Death Opinion

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

 Alcala, J., delivered the opinion of the Court in which Keller, P.J., Price,
Womack, Johnson, Keasler, Hervey, and Cochran, JJ., joined.  Price, J., filed a
concurring opinion.  Meyers, J., filed a dissenting opinion.

O P I N I O N

 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
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 Tex. Code Crim. Proc. 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
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
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
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
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
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
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.
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
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
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
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
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
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").
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 Tex. Code Crim. Proc. 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 Tex. Code Crim. Proc. 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 . .
. 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."  Tex. Code Crim. Proc. 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
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
[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
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 Tex. Code Crim. Proc. 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
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 Tex. Code Crim. Proc. 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.
	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 Tex. Code Crim. Proc. 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
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 Tex. Code Crim. Proc. 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
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
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
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
Tex. Code Crim. Proc. 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
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.

Delivered: December 11, 2013
Publish
1.  See Tex. Health & Safety Code §§ 481.115; 481.124.
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.
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.
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").
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 (11th Cir. 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").
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).
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.


           Case: 13-13077   Date Filed: 04/11/2014   Page: 1 of 6

                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13077
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:12-cr-60064-RWG-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

KEVIN BRENNAN,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 11, 2014)

Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
               Case: 13-13077     Date Filed: 04/11/2014    Page: 2 of 6

      Kevin Brennan appeals his 75-month total sentence imposed after a jury

convicted him on one count of conspiracy to commit securities fraud, in violation

of 18 U.S.C. § 371, and two counts of securities fraud, in violation of 18 U.S.C.

§ 1348. He does not challenge his convictions, but raises two claims with respect

to his total sentence: (1) the district court clearly erred in imposing a 14-level

increase under U.S.S.G. § 2B1.1(b)(1)(H), based on an attributable loss amount of

between $400,000 and $1,000,000; and (2) the court also clearly erred in imposing

a two-level increase under § 2B1.1(b)(10)(C), for use of sophisticated means

during the commission of the underlying offenses. We conclude both of the

arguments Brennan raises on appeal fail, and we therefore affirm his sentence.

                                 I. LOSS AMOUNT

      Section 2B1.1 of the Guidelines provides for a 14-level increase for a fraud

offense involving between $400,000 and $1,000,000 in losses. U.S.S.G.

§ 2B1.1(b)(1)(H). Application notes clarify the “loss is the greater of actual loss or

intended loss.” U.S.S.G. § 2B1.1, comment. (n.3(A)). “Actual loss” is defined as

“the reasonably foreseeable pecuniary harm that resulted from the offense.” Id.,

comment. (n.3(A)(i)). “Intended loss,” on the other hand, means “the pecuniary

harm that was intended to result from the offense,” including pecuniary harm “that

would have been impossible or unlikely to occur.” Id., comment. (n.3(A)(ii)). In

the context of fraud offenses, we have recognized that sentencing based on

                                           2
                Case: 13-13077        Date Filed: 04/11/2014       Page: 3 of 6

intended loss is appropriate even where no actual loss occurred. See United States

v. Menichino, 989 F.2d 438, 442 (11th Cir. 1993).

       The district court did not clearly err in determining the intended loss amount

was $500,000. See United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir.

2011) (reviewing the district court’s determination of loss amount for clear error).

Brennan himself testified at trial that, after being presented with the fraud scheme,

he agreed to participate and wished to sell $500,000 of Optimized Transportation

Management stock over the course of five weeks. Moreover, a codefendant and a

confidential informant, both of whom spoke with Brennan throughout the course of

the conspiracy, each corroborated Brennan’s admission by testifying the scheme

was designed to raise half a million dollars. The district court was entitled to rely

on the trial testimony in determining the loss amount. See United States v. Bradley,

644 F.3d 1213, 1290 (11th Cir. 2011) (explaining a district court may base its loss

amount determination on factual findings derived from, among other things,

evidence heard during trial). Thus, the district court did not clearly err in imposing

a 14-level increase under U.S.S.G. § 2B1.1(b)(1)(H), based on an attributable loss

amount of between $400,000 and $1,000,000.1

       1
          Additionally, because intended rather than actual loss caused by the underlying offense
is the appropriate measure in this case, as Brennan concedes, the court did not err by omitting an
actual loss calculation under § 2B1.1, comment. (n.3(F)(ix)).
                                                3
               Case: 13-13077     Date Filed: 04/11/2014    Page: 4 of 6

                           II. SOPHISTICATED MEANS

      Section 2B1.1(b)(9)(C) of the Guidelines prescribes a two-level

enhancement where the offense involves sophisticated means. U.S.S.G.

§ 2B1.1(b)(9)(C). “Sophisticated means” refers to “especially complex or

especially intricate offense conduct pertaining to the execution or concealment of

an offense,” and includes “[c]onduct such as hiding assets or transactions, or both,

through the use of fictitious entities, corporate shells, or offshore financial

accounts.” Id. § 2B1.1, comment. (n.9(B)). In evaluating whether a defendant

qualifies for the enhancement, the proper focus is on the offense conduct as a

whole, not on each individual step. See Barrington, 648 F.3d at 1199 (“Each

action by a defendant need not be sophisticated in order to support this

enhancement.”).

      The district court did not clearly err in imposing the two-level increase for

use of sophisticated means. See United States v. Ghertler, 605 F.3d 1256, 1267

(11th Cir. 2010) (reviewing a district court’s findings of fact related to the

imposition of a sophisticated means enhancement for clear error). Testimony at

trial showed Brennan did not simply follow orders, as he contends, but instead

directed a codefendant to issue kickback shares and forwarded a timed press

release for publication. Moreover, while Brennan evidently did not personally

participate in match trading as part of the scheme, his codefendant, who was

                                           4
              Case: 13-13077     Date Filed: 04/11/2014   Page: 5 of 6

responsible for the match trading portion of the scheme, testified he informed

Brennan of the practice.

      In any case, Brennan has not contested his convictions for the fraud

offenses, and the Guidelines prescribe the “sophisticated means” adjustment based

on the offense conduct as a whole, not simply the defendant’s own personal

conduct in perpetrating the offense. See Barrington, 648 F.3d at 1199. The district

court did not clearly err in concluding that the methods used by the conspirators to

attempt to execute the fraud scheme—such as the timed press release, the issuance

of kickback shares to a third-party, and match trading—were sophisticated enough

to warrant the increase under § 2B1.1(b)(10)(C). The timed press release and the

designation of the kickback shares, like the methods employed in similar cases in

which we have affirmed the imposition of a sophisticated means enhancement,

relied on deception and third-party non-participants to conceal the underlying

criminal activity. See Ghertler, 605 F.3d at 1268 (affirming the district court’s

imposition of a sophisticated means enhancement where the fraudulent scheme

involved, among other things, forging company documents and transferring funds

to unwitting third parties); United States v. Campbell, 491 F.3d 1306, 1315-16

(11th Cir. 2007) (holding a sophisticated means enhancement was appropriate

because the defendant used campaign accounts and credit cards issued to other

people to conceal cash expenditures and cover his tax fraud). Thus, the district

                                          5
              Case: 13-13077    Date Filed: 04/11/2014   Page: 6 of 6

court did not clearly err in imposing a two-level increase under § 2B1.1(b)(10)(C),

for use of sophisticated means during the commission of the underlying offenses

      AFFIRMED.

                                         6


274 F.Supp. 34 (1967)
Robert J. HAYES
v.
BILL HALEY AND HIS COMETS, INC.
Civ. A. No. 31164.
United States District Court E. D. Pennsylvania.
October 4, 1967.
*35 Joseph F. Mulcahy, Jr., Chester, Pa., for plaintiff.
No appearance, for defendant.

FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER
WOOD, District Judge.
This is an action under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. to recover unpaid minimum wages and overtime compensation, plus an equal amount designated by the Act as liquidated damages plus reasonable attorney's fees and costs. After a trial *36 without a jury wherein defendant did not appear through counsel or through anyone else, we make the following:

FINDINGS OF FACT
1. Plaintiff, Robert J. Hayes, was employed by defendant Bill Haley and His Comets, Inc. from April 3, 1959 to March 31, 1961.
2. Defendant was the corporate cover for a popular band headed by Haley during this period of time. It was primarily engaged in the business of musical entertainment and recorded phonograph records.
3. The band travelled in interstate commerce extensively to perform and plaintiff travelled with it. The records were sold in interstate commerce.
4. Plaintiff was employed to act as a personal assistant to the band leader, Bill Haley, who was the chief officer of the corporation. His duties were to accompany Haley, act generally at his behest, and be available at odd hours for conversation. He also arranged for room and board for the band while on a trip, ensured the availability of the musical instruments for engagements and repacked them.
5. Plaintiff averaged seventy hours a week at his job. His wage rate commencing at $200.00 per week was increased to $300.00 per week on March 18, 1960 and again was increased during the week of November 25, 1960 to $400.00 per week and there remained until plaintiff left defendant's employ. The salary was intended to cover all hours that Hayes worked.
6. Plaintiff could not hire or fire, nor was he a supervisor. His primary duties were not related to management policies or general business operations of defendant and he exercised no discretion or business judgment.
7. Plaintiff on many occasions was not paid his full salary and during other weeks was not paid at all.

DISCUSSION
The only questions for disposal are the method of computing the actual damages and what if any damages over and above compensatory are to be allowed. Section 6 of the F.L.S.A. provides that minimum hourly wages must be paid to certain employees in interstate commerce. Section 7 provides that an employer must compensate an employee in any work week longer than forty hours at a rate not less than one-and-one-half times the regular rate at which he is employed.
The regular rate is the hourly rate at which the employee is actually paid for each week's work. Bay Ridge Operating Co., Inc. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948). The regular hourly rate of pay is determined by dividing the total remuneration for employment in any workweek by the total number of hours actually worked by an employee in that workweek for which such compensation was paid. Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 579, 62 S.Ct. 1216, 86 L. Ed. 1682 (1942). Overtime can easily be computed then by multiplying the number of hours over forty by one-and-one-half times the regular rate. Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 62 S.Ct. 1216 (1942). The addition of the contractual wage and the product of the number of hours over forty times one-half the regular rate is the total compensation due to the employee. Plaintiff admits that defendant is liable for minimum wage and overtime violations only from March 14, 1960 to March 31, 1961, because of the Statute of Limitations.
This appears to be an unusual position but is also supported by the interpretation of the Administrator. See 29 C.F.R. §§ 778.109-778.114. (Revised as of 1/1/67). Any interpretations by reason of their authority constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The weight of his judgment will of course depend on varying factors but in this case it is very persuasive because of the long history *37 of employers' efforts to circumvent the Act and the manifest purposes of Congress to ensure that overtime work is compensated for at one-and-one-half times the regular rate.
Judgment for the plaintiff at the regular rate for non-overtime hours work can be justified although far above the minimum. First, the policy of the Administrator is to enforce the regular rate where there is overtime involved since the overtime rate can hardly be said to be paid until the non-overtime rate has been paid. 29 C.F.R. § 778.315. (Revised as of 1/1/67). Secondly, since the Court has jurisdiction to adjudicate the overtime claim of the plaintiff, it also has pendent jurisdiction to determine his total loss. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). F. W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493 (6th Cir. 1952).
Liquidated damages in the amount of the compensatory damages can be recovered by an employee under Section 16(b). The granting of liquidated damages is mandatory except where the employer shows to the satisfaction of the Court that his act or omission was in good faith and was based upon reasonable grounds for believing that he was not violating the Act. The decision is discretionary with the trial judge and of course depends on the circumstances of each case.
An award of attorney's fees and costs of an action are also made to an employee if he recovers against his employer for violation of the Act. The Court is required to allow a reasonable attorney's fee in addition to the judgment entered. The amount ultimately lies on the discretion of the Court and depends generally upon the extent of the work done by counsel and the amount recovered. There was no proof at trial as to the attorney's fees and accordingly, no recovery is allowed.
The regular rate when plaintiff was earning $300.00 a week for seventy hours is $4.28 per hour. The overtime rate would be $6.43 per hour. Therefore, during the weeks when compensation was set at $300.00 per week, plaintiff was entitled to receive $364.10. When the salary was $400.00 per week, the regular rate was $5.71 per hour and the overtime rate was $8.56 per hour. Plaintiff was therefore entitled to receive $485.20 per week.

CONCLUSIONS OF LAW
1. This Court has jurisdiction of the parties and of the subject matter of this suit.
2. Plaintiff was at all times an "employee" and defendant was at all times an "employer" under 29 U.S.C.A. § 203, and thereby both came within the purview of the Fair Labor Standards Act.
3. Plaintiff worked an average of thirty hours overtime each week.
4. Defendant is liable to plaintiff under 29 U.S.C.A. § 216(b) for all minimum wages and overtime compensation from March 14, 1960 to March 31, 1961.
5. Based on Exhibit P-2, plaintiff was during the period of time which is applicable entitled to non-overtime compensation of $13,107.60 and overtime compensation of $9,218.60 for a total of $22,326.40. During this period he received $6,175.00 from defendant. He thus is entitled to damages of $16,151.40.
6. Plaintiff is entitled to liquidated damages in an equal amount.
7. Plaintiff is entitled to recover costs of this action.
8. No affirmative defenses of exemption or exclusion were presented in the answer and there was no evidence of any statutory defense.
9. Plaintiff is not entitled to recover counsel fees.

ORDER
And now, this 4th day of October, it is ordered that judgment is entered in favor of plaintiff Robert J. Hayes and against defendant Bill Haley and His Comets, Inc. in the sum of $32,302.80 with costs.


9 F.3d 110
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellant,v.Kevin Keith THOMAS (92-6207), Barry D. Thomas (92-6208),Defendants-Appellees.
Nos. 92-6207, 92-6208.
United States Court of Appeals, Sixth Circuit.
Aug. 31, 1993.

Before RYAN and BOGGS, Circuit Judges, and ROSEN, District Judge.*
PER CURIAM:

1
The government, in an interlocutory appeal, seeks to have evidence seized during the execution of two search warrants for the residences of Kevin Keith Thomas and Barry D. Thomas admitted in the criminal proceedings against them.  The district court held both that there was insufficient probable cause in the search warrant affidavit and that the government could not avail itself of the good faith exception to the exclusionary rule.  For the reasons given below, we reverse.

2
* On March 8, 1990, two search warrants were issued, one for 700 Adella Drive1 and one for 1018 Beverly Hills Drive.  The warrants were executed that day and returned on March 9.

3
On January 6, 1992, Kevin Thomas was charged in federal court in a three-count information:  count I was for manufacturing marijuana in March 1990, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B).  Count II charged that any and all interest Kevin Thomas had in real property at 700 Adella Drive was forfeited to the government by virtue of the marijuana manufacturing alleged in Count I.  Count III charged that Kevin Thomas's interest in the real property at 1018 Beverly Hills Drive was also forfeited to the government by virtue of the marijuana manufacturing alleged in Count I.  Also on January 6, Barry Thomas was charged in a one-count information with manufacturing marijuana in March 1990, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B).

4
On February 10, 1992, both Thomases filed motions to suppress the evidence seized from the residences.  After a hearing on the motion to suppress, a United States magistrate judge recommended that the evidence be suppressed because there was insufficient probable cause to support the issuance of the warrants.  Overruling government objections to the report, the district judge adopted the magistrate judge's report and recommendation.  He then referred the matter back to the magistrate judge to determine whether the evidence was admissible under the good faith exception to the exclusionary rule, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).

5
The magistrate concluded that the government had failed to show objective good faith.  Thus, he recommended that the evidence be suppressed.  Once again the government objected, and once again the district judge adopted the recommendation.  The government appealed.

II

6
The search warrant was based on the following information.  On October 30, 1989, an anonymous letter was sent to the Knoxville, Tennessee office of the Drug Enforcement Agency (DEA).2  The text of the letter stated:

7
ABC News just featured a 46-state bust of indoor marijuana growers (mentioning a check of utility bills);  "48 Hours" recently featured the use of aerial infra-red surveillance in arresting an indoor grower.

8
Here's a tip from a disgruntled customer who has seen it all first-hand:  three 1000 watt halide lights with many HUGE marijuana plants underneath and several flourescents [sic] over literally HUNDREDS of small cuttings ready to sell and transplant!   Anyone care to see for yourself?

Kevin Thomas

9
700 Adella Av.

Seiverville, [sic] TN

10
His brother Barry, who with his wife was arrested in Knoxville last spring with 100 plants growing in a bedroom, helped Kevin cultivate and harvest a BUMPER outdoor crop this fall from the islands of Douglas Lake;  they are both holding now, and Barry is sure to hang lamps again as soon as he's released from probation.

11
Kevin is about to harvest his "Basement Bud" and laugh all the way to the bank AGAIN.  He thinks he lives in Mayberry RFD:  "What are they gonna do ... send Barney out here with a bullet?"

12
On January 23, 1990, a second undated anonymous letter was received in the DEA office.  That letter stated:

13
Barry and Angie are at it again, this time in their workshed at their residence on Beverly Hills Dr. in Sevierville;  this house is owned by Barry's brother

Kevin Thomas

14
400 Adella Av.

Sevierville, TN.3

15
Kevin is conspiring with his brother and sister-in-law to again cultivate marijuana, just after Barry and Angie were released from unsupervised probation for a November 1988 simple possession conviction resulting from a May 1988 arrest for cultivation (see enclosed newspaper clippings)--the pair even received record expungement after the successful completion of their probation period (11 months 29 days), during which time (the summer of 1989) they boldly cultivated marijuana on the islands of Douglas Lake with Kevin Thomas!

16
Kevin also grows pot in his basement, from which Barry and Angie obtained the cuttings to maintain their continuing criminal enterprise.  Since Kevin owns the property and they succeeded in bringing in a record harvest last summer--despite the fact they were caught red-handed in Knoxville--Barry and Angie feel they can break the law with impunity.

17
These criminals' bravado will suffice to do them in should this tip prompt you gentlemen to initiate an investigation, since their deluded egomania ignores such facts as:

18
the workshed is unattached to their home, placing it outside the curtiledge [sic] of the residence--permission from their neighbor to approach the same might well result in the detection of the pungent odor of flowering (an officer with experience and/or a trained canine), or hear the hum of high intensity discharge lamp ballasts in operation (tax assessors need no permission to tresspass) [sic];

19
they have plans to install an air conditioner, which would be in operation during freezing outside temperatures;

20
there is an air turbine installed upon the workshed roof to evacuate heat and moisture, turning at high speeds even in the calmest of winds and in freezing temperatures;

21
black plastic clearly covers the window to prevent the bright lights from leaking through;

22
the electricity consumption is much higher than normal for the area, and much higher than last year at the same location (Kevin shut down this operation site immediately upon Barry and Angie being arrested), attributable only to the use of grow lights;

23
infra-red heat detection aerial surveillance will show high levels of heat loss from a supposedly unoccupied building, which can only result from hot grow lights and transpiration of growing plants;

24
after transplanting and harvesting, they must dispose of waste materials (unmarketable stems and root systems)--while they are wise enough not to put these materials out for garbage pickup, they don't think they are "hot" enough to be followed while transporting the same and depositing it in a landfill or, more likely, in a commercial dumpster;

25
their hydroponic medium of choice is Pro-Mix BX soiless [sic] mix, purchased at Knox Seed Supply in Knoxville, packaged in black 80 lb. bales--these are large containers which must be carried in plain sight from their auto, across their yard, and into their workshed for use;

26
ground surveillance would show Kevin also entering the "greenhouse," which should not only result in another conviction but also in another warrant to search his primary residence and charge his wife for their basement garden--forfieture [sic] of both homes necessarily follows.

27
Surely you have additional methods to collect evidence to show probable cause for a search warrant, and just as surely you know how best to compile the same to make it stand up in court so that these criminals' civil liberties are not infringed upon in the process.

28
Their first harvest since Barry, Angie, and their Great Danes moved in is expected no later than the middle of February and no later than late March:  they expect to harvest every three months after that.

29
Good hunting!

30
The following information was either corroborated by the police or developed independently.

31
1) The Adella property had been transferred to Kevin and Amy Thomas on September 23, 1987.  Electric company records showed the service for the Adella home was in the name of Kevin Thomas.  The telephone directory listed Kevin Thomas at 700 Adella.

32
2) The Beverly Hills property was transferred in 1983 to Kevin Keith Thomas and Amy Sue Thomas.  The electric company showed service at that address in the name of Angie Thomas as of November 27, 1989.  Prior to that date, Kevin Thomas had electric service at that address.

33
3) The electric bills were obtained and attached to the affidavit.  They showed that the August, September, October, and November 1989 bills for both residences were higher than for the January 1990 reading, which covered the month of December 1989.  Furthermore, December 1989 was an extremely cold month with record-breaking low temperatures in East Tennessee.  Tennessee Bureau of Investigation Special Agent Monroe (the affiant) claimed in the affidavit that such a pattern was consistent with an indoor growing operation.  The electrical usage did not show reasonable seasonal variations.  Furthermore, usage was abnormally high.  For example, for several months at the Beverly Hills property the usage was consistently over 3,000 kilowatt hours per month.

34
4) Surveillance of the Beverly Hills property revealed a two-story beige outbuilding with a brown roof.  On top of the roof was a rotating ventilator shaft that appeared to let warm air escape from the building.  The officer said that it was rotating even in still air, and his inference was that the building was used to grow marijuana.  There was also a dog pen with two Great Danes on the property.  Two vehicles, one registered to Barry D. Thomas and one registered to Angela Thomas, were parked in front of the house.  Officers also noticed a white female drive the vehicle registered to Angela Thomas, and later noticed the same vehicle parked at the Adella property.

35
5) Surveillance of the Adella property revealed a vehicle registered to Kevin K. Thomas.

36
6) Using a hand-held thermal imaging device, a DEA agent determined that the detached garage at the Adella property had a brighter white image than either the residence on that property or than other residences located nearby.  The agent also determined that the outbuilding at the Beverly Hills address also produced a brighter white image than either the residence on the property or than other residences located nearby.  Higher levels of heat produce brighter white images on the device than do lower levels of heat.

37
7) Barry and Angie Thomas had been arrested on May 15, 1988 and charged with cultivating and growing marijuana.  Arrest reports indicated that 100 marijuana plants had been found growing in their residence in Knoxville.  Public information in newspaper articles had not mentioned the number of plants recovered, although the October 30 anonymous letter said they had been caught with 100 plants in the bedroom.

38
8) Two packages of unidentified supplies were sent from Superior Growers Supply to the Beverly Hills address.  The shipping name used was Pence,4 though there was no one by that name listed in the Sevierville telephone directory as of January 30, 1990.

III

39
We review the district court's legal conclusion de novo.  Because no oral or other supplemental information was provided to the magistrate, the probable cause analysis is limited to the four corners of the affidavit.  Whiteley v. Warden, 401 U.S. 560, 565 n. 8 (1971);  Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511 n. 1 (1964).

40
When a magistrate reviews a warrant request, he must determine whether, under the totality of the circumstances, there is probable cause to issue the warrant.  Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983).  When the government uses an anonymous letter as part of the basis for the probable cause, it must corroborate the reliability of that letter.  Great deference should be accorded the magistrate who issues the warrant.  Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088 (1984).

41
In this case, there were very specific allegations made in the two letters.  It was not clear whether the letter-writers in both cases were the same person, but both letters were extremely specific.  The letters implied a substantial familiarity with the operations at both Thomases' residences.  Though even the detailed knowledge displayed in the letters would not have been enough, standing alone, to justify issuance of a warrant, much of the information amenable to corroboration was corroborated by the police.

42
A number of corroborated items were seemingly innocent.  But corroboration of apparently innocent items is sufficient to support issuance of a warrant when there are enough items and they are particular.  Other information in the letters was inculpating and non-public, such as the knowledge that there were approximately 100 plants seized in the earlier arrest.

43
The evidence for searching the residence on Beverly Hills Drive was less specific and substantial than that for the Adella residence.  However, the government rightly argues that the volume and specificity of the information on the Adella residence makes the requirement for the information on the Beverly Hills less stringent.  This can be compared with the use of information from a confidential informant (CI) with a good track record.  With a proven, reliable CI, warrants can properly issue on very little additional information.  The warrant issues in large measure on the basis of the informant's track record.  In this case, the information for the Adella residence was good, specific, and corroborated, creating a natural inference that the information on the Beverly Hills residence was equally reliable.

44
Defendants claim that there were several statements in the anonymous letters that either were refuted by the officers' observations or that were amenable to corroboration but were not in fact corroborated.  But the officers need not verify each and every statement in the letters for a magistrate to find probable cause.  Nor does every single statement need to be accurate, so long as the general reliability of the tipster is confirmed, and the officers made no material misrepresentations or omissions before the magistrate that affected the judgment on probable cause.  In this case, looking at the totality of the circumstances, and particularly when giving deference to the issuing magistrate, there was more than enough probable cause to support the issuance of the warrant.

45
Finally, the defendants claim the information was stale and that therefore the warrant should not have issued.  Different offenses have different periods of time in which the government can act on information before it is considered stale.  A marijuana growing operation, in which the marijuana must grow to maturity and then be harvested, has a longer lifetime of relevant data than a cocaine distribution operation in which all sales may be consummated within hours of delivery.  See United States v. Greany, 929 F.2d 523, 525 (9th Cir.1991) (nearly two-year old information on marijuana growing operation upheld, staleness evaluated in light of particular facts of case and nature of criminal activity and property sought);  United States v. Dozier, 844, F.2d 701, 707 (9th Cir.1988) (marijuana cultivation is long-term crime;  even "substantial" time lapse not controlling on staleness).

46
In this case, the magistrate judge at the suppression hearing and the district judge actually evaluated the affidavit de novo, and independently concluded there was insufficient probable cause.  We hold that, looking at the totality of the evidence, there was ample probable cause to support the issuance of a warrant, particularly when granting appropriate deference to the issuing magistrate.  The pattern of electrical usage was unusual, both because it was high and because it was steady, showing very little seasonal variation.  The anonymous letters were very specific and much of the information in the letters was corroborated, supporting their overall accuracy.  In addition, there was evidence of activity consistent with a marijuana growing operation, including the purchase of the growing supplies and the ventilator rotating in calm air.

IV

47
Because we find that there was sufficient probable cause in the affidavit to support the issuance of the warrant, we need not address the issue raised by the government of reliance on the good faith exception to the exclusionary rule.  Therefore, we REVERSE the district court, and REMAND for further proceedings in conformity with this opinion.

*
 The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation

1
 Defense counsel points out that the Kevin Thomas residence was at 700 Adella Avenue

2
 The letter was also copied by "cc" to other law enforcement agencies

3
 700 Adella Av., the address in the first letter, was correct

4
 The warrant affidavits show the name of Richard Spence, but the actual shipping record showed the material going to Pence.  Agent Monroe testified that he had made an error in checking the records and preparing the affidavits