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
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION ON REMAND1
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We held in the original opinion in this cause that the trial court had erred by
denying in part Appellant Michael Fred Wehrenberg’s motion to suppress
evidence because (1) exigent circumstances did not justify the initial warrantless
entry into the residence by police and (2) the federal independent source doctrine
1
See Tex. R. App. P. 47.4.
did not apply to except the challenged evidence from the Texas exclusionary
rule. See Wehrenberg v. State, 385 S.W.3d 715, 717 (Tex. App.—Fort Worth
2012) (Wehrenberg I), rev’d, 416 S.W.3d 458 (Tex. Crim. App. 2013)
(Wehrenberg II). The court of criminal appeals subsequently granted the portion
of the State’s petition for discretionary review challenging our holding regarding
the independent source doctrine; reversed our judgment, concluding that code of
criminal procedure article 38.23 is consistent with, and does not preclude
application of, the independent source doctrine; and remanded the cause to this
court “for further consideration of [Wehrenberg’s] argument that the trial court
erroneously denied his motion to suppress.”2 Wehrenberg II, 416 S.W.3d at 464,
467–73.
“[T]he core function of the independent source doctrine is to remove from
the scope of the federal exclusionary rule evidence that is actually discovered
through an independent source and thus is untainted by the prior instance of
unlawful police conduct.” Id. at 467. Although we ultimately declined to apply the
doctrine in our original opinion, we did make the following observation:
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.
2
In a footnote, the court stated, “Regarding appellant’s argument that the
independent source doctrine, even if generally applicable, does not apply to the
facts of this case, we do not address that argument in this opinion because it is
more properly addressed upon remand.” Wehrenberg II, 416 S.W.3d at 464 n.3.
2
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.
Wehrenberg I, 385 S.W.3d at 727. Our opinion of the record evidence has not
changed on remand. Investigator Montez testified at the suppression hearing,
Q. . . . . The confidential informant gave you all this
information contained in the Affidavit, correct?
A. Yes.
Q. All right. So any -- if you saw any items of contraband or
items that may be used in the manufacture of methamphetamine in
your protective sweep of the residence, did you tell Judge Merkley in
your Affidavit, “Hey, I also saw these things on my own,” or is it just
from what the confidential informant told you?
A. It’s just from what the confidential informant told me.
....
Q. The confidential informant who relayed this information
about what was going on at 501 Center Point Road, really when did
he give you that information? Ball park.
A. A few hours before we detained everybody at the
residence.
Q. Okay. So you had information a couple hours before you
all go up to the house that there was an active or potentially an
active meth lab going on in the house right there?
A. Yes.
Wehrenberg argues that “the search warrant was not based entirely on
information obtained before the illegal entry,” but he provides no further analysis
3
or citation to the record, and his argument conflicts with Investigator Montanez’s
unambiguous—and undisputed—testimony from the suppression hearing.
Accordingly, because the facts contained in the search warrant affidavit
were derived from a source independent of the information that the police may
have gleaned during their initial warrantless entry into the residence, and
because the court of criminal appeals has clarified that the independent source
doctrine applies in Texas, we now hold that the trial court did not err by denying
Wehrenberg’s motion to suppress evidence. We overrule Wehrenberg’s sole
point and affirm the trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 6, 2014
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