                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00560-CR


Michael Fred Wehrenberg                   §    From the 43rd District Court

                                          §    of Parker County (CR11-0090)

v.                                        §    November 8, 2012

                                          §    Opinion by Justice Meier

The State of Texas                        §    (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



                                        2
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




                                         3
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


                                        4
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


                                         5
(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


                                         6
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


      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).


                                        7
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


                                        8
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


                                         9
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


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


                                       10
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


                                         11
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


                                          12
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


                                      13
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


                                       14
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


                                             15
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


      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.


                                        16
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.


                                        17
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).


                                        18
      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


                                         19
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


                                        20
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,


                                         21
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).



                                           22
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.




                                       23
            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



                                        24
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


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


                                        25
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


                                        26
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




                                        27
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




                                         28
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




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