









02-11-560,561-CR
























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO.
02-11-00560-CR
 
 







Michael Fred Wehrenberg
 
 
 
v.
 
 
 
The State of Texas


§
 
§
 
§
 
§
 
§


From the 43rd District Court
 
of
  Parker County (CR11-0090)
 
November
  8, 2012
 
Opinion by Justice Meier
 
(p)



 
JUDGMENT
 
          This court has considered the record
on appeal in this case and holds that there was error in the trial court’s order.  It is ordered that the trial court’s order denying
Michael Fred Wehrenberg’s motion to suppress in part
is reversed and this case is remanded for further proceedings consistent with
this opinion.
 
SECOND DISTRICT
COURT OF APPEALS 
 
 
 
By_________________________________
    Justice Bill Meier
 

 


 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO.
02-11-00560-CR
NO.
02-11-00561-CR
 
 



Michael Fred Wehrenberg


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM THE 43rd District Court OF Parker COUNTY
----------
OPINION
----------
I.  Introduction
         
Appellant Michael Fred Wehrenberg appeals the trial
court’s denial in part of his motion to suppress evidence.  We consider
several dispositive issues in this appeal, including (1) whether facts
that a person is “going to” manufacture methamphetamine provides exigent
circumstances justifying a warrantless entry into a residence, and
(2) whether the federal independent source doctrine applies to except the
challenged evidence from the Texas exclusionary rule.  Our answer to both
queries:  No.  We will reverse the trial court’s orders denying in
part Wehrenberg’s motion to suppress evidence and
remand this cause to the trial court.
II.  Background
         
Police had been conducting surveillance of a residence located at 501 Center
Point Road in Parker County for about thirty days when on or about
August 31, 2010, a confidential informant notified investigators that a
number of individuals who were located at the residence were “fixing to” cook
methamphetamine.  A few hours later, police officers, including
Investigator Luis Montanez, proceeded to the residence and, without a search
warrant, entered through the front door; removed several “subjects”—including Wehrenberg—from inside and placed them in the front yard,
handcuffed; and performed a protective sweep of the premises.  No one had
given the police permission to enter the residence, and no one was cooking
methamphetamine when the police arrived and “secured” the residence. 
Investigator Montanez prepared a search warrant affidavit with the help of
another investigator, and about an hour after police had secured the residence,
a magistrate signed a warrant authorizing a search of the residence.
 Police then searched the residence and discovered the following items,
among others:  a coffee grinder with residue, Oxycodone,
lithium batteries, empty blister packets, a vial with
liquid, red and clear liquid, wet powder inside of a shed, stripped lithium
batteries, and empty pseudoephedrine boxes.  Police arrested Wehrenberg after conducting the search.
         
Wehrenberg moved to suppress all of the tangible
evidence seized in connection with both cases.  The trial court granted
the motion to suppress as to any evidence seized pursuant to the initial
“detention” of Wehrenberg but denied the motion as to
any evidence seized pursuant to the search warrant that police later obtained
and executed.  The trial court did not enter findings of fact and
conclusions of law, although Wehrenberg requested
such findings and conclusions.  Wehrenberg
ultimately pleaded guilty, pursuant to a plea bargain, to (a) possession
of between four and two hundred grams of methamphetamine and
(b) possession or transport of chemicals with the intent to manufacture
methamphetamine, and the trial court sentenced him to five years’ confinement
in each cause.  Wehrenberg preserved his right
to appeal the trial court’s denial in part of his motion to suppress.
III.  Methamphetamine,
Warrantless Entry,
and Segura
 
         
Wehrenberg argues in his only point that the trial
court reversibly erred by denying in part his motion to suppress.  He
contends that in light of the trial court’s determination that the initial
warrantless entry into the residence was illegal, his detention and removal
from the residence was illegal, and “such illegality tainted the subsequently
obtained search warrant for the residence.”  Wehrenberg
argues that the independent source doctrine does not apply to allow admission
of the complained-of evidence despite the illegal taint because “the search
warrant was not based entirely on information obtained before the illegal
entry.”
         
The State argues that the trial court did not err by denying Wehrenberg’s motion to suppress because probable cause and
exigent circumstances justified the warrantless entry and, alternatively, the
independent source doctrine applies to except the evidence from the
exclusionary rule.
         
A.      Standard of Review
         
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review.  Amador v. State,
221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We give
almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor.  Amador, 221 S.W.3d at 673; Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,
652–53 (Tex. Crim. App. 2002).
         
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings
and conclusions from the trial court, we imply the necessary fact findings that
would support the trial court’s ruling if the evidence, viewed in the light
most favorable to the trial court’s ruling, supports those findings.  State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App.
2007).  We then review the trial court’s legal ruling de novo unless
the implied fact findings supported by the record are also dispositive of the
legal ruling.  State v. Kelly, 204 S.W.3d 808,
819 (Tex. Crim. App. 2006).
         
B.      Legality of Warrantless Entry
         
We
begin our analysis by considering whether the initial warrantless entry into
the residence by police was legal.  This is a logical starting point
because if the warrantless entry was justified, then there was no residual
taint that could have rendered the subsequent search invalid, and Wehrenberg’s argument—which presupposes the illegality of
the warrantless entry—fails.  And although the trial court suppressed any
evidence seized pursuant to the initial detention of Wehrenberg,
we may still review the legality of the warrantless entry because we are
required to uphold the trial court’s ruling denying the motion to suppress if
it is supported by the record and correct under any theory of law applicable to
the case, even if the trial court gave the wrong reason for its ruling.  See
State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404
(Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
                  
1.       Exigent Circumstances
         
An unconsented police entry into a residence
constitutes a search.  McNairy v. State, 835 S.W.2d
101, 106 (Tex. Crim. App. 1991); see Parker v. State, 206 S.W.3d 593,
596 n.7 (Tex. Crim. App. 2006).  A warrantless
search of a residence is presumptively unreasonable.  Gutierrez
v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).  For a
warrantless search to be justified, the State must show (1) the existence
of probable cause at the time of the search and (2) exigent circumstances
that made procuring a warrant impracticable.[1]  McNairy, 835 S.W.2d at 106; see Estrada, 154 S.W.3d at 608. 
If either probable cause or exigent circumstances are not established, a
warrantless entry will not pass muster under the Fourth Amendment.  Parker,
206 S.W.3d at 597.
                            
a.       Probable Cause
         
Probable cause to search exists when reasonably trustworthy facts and
circumstances within the knowledge of the officer on the scene would lead a man
of reasonable prudence to believe that the instrumentality of a crime or
evidence of a crime will be found.  McNairy, 835 S.W.2d at 106.  Probable cause has been
described as “the sum total of layers of information and the synthesis of what
the police have heard, what they know, and what they
observe as trained officers.  We weigh not individual layers but the
‘laminated total . . . [.]’” 
See id. (citing Brinegar v.
United States, 338 U.S. 160, 69 S. Ct. 1302 (1948)).
         
Investigator Montanez testified at the hearing on the motion to suppress that a
confidential informant had notified him that the occupants of the residence
located at 501 Center Point Road were preparing to cook methamphetamine.
 Investigators had used the confidential informant in the past, and the
informant, who was familiar with methamphetamine and the manufacture of
methamphetamine, had provided reliable information.  In this circumstance,
the informant gave Investigator Montanez specific information about the method
by which the methamphetamine was being manufactured, and based on Investigator
Montanez’s knowledge and experience, he determined
that the occupants of the residence were utilizing the “shake-and-bake” method,
which involves combining numerous ingredients into a plastic bottle.
 Investigator Montanez said that he corroborated the informant’s
information by running a check of the names of the people who were apparently
inside of the residence, which had been under police surveillance.
 Investigator Montanez explained that he knew that Wehrenberg
was at the residence because police had performed a “knock and talk” at the
same location about three months earlier, resulting in a warrant being
subsequently issued and Wehrenberg being arrested for
possession of a controlled substance.
         
Given the sum total of information available to Investigator Montanez,
including the reasonable inferences that could be drawn from that information,
probable cause existed at the time of the warrantless entry into the residence.
                            
b.       Exigent Circumstances
         
Three categories of exigent circumstances justify a warrantless intrusion by
police officers:  providing aid or assistance to persons whom law
enforcement reasonably believes are in need of assistance; protecting police
officers from persons whom they reasonably believe to be present, armed, and
dangerous; and preventing the destruction of evidence or contraband.  Gutierrez,
221 S.W.3d at 685.  Investigator Montanez
testified that he secured the residence without a warrant “to prohibit
destruction of evidence.”
         
Regarding destruction of evidence as an exigent circumstance, the State must show
“that the police could have reasonably concluded that evidence would be
destroyed or removed before they could obtain a search warrant.”  McNairy,
835 S.W.2d at 107. 
Circumstances relevant to a reasonable determination by searching officers that
evidence might be destroyed or removed before they could obtain a search
warrant include (1) the degree of urgency and the amount of time necessary
to obtain a warrant, (2) the reasonableness of the belief that the
contraband is about to be removed, (3) the possibility of danger to the
police officers securing the site while a search is sought, (4) the
suspects’ awareness of police presence or surveillance, and (5) the ready
destructibility of the contraband.  Id. (citing United States v.
Rubin, 474 F.2d 262, 268 (3d
Cir.), cert. denied, 414 U.S. 833 (1973)).
         
The State concedes that there is no evidence to support the third and fourth
criteria set out immediately above, but it argues that there is evidence to
support the first, second, and fifth criteria.  Specifically, the State
directs us to Investigator Montanez’s testimony that police secured the
residence without a warrant because “we were advised by the CI that the
subjects were going to cook methamphetamine prior to the Search Warrant. 
So we had to go in and secure the residence.”  Investigator Montanez
explained that the confidential informant had told him that the occupants of
the residence “were fixing to cook methamphetamine.”  From this testimony,
the State identifies two reasons why exigent circumstances justified the
warrantless entry:  (1) the volatile nature of manufacturing
methamphetamine, including by using the “shake-and-bake” method; and
(2) the inevitable “destruction” of various chemicals that, when combined,
are used to manufacture methamphetamine.
         
Investigator Montanez explained that the process of manufacturing
methamphetamine may cause volatile and hazardous conditions, including fires
and explosions.  Regarding the “shake-and-bake” method, Investigator
Montanez said that “the chemical reaction in the process of making
[methamphetamine] can burn a hole through the bottom of the bottle, which can
cause a huge fire.  It can go up pretty quick.”  He related a past
experience in which he and several other officers had conducted a
“knock-and-talk” at a suspected methamphetamine lab, and after the subject
opened and then slammed the door shut, a fire started inside of the building
and caused an explosion.[2]
 In fact, Investigator Montanez had noted in his report that “one of [the
subjects inside the residence] had already attempted to make [methamphetamine]
and they had burned themselves.  They’d already caused a fire in the house
once already.”  Thus, according to the investigator, “I was afraid that
they would begin making the methamphetamine and then a fire would break out.”
 However, despite his concern about a fire, Investigator Montanez agreed
with the trial court that “[m]ost people don’t blow
themselves up making this stuff”; “[t]hey unfortunately successfully make
methamphetamine for use and distribution.”
         
Regarding the State’s contention that chemicals are “destroyed” when combined
to manufacture methamphetamine, it points to Investigator Montanez’s testimony
explaining the “shake-and-bake” method.  He testified,
         
It’s where they combine all their ingredients, such as lithium batteries, the
pseudoephedrine, various chemicals such as drain
cleaner, sulphuric acid.  They basically put all
this inside a bottle, at which point when they drop the lithium battery, it
causes a reaction with the water and all the other ingredients involved.
 
         
And then they shake it up and it creates a gas which separates the
pseudoephedrine from the pill, which makes methamphetamine.  And
methamphetamine usually sits at the top of it after it’s done, which causes a
fire reaction and things of that nature.
The
State argues,
          In
light of this testimony and reviewing the definition of what it means to ‘manufacture’
a controlled substance, it can be concluded that some of the chemicals,
especially the pseudoephedrine, are ‘destroyed’ during the production process
by its conversion via ‘chemical synthesis’ into methamphetamine, possession of
which is a separate criminal offense which was also then being investigated.
 [citations omitted]
         
Imminence is a critical, sometimes dispositive, aspect of an exigent
circumstances inquiry.  The United States Supreme Court recognized this in
Roaden v. Kentucky, wherein it
reasoned, “Where there are exigent circumstances in which police action literally
must be ‘now or never’ to preserve the evidence of the crime, it is
reasonable to permit action without prior judicial evaluation.”  413 U.S.
496, 505, 93 S. Ct. 2796, 2802 (1973) (emphasis added).  Courts,
including the Supreme Court, even go so far as to specifically refer to the
destruction-of-evidence category of exigent circumstances as the “imminent
destruction of evidence.”  See, e.g., Welsh v. Wisconsin,
466 U.S. 740, 754, 104 S. Ct. 2091, 2100 (1984) (“[M]ere similarity to
other cases involving the imminent destruction of evidence is not
sufficient.”); United States v. Dawkins, 17 F.3d
399, 405 (D.C. Cir. 1994) (“We have long recognized that the imminent destruction
of evidence may constitute an exigency excusing the failure to procure a
warrant.”); United States v. Sangineto-Miranda,
859 F.2d 1501, 1512 (6th Cir. 1988) (“When police
officers seek to rely on this exception in justifying a warrantless entry, they
must show an objectively reasonable basis for concluding that the loss or
destruction of evidence is imminent.”).
         
Texas courts considering whether exigent circumstances justified a warrantless
entry to prevent the destruction or removal of evidence also must consider
imminence; the first, second, and fifth McNairy criteria—the degree of urgency
and the amount of time necessary to obtain a warrant, the
reasonableness of the belief that the contraband is about to be removed,
and the ready destructibility of the contraband—each impliedly reference
the requirement that the destruction or removal of evidence be imminent.  See
McNairy, 835 S.W.2d at 107. 
Caselaw analyzing exigent circumstances reflects
this.  In McNairy, exigent circumstances justified a warrantless
entry because police smelled the strong odor of methamphetamine emanating from
a trailer, heard the back door of a trailer thrown open and people running into
the brush, and anyone remaining in the trailer would have known that the police
were on the scene, and the people could have destroyed the evidence in a matter
of minutes.  McNairy, 835 S.W.2d
at 103, 107.  In Estrada, exigent circumstances permitted a
warrantless entry into a residence from which the odor of marijuana was
emanating because a police officer heard voices and running inside of the
residence when he knocked and observed several people attempting to leave the
residence before he returned a second time to investigate further.  Estrada,
154 S.W.3d at 609–10.  And in Parker v. State,
exigent circumstances existed for a warrantless entry into a residence because
officers smelled burned marijuana, heard someone inside the residence announce
that the police were at the front door when they approached, and observed
someone running upstairs after the announcement.  223 S.W.3d 385, 388–89
(Tex. App.—Amarillo 2005), aff’d, 206 S.W.3d
593 (Tex. Crim. App. 2006).  In each of those cases, exigent circumstances
justified a warrantless entry because the police could have reasonably concluded
that the destruction or removal of evidence before a search warrant could be
obtained was imminent.
         
Cases involving the manufacture of methamphetamine are no exception to the
imminence requirement.  In United States v. Rhiger,
federal drug agents observed appellant drive to several locations and purchase
materials used to manufacture methamphetamine.  315 F.3d
1283, 1285 (10th Cir.), cert. denied, 540 U.S. 836 (2003).  About
an hour after the agents saw appellant enter a residence with the purchased
materials, they “detected the smell of cooking methamphetamine.”  Id.
 “Fearing an active methamphetamine lab was in the residence and could
explode,” the agents entered the home without a warrant, found an “active” lab
in the garage, and arrested appellant.  Id.  Observing that
the “government presented evidence indicating the federal agents had reasonable
grounds to believe there was an immediate need to protect themselves and the
public from the potential explosion of the methamphetamine lab,” the court held
that exigent circumstances justified the warrantless entry in light of, among
other things, “the strong odor of cooking methamphetamine emitting from”
the residence and the agent’s “knowledge of the inherent dangerousness of an active
methamphetamine lab.”  Id. at 1288–89 (emphasis added).
         
In United States v. Walsh, officers received an anonymous tip that two
people were operating a methamphetamine lab at a particular residence. 
299 F.3d 729, 730–31 (8th Cir.), cert. denied,
537 U.S. 1066 (2002).  Officers were given consent to search all but two
parts of the residence—a back bedroom and a storage shed.  Id. at 731.  While outside near the storage
shed, an officer noticed empty cans of fluid on the back porch, an extension cord
running to the storage shed, white residue inside a blender pitcher, two-liter
soda bottles, and the strong smell of ether.  Id.  The officer
opened the door to the shed and, among other things, noticed a “white mist
hanging in the air.”  Id.  Police later obtained a warrant and
searched the shed and back bedroom.  Id. at 732. 
The court of appeals held that exigent circumstances justified the warrantless
entry into the storage shed because “the strong smell of ether and the
equipment and residue found in the carport area suggested on-going
manufacture in the shed.”  Id. at 734 (emphasis added). 
According to the court, “Officer Cantrell could not be certain no one was
hiding (or worse yet, lying unconscious) in the shed, and officer McPhail was justified in verifying that no untended heat
source was creating an imminent risk of fire or the explosion of volatile
chemicals.”  Id. (emphasis added).
         
In United States v. Wilson, exigent circumstances justified a
warrantless entry into a house because officers smelled ether, which is
commonly present during the manufacture of methamphetamine; saw a liquid, which
smelled like ether, pouring out of the garage; heard movements from within the
garage; and after arresting two people on the doorstep of the house, reasonably
believed that other persons might be inside the house who could attempt to
destroy evidence.  865 F.2d
215, 216–17 (9th Cir. 1989).  The court noted that one of the
officers “recognized a pressing need to prevent the ether from exploding and
causing a fire.”  Id. at 217.
         
Thus, whether it was the odor of ether, ether running on the ground, or the
observance of articles associated with the ongoing manufacture of methamphetamine,
in each of the three preceding cases, officers observed facts that led them to
believe that someone was actively manufacturing methamphetamine. 
This fact was significant to the exigent-circumstances inquiry because it
sustained the officers’ belief that the destruction or removal of evidence was
imminent—a result that could have occurred due to the inherent volatility
associated with the active manufacture of methamphetamine.
         
Here, unlike the officers in Rhiger, Walsh,
and Wilson, Investigator Montanez did not testify that he observed
anything that led him to believe that someone was actively manufacturing
methamphetamine at the residence.  Instead, the record demonstrates
(1) that Investigator Montanez had information that the occupants of the
residence were “going to” or “fixing to” manufacture methamphetamine, and
(2) that officers arrived at the residence and entered without a warrant.[3]  Therefore, notwithstanding that a
fire was alleged to have previously occurred at some point at the residence as
a result of manufacturing methamphetamine, in the absence of any evidence that
could have led the officers to believe that someone was actively manufacturing
methamphetamine, officers could not have reasonably concluded that the
destruction or removal of evidence was imminent due to either the
inherently volatile nature of manufacturing methamphetamine or the
inevitable “destruction” of various chemicals when combined to manufacture
methamphetamine.  See, e.g., State v. Meeks, 262 S.W.3d 710,
726–27 (Tenn. 2008) (holding that hazards posed by actively operating
methamphetamine lab created exigent circumstances justifying warrantless
search); Williams v. State, 995 So.2d 915, 921
(Ala. 2008) (“Based on the inherent dangers of an operating
methamphetamine lab, we now hold that discovery of such a lab by
law-enforcement officials constitutes an exigent circumstance justifying a
warrantless search” (emphasis added)); State v. Bilynsky,
932 A.2d 1169, 1176 (Me. 2007) (holding that exigent
circumstances justified warrantless entry because officers observed facts
demonstrating that manufacturing methamphetamine was “in progress”); Bishop
v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007) (“[T]he court did
not clearly err by finding that a search was justified by the exigent
circumstances created when an active methamphetamine lab was found in
the trunk of a car . . . .” (emphasis
added)).  Although probable cause existed at the time of the warrantless
entry, there is nothing in the record to indicate that the officers were
confronted with a “now or never”-type situation, one in which they had to act
before obtaining a warrant in order to head off the possible destruction or
removal of evidence caused by the volatility inherently associated with the
actual manufacture of methamphetamine.  See Roaden,
413 U.S. at 505, 93 S. Ct. at 2802; State v. Moore, 183 P.3d 158, 161 (N.M. Ct. App. 2008) (reasoning that “mere
probable cause that a methamphetamine lab exists is not per se an
exigent circumstance that will justify a warrantless entry into a home”
(emphasis added)).  Contrary to the State’s argument, the first, second,
and fifth McNairy criteria do not support a conclusion that exigent
circumstances justified the warrantless entry.  Accordingly, we may not
affirm the trial court’s denial of Wehrenberg’s
motion to suppress on this ground.
                  
2.       Emergency Doctrine
         
Investigator
Montanez agreed with the trial court that a “community caretaking function”
existed to establish exigent circumstances, but the State has expressly
declined to provide any argument thereunder.  In
light of Investigator Montanez’s testimony, we feel compelled to address this
issue because it is another basis upon which we could potentially affirm the
trial court’s orders denying in part Wehrenberg’s
motion to suppress.  See Stevens, 235
S.W.3d at 740; Armendariz, 123 S.W.3d
at 404.
         
In Laney v. State, the court of criminal appeals explained that the
“community caretaker functions” serve as a basis for three separate exceptions
to the warrant requirement, one being the emergency doctrine.  117 S.W.3d 854, 860 (Tex. Crim. App. 2003).  The
emergency doctrine “applies when the police are acting, not in their
‘crime-fighting’ role, but in their limited community caretaking role to
‘protect or preserve life or avoid serious injury.’”  Id.
at 861.  The court of criminal appeals said,
         
“We have used an objective standard of reasonableness in determining whether a
warrantless search is justified under the Emergency Doctrine.”  This
objective standard looks at the police officer’s conduct and “takes into
account the facts and circumstances known to the police at the time of the
search.”  Furthermore, we look to ensure that the warrantless search is
“strictly circumscribed by the exigencies which justify its initiation.”
 
Id. at
862 (citations omitted).
         
Here, we cannot conclude that the actions of Investigator Montanez and the
police were “totally divorced from the detection, investigation, or acquisition
of evidence relating to the violation of a criminal statute.”  Laney,
117 S.W.3d at 862 (quoting Cady v. Dombrowski,
413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973)).  Police had been
conducting surveillance of the residence for some time, and after entering the
residence, police handcuffed the occupants, obtained the warrant, searched the
residence, and discovered evidence that led to these prosecutions.  As the
court of criminal appeals has observed, “[t]here is a difference between
rendering emergency aid and investigating the possibly criminal cause of the
emergency.  The emergency doctrine justifies the former, but it does not
always justify the latter.”  Bray v. State, 597 S.W.2d 763, 768 (Tex. Crim. App. [Panel Op.] 1980).
         
Moreover, although Investigator Montanez expressed a concern about the
possibility of a fire resulting from the manufacture of methamphetamine, as
thoroughly explained above, there is no evidence that someone was manufacturing
methamphetamine.
         
We hold that the emergency doctrine could not have justified the officers’
warrantless entry into the residence.  Therefore, we may not affirm the
trial court’s denial of Wehrenberg’s motion to
suppress on this ground.
         
C.      Segura Issues
         
Both Wehrenberg and the State direct us to Segura
v. United States, 468 U.S. 796, 104 S. Ct. 3380 (1984).  Wehrenberg argues that the independent source doctrine, as
articulated and applied in Segura, is irrelevant under the facts of this
case.  The State argues that two different holdings in Segura apply
to allow admission of the challenged evidence—the holding regarding the
independent source exception and the holding addressing Segura’s seizure
argument.
         
Police arrested Segura in his apartment building on charges that he had sold
cocaine.  Id. at 800, 104 S. Ct. at 3383. 
They escorted him up to his apartment and knocked on the door.  Id. 
When a lady answered the door, the officers entered the apartment with Segura,
without requesting or receiving permission, and informed several others in the
apartment that Segura was under arrest and that a search warrant for the
apartment was being obtained.  Id.  The police conducted a
limited security check of the apartment and noticed several items of
contraband, which they left undisturbed.  Id. at
800–01, 104 S. Ct. at 3383.  The search warrant was issued
approximately nineteen hours later, upon which the police conducted a more
thorough search of the apartment and found drugs, cash, and ammunition for a
firearm.  Id.
         
The district court suppressed all of the evidence seized from the apartment—the
items discovered in plain view during the initial search and the items not in
plain view that were discovered during the subsequent warrant search.  Id. at 801–02, 104 S. Ct. at 3383–84.  The
court of appeals affirmed the district court as to the evidence discovered in
plain view, holding that the evidence was properly suppressed because the
warrantless entry was not justified by exigent circumstances.  Id. at 802, 104 S. Ct. at 3384.  But the
court of appeals reversed the district court’s judgment as to the evidence
seized under the valid search warrant.  Id. at
803, 104 S. Ct. at 3384.
         
The Supreme Court was careful to indicate at the outset of its opinion that the
Government had not challenged the portion of the lower court’s opinion
holding that exigent circumstances did not justify the initial warrantless
entry.  Id. at 804, 104 S. Ct. at 3385. 
Thus, the only issue before the Court was “whether drugs and the other items
not observed during the initial entry and first discovered by the agents the
day after the entry, under an admittedly valid search warrant, should have been
suppressed.”  Id.  It being undisputed that the initial
warrantless entry (or search) was illegal, Segura took the opportunity to argue
that an illegal seizure had also occurred, contending “that all of the
contents of the apartment, seen and not seen, including the evidence now in
question, were ‘seized’ when the agents entered and remained on the premises
while the lawful occupants were away from the apartment in police
custody.”  Id. at 805, 104 S. Ct. at 3386 (emphasis
added).  The Court observed that Segura had apparently advanced the
argument in an attempt to avoid application of the independent source
exception.  Id. at 806, 104 S. Ct. at 3386. 
Indeed, “[i]f all the contents of the apartment were
‘seized’ at the time of the illegal entry and securing,” then, as Segura’s
argument proceeded, “presumably the evidence now challenged would be
suppressible as primary evidence obtained as a direct result of that entry.” 
Id.  But the Court disagreed with Segura’s argument, pointed out
that “[a] seizure affects only the person’s possessory interests; a search
affects a person’s privacy interests,” and observed that it “has frequently
approved warrantless seizures of property, on the basis of probable cause, for
the time necessary to secure a warrant, where a warrantless search was either
held to be or likely would have been held impermissible.”  Id. 
The Court held “that securing a dwelling, on the basis of probable cause, to
prevent the destruction or removal of evidence while a search warrant is being
sought is not itself an unreasonable seizure of either the dwelling or its
contents.  We reaffirm at the same time, however, that, absent exigent
circumstances, a warrantless search . . . is
illegal.”  Id. at 810, 104 S. Ct. at 3388.
         
After addressing Segura’s seizure argument, the Supreme Court considered the
admissibility of the evidence obtained pursuant to the search warrant and
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 [Segura’s]
apartment; the information came from sources wholly unconnected with the entry
and was known to the agents well before the initial entry.”  Id. at 814, 104 S. Ct. at 3390.  The Court
thus held:
[T]he evidence discovered during the subsequent search of
the apartment the following day pursuant to the valid search warrant issued
wholly on information known to the officers before the entry into the apartment
need not have been suppressed as “fruit” of the illegal entry because the
warrant and the information on which it was based were unrelated to the entry
and therefore constituted an independent source for the evidence under Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L.Ed. 319 (1920).
Id. at
799, 104 S. Ct. at 3382.
         
1.       Segura’s Seizure Analysis
         
The
State argues that the trial court could have denied Wehrenberg’s
motion to suppress based on the Supreme Court’s holding addressing Segura’s
seizure argument, in which the Court stated,
[W]here officers, having probable cause, enter premises,
and with probable cause, arrest the occupants who have legitimate possessory
interests in its contents and take them into custody and, for no more than the
period here involved, secure the premises from within to preserve the
status quo while others, in good faith, are in the process of obtaining a
warrant, they do not violate the Fourth Amendment’s proscription against
unreasonable seizures.
Id. at 798, 104 S. Ct. at
3382.
         
The State misreads Segura.  Segura argued that an illegal seizure
of the apartment’s contents had occurred in an effort to head off any
application of the independent source doctrine.  The Supreme Court,
however, held that there was no illegal seizure and proceeded to apply the
independent source doctrine.  The Court did not hold that the challenged
evidence was admissible because there was no illegal seizure, as the
State suggests.  Indeed, that holding would have rendered the entire
discussion of the independent source doctrine dicta.  The evidence was
instead admissible as a result of the independent source doctrine, which
applied notwithstanding the undisputed illegality of the initial warrantless
entry.  Accordingly, the trial court could not have denied Wehrenberg’s motion to suppress on this ground.
                  
2.       Independent Source Doctrine
         
In addition to Segura’s discussion, the Fifth Circuit has concisely
explained the independent source doctrine as follows:
         
The exclusionary rule of the Fourth Amendment generally prohibits the
introduction at trial of not only primary evidence obtained as a direct result
of an illegal search or seizure, but also evidence discovered later that is
derivative of an illegality, or constitutes “fruit of a poisonous tree.” 
The primary limit on this rule is that otherwise suppressible evidence will
still be admitted if the connection between the alleged illegality and the
acquisition of the evidence is “so attenuated as to dissipate the taint.” 
One example of this “attenuation” limit is known as the “independent source”
doctrine, which permits the introduction of unlawfully discovered evidence when
the police have acquired that evidence through a distinct, untainted
source.  Animating this doctrine is the recognition that the goal of the
exclusionary rule is to put the police “in the same, not a worse,
position that they would have been in if no police error or misconduct had
occurred.”  “When the challenged evidence has an independent source,
exclusion of such evidence would put the police in a worse position than they
would have been in absent any error or violation.”
United
States v. Grosenheider,
200 F.3d 321, 327 (5th Cir. 2000) (citations
omitted).
         
Here, Investigator Montanez testified that all of the information contained in
the search warrant affidavit was derived from facts that were made known to him
by the confidential informant before the warrantless entry into the residence.
 We have reviewed the affidavit, and Investigator Montanez’s testimony is
accurate.  Because the police did not rely upon any of the information
that they may have gleaned during the initial warrantless entry to support
their request for a search warrant, this case would appear to fall squarely
within the parameters of the independent source doctrine.  However, we
have declined to apply the doctrine in a previous case.  In Oliver v.
State, citing the Texas exclusionary rule, we reasoned as follows:
         
The [federal] “independent source” and “inevitable discovery” exceptions
advanced by the State are judicial exceptions to the judicially articulated
exclusionary rule.  In this case we are dealing with art.
38.23 of the Texas Code of Criminal
Procedure.  The article by its terms clearly excludes the admission into
evidence of any evidence which has been illegally obtained.  The article
contains no exceptions to the rule.  If there should be exception to the
rule, similar to the exceptions which have been recently made to the
exclusionary rule, such a change should come by way of amendment to art. 38.23, not by our ruling that the evidence is admissible
in direct contradiction to the plain wording of the statute.[[4]]
711
S.W.2d 442, 445 (Tex. App.—Fort Worth 1986, pet.
ref’d).  Although we may certainly revisit the reasoning
underlying our prior opinion, we decline to do so in this circumstance because
on no less than two occasions subsequent to Oliver, the court of
criminal appeals has declined to recognize that the federal inevitable
discovery doctrine is an exception to the statutory Texas exclusionary
rule.  See 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) (citing Oliver).  Of course, the court of criminal
appeals addressed the inevitable discovery doctrine, not the independent source
doctrine, but the doctrines “are actually two sides of the same coin,” at least
according to the Fifth Circuit.  See Grosenheider,
200 F.3d at 328 n.8. 
The Supreme Court has even stated as much:  “The inevitable discovery doctrine . . . is in reality an extrapolation
from the independent source doctrine:  Since the tainted evidence would be
admissible if in fact discovered through an independent source, it should be
admissible if it inevitably would have been discovered.”  Murray v. United States, 487 U.S. 533, 539, 108 S. Ct.
2529, 2534 (1988) (emphasis omitted).  In light of the court of
criminal appeals’s stance on the inevitable discovery
doctrine, and considering that several federal courts, including the Supreme
Court, do not draw a relevant distinction between the inevitable discovery
doctrine and the independent source doctrine, we are hesitant to depart from
our own precedent regarding the independent source doctrine.
         
Further, unlike the inevitable discovery doctrine, the court of criminal
appeals has not squarely addressed whether or not the independent source
doctrine applies in Texas.  In State v. Powell, police learned that
appellee was making forged checks in his home, and
they obtained a warrant to search his home and to seize, among other things,
“checks and materials to make forged checks.”  306
S.W.3d 761, 762 (Tex. Crim. App. 2010).  When the police executed
the search warrant, they seized two safes—which they could have lawfully
searched since the safes could have contained checks and materials for making
forged checks—and took them to the police station, where they searched them the
next day.  Id.  The safes contained methamphetamine, and appellee was charged with a drug-related offense.  Id. 
The trial court suppressed the evidence, and the court of appeals affirmed,
concluding that the safes were not particularly described in the warrant as
items to be seized.  Id. at 764.
         
The court of criminal appeals disagreed with the lower court.  Id. at 768.  In part I of the opinion, the
court explained that the affidavit stated that someone had used a forged check
to buy a safe at Home Depot and that the warrant authorized the police to enter
appellee’s home and “to there
search for the property described in the affidavit, and to seize the same and
bring the same before me.”  Id. (emphasis removed).  It held
that the police could have seized both of the safes because they could have
reasonably believed that one of the safes was the one that was purchased at
Home Depot with a forged check and that was in the home.  Id.
         
In part II of the opinion, the court of criminal appeals cited Hudson
v. Michigan, 547 U.S. 586, 126 S. Ct. 2159 (2006), which cited Segura,
and concluded as follows:
[A]ssuming that the seizure of
the safes by the police violated appellee’s Fourth
Amendment possessory rights in these safes, we believe that the ‘massive’
remedy of exclusion of the methamphetamine in this case is not required under
the United States Supreme Court’s decision in [Hudson], which decided
that the violation by the police of the knock-and-announce Fourth Amendment
rule that preceded an otherwise lawful search of the defendant’s home pursuant
to a search warrant did not require exclusion of evidence that was found during
the search.
Id. at
769, 771.  Because there was no causal connection
between the unlawful seizure of the safes and the lawful search of the safes,
the violation of appellee’s possessory interests in
the safes had nothing to do with the lawful search of the safes, and the
evidence should not have been suppressed.  Id. at
770–71.
         
We decline to construe Powell as impliedly adopting the independent
source doctrine.  First, part II of the opinion is dicta.  The
court of criminal appeals concluded in part I
that the safes were not improperly seized because they were particularly
described in the affidavit.  Id. at 768. 
Part II took the analysis an unnecessary step further, “assuming” that the
seizure of the safes violated appellee’s
rights.  Id. at 769.  Indeed, four
judges declined to join in part II of the opinion, describing it as
“purely advisory.”  Id. at 772–73 (Price, J., dissenting) (Womack,
Johnson, and Cochran, JJ., concurring).
         
Moreover, it is highly unlikely that the court of criminal appeals would have
announced such a major development in Texas criminal jurisprudence without
expressly considering the interrelationship between the independent source
doctrine and article 38.23, as it did in Garcia, 829 S.W.2d
at 798–800, and Daugherty, 931 S.W.2d at
269–73, when analyzing the inevitable discovery doctrine, and as it did in Johnson
v. State when considering the attenuation doctrine’s applicability in
Texas.  See 871 S.W.2d 744, 749–51 (Tex.
Crim. App. 1994) (“If the evidence is not ‘obtained’ in violation of the law,
then its admission into evidence is not in contravention of Art. 38.23.”).
         
Accordingly, in light of the above authorities, we cannot affirm the trial
court’s denial in part of Wehrenberg’s motion to
suppress on the ground that the federal independent source doctrine applies to
except the challenged evidence from the Texas exclusionary rule.  We
sustain Wehrenberg’s only point.
IV.  Conclusion
         
Having sustained Wehrenberg’s sole point, we reverse
the trial court’s orders denying Wehrenberg’s motion
to suppress in part and remand this case to the trial court for further
proceedings.
 
 
BILL MEIER
JUSTICE
 
PANEL: 
GARDNER, WALKER, and MEIER, JJ.
 
PUBLISH
 
DELIVERED:  November 8,
2012







[1]No
other established exceptions to the warrant requirement (voluntary consent and
search incident to arrest) apply here.  See McGee v. State, 105
S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003).


[2]Investigator
Montanez did not say whether the “shake-and-bake” method of manufacturing
methamphetamine had been utilized before the explosion occurred.


[3]At
one point during the hearing on the motion to suppress, Investigator Montanez
testified that he had information that the occupants of the house “were
cooking” methamphetamine, but there is nothing to indicate that he was
referring to any evidence other than the information that was initially relayed
to him by the confidential informant.


[4]Among
other authorities, Wehrenberg moved to suppress the
challenged evidence under code of criminal procedure article 38.23.



