovery by an independent source,” doctrine “permits use of the evidence because it breaks the causal chain between the constitutional violation alleged and the discovery of the evidence challenged“).

By contrast, the inevitable discovery doctrine applies to situations involving an actual unlawful seizure or discovery of evidence and serves to permit use of that evidence when the evidence would have eventually been discovered in a lawful manner had it not first been seized unlawfully. See

Nix, 467 U.S. at 444, 104 S.Ct. 2501 (describing inevitable discovery doctrine as applying when the evidence at issue was not later obtained independently, but it “ultimately or inevitably would have been discovered by lawful means“); see also

United States v. Lazar, 604 F.3d 230, 239 (6th Cir.2010) (“To establish inevitable discovery, the government must show that the evidence would have been acquired lawfully through an independent source absent the government misconduct.“). Unlike the independent source doctrine, inevitable discovery involves an inquiry into what might have, as opposed to what actually, happened. See

Markling, 7 F.3d at 1318 n. 1 (describing difference between doctrines and noting that inevitable discovery applies where evidence is “not actually discovered by lawful means, but inevitably would have been“);

United States v. Zavala, 541 F.3d 562, 580-81 (5th Cir.2008) (rejecting applicability of inevitable discovery doctrine because government did not propose “hypothetical scenario” as to how it “would have obtained” evidence “in the absence of police misconduct“).

Having examined the underlying core applications of the inevitable discovery and independent source doctrines, we note that those doctrines are distinguishable based on the manner in which the challenged evidence is actually obtained: the inevitable discovery doctrine applies to situations involving unlawful seizures of evidence, whereas the independent source doctrine applies to lawful seizures following a prior instance of unlawful police conduct. We’ conclude that this difference is significant in the context of deciding whether each doctrine may be applied consistently with the statutory exclusionary rule, the application of which hinges on whether evidence was “obtained” in violation of the law. See TEX.CODE CRIM. PROC. art. 38.23;

Daugherty, 931 S.W.2d at 268;

Johnson, 871 S.W.2d at 750-51. Although evidence that has actually been acquired in an unlawful manner is considered “obtained” in violation of the law, regardless of whether it inevitably would have been discovered, the same cannot be said of evidence discovered and obtained pursuant to an independent source because that evidence is lawfully obtained at the time of seizure.

Daugherty, which deals only with situations involving unlawful acquisition of evidence, does nothing to preclude the applicability of a doctrine that governs situations involving actual lawful obtainment of evidence. Our adoption of the independent source doctrine is thus wholly consistent with the Court‘s rationale for rejecting the inevitable discovery doctrine in Daugherty.

In light of the fact that the inevitable discovery and independent source doctrines are distinguishable based on the lawfulness of the actual act of obtaining evidence, and because this distinction is key to the applicability of the statutory exclusionary rule, we disagree with the court of appeals‘s assessment that the inevitable discovery and independent source doctrines should similarly be rejected as incompatible with the Texas exclusionary rule. We, therefore, conclude that our adoption of the independent source doctrine, which applies only to lawfully obtained evidence, is logically consistent with our prior rejection of the inevitable discovery doctrine.

IV. Conclusion

We conclude that the plain language of Article 38.23, which provides for exclusion of evidence “obtained” in violation of the law, is wholly consistent with, and does not preclude application of, the independent source doctrine. We further observe that our prior rejection of the inevitable discovery doctrine does not imply or necessitate our rejection of the independent source doctrine here. We, therefore, hold that the court of appeals erred by holding that the independent source doctrine is inapplicable in Texas. 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.

PRICE, J., filed a concurring opinion.

MEYERS, J., filed a dissenting opinion.

MEYERS, J., filed a dissenting opinion.

The State secures two major wins today with the majority‘s decision. 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. The majority holds that the court of appeals erred in reversing the trial court‘s denial of Appellant‘s motion to suppress. I disagree with this conclusion and would affirm the court of appeals’ reversal of the trial court‘s admission of the evidence because no independent source exists for the discovery of the evidence.

The State has tried to portray the probable cause for the search warrant in this case as based exclusively on the information provided by the confidential informant. The officers, however, did not attempt to secure this search warrant immediately upon receiving the confidential informant‘s information. Instead, they made the warrantless intrusion, handcuffed the occupants of the residence, conducted a sweep of the premises, and then went to acquire the warrant. The officer‘s affidavit for the warrant made no mention of the fact that they had already secured the premises and detained the people inside.

Although contrary to the trial court‘s and court of appeals’ conclusions, it is obvious to me that this search warrant was obtained based upon the officers’ unlawful entry into Appellant‘s residence. According to testimony of the investigator who secured the warrant, he spoke to the informant three to four hours before the officer‘s went to “secure” Appellant‘s residence. This is completely inconsistent with the idea that the officers had to conduct the unwarranted entry because of exigent circumstances or to prevent destruction of evidence. Had such circumstances actually existed, the officers would have proceeded immediately to the residence rather than delaying for the number of hours that they did. There was more than enough time to secure a search warrant before the officers’ intrusion into the premises, but they deliberately chose not to attempt to obtain it until after they had conducted the unlawful entry. Further, had the officers entered the home and found the occupants only baking cupcakes, the officers would not have bothered to then obtain the warrant at all. It was only after unlawfully entering and finding suspicious activity that they felt the need to then secure the warrant in order to cover their tracks and collect the evidence without the taint of their entry.

While we are required to give deference to the trial court‘s assessment of credibility and demeanor, none of the conclusions I draw are dependant upon such determinations.

Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997) The facts of this case are similar to that of Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), where federal agents unlawfully entered a warehouse, observed drugs, and then secured a search warrant based on information they had prior to their entry. Although this evidence was held to be admissible under the federal analysis, the standard under Article 38.23 of the Code of Criminal Procedure is far more prohibitive. Article 38.23 requires suppression of any evidence obtained in violation of the Constitution or laws of the state. Because there is a causal connection between the illegal entry and the later seizure of the evidence in this case, Article 38.23 would prohibit use of that evidence. Further, because Murray allows for evidence to be admitted in such a situation, the officers in Appellant‘s case should have explained, when the warrant was obtained, that they had already entered the home. Concealing this information from the magistrate further indicates that the officers were trying to sidestep the fact that the warrant was actually based on their unlawful entry. Further, even if the search warrant was based exclusively on the confidential informant‘s information, it still would not be valid. The informant‘s tip that Appellant and his group were “fixing to” cook methamphetamine that evening was a prediction of a future crime rather than an assertion that a crime was being or had been committed. Probable cause for a search warrant cannot be based on anticipation of a prospective crime. TEX.CODE CRIM. PROC. arts. 18.01, 18.02. The informant here would have had to provide credible information that Appellant possessed methamphetamine, possessed the materials to manufacture methamphetamine, had already manufactured methamphetamine, or was currently manufacturing methamphetamine. This case is further distinguished from the federal cases cited by the majority because none of those dealt with anticipated crimes rather than offenses that were in the process of being committed or had already been committed. See Segura v. United States, 468 U.S. 796, 799-800, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (holding that a party who admitted to buying cocaine from defendant with plans to purchase more was a valid independent source); Murray, 487 U.S. at 535, 108 S.Ct. 2529 (analyzing whether police observation of a car, that was found to contain marijuana, driving in and out of a warehouse which housed a long, dark container was a valid independent source for the search of the warehouse). The majority has based their analysis and decision that there was an independent source on the claim that the warrant was obtained solely on the information from the confidential informant. But as has been shown, the informant‘s information was only a prediction of a future crime rather than information about one that had been committed or was in the process of being committed. This prediction cannot be the basis for a valid search warrant. But even contrary to the claims of the State in this case, it is apparent from the sequence of events that the search warrant was derived from anything but an independent source. Irrespective of these facts and contrary to the law, the State now will be able to obtain search warrants based on predictions of crimes and will be able to use that as an independent source in validating searches and seizures. The court of appeals did not err in reversing the trial court‘s denial of Appellant‘s motion to suppress and, therefore, I respectfully dissent. PRICE, J., filed a concurring opinion. I join the Court‘s opinion. I agree without reservation that the concept behind the federal “independent source” doctrine may be applied consistently with our statutory exclusionary rule as embodied in Article 38.23.1 And this is true, for reasons that are ably explained in the Court‘s opinion today, notwithstanding that we have previously held that the “inevitable discovery” doctrine may not be applied consistently with Article 38.23.2 The “inevitable discovery” doctrine actually proceeds from the assumption that evidence has been “obtained” for purposes of Article 38.23 as a result of some illegality.3 By contrast, the “independent source” doctrine is more like the “attenuation of taint” doctrine, since the “independent source” doctrine presupposes that there is no causal connection-none at all-between a complained-of violation of the law and the subsequent acquisition of evidence by the police.4 The “attenuation of taint” doctrine assumes that there is at least some marginal “but/for” causation, but that the exclusion of evidence is not required under the language of Article 38.23 “because the ordinary meaning of ‘obtained’ does not extend to such a remote, or ‘attenuated,’ causal relationship.”5 I write further only to suggest the potential disutility of applying these labels in the context of construing our statutory exclusionary rule. Because it often makes no difference to the ultimate application of the federal exclusionary rule (which is not a creature of statute, but a court-made doctrine) whether evidence that is acquired following some instance of police malfeasance is nevertheless admissible because it had an “independent source” from that initial illegality, or rather, because the evidence “inevitably” would have been discovered independently (though it was not), courts applying the federal exclusionary rule are not always meticulous in distinguishing between the two. We do not have that luxury in construing Article 38.23. For that reason, it might better serve our purposes to eschew terminology such as “inevitable discovery” and “independent source” and to simply inquire in every case: Was the evidence “obtained” by virtue of the primary illegality? As a practical matter, if the evidence was acquired by means that had no causal connection whatsoever to that primary illegality, then the answer is “no.” If, on the other hand, there was a direct and undeniable causal connection between the primary illegality and the acquisition of the evidence, then the answer is “yes,” regardless of what might plausibly have happened later. Although federal case law may prove to be persuasive authority on the facts of a particular case, there is no compelling need for us to complicate the statutory inquiry by importing the often-confusing terminology attending the federal exclusionary rule-at least not with those relatively rare cases that reside on the far peripheries of the spectrum that extends from direct-causality to no-causality-at-all. The hard cases, as always, will be those that fall somewhere in the middle-those for which there is at least some “but/for” causal connection between the primary illegality and the subsequent acquisition of evidence. In that context, application of case law, both state and federal, that describes and applies the factors that inform the attenuation of taint doctrine, will have a definite utility. Indeed, the court of appeals, on remand, may yet find this to be such a case. I say that about this case because it is not altogether clear to me that there is not at least some “but/for” relationship between the initial, unlawful entry into the house-and, more to the point, the unlawful seizure of its occupants--and the later acquisition of evidence, albeit by virtue of an untainted warrant.6 In that respect, the facts of this case are somewhat remi- niscent of those in State v. Mazuca.7 There the trial court determined that the appellee‘s initial detention during a traffic stop was illegal, and the question was whether the detaining officer‘s immediate discovery of a valid arrest warrant attenuated the taint of that primary illegality, which led to the direct seizure of contraband.8 We held that the intervening circumstance of the discovery of the warrant, along with other factors such as the relative lack of purposefulness and flagrancy in the police misconduct, served to break the causal connection between the primary illegality and the seizure of the contraband.9 I note that the trial court in this case made no express findings of fact and conclusions of law with respect to this (or any other issue), though the appellant requested them.10 On remand, the court of appeals may well find it appropriate to return this case to the trial court for relevant findings of fact and conclusions of law with respect to attenuation of taint. With these added remarks, and because I agree with the Court‘s well-expressed reasoning and conclusion that the court of appeals erred to hold that the federal “independent source” doctrine is categorically incompatible with Article 38.23, I wholeheartedly join its opinion. Case Information BAKER‘S CAMPGROUND, INC., Kelli Graves, and Kourtnie Graves, Appellants v. Anthony L. McCALLA and Cheryl A. McCalla, Appellees. No. 10-11-00239-CV Court of Appeals of Texas, Waco. July 26, 2012. Rehearing Overruled Sept. 26, 2012.

Notes

1

See TEX. HEALTH & SAFETY CODE §§ 481.115; 481.124. TEX.CODE CRIM. PROC. art. 38.23.

2

Aside from these statements, the trial court did not make written findings of fact and conclusions of law, although findings and conclusions were properly requested by appellant, the losing party in the trial court. In its opinion on direct appeal, the court of appeals took note of the absence of findings of fact and conclusions of law, but it did not abate this case to the trial court to enter findings and conclusions. See

Wehrenberg v. State, 385 S.W.3d 715, 717 (Tex.App.-Fort Worth 2012). We express no opinion at this time as to whether the court of appeals should, upon remand, abate this case to the trial judge to enter findings and conclusions as requested by appellant. Majority Opinion at 471-73.

3

The question before us in this case is a question of law that we review de novo. See

Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007);

State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). Regarding appellant‘s argument that the independent source doctrine, even if generally applicable, does not apply to the facts of his case, we do not address that argument in this opinion because it is more properly addressed upon remand.

State v. Daugherty, 931 S.W.2d 268, 270-71 (Tex.Crim.App.1996).

4

See also

United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir.2013) (“Under the independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired through a source independent of the tainted search.“);

United States v. Oliver, 630 F.3d 397, 408 (5th Cir.2011) (“Evidence not obtained as a result of police illegality, but rather through a legal, independent source, need not be suppressed.“);

United States v. Etchin, 614 F.3d 726, 736-37 (7th Cir.2010) (“when a later-arriving warrant is based on information ‘wholly unconnected’ to the illegal entry, evidence discovered during the search is admissible because its discovery is based on an independent source“) (quoting

Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984));

United States v. Dice, 200 F.3d 978, 984 (6th Cir.2000) (“‘independent source doctrine’ deems evidence admissible in those situations where an illegal search takes place at some point during a criminal investigation, but where a proper, independent search led to the evidence in question“);

United States v. Grosenheider, 200 F.3d 321, 327 (5th Cir.2000) (explaining that independent source doctrine “permits the introduction of unlawfully discovered evidence when the police have acquired [it] through a distinct, untainted source“). Majority Opinion at 469-70.

5

The independent source doctrine is motivated by a recognition that society‘s interest in deterring unlawful police conduct and its interest in having juries receive all probative evidence “are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.”

Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (comparing independent source and inevitable discovery doctrines and noting that both doctrines are motivated by same underlying rationale). When the challenged evidence is actually obtained through a source independent of a separate instance of unlawful police conduct, “exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Id.; see also

Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

Daugherty, 931 S.W.2d at 270-71.

6

See also

United States v. Glinton, 154 F.3d 1245, 1254 (11th Cir.1998) (explaining that, “if the search warrant was obtained based upon information from an independent source, then the warrantless entry, even though illegal, [does] not require exclusion of [the] evidence“). Having said this, I must admit that I am at a loss to understand Judge Meyers‘s dissenting opinion. Judge Meyers deems it “obvious” that the search warrant was somehow a direct causal product of the primary illegality here-that the “search warrant was obtained based upon the officer‘s unlawful entry into Appellant‘s residence.” Dissenting Opinion at 473. Nowhere in his opinion does Judge Meyers adequately explain what that causal connection is, however, and the court of appeals credited testimony from Investigator Montanez that nothing contained in the search warrant affidavit derived from facts or information gleaned from the initial unlawful entry.

Wehrenberg v. State, 385 S.W.3d 715, 727 (Tex.App.-Fort Worth 2012). Judge Meyers finds it “unreasonable that the trial judge could not decipher that the officers involved were less than truthful when indicating they relied solely on the confidential informant in obtaining the search warrant.” Dissenting Opinion at 474. The court of appeals seems to have assumed that the trial court credited Montanez‘s testimony. Given that the appellant requested explicit findings of fact and conclusions of law from the trial court, but received none, see note 10, post, perhaps the court of appeals erred to credit Montanez‘s testimony without remanding the cause first to the trial court for its determination of witness credibility. See

State v. Mendoza, 365 S.W.3d 666, 670-71 (Tex.Crim.App.2012) (when the losing party in a motion to suppress requests explicit findings of fact from the trial court, an appellate court should not, in the absence of such explicit findings, assume that the trial court made all findings consistent with its ultimate ruling, but should remand the case to the trial court for proper findings). Be that as it may, we are not at liberty to discount that testimony ourselves, as Judge Meyers would have us do, simply because we happen to find it incredible.

7

Applying this aspect of Murray, the federal courts of appeals have held that evidence obtained through a search conducted pursuant to a warrant is derived from a “genuinely independent source” if the record indicates that (1) officers would have sought a warrant regardless of any prior unlawful search, and (2) the magistrate did not rely on information obtained by officers during the prior search in making a probable-cause determination. See, e.g.,

United States v. Mowatt, 513 F.3d 395, 404 (4th Cir.2008);

United States v. Markling, 7 F.3d 1309, 1315 (7th Cir.1993).

375 S.W.3d 294 (Tex.Crim.App.2012).

8

Professors Dix and Schmolesky have reached a similar conclusion regarding the applicability of the independent source doctrine. See 40 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 7:51 (3d ed.2011) (citations omitted) (noting that independent source doctrine is not properly understood as an exception to the exclusionary rule, but rather “simply describes the conclusion that challenged evidence was not acquired as a factual result of the demonstrated illegality and thus need not be excluded“). Id. at 299-300. See also

State v. Elias, 339 S.W.3d 667, 678 (Tex.Crim.App.2011).

9

Mazuca, 375 S.W.3d at 308-10.

10

See

Wehrenberg, 385 S.W.3d at 717-18 (“The trial court did not enter findings of fact and conclusions of law, although Wehrenberg requested such findings and conclusions.“);

State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006) (at the request of the losing party, the trial court is required to enter express findings of fact and conclusions of law).

Case Details

Case Name: Wehrenberg, Michael Fred

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 11, 2013

Citation: 416 S.W.3d 458

Docket Number: PD-1702-12, PD-1703-12

Court Abbreviation: Tex. Crim. App.