Wehrenberg, Michael Fred , 2013 Tex. Crim. App. LEXIS 1812 ( 2013 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-1702-12, PD-1703-12
MICHAEL FRED WEHRENBERG, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
PARKER COUNTY
A LCALA, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, K EASLER, H ERVEY, and C OCHRAN, JJ., joined. P RICE, J., filed a
concurring opinion. M EYERS, J., filed a dissenting opinion.
OPINION
Is the federal independent source doctrine, which excepts from the exclusionary rule
evidence initially observed during an unlawful search but later obtained lawfully through
independent means, applicable in Texas? The State raises this question in its petition for
discretionary review after the court of appeals reversed two felony drug convictions of
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Michael Fred Wehrenberg, appellant, on the grounds that the trial court erred by applying
that doctrine as a basis to deny appellant’s motion to suppress. Wehrenberg v. State, 385
S.W.3d 715 (Tex. App.—Fort Worth 2012) (holding that independent source doctrine is
inconsistent with Texas’s exclusionary rule and thus inapplicable in this State). We agree
with the State that the independent source doctrine poses no conflict with Article 38.23 of
the Texas Code of Criminal Procedure, the statutory exclusionary rule in Texas that requires
suppression of evidence “obtained” in violation of the law. See T EX. C ODE C RIM. P ROC. art.
38.23; Segura v. United States, 468 U.S. 796, 813-14 (1984) (holding that exclusion of
evidence as fruit of the poisonous tree was “not warranted” because “there was an
independent source for the warrant under which [the challenged] evidence was seized”).
Because the independent source doctrine does not circumvent or avoid the statutory
exclusionary rule’s requirement that evidence obtained in violation of the law be suppressed,
we conclude that the court of appeals erred by rejecting that doctrine as a basis for upholding
the trial court’s suppression ruling. We reverse and remand.
I. Background and Procedural History
A. Facts and Trial Proceeding
A police anti-narcotics unit had been conducting surveillance of a Parker County
residence for approximately thirty days when officers received a call from a confidential
informant advising them that the occupants were preparing to manufacture methamphetamine
that night. Several hours after receiving that call, at approximately 12:30 a.m., officers
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entered the residence without a search warrant and without consent. Upon entering the
residence, the officers encountered several individuals, including appellant, whom they
handcuffed and escorted to the front yard. Officers performed a protective sweep of the
residence, determined that no methamphetamine was being “cooked” at that time, and then
went back outside the residence. Two investigators then prepared the search-warrant
affidavit. The affidavit relied only on information provided by the confidential informant
and did not mention the officers’ warrantless entry into the residence. In relevant part, the
affidavit stated that the informant had “provided information detailing narcotics manufacture
and trafficking” at appellant’s residence and had, within the past 72 hours, “personally
observed the suspected parties in possession of certain chemicals with intent to manufacture
a controlled substance.” The affidavit additionally stated that, according to the confidential
informant, the subjects were planning to use the “shake and bake” method of manufacturing
methamphetamine, which the affiant described as “fast” and “often utilized to prevent
detection of the illicit laboratory by law enforcement personnel.”
At 1:50 a.m., approximately one-and-a-half hours after the officers’ initial entry into
the residence, the magistrate signed the search warrant. Police officers conducted a search
of the residence and discovered methamphetamine and implements for manufacturing
methamphetamine. Appellant was arrested and charged with possession of chemicals with
intent to manufacture methamphetamine and possession of methamphetamine weighing more
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than 4 but less than 200 grams.1
Appellant moved to suppress the evidence, arguing that the officers’ warrantless entry
was unlawful and that all evidence seized thereafter was subject to suppression. The State,
in response, argued that the search warrant was a valid basis for admitting the challenged
evidence. At the hearing on the motion to suppress, the trial court heard testimony from
Investigator Montanez, one of the officers who had prepared the search-warrant affidavit.
Regarding the initial entry, Montanez stated that upon receiving the informant’s tip that the
subjects were “fixing to cook methamphetamine,” the officers decided to “pull[] everybody
out of the house and place[] them in the front yard” in order to “keep from evidence being
destroyed.” Montanez additionally explained that it was necessary to “secure the residence”
because the process of “cooking” methamphetamine via the “shake-and-bake method” is
“volatile” and “hazardous” in that it can cause explosions and/or fire, and he was “afraid that
[the subjects] would begin making methamphetamine and then a fire would break out.”
Regarding the search warrant, Montanez testified that the affidavit’s contents were based
solely on the confidential informant’s tip. He stated that he left to go get the warrant signed
“immediately” after appellant and his co-defendants were detained, and that he returned to
the scene around 2 a.m., at which time the search warrant was executed.
The trial court granted in part and denied in part appellant’s motion to suppress.
Announcing his ruling, the trial judge stated that the officers’ initial entry into the residence
1
See TEX . HEALTH & SAFETY CODE §§ 481.115; 481.124.
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was “without a lawful warrant, exigent circumstances, or other lawful basis,” and that,
therefore, “any evidence from that search and seizure during that entry and detention at the
initial entry to the home is suppressed.” The trial judge went on to explain, however, that
evidence seized pursuant to the search warrant was not subject to suppression because the
search-warrant affidavit did not “allude to or mention the previous entry of the home, nor
the detention of the suspect inhabitant defendants,” and, therefore, the warrant was
“untainted by the previous entry and detention.”2 Appellant subsequently pled guilty
pursuant to a plea-bargain agreement and was sentenced to five years’ confinement on each
count, to run concurrently. Appellant expressly reserved his right to appeal the trial court’s
ruling on the motion to suppress.
B. Court of Appeals’s Holding and Arguments on Discretionary Review
In the court of appeals, appellant contested the trial court’s conclusion that the search
warrant could serve as a valid basis for admitting the challenged evidence. He argued that
(1) the officers’ initial entry into the residence was unjustified by any exception to the
warrant requirement and thus constituted an unlawful search, and (2) officers obtained
information during that unlawful search that later served as the basis for the search-warrant
2
Aside from these statements, the trial court did not make written findings of fact and
conclusions of law, although findings and conclusions were properly requested by appellant, the
losing party in the trial court. In its opinion on direct appeal, the court of appeals took note of the
absence of findings of fact and conclusions of law, but it did not abate this case to the trial court to
enter findings and conclusions. See Wehrenberg v. State, 385 S.W.3d 715, 717 (Tex. App.—Fort
Worth 2012). We express no opinion at this time as to whether the court of appeals should, upon
remand, abate this case to the trial judge to enter findings and conclusions as requested by appellant.
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affidavit, and, therefore, the warrant was “tainted from the use of information gained in and
from the warrantless entry of the home.” Appellant essentially disputed the trial court’s
assessment that the search-warrant affidavit was based solely on information provided by the
confidential informant, but he did not directly argue that the independent source doctrine was
inapplicable in this State. In response to appellant’s arguments, the State contended that
suppression was not required because (1) the officers’ initial entry into the residence was
justified by exigent circumstances, and, alternatively (2) the search warrant was a valid basis
for admitting the challenged evidence under the independent source doctrine because it was
issued based solely on information provided by the confidential informant and thus was
untainted by any pre-warrant intrusion into the residence.
After agreeing with appellant and the trial court that the officers’ initial entry into the
residence was unlawful, the court of appeals held that the trial court erred by finding that the
search warrant was a valid basis for admitting the challenged evidence under the independent
source doctrine. See Wehrenberg, 385 S.W.3d at 727-29. Although the court of appeals
agreed with the State’s contention that this case “would appear to fall squarely within the
parameters of the independent source doctrine” because “all of the information contained in
the search warrant affidavit was derived from facts that were made known to [the officers]
by the confidential informant before the warrantless entry into the residence,” it ultimately
concluded that the doctrine was inapplicable in Texas, for three reasons. Id. at 727. First,
the court of appeals noted that it had declined to adopt the independent source doctrine in its
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prior opinion in Oliver v. State. Id. (citing 711 S.W.2d 442, 445 (Tex. App.—Fort Worth
1986, pet. ref’d)) (reasoning that both inevitable discovery and independent source doctrines
constitute “judicial exceptions to the judicially articulated exclusionary rule,” and declining
to apply those doctrines because Texas’s statutory exclusionary rule plainly “contains no
exceptions”). Second, the court of appeals noted that this Court has, on at least two prior
occasions, in State v. Daugherty and Garcia v. State, “declined to recognize that the federal
inevitable discovery doctrine is an exception to the statutory Texas exclusionary rule.” Id.
(citing State v. Daugherty, 931 S.W.2d 268, 269-73 (Tex. Crim. App. 1996); Garcia v. State,
829 S.W.2d 796, 798-800 (Tex. Crim. App. 1992)). Although it recognized that this Court’s
opinions in Daugherty and Garcia addressed only the inevitable discovery doctrine, not the
independent source doctrine, the court of appeals reasoned that those two doctrines are
“actually two sides of the same coin,” and, therefore, this Court’s rejection of the inevitable
discovery doctrine in those cases necessarily implied that the independent source doctrine
should similarly be rejected. Id. at 727-28 (quoting United States v. Grosenheider, 200 F.3d
321, 327 (5th Cir. 2000)). Third, the court of appeals noted that this Court has “not squarely
addressed whether or not the independent source doctrine applies in Texas,” although it
acknowledged that this Court has, on one prior occasion, suggested in dicta that the doctrine
is applicable. Id. at 728-29 (citing State v. Powell, 306 S.W.3d 761, 769 (Tex. Crim. App.
2010)). On these bases, the court of appeals held that the independent source doctrine was
inapplicable and could not serve as a valid basis for upholding the trial court’s suppression
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ruling. Id.
In its petition for discretionary review, the State contends that the court of appeals
erred by holding that the independent source doctrine conflicts with Texas’s statutory
exclusionary rule. It argues that evidence obtained through an independent source has “no
causal link” to the prior instance of illegal activity, and that such evidence, therefore, “is not
obtained in violation of the law” within the meaning of the Texas exclusionary rule.
Moreover, the State contends that the independent source doctrine is actually more
compatible with the Texas exclusionary rule than the attenuation doctrine, a related doctrine
that this Court has embraced, and that it is analytically distinct from the inevitable discovery
doctrine, which this Court has rejected. Appellant responds that the court of appeals
correctly concluded that the independent source doctrine is inapplicable in this State, or,
alternatively, that the doctrine would not apply to his case because the search-warrant
affidavit was based on evidence unlawfully observed by officers during their initial entry into
the residence. This Court granted the State’s petition to determine whether the court of
appeals erred by holding that the independent source doctrine conflicts with the statutory
exclusionary rule and is inapplicable in Texas.3 We agree with the State’s contentions and
hold that the independent source doctrine is applicable in Texas.
3
The question before us in this case is a question of law that we review de novo. See Amador
v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). Regarding appellant’s argument that the independent source doctrine, even if
generally applicable, does not apply to the facts of his case, we do not address that argument in this
opinion because it is more properly addressed upon remand.
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II. Independent Source Doctrine Provides for Admissibility of Untainted Evidence
A. General Scope of Independent Source Doctrine
Before answering the question of whether the independent source doctrine is
consistent with the plain terms of the Texas exclusionary rule, we must first define the scope
of that doctrine. We initially note that the federal exclusionary rule generally requires
suppression of both primary evidence obtained as a direct result of an illegal search or
seizure, as well as derivative evidence acquired as an indirect result of unlawful conduct. See
Segura, 468 U.S. at 804 (exclusionary remedy “‘extends as well to the indirect as the direct
products’ of unconstitutional conduct”) (quoting Wong Sun v. United States, 371 U.S. 471,
484 (1963)). The Supreme Court has, however, developed several exceptions to this rule,
including the independent source doctrine. That doctrine was first referred to by the Supreme
Court in Silverthorne Lumber Company v. United States, in which the Court recognized that
facts do not become “sacred and inaccessible” simply because they are first discovered
unlawfully; rather, “[i]f knowledge of [facts] is gained from an independent source they may
be proved like any others[.]” 251 U.S. 385, 392 (1920). The Supreme Court has
subsequently elaborated on this principle on several occasions. See Murray v. United States,
487 U.S. 533, 537 (1988); Segura, 468 U.S. at 814-16; Nix v. Williams, 467 U.S. 431, 443
(1984).
In Segura, the Supreme Court explained that “[i]t has been well established for more
than 60 years that evidence is not to be excluded if the connection between the illegal police
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conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the
taint.’ It is not to be excluded, for example, if police had an ‘independent source’ for
discovery of the evidence[.]” Segura, 468 U.S. at 805 (quoting Nardone v. United States,
308 U.S. 338, 341 (1939)). At its core, the independent source doctrine provides that
evidence derived from or obtained from a lawful source, separate and apart from any illegal
conduct by law enforcement, is not subject to exclusion. Nix, 467 U.S. at 443 (describing
doctrine as permitting “admission of evidence that has been discovered by means wholly
independent of any constitutional violation”); Murray, 487 U.S. at 537 (stating that
independent source doctrine permits introduction of “evidence initially discovered during,
or as a consequence of, an unlawful search, but later obtained independently from activities
untainted by the initial illegality”).4 Thus, in determining whether challenged evidence is
admissible under the independent source doctrine, the central question is “whether the
evidence at issue was obtained by independent legal means.” United States v. May, 214 F.3d
4
See also United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013) (“Under the
independent source doctrine, the exclusionary rule is inapplicable where the evidence was acquired
through a source independent of the tainted search.”); United States v. Oliver, 630 F.3d 397, 408 (5th
Cir. 2011) (“Evidence not obtained as a result of police illegality, but rather through a legal,
independent source, need not be suppressed.”); United States v. Etchin, 614 F.3d 726, 736-37 (7th
Cir. 2010) (“when a later-arriving warrant is based on information ‘wholly unconnected’ to the
illegal entry, evidence discovered during the search is admissible because its discovery is based on
an independent source”) (quoting Segura v. United States, 468 U.S. 796, 814 (1984)); United States
v. Dice, 200 F.3d 978, 984 (6th Cir. 2000) (“‘independent source doctrine’ deems evidence
admissible in those situations where an illegal search takes place at some point during a criminal
investigation, but where a proper, independent search led to the evidence in question”); United States
v. Grosenheider, 200 F.3d 321, 327 (5th Cir. 2000) (explaining that independent source doctrine
“permits the introduction of unlawfully discovered evidence when the police have acquired [it]
through a distinct, untainted source”).
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900, 906 (7th Cir. 2000).5
B. Segura v. United States
Segura v. United States established that, notwithstanding a prior instance of unlawful
police conduct, evidence actually discovered and obtained pursuant to a valid search warrant
is not subject to suppression, so long as the police would have sought the warrant regardless
of any observations made during the illegal entry. See Segura, 468 U.S. at 799, 813-15.6 In
Segura, the question before the Supreme Court was whether suppression was required after
the police, acting on a tip regarding possible drug-trafficking activity, entered the defendant’s
apartment without his consent and conducted a security sweep of the residence. Id. at 799-
801. No search warrant was obtained until the next day, 19 hours after the initial entry, at
which point a search was conducted and several items of evidence were discovered and
seized, including weapons, cash, and several pounds of cocaine. Id. None of these items was
observed by officers during the initial entry; rather, they were discovered for the first time
5
The independent source doctrine is motivated by a recognition that society’s interest in
deterring unlawful police conduct and its interest in having juries receive all probative evidence “are
properly balanced by putting the police in the same, not a worse, position than they would have been
in if no police error or misconduct had occurred.” Nix v. Williams, 467 U.S. 431, 443 (1984)
(comparing independent source and inevitable discovery doctrines and noting that both doctrines are
motivated by same underlying rationale). When the challenged evidence is actually obtained through
a source independent of a separate instance of unlawful police conduct, “exclusion of such evidence
would put the police in a worse position than they would have been in absent any error or violation.”
Id.; see also Murray v. United States, 487 U.S. 533, 537 (1988).
6
See also United States v. Glinton, 154 F.3d 1245, 1254 (11thCir. 1998) (explaining that, “if
the search warrant was obtained based upon information from an independent source, then the
warrantless entry, even though illegal, [does] not require exclusion of [the] evidence”).
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during the subsequent search pursuant to the warrant. Id. at 804. After determining that the
initial entry into the defendant’s apartment had been unlawful, the Supreme Court
nevertheless concluded that the evidence seized pursuant to the search warrant need not be
excluded “as derivative or fruit of the poisonous tree” because of the existence of an
“independent source.” Id. at 813-14. Explaining its ruling, the Court stated that suppression
was not warranted because the “evidence [was] discovered during the subsequent search of
the apartment the following day pursuant to the valid search warrant,” and the warrant was
“issued wholly on information known to the officers before the entry into the apartment.”
Id. at 799. It further observed that “[n]one of the information on which the warrant was
secured was derived from or related in any way to the initial entry into petitioners’
apartment.” Id. at 814. The information supporting the search warrant instead “came from
sources wholly unconnected with the entry and was known to the agents well before the
initial entry.” Id. Because “[n]o information obtained during the initial entry or occupation
of the apartment was needed or used by the agents to secure the warrant,” the officers’
preexisting knowledge provided an independent source for the discovery and seizure of the
evidence. Id. Given that the illegal entry had nothing to do with the later discovery and
seizure of evidence pursuant to the warrant, the Court deemed that evidence untainted and
admissible. See Hudson v. Michigan, 547 U.S. 586, 600 (2006) (describing Segura as
distinguishing “the effects of the illegal entry from the effects of the legal search”).
Moreover, Segura instructs that the existence of an independent source makes the
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exclusionary rule inapplicable because it “breaks the causal chain between the constitutional
violation alleged and the discovery of the evidence challenged.” United States v. Scott, 270
F.3d 30, 44 (1st Cir. 2001).
C. Murray v. United States
Subsequent to Segura, the Supreme Court has explained that the independent source
doctrine is broad enough to encompass both (1) evidence observed and obtained for the first
time during an independent lawful search following a previous instance of unlawful police
conduct, which was the factual situation in Segura, and (2) evidence observed in plain view
during an initial unlawful entry but later “obtained independently from activities untainted
by the initial illegality,” the situation presented in Murray. Murray, 487 U.S. at 542. In
Murray, after receiving a tip from an informant, federal drug-enforcement agents entered a
warehouse by force and without a warrant, at which time they observed drugs in plain view.
Id. at 535. The officers then left the warehouse without disturbing the drugs, but kept the
location under surveillance. Id. Eight hours later, the agents secured a search warrant based
solely on information already in their possession prior to the initial entry. They then re-
entered the warehouse and seized 270 bales of marijuana. Id. at 535-36. In holding that the
drugs were not tainted by the initial entry and not subject to suppression, the Supreme Court
explained that, although “[k]nowledge that the marijuana was in the warehouse was assuredly
acquired at the time of the unlawful entry,” it was “also acquired at the time of entry pursuant
to the warrant, and if that later acquisition was not the result of the earlier entry there is no
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reason why the independent source doctrine should not apply.” Id. at 541. So long as the
later, lawful seizure was “genuinely independent of an earlier, tainted one,” the independent
source doctrine would apply to carry the challenged evidence outside the scope of the
exclusionary remedy. Id. Murray thus stands for the proposition that, in cases involving a
warrant obtained after an initial unlawful search during which officers observed the evidence
in plain view, the challenged evidence is nevertheless admissible so long as the “search
pursuant to warrant was in fact a genuinely independent source of the information and
tangible evidence at issue.” Murray, 487 U.S. at 542.7
Reading Segura and Murray in conjunction, we observe that the core function of the
independent source doctrine is to remove from the scope of the federal exclusionary rule
evidence that is actually discovered through an independent source and thus is untainted by
the prior instance of unlawful police conduct. Having defined the contours of the doctrine,
we now turn to the question of whether application of that doctrine is consistent with Texas’s
statutory exclusionary rule. See Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997)
(noting that “whether a recognized exception to a federal exclusionary rule also applies to
Article 38.23 depends upon whether the exception is consistent with the language of Article
38.23”).
7
Applying this aspect of Murray, the federal courts of appeals have held that evidence
obtained through a search conducted pursuant to a warrant is derived from a “genuinely independent
source” if the record indicates that (1) officers would have sought a warrant regardless of any prior
unlawful search, and (2) the magistrate did not rely on information obtained by officers during the
prior search in making a probable-cause determination. See, e.g., United States v. Mowatt, 513 F.3d
395, 404 (4th Cir. 2008); United States v. Markling, 7 F.3d 1309, 1315 (7th Cir. 1993).
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III. Independent Source Doctrine Consistent With Texas Exclusionary Rule
The primary dispute in this case centers on whether evidence derived from an
independent source following a prior instance of unlawful police conduct is nevertheless
“obtained” in violation of the law, thereby requiring suppression under Texas’s statutory
exclusionary rule. See T EX. C ODE C RIM. P ROC. art. 38.23. The State contends that, contrary
to appellant’s contention and the conclusion reached by the court of appeals, evidence
acquired pursuant to an independent source is not actually “obtained” in violation of the law
because it is not derived in any way from a prior instance of illegal conduct. See Segura, 468
U.S. at 814; Murray, 487 U.S. at 542. It argues that, because there is no causal connection
between the prior illegality and the seizure of evidence, suppression is not required under
Article 38.23. We agree with the State that evidence obtained pursuant to an independent
source, much like evidence for which a prior taint has been attenuated, is not “obtained” in
violation of the law and is thus not subject to suppression. See T EX. C ODE C RIM. P ROC. art.
38.23; Johnson v. State, 871 S.W.2d 744, 750-51 (Tex. Crim. App. 1994) (holding that
federal attenuation doctrine is consistent with Article 38.23 because “evidence sufficiently
attenuated from the violation of the law is not considered to be ‘obtained’ therefrom”). We,
therefore, conclude that the court of appeals erred by rejecting that doctrine as a basis for
upholding the trial court’s suppression ruling. See Wehrenberg, 385 S.W.3d at 728-29.
A. Unlawfully “Obtained” Evidence Must Be Excluded Under Texas
Exclusionary Rule
The Texas exclusionary rule provides in relevant part that “No evidence obtained . .
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. in violation of any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case.” T EX. C ODE C RIM . P ROC. art. 38.23. To
determine the meaning of this provision, we examine its plain language. See Boykin v. State,
818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991); see also Daugherty, 931 S.W.2d at 270
(examining plain language of Article 38.23); Johnson, 871 S.W.2d at 750 (same); Garcia,
829 S.W.2d at 799 (same).
Evidence is “obtained” if it is “possessed,” “gained or attained,” usually “by planned
action or effort.” Webster’s New Collegiate Dictionary 816 (9th ed. 1988); see also
Daugherty, 931 S.W.3d at 270 (same). Applying this definition in the context of the Texas
exclusionary rule, the word obtained means that evidence is acquired by planned action or
effort, or, more specifically, by seizure. Id. Applying this ordinary definition, this Court has
previously interpreted Article 38.23 to mean that evidence is “obtained” in violation of the
law only if there is some causal connection between the illegal conduct and the acquisition
of evidence. Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App. 2001); Daugherty,
931 S.W.2d at 270 (“Once the illegality and its causal connection to the evidence have been
established, the evidence must be excluded” under Article 38.23). Conversely, if there is no
causal connection, then the evidence cannot be said to have been “obtained” in violation of
the law and thus is not subject to exclusion under the statute. Daugherty, 931 S.W.2d at 270-
71; Powell, 306 S.W.3d at 770 n.18 (noting in dicta that “[a]bsent a ‘but-for’ causal
Wehrenberg - 17
connection between any unlawful seizure . . . and the discovery of [evidence], our state
exclusionary rule . . . would not require exclusion”); Sorto v. State, 173 S.W.3d 469, 487
n.71 (Tex. Crim. App. 2005) (suppression not warranted because, among other factors, there
was no showing of “any causal connection” between purported violation of law and
challenged evidence). The existence of a but-for causal connection between the illegality and
the obtainment of evidence is thus a prerequisite to application of the statutory exclusionary
rule, for without at least some causal link, the evidence is not properly understood as having
been “obtained” unlawfully, as an ordinary person would interpret that term. See Daugherty,
931 S.W.2d at 270; Johnson, 871 S.W.2d at 750.
Furthermore, this Court has long recognized that evidence is not “obtained” in
violation of the law within the plain meaning of Article 38.23 if the taint from the illegality
has dissipated by the time the evidence is acquired. Johnson, 871 S.W.2d at 750. In
Johnson, this Court adopted the federal attenuation doctrine as being consistent with the
express provisions of Article 38.23 because “evidence sufficiently attenuated from the
violation of the law is not considered to be ‘obtained’ therefrom.” Id. at 750-51. The Court
further reasoned that the attenuation doctrine was not an impermissible non-statutory
exception to the exclusionary rule, but rather was “a method of determining whether evidence
was ‘obtained’ in violation of the law, with ‘obtained’ being included in the plain language
of the statute.” Id. at 751; see Wong Sun, 371 U.S. at 487-88 (describing attenuation analysis
as being an inquiry into “whether, granting establishment of the primary illegality, the
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[challenged] evidence . . . has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint”); State v. Mazuca, 375
S.W.3d 294, 300 n.18 (Tex. Crim. App. 2012) (noting that attenuation doctrine “applies in
determining whether evidence has been unlawfully ‘obtained’ for purposes of” Article
38.23).
In Daugherty v. State, the Court reaffirmed the correctness of its approach in Johnson
with respect to the attenuation doctrine. 931 S.W.2d at 270-71. It noted that “[t]he ordinary
meaning of ‘obtained’ may accommodate the attenuation doctrine inasmuch as, depending
on how removed the actual attainment of the evidence is from the illegality, the ordinary
person would not consider that evidence to have been ‘obtained’ by that illegality.” Id. at
270 (observing that, under plain-language interpretation of Article 38.23, there is “a point
beyond which the ‘ordinary understanding’ of obtained just does not apply”). Thus, when
the causal relationship between the illegality and the acquisition of evidence is attenuated,
exclusion is not required because the “ordinary meaning of ‘obtained’ does not extend to
such a remote, or ‘attenuated,’ causal relationship.” Id. at 270-71.
As we observe above, the independent source doctrine provides that evidence actually
obtained pursuant to a distinct, untainted source is not subject to suppression because, in such
cases, the prior illegality does “not contribute in any way to discovery of the evidence seized
under the warrant.” Segura, 486 U.S. at 815. In cases involving an independent source, “not
even the threshold ‘but for’ requirement” is met. Id.; see also United States v. Crews, 445
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U.S. 463, 471 (1980); Murray, 487 U.S. at 539. Because the independent source doctrine is
applicable only to situations in which there is no causal link between the illegal conduct and
the discovery or seizure of evidence, application of that doctrine is entirely consistent with
the statutory exclusionary rule’s requirement that evidence “obtained” in violation of the law
is subject to suppression. See T EX. C ODE C RIM. P ROC. art. 38.23; Johnson, 871 S.W.2d at
750; Daugherty, 931 S.W.2d at 271; see also Segura, 468 U.S. at 814 (discussing absence
of causal link in situations involving independent source).
Moreover, given this Court’s rationale for determining in Johnson that the attenuation
doctrine is consistent with the Texas exclusionary rule, that same rationale leads us to
conclude that the independent source doctrine is also compatible with it.8 See Johnson, 871
S.W.2d at 750-51. If it is true, as this Court stated in Johnson, that evidence is not
“obtained” in violation of the law if the causal relationship between the illegality and the
8
Professors Dix and Schmolesky have reached a similar conclusion regarding the applicability
of the independent source doctrine. See 40 George E. Dix & John M. Schmolesky, Texas Practice
Series: Criminal Practice and Procedure § 7:51 (3d ed. 2011) (citations omitted) (noting that
independent source doctrine is not properly understood as an exception to the exclusionary rule, but
rather “simply describes the conclusion that challenged evidence was not acquired as a factual result
of the demonstrated illegality and thus need not be excluded”). Describing the meaning of the
statutory exclusionary rule as it applies to the independent source doctrine, professors Dix and
Schmolesky have observed,
Since Article 38.23 requires exclusion only of evidence that was “obtained in”
violation of the covered legal requirements, an “independent source” rule is a logical
consequence of the statute’s requirement that challenged evidence have factually
resulted from the demonstrated illegality. This is quite clearly the law.
Id.
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seized evidence is too remote or attenuated to be recognized, then it is also certainly true that
evidence is not unlawfully “obtained” if there is no causal relationship between the prior
illegality and a later lawful discovery of evidence, as in the independent source context.
Furthermore, like the attenuation doctrine, the independent source doctrine does not
constitute an impermissible non-statutory exception to the Texas exclusionary rule because
it falls squarely within its plain terms. See T EX. C ODE C RIM. P ROC. art. 38.23; Johnson, 871
S.W.2d at 751.
Our analysis is bolstered by dicta in State v. Powell, in which this Court stated that,
even assuming the existence of a prior Fourth Amendment violation, exclusion of evidence
was not required due to a lack of a causal relationship between the illegality and seizure of
evidence:
In this case . . . we are unable to conclude that there is any causal connection
between any unlawful seizure of the safes and the otherwise lawful search of
the safes resulting in the acquisition of the methamphetamine by the police.
This otherwise lawful search of the safes was “wholly unrelated” to any prior
unlawful seizure of these safes. . . . In this case, the methamphetamine was not
obtained because the police may have unlawfully seized the safes but “because
of a subsequent search pursuant to a lawful warrant.”
306 S.W.3d at 769-71 (citations omitted). Powell thus signaled this Court’s support for the
proposition that, in the absence of any causal connection between a prior instance of
unlawful police conduct and a subsequent seizure of evidence pursuant to a valid search
warrant, the statutory exclusionary rule would not require suppression. Id.
Wehrenberg - 21
Because the independent source doctrine by definition applies only to situations in
which there is no causal connection between the illegality and the obtainment of evidence,
we conclude that an ordinary person would not consider evidence seized pursuant to an
independent source to be “obtained” in violation of the law. See T EX. C ODE C RIM. P ROC. art.
38.23; Daugherty, 931 S.W.2d at 270; Johnson, 871 S.W.2d at 750-51. The independent
source doctrine, therefore, is consistent with the plain terms of the Texas exclusionary rule.
B. Independent Source Doctrine Distinct from Inevitable Discovery
In a related argument, appellant urges this Court to agree with the court of appeals’s
conclusion that the independent source doctrine must be rejected on the basis that it is the
functional equivalent of the inevitable discovery doctrine, which has been disavowed in
Texas. See Wehrenberg, 385 S.W.3d at 727 (noting that “several federal courts . . . do not
draw a relevant distinction” between those doctrines, and describing inevitable discovery as
an “extrapolation” from independent source). We, however, conclude that this Court’s prior
rejection of the inevitable discovery doctrine does not compel rejection of the independent
source doctrine.
As the court of appeals observed, this Court has previously concluded that the
inevitable discovery doctrine is inapplicable in Texas based on that doctrine’s inconsistency
with the plain language of the statutory exclusionary rule. See Daugherty, 931 S.W.2d at
269-71; Garcia, 829 S.W.2d at 799-800. In Garcia, a plurality of this Court observed that
the inevitable discovery doctrine is “a species of harmless error rule which holds that
Wehrenberg - 22
constitutional violations in the seizure of evidence are inconsequential for purposes of
admissibility . . . when the outcome of police investigation was probably unaffected by it.”
829 S.W.2d at 798. In reaching its conclusion that the doctrine was inapplicable, the Garcia
plurality noted that the inevitable discovery doctrine, by its terms, applies only to situations
that involve actual unlawful seizures of evidence. Id. at 798-99. This aspect of the doctrine,
it observed, could not be squared with the statutory exclusionary rule’s absolute requirement
of exclusion of all evidence seized in violation of the Fourth Amendment. Id. at 798 (citing
language of T EX. C ODE C RIM. P ROC. art. 38.23 that provides for exclusion of evidence
“obtained” in violation of law).
A majority of the Court later adopted the reasoning of Garcia in Daugherty, holding
that evidence “actually ‘obtained in violation of the law’” was subject to suppression under
Article 38.23, regardless of “whether or not it might later have been ‘obtained’ lawfully.”
931 S.W.2d at 268. The Daugherty Court explained that the inevitable discovery doctrine
by definition “assumes a causal relationship between the illegality and the evidence. It
assumes that the evidence was actually ‘obtained’ illegally.” Id. The Court further reasoned
that “the fact that evidence could have been ‘obtained’ lawfully anyway does not negate the
fact that it was in fact ‘obtained’ illegally.” Id.
The court of appeals relied on Garcia and Daugherty in reaching its conclusion that
the similarities between the independent source and inevitable discovery doctrines make
them equally inapplicable in this State. Wehrenberg, 385 S.W.3d at 727-28. Although we
Wehrenberg - 23
recognize that the independent source and inevitable discovery doctrines are closely related,
we disagree with the court of appeals’s assessment that the doctrines, by virtue of their
similarity, warrant identical treatment in the context of applying the statutory exclusionary
rule. Contrary to the court of appeals’s conclusion, the independent source and inevitable
discovery doctrines are not functionally the same. See United States v. Markling, 7 F.3d
1309, 1318 n.1 (7th Cir. 1993) (noting that two doctrines are “closely related” but “not the
same”). Although both doctrines are commonly described as “exceptions” to the federal
exclusionary rule, they apply to different factual situations. Nix, 467 U.S. at 443-44; Crews,
445 U.S. at 470. As discussed above, the independent source doctrine applies to situations
involving a seizure or discovery of evidence “by means wholly independent of any
constitutional violation” following a prior instance of unlawful police conduct. Nix, 467 U.S.
at 443; see also Segura, 468 U.S. at 814; Murray, 487 U.S. at 539 (doctrine applies when
evidence was “subsequently obtained by lawful, independent means”); United States v.
Siciliano, 578 F.3d 61, 68 n.4 (1st Cir. 2009) (explaining that independent source doctrine,
unlike inevitable discovery, “requires lawful discovery of the evidence”); United States v.
$493,850.00 in U.S. Currency, 518 F.3d 1159, 1165 (9th Cir. 2008) (describing independent
source doctrine as allowing admission of “evidence that is actually found by legal means
through sources unrelated to the [prior unlawful] search.”). The independent source doctrine
thus removes from the scope of the exclusionary rule evidence actually obtained pursuant to
an independent source, so long as the source (such as a valid search warrant) is truly
Wehrenberg - 24
independent and untainted by the prior police conduct. See United States v. Stabile, 633 F.3d
219, 243 (3d Cir. 2011). The doctrine is distinct from other exceptions to the exclusionary
rule because it requires that there be a complete break in the causal chain between the
illegality and the acquisition of evidence; it asks a court to decide whether the evidence was
actually discovered lawfully through an independent source. If so, exclusion is not required.
See United States v. Scott, 270 F.3d 30, 44-45 (1st Cir. 2001) (noting that “in the case of an
actual discovery by an independent source,” doctrine “permits use of the evidence because
it breaks the causal chain between the constitutional violation alleged and the discovery of
the evidence challenged”).
By contrast, the inevitable discovery doctrine applies to situations involving an actual
unlawful seizure or discovery of evidence and serves to permit use of that evidence when the
evidence would have eventually been discovered in a lawful manner had it not first been
seized unlawfully. See Nix, 467 U.S. at 444 (describing inevitable discovery doctrine as
applying when the evidence at issue was not later obtained independently, but it “ultimately
or inevitably would have been discovered by lawful means”); see also United States v. Lazar,
604 F.3d 230, 239 (6th Cir. 2010) (“To establish inevitable discovery, the government must
show that the evidence would have been acquired lawfully through an independent source
absent the government misconduct.”). Unlike the independent source doctrine, inevitable
discovery involves an inquiry into what might have, as opposed to what actually, happened.
See Markling, 7 F.3d at 1318 n.1 (describing difference between doctrines and noting that
Wehrenberg - 25
inevitable discovery applies where evidence is “not actually discovered by lawful means, but
inevitably would have been”); United States v. Zavala, 541 F.3d 562, 580-81 (5th Cir. 2008)
(rejecting applicability of inevitable discovery doctrine because government did not propose
“hypothetical scenario” as to how it “would have obtained” evidence “in the absence of
police misconduct”).
Having examined the underlying core applications of the inevitable discovery and
independent source doctrines, we note that those doctrines are distinguishable based on the
manner in which the challenged evidence is actually obtained: the inevitable discovery
doctrine applies to situations involving unlawful seizures of evidence, whereas the
independent source doctrine applies to lawful seizures following a prior instance of unlawful
police conduct. We conclude that this difference is significant in the context of deciding
whether each doctrine may be applied consistently with the statutory exclusionary rule, the
application of which hinges on whether evidence was “obtained” in violation of the law. See
T EX. C ODE C RIM. P ROC. art. 38.23; Daugherty, 931 S.W.2d at 268; Johnson, 871 S.W.2d at
750-51. Although evidence that has actually been acquired in an unlawful manner is
considered “obtained” in violation of the law, regardless of whether it inevitably would have
been discovered, the same cannot be said of evidence discovered and obtained pursuant to
an independent source because that evidence is lawfully obtained at the time of seizure.
Daugherty, which deals only with situations involving unlawful acquisition of evidence, does
nothing to preclude the applicability of a doctrine that governs situations involving actual
Wehrenberg - 26
lawful obtainment of evidence. Our adoption of the independent source doctrine is thus
wholly consistent with the Court’s rationale for rejecting the inevitable discovery doctrine
in Daugherty.
In light of the fact that the inevitable discovery and independent source doctrines are
distinguishable based on the lawfulness of the actual act of obtaining evidence, and because
this distinction is key to the applicability of the statutory exclusionary rule, we disagree with
the court of appeals’s assessment that the inevitable discovery and independent source
doctrines should similarly be rejected as incompatible with the Texas exclusionary rule. We,
therefore, conclude that our adoption of the independent source doctrine, which applies only
to lawfully obtained evidence, is logically consistent with our prior rejection of the inevitable
discovery doctrine.
IV. Conclusion
We conclude that the plain language of Article 38.23, which provides for exclusion
of evidence “obtained” in violation of the law, is wholly consistent with, and does not
preclude application of, the independent source doctrine. We further observe that our prior
rejection of the inevitable discovery doctrine does not imply or necessitate our rejection of
the independent source doctrine here. We, therefore, hold that the court of appeals erred by
holding that the independent source doctrine is inapplicable in Texas. We remand this cause
to the court of appeals for further consideration of appellant’s argument that the trial court
erroneously denied his motion to suppress.
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Delivered: December 11, 2013
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