Last week, an appeals court in Texas ruled that police may obtain a search warrant based on the prediction of a future crime, heightening public fears that we may be heading toward a ‘predictive policing’ era in which we see police powers rapidly growing at the cost of our constitutional rights.

The decision arose from a 2010 incident where police officers took Michael Fred Wehrenberg and some associates into custody after watching his home for about a month because of a tip-off from a confidential informant that Wehrenberg and others were “fixing to” cook methamphetamine, Raw Story reported.

Hours later, without a search warrant, officers waltzed through Wehrenberg's front door and searched the house while he and his friends stood outside in handcuffs for an hour and half.

Before they seized the boxes of pseudoephedrine, stripped lithium batteries and materials used to make meth, the cops attempted to cover their tracks by obtaining a search warrant. However, they conveniently failed to mention the unlawful search in the warrant application and based their request entirely on the informant's tip.

Consequently, Wehrenberg’s attorney’s argued in court that the items should be excluded as evidence on the basis that they had been illegally obtained. However, the motion was denied citing the “independent source doctrine” which allows the use of illegally seized evidence if a third party identifies it beforehand, Dallas Observer reported.

Wehrenberg, who was sentenced to five years in prison, subsequently appealed. The Second Court of Appeals agreed with his defence and overturned the lower court’s decision, ruling that the evidence should have been excluded in what appeared to be a clear case of police misconduct.

But it is the Texas Court of Criminal Appeals who has the final say, and it agreed with the trial court. In overturning the decision, the majority held that the state’s ‘exclusionary rule’ bans illegally seized evidence from trial but allows it to be introduced if it was first confirmed by an independent source.

Lone dissenter, Justice Lawrence Meyers, condemned the decision lamenting that the confidential informant’s tip that Wehrenberg was “fixing to” cook meth wasn’t independent evidence but a prediction.

“…It is obvious to me that this search warrant was obtained based upon the officers' unlawful entry into [Wehrenberg]'s residence…Search warrants may now be based on predictions of future crimes,” Judge Meyers said.

The decision raises major civil rights concerns particularly in light of law enforcement agencies increasingly turning to pre-crime policing tools in recent times, directly infringing on our constitutional protections.

Earlier in the year, a report revealed that police departments across the nation from California to Tennesee were adopting “predictive analytics” and computer software to predict where and when patterns of crime would occur and also who would commit them.

It now remains to be seen what effect this latest decision will have on the ground in terms of allowing evidence to be admitted in the face of clear police misconduct and the role of judicial activism in allowing illegal conduct in the pre-crime context. As Grits For Breakfast reported:

“Bottom line: In Texas, if citizens break the law, they go to jail. If police break the law, some activist judge will find or create a reason to excuse their misbehavior, which is precisely what happened in this case."